Terms and Conditions
These Terms and Conditions (these “Terms”) apply to all sales of products, materials and related services (collectively, the “Work”) by Sciens Building Solutions, LLC or its applicable subsidiary/division (the “Company”) to the buyer who issues or signs an order for services or monitoring by the Company (the “Customer”). The Customer will be deemed to have accepted these Terms upon submission to the Company, or signature, of a proposal, purchase order or other ordering document (collectively, “Orders” and together with these Terms, this “Agreement”) for any products, materials or related services. Capitalized terms used, but not otherwise defined, within these Terms shall have the meanings ascribed to such terms in the Order.
1. Termination
a. Termination without Cause. Either Party may terminate this Agreement at any time, without cause, by providing the other Party with thirty (30) days prior written notice. Customer shall promptly pay the Company for work performed up to the date of termination as stipulated in Section 7 – Payment; provided that if the termination without cause is initiated by Customer, then Customer shall pay the Company in full at the time of such termination an amount equal to one (1) full year (i.e., a full contract year) of the then-current Fee.
b. Termination for Cause. Each Party may terminate this Agreement, or the specific Work under this Agreement, with cause by giving the other Party prior written notice of a breach or default and the opportunity to cure. After a Party issues a notice of termination for cause, the other Party has forty-eight (48) hours to respond to the notice, and to initiate the steps necessary to address the breach or default. If such breach or default is not substantially cured within a reasonable time after the notice date, this Agreement shall be terminated immediately. If the termination with cause is initiated by the Company and the Agreement or specific Work is actually terminated following the aforementioned cure period, then Customer shall pay the Company in full at the time of such termination an amount equal to one (1) full year (i.e., a full contract year) of the then-current Fee.
c. Termination for Bankruptcy. Either Party may terminate this Agreement or the specific Work under this Agreement immediately by giving written notice to the other Party in the event of (a) the liquidation or insolvency of the other Party, (b) an assignment by the other Party for the benefit of its creditors, or (c) commencement of any proceeding by or against the other Party in bankruptcy or seeking composition, extension, or readjustment of all or substantially all of such other Party’s obligations, or reorganization, dissolution, liquidation, winding- up arrangement, or any other relief under any bankruptcy, insolvency, reorganization, or other similar applicable law of any jurisdiction; provided that in the event of any such termination initiated by the Company, Customer shall pay the Company in full at the time of such termination an amount equal to one (1) full year (i.e., a full contract year) of the then-current Fee.
2. Change Order
Any changes made to the Work must be through written change order signed by both Parties. The Company shall submit the claim for the addition to the Fee or time to complete the Work to the Customer, with all documentation necessary to substantiate such claim. If the Customer and the Company cannot agree on the amount of the addition, the Company shall only perform the unchanged Work and the Customer shall pay for the unchanged Work performed. The Company reserves the right to not perform the changed Work until both Parties have reached an agreement on the amount of the addition in the Fee or time.
3. Automatic Price Increase
Prices under this Agreement (the “Fee”) shall increase at an annual renewal rate of eight percent (8%) for each renewal period, unless the Company provides notice of a higher renewal-period increase, in which case the higher renewal-period increase shall apply unless Customer terminates the applicable Work before the renewal period begins. In addition, the Company may increase the Fee, upon notice to Customer, to pass through or reflect increases in taxes, fees, utility or telecommunications charges, permit or governmental charges, insurance, labor, materials, equipment, vendor or subcontractor costs, or any charges, rate increases, surcharges, or other amounts imposed by the applicable Company Central Station (as defined below), any monitoring provider, communications provider, service provider, or other vendor. Customer shall pay all such increased charges as part of the Fee.
4. Delay
Should the Company be delayed in the performance of Work by the act, neglect, omission, interference, or default of Customer or any owner, tenant, occupant, guest, invitee, employee, agent, contractor, property manager, authority having jurisdiction, utility, telecommunications provider, or other third party, or by other causes for which the Company is not responsible, then the Company is entitled to extra compensation and/or extension of time by submitting written claims to Customer as soon as reasonably possible upon such delay. If, through no act or fault of the Company, suspensions, delays, or interruptions of the Work aggregate more than 100 percent of the number of days scheduled for completion, or 60 days in any 365-day period, whichever is less, the Company reserves the right to terminate such Work with written notice if both Parties fail to reach an agreement on updated schedule and/or additional compensation within a reasonable timeframe.
5. Subcontract
The Company has the express right to subcontract any and all Work under this Agreement, including the Monitoring Service, without Customer’s consent. The Company will use subcontractors it reasonably determines are qualified and, where required by applicable law, licensed for the applicable scope of work. No subcontractor will have any obligation to Customer except as expressly stated in a separate written agreement signed by that subcontractor, and no subcontracting arrangement creates any third-party beneficiary rights in favor of Customer. Customer acknowledges that the limitations, releases, disclaimers, and indemnities in this Agreement apply to the Company and its subcontractors, monitoring centers, and service providers to the fullest extent permitted by law.
6. Insurance
The Company maintains insurance in the types and amounts that it determines are appropriate for its operations. Upon Customer’s prior written request, the Company will provide a standard certificate of insurance evidencing insurance coverages then maintained by the Company.
7. Payment
a. Payment. Upon the execution of this Agreement, Customer shall pay the Company, up front, the full proposal/invoice amount for the Work to be performed (including, without limitation, with respect to any monitoring services to be performed, all costs for setup and installation, plus applicable taxes, as a precondition to activation of monitoring). The proposal/invoice amount shall be due within thirty (30) days of the Agreement effective date. Customer agrees to pay any and all sales, use, business, excise, communications, utility, governmental, permit, inspection, or other taxes, fees, charges, assessments, or impositions in connection with the Work. Customer acknowledges that all charges set forth in this Agreement are based upon existing taxes, utility charges, charges of any Company Central Station or other monitoring provider, telecommunications charges, and vendor costs. The Company shall have the right, at any time, to increase the charges provided in this Agreement to reflect any additional or increased taxes, fees, charges, assessments, utility charges, telecommunications charges, charges of any Company Central Station or other monitoring provider, or vendor costs relating to the Work, and Customer agrees to pay the same.
b. Payment Dispute. If the Customer wishes to dispute any portion of an invoice, the Customer shall notify the Company in writing within five (5) days of the date of the invoice. The Customer shall identify the specific cause of the dispute and shall pay when due that portion of the invoice not in dispute. The Company and Customer shall work together in good faith to resolve any disputes as soon as reasonably possible. If necessary, the Company shall issue a revised invoice, and Customer shall pay to the Company in accordance with such revised invoice. The Company reserves the right to stop the performance on any or all of the Work until the dispute is resolved. Failure to notify the Company for any payment dispute within the required timeframe will be deemed as the Customer’s agreement and acceptance to the amount and terms set forth in the invoice.
8. Warranty
a. Warranties by Both Parties. Each Party represents and warrants to the other that: (i) this Agreement has been duly executed and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with such Party’s execution or performance of this Agreement; and (iii) the execution, delivery, and performance of this Agreement does not violate applicable laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
b. Disclaimer of Warranties. THE COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE WORK, GOODS AND ALL MATERIALS, INCLUDING: (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.
9. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY THE OTHER PARTY OR COULD HAVE BEEN REASONABLY FORESEEN BY THE PARTY, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT TO THE OTHER PARTY EXCEED THE AMOUNTS PAID BY CUSTOMER TO THE COMPANY UNDER THIS AGREEMENT FOR THE WORK.
This Section 9 applies to the Work other than the Monitoring Service. If Customer purchases Monitoring Service, the limitation of liability, disclaimers, releases, and indemnification obligations set forth in Sections 22 through 27 below (including the limitation of liability amount set forth in Section 26) shall exclusively govern and control, to the exclusion of this Section 9, with respect to any claim arising out of or relating to the Monitoring Service, the Alarm System, or any signal, dispatch, or response. The fact that the limitation of liability amount applicable to the Monitoring Service differs from the limitation of liability amount applicable to the Work generally under this Section 9 is intentional, reflects the different scope and nature of those obligations, and does not constitute a conflict, ambiguity, or inconsistency between those provisions.
10. Indemnification
Customer is responsible for, and will cause compliance by, its affiliates, owners, tenants, occupants, guests, invitees, employees, agents, contractors, property managers, emergency contacts, insurers, and any other person or entity acting for, through, under, or at the request of Customer or having access to or use of the premises, systems, equipment, or Work. The acts and omissions of any such person or entity will be deemed acts and omissions of Customer for purposes of this Agreement. Customer agrees to indemnify, defend, and hold harmless the Company, its affiliates, any Company Central Station, and their respective directors, managers, officers, employees, agents, subcontractors, and service providers from and against all claims, demands, lawsuits, taxes, losses, damages, liabilities, fines, penalties, costs, and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with: (i) any breach of this Agreement by Customer or any person or entity described above; (ii) the premises, systems, equipment, property, operations, or persons protected or intended to be protected by the Work; (iii) any act, omission, negligence, misuse, interference, failure to follow instructions, failure to maintain or test equipment, or failure to provide accurate or updated information by Customer or any such person or entity; or (iv) any claim by or through Customer, its insurer, or any owner, tenant, occupant, guest, invitee, employee, agent, contractor, property manager, emergency contact, or other third party, except to the extent finally determined to have resulted from the Company’s gross negligence or willful misconduct.
Customer hereby releases the Company, its affiliates, any Company Central Station, and their respective directors, managers, officers, employees, agents, subcontractors, and service providers from and against all losses, damages, and expenses covered by Customer’s insurance policies, all deductibles, self-insured retentions, uninsured amounts, and all losses, damages, and expenses in excess of amounts paid by Customer’s insurance company. Customer waives, and shall cause Customer’s insurers and any owner, tenant, occupant, or other party claiming through Customer to waive, all rights of subrogation, contribution, reimbursement, or recovery against the Company, any Company Central Station, and the other released parties for any such amounts.
11. Confidential Information
a. Confidential Information. Confidential Information shall mean any information disclosed by either Party (the “Discloser”) to the other Party (the “Recipient”), whether orally or in writing, that is designated as confidential or is otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure under this Agreement or by the nature of the information itself. Confidential Information includes this Agreement and its terms, related discussions and negotiations, and the products, business and marketing plans, forecasts, finance matters, technology and technical information, product plans and designs, and business processes disclosed by either Party.
b. Non-Use and Non-Disclosure. Unless otherwise approved by the Discloser in writing, the Recipient shall not use the Confidential Information for any purposes outside the scope of this Agreement and shall not disclose any Confidential Information to its employees or any third party other than those who have a need to know for purposes consistent with this Agreement and who have signed confidentiality agreements with the Recipient containing protections no less stringent than those herein. Recipient shall not reverse engineer, disassemble or decompile any samples, prototypes, software, or other tangible objects that embody the Confidential Information provided by the Discloser to the Recipient except with the express written authorization from the Discloser. Recipient acknowledges and agrees that any unauthorized disclosure or use by the Recipient, whether intentional or unintentional, of any of the Confidential Information shall be detrimental to the Discloser. The obligation of confidentiality will expire three (3) years from the expiration or termination of this Agreement. Upon the expiration or termination of this Agreement, each Party shall, upon request or mutual agreement, destroy or deliver to the other all Confidential Information of the other Party that it has in its possession or control. If requested, Recipient agrees to sign a certification verifying that all Confidential Information received from the Discloser and its agents has been destroyed or returned.
c. Exceptions. Confidential Information shall not include any information disclosed or made available to the Recipient which (a) prior to its disclosure by the Discloser, is already lawfully and rightfully known by or available to the Recipient, (b) through no breach of this Agreement on the part of the Recipient is or hereafter becomes generally available to the public, (c) is developed by the Recipient independently without use of or reference to the Confidential Information, (d) is lawfully received by the Recipient from a third party without restriction and without breach of this Agreement or any other agreement, or (e) is approved for public release or use by written authorization of the Discloser.
d. Compelled Disclosures. If the Recipient becomes legally compelled to disclose any Confidential Information, other than pursuant to a confidentiality agreement, the Recipient will provide the Discloser prompt written notice, if legally permissible, and will use its best efforts to assist the Discloser in seeking a protective order or other appropriate remedies.
e. Other Agreements. The Parties may enter into separate non- disclosure agreements governing the protection of the Confidential Information. To the extent the terms in such separate non-disclosure agreements are more restrictive than the terms of this Agreement, the more restrictive terms will control for the disclosure.
12. Independent Contractor
The Parties shall be and act as independent contractors in the performance of this Agreement. This Agreement shall not be interpreted or construed as creating or evidencing any agency, association, joint venture, partnership, or franchise between the Parties. Neither Party may represent to anyone that it is an agent of the other Party or is otherwise authorized to bind or commit the other Party in any way without such other Party’s prior written consent. At no time shall either Party make commitments or incur any charges or expenses for or in the name of the other Party.
13. Assignment
Neither this Agreement nor any right, interest or obligation hereunder may be assigned by the Customer without prior written consent from the Company. Any purported assignment by the Customer without prior written consent shall be null and void. The Company reserves the right to assign this Agreement without the prior written consent of the Customer.
14. Severability
If, for any reason, any provision of this Agreement shall be determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall be enforced to the extent possible. In such case, this Agreement shall be deemed amended by modifying such provision to the extent necessary to render it valid, legal, and enforceable while preserving its intent or, if such modification is not possible, by substituting therefor another provision that is valid, legal, and enforceable so as to materially effectuate the Parties’ intent.
15. Notice
Each notice or other communication to be given under this Agreement (“Notice”) shall be in writing and be given by personal delivery, by facsimile or electronic mail with confirmed receipt, or by a reputable overnight courier with confirmed receipt to the addressee designated for the purpose by the addressee to the other Party. The initial facsimile number, addresses, and relevant person or office holder of Customer is as set forth in the Order. The initial facsimile number, addresses, and relevant person or office holder of the Company is as follows:
Pleasanton, CA 94588
Contracts@www.sciensbuildingsolutions.com
Attention: Contracts Team
16. Waiver
No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power, or privilege. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement shall not be a waiver of such Party’s right to demand strict compliance in the future, nor shall the same be construed as a novation of this Agreement.
17. Force Majeure
Neither Party shall be liable for any delays in performance or for failure to perform its obligations (except for payment obligations) hereunder due to circumstances beyond its control, including but not limited to, any breach or nonperformance of this Agreement by the other Party; war, invasion, or hostilities (whether war is declared or not); terrorist threats or acts, riots, civil unrest; acts of God; acts of government; pandemics or epidemics; national or regional emergency; telecommunication breakdowns, power outages or shortages; lack of warehouse or storage space; delays in transportation, embargoes or blockades in effect on or after the date of this Agreement; strikes, labor stoppages or slowdowns, and other delays in delivery or inability of suppliers to obtain and deliver adequate or suitable materials; and other events beyond the control of either Party (each a “Force Majeure Event”). In the event of the happening of such a case, the Party whose performances is so affected (the “Impacted Party”) will give prompt, written notice to the other Party, stating the period of time the same is expected to continue, and the date(s) for performance of the obligation affected shall be postponed for as long as is necessary. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. Provided, however, if such delay or failure to perform continues for a period exceeding six (6) months, either Party may terminate this Agreement immediately by written notice to the other Party.
18. Disputes Resolution
Controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Construction Industry Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. All claims or proceedings against the Company must be commenced within one (1) year after the cause of action has accrued or the act, omission or event occurred from which the claim, or proceeding arises, whichever is earlier, without extension of time, or said claim or proceeding is barred. The time period in this paragraph must be strictly complied with.
19. Governing Law
This Agreement shall be interpreted and construed in accordance with the laws of the State of where the work is located, without regard to conflict of law principles that would require application of the laws of another jurisdiction.
20. Counterparts
This Agreement may be executed in two or more counterparts, each of which shall be binding as of the date hereof, and all of which shall constitute one and the same instrument. Each such copy shall be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart. Counterparts delivered by email in PDF or a similar image format shall have the same effect as originals.
21. Entire Agreement, Amendments
This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous undertakings, commitments, or agreements, oral or written, as to its subject matter. In the event of any conflict between this Agreement and any other written agreement, purchase order, work order, work authorization, vendor onboarding document, request for proposal, bid document, website, portal, invoice, acknowledgement, or other Customer-proposed terms and conditions, this Agreement shall prevail. The Company expressly objects to and rejects all terms that are additional to or different from this Agreement, including any terms contained in or referenced by any Customer purchase order, portal, click-through process, insurance exhibit, safety manual, site rules, payment platform, or other communication from Customer. The Company’s performance of Work, acceptance of payment, issuance of an invoice, delivery of materials, or access to any Customer system or site shall not constitute acceptance of any such terms, and any such terms are null and void unless expressly agreed in a separate written instrument signed by an authorized officer of the Company. This Agreement may be modified or amended only by an instrument in writing signed by authorized representatives of the Parties on or after the date hereof.
The following terms and conditions apply to Central Station Monitoring if included in the Work (the “Monitoring Service”) only, and to the extent applicable, modify, amend, supersede and extend the existing terms and conditions outlined above. Customer acknowledges that the Monitoring Service may be provided through a contracted monitoring station or other third-party monitoring provider (each, a “Company Central Station”), and the protections, limitations, releases, waivers, and indemnities in these Terms are for the benefit of the Company, any Company Central Station, and their respective affiliates, owners, directors, officers, employees, agents, subcontractors, and service providers (collectively, the “Monitoring Parties”). Each Monitoring Party is an intended third-party beneficiary of those protections and may enforce them directly. Customer acknowledges that this Agreement contains separate provisions addressing limitation of liability, disclaimers, releases, and indemnification for the Work generally (including Sections 9 and 10 above) and for the Monitoring Service specifically (including Sections 22 through 27 below), and that those provisions apply to different scopes of Work and may differ in their terms, including the applicable limitation of liability amount. The existence of such differences, including different limitation of liability amounts, is intentional and does not create any conflict, ambiguity, or inconsistency in this Agreement. As between any general provision applicable to the Work and any provision in Sections 22 through 27 applicable specifically to the Monitoring Service, the provision in Sections 22 through 27 shall exclusively govern and control with respect to any claim arising out of or relating to the Monitoring Service, the Alarm System, or any signal, dispatch, or response.
22. For Monitoring Service Only: Customer Authorizations, Duties and Monitoring Flow-Down
a. Authorized Individuals. Customer agrees to furnish to the Company in writing, on a continuing basis, a complete and accurate list of the names, titles, telephone numbers, passcodes, instructions, and other information required by the Company for all authorized persons to be contacted upon receipt of an alarm signal (the “Call List”), and hereby authorizes and empowers the Company and the Company Central Station to notify the designated representatives of Customer listed on the Call List using the contact information provided by Customer. Customer shall furnish a written list of all persons authorized to enter the premises or to be notified in the event of an alarm, and Customer is solely responsible for the accuracy, completeness, legality, and timeliness of all Call List and contact information.
b. Alarm and Subscriber Data. Customer shall notify the Company in writing on a form approved by the Company each time a new alarm, account, subscriber, protected premises, panel, zone, signal type, schedule, opening/closing instruction, dispatch instruction, call list, code, password, or other account information is added, changed, suspended, cancelled, disconnected, placed on test, or restored. All changes, revisions, and modifications shall be supplied to the Company in writing by Customer, and the Monitoring Parties may rely on the most recent information received and processed without duty to verify its accuracy.
c. Verbal Changes. It is agreed that new Customer connections and Customer changes may be accepted by telephone or other verbal communication only as an accommodation and under the following terms and conditions: the Monitoring Parties accept no responsibility for the accuracy, authority, completeness, or implementation of information given verbally, and Customer assumes full responsibility and liability with respect to such information. Customer shall provide to the Company the original of any agreement and other documentation, as required by the Company, for each Alarm System to be monitored by the Company Central Station within five (5) working days from receipt of verbal communication.
d. Equipment; Communications; Company Approval. Customer shall be solely responsible for obtaining, installing, maintaining, testing, repairing, replacing, and paying for all non-Company equipment, telephone, internet, cellular, radio, utility, power, communications, network, and transmission services necessary to transmit signals from the premises to the Company Central Station. Customer shall pay all charges made by any telephone company, utility, carrier, communications provider, governmental authority, or other third party to the Company or the Company Central Station for lines, equipment, services, or transmission of signals between Customer’s protected premises and the Company Central Station. Customer acknowledges that signals transmitted over telephone, internet, cellular, radio, utility, network, or other third-party channels are beyond the control of the Monitoring Parties and are maintained and serviced by third parties. All equipment installed by or for Customer to transmit signals to the monitoring equipment utilized by the Company Central Station must be approved by the Company and compatible with the monitoring equipment utilized by the Company Central Station.
e. Licenses/Permits. Customer represents and warrants that it has obtained and will maintain all permissions, permits, licenses, registrations, approvals, premises authorizations, and governmental or authority approvals necessary for the installation, service, use, dispatch, and monitoring of the Alarm System(s), and Customer shall be solely responsible for all fines, penalties, fees, delays, dispatch refusals, or service limitations arising from any failure to do so.
f. Authority for Premises and Third Parties. Customer represents and warrants that it has authority to order the Monitoring Service for each protected premises and to bind, or cause compliance by, all owners, tenants, occupants, guests, invitees, employees, agents, contractors, property managers, emergency contacts, insurers, and other persons or entities with access to, use of, or an interest in the premises, systems, equipment, or property protected or intended to be protected by the Monitoring Service. Customer is responsible for their acts, omissions, instructions, interference, negligence, misuse, failure to respond, failure to maintain, and failure to provide accurate or updated information.
g. Operation, Testing and Maintenance. Customer shall properly use, test, inspect, maintain, service, repair, replace, and keep in good working order the Alarm System and all equipment and transmission paths not owned by the Company; train all users; follow all instructions; notify the Company before testing, servicing, modifying, disconnecting, impairing, renovating around, or placing any Alarm System out of service; and promptly notify the Company of any malfunction, trouble condition, communication failure, change in premises conditions, or other condition that could affect the Monitoring Service.
h. Customer Communications Consent. Customer, for itself and on behalf of all persons using or communicating with the Alarm System or the Monitoring Parties, consents to the intercepting, recording, retrieving, reviewing, copying, disclosure, and use of telephone, video, wire, oral, electronic, alarm, signal, and other communications relating to the Alarm System or Monitoring Service for monitoring, dispatch, training, quality assurance, legal compliance, investigation, and enforcement purposes.
23. For Monitoring Service Only: Receipt Of Signal/Response
Customer, for itself and as the authorized agent of its owners, tenants, occupants, guests, invitees, agents, servants, representatives, employees, contractors, emergency contacts, and all other persons using or communicating with the Alarm System (individually and collectively, “Any Person”), hereby consents to the Monitoring Parties intercepting, recording, retrieving, reviewing, copying, disclosing, and using the contents of all telephone, video, wire, oral, electronic, alarm, signal, and other transmissions or communications to which Customer, Any Person, or any Monitoring Party is a party. Upon receipt of a signal, the Company Central Station shall, without warranty, make reasonable efforts, in accordance with the information and instructions supplied by Customer and then processed by the Company Central Station, to do the following as applicable: (a) upon receipt of a burglar alarm signal, transmit the alarm to the police department or other designated response agency and notify Customer or its designated representative by calling the persons and/or entities designated by Customer; (b) upon receipt of a hold-up alarm signal, transmit the alarm to the police department or other designated response agency; (c) upon receipt of a sprinkler alarm signal, water flow signal, smoke or automatic fire alarm signal, transmit the alarm to the fire department or other designated response agency and notify Customer or its designated representatives; (d) upon receipt of a supervisory or trouble signal, notify Customer or its designated representatives using the telephone number or other contact method supplied to the Company in writing by Customer; and (e) upon receipt of an emergency alert signal, transmit the alarm to the persons and/or entities designated by Customer. The Monitoring Parties shall have no liability for any delay, non-response, refusal, error, or omission by any emergency responder, governmental authority, telephone company, carrier, utility, internet provider, third-party service provider, or person designated by Customer.
24. For Monitoring Service Only: False Alarms
In the event of false alarms, excessive signals, duplicate signals, runaway signals, signals caused by Customer’s or any third party’s negligent, intentional, accidental, unauthorized, or improper use of the Alarm System, or signals caused by equipment, communications, premises conditions, or other matters not controlled by the Monitoring Parties, the Company may, in its sole discretion, deem same to be a material breach of contract by Customer and, at its option, in addition to all other legal remedies, suspend or terminate the Monitoring Service upon ten (10) days written notice to Customer or such shorter period as the Company reasonably determines is necessary to protect persons, property, responders, the Company Central Station, or other customers. If any fine, penalty, fee, charge, assessment, cost, or expense is assessed against or incurred by any Monitoring Party by any governmental or municipal agency, emergency responder, communications provider, or other person as a result of any such false alarm or signal from Customer’s premises or system, Customer agrees to reimburse the applicable Monitoring Party for same upon demand. The Company’s or Company Central Station’s suspension or termination of performance shall not affect its rights to recover damages from Customer.
25. For Monitoring Service Only: Suspension Of Service
If the Alarm System becomes a “runaway” system, is excessively communicating with the Company Central Station without apparent reason, creates excessive false alarms, threatens the integrity or capacity of monitoring equipment or services, lacks required permits or approvals, is subject to nonpayment, or otherwise presents a safety, legal, operational, regulatory, or commercial risk, Customer authorizes and empowers the Company and the Company Central Station, without limitation and without liability, to do any one or more of the following: ignore, limit, suspend, or delay communications received from the Alarm System; disconnect, place on test, or suspend the Alarm System or account; render the Alarm System incapable of communicating locally or with the Company Central Station by direct or remote programming, removal, or deletion of data necessary to operate the Alarm System; decline dispatch; or terminate Monitoring Service. The exercise of such rights shall not be deemed a waiver of the Company’s right to damages, and the Company shall have the right to enforce all other remedies or rights.
26. For Monitoring Service Only: Not an Insurer; Release; Limitation of Liability
IT IS UNDERSTOOD AND AGREED THAT THE MONITORING PARTIES ARE NOT INSURERS, GUARANTORS, FIRE GUARDS, SECURITY GUARDS, OR PROVIDERS OF PERSONAL SAFETY, PROPERTY PROTECTION, EMERGENCY RESPONSE, OR LOSS-PREVENTION SERVICES, AND THIS AGREEMENT IS NOT INTENDED TO BE AN INSURANCE POLICY OR A SUBSTITUTE FOR AN INSURANCE POLICY. CHARGES ARE BASED SOLELY UPON THE VALUE OF THE SERVICES PROVIDED AND ARE UNRELATED TO THE VALUE OF CUSTOMER’S PROPERTY, THE PROPERTY OF OTHERS ON CUSTOMER’S PREMISES, OR ANY RISK OF LOSS, INJURY, DAMAGE, OR LIABILITY. CUSTOMER SHALL OBTAIN AND MAINTAIN INSURANCE COVERING CUSTOMER’S PREMISES, PROPERTY, OPERATIONS, TENANTS, OCCUPANTS, INVITEES, EMPLOYEES, AND THIRD-PARTY RISKS IN AMOUNTS CUSTOMER DEEMS APPROPRIATE. CUSTOMER AGREES THAT THE MONITORING PARTIES SHALL NOT BE LIABLE FOR LOSS, DAMAGE, INJURY, DEATH, CLAIM, OR EXPENSE DUE DIRECTLY OR INDIRECTLY TO ANY OCCURRENCE, OR CONSEQUENCES THEREFROM, WHICH THE SERVICE IS DESIGNED TO DETECT, MONITOR, REPORT, OR AVERT, INCLUDING FIRE, SMOKE, WATERFLOW, SPRINKLER, SUPERVISORY, TROUBLE, INTRUSION, BURGLARY, HOLD-UP, DURESS, EMERGENCY, ENVIRONMENTAL, EQUIPMENT, COMMUNICATIONS, OR OTHER EVENTS, WHETHER OR NOT CAUSED OR CONTRIBUTED TO BY THE NEGLIGENCE, ACTIVE OR PASSIVE, OF ANY MONITORING PARTY, EXCEPT TO THE EXTENT FINALLY DETERMINED TO HAVE RESULTED FROM THAT MONITORING PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR VIOLATION OF LAW. CUSTOMER ACKNOWLEDGES THAT THE DISCLAIMERS OF WARRANTIES, EXEMPTIONS FROM LIABILITY, RELEASES, LIMITATIONS OF LIABILITY, WAIVERS OF SUBROGATION, AND INDEMNITIES IN THIS AGREEMENT INURE TO THE BENEFIT OF AND ARE APPLICABLE TO EACH MONITORING PARTY.
THE COMPANY AND ANY COMPANY CENTRAL STATION ARE INDEPENDENT CONTRACTORS AND DO NOT OPERATE AS A PARTNERSHIP, JOINT VENTURE, FIDUCIARY, AGENT, OR INSURER OF CUSTOMER. EXCEPT TO THE EXTENT FINALLY DETERMINED TO HAVE RESULTED FROM THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR VIOLATION OF LAW OF THE APPLICABLE MONITORING PARTY, THE AGGREGATE LIABILITY OF ALL MONITORING PARTIES COMBINED TO CUSTOMER AND TO ANY PERSON OR ENTITY CLAIMING BY OR THROUGH CUSTOMER FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE MONITORING SERVICE, THE ALARM SYSTEM, ANY SIGNAL, ANY DISPATCH OR FAILURE TO DISPATCH, OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, STATUTE, OR OTHERWISE, IS LIMITED TO FIVE HUNDRED DOLLARS ($500.00). IF CUSTOMER DESIRES THE COMPANY TO ASSUME A GREATER LIMITED LIABILITY FOR MONITORING SERVICE, CUSTOMER MAY REQUEST A WRITTEN RIDER SETTING FORTH THE INCREASED LIMITED LIABILITY AND ADDITIONAL RECURRING CHARGE, BUT NO INCREASED LIMITED LIABILITY SHALL APPLY UNLESS EXPRESSLY AGREED IN A SEPARATE WRITTEN INSTRUMENT SIGNED BY AN AUTHORIZED OFFICER OF THE COMPANY.
THIS SECTION 26 APPLIES EXCLUSIVELY TO CLAIMS ARISING OUT OF OR RELATING TO THE MONITORING SERVICE, THE ALARM SYSTEM, ANY SIGNAL, OR ANY DISPATCH OR FAILURE TO DISPATCH, AND CONTROLS OVER SECTION 9 (LIMITATION OF LIABILITY) WITH RESPECT TO ANY SUCH CLAIM. THE LIMITATION OF LIABILITY AMOUNT SET FORTH IN THIS SECTION 26 IS DIFFERENT FROM, AND IS NOT IN CONFLICT WITH, THE LIMITATION OF LIABILITY AMOUNT SET FORTH IN SECTION 9, AS EACH APPLIES TO A DIFFERENT SCOPE OF WORK.
IF ANY PERSON OR ENTITY NOT A PARTY TO THIS AGREEMENT, INCLUDING ANY OWNER, TENANT, OCCUPANT, GUEST, INVITEE, EMPLOYEE, AGENT, CONTRACTOR, PROPERTY MANAGER, EMERGENCY CONTACT, INSURER, GOVERNMENTAL AUTHORITY, EMERGENCY RESPONDER, OR OTHER THIRD PARTY, MAKES ANY CLAIM OR FILES ANY LAWSUIT AGAINST ANY MONITORING PARTY FOR ANY REASON ARISING OUT OF OR RELATING TO THE MONITORING SERVICE, THE ALARM SYSTEM, ANY SIGNAL, ANY DISPATCH OR FAILURE TO DISPATCH, OR ANY OCCURRENCE THE SERVICE IS DESIGNED TO DETECT, MONITOR, REPORT, OR AVERT, CUSTOMER AGREES TO INDEMNIFY, DEFEND, AND HOLD THE MONITORING PARTIES HARMLESS FROM AND AGAINST ALL SUCH CLAIMS AND LAWSUITS, INCLUDING ALL DAMAGES, SETTLEMENTS, JUDGMENTS, EXPENSES, COSTS, AND ATTORNEYS’ FEES, WHETHER SUCH CLAIMS ARE BASED UPON ALLEGED INTENTIONAL CONDUCT, ACTIVE OR PASSIVE NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, STATUTE, OR ANY OTHER THEORY, EXCEPT TO THE EXTENT FINALLY DETERMINED TO HAVE RESULTED FROM THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR VIOLATION OF LAW OF THE APPLICABLE MONITORING PARTY.
27. FOR MONITORING SERVICE ONLY: DISCLAIMER OF WARRANTIES
THE COMPANY HEREBY DISCLAIMS, AND CUSTOMER RELEASES THE MONITORING PARTIES FROM, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION: (A) THAT THE ALARM SYSTEM, MONITORING SERVICE, COMMUNICATIONS PATHS, OR RESPONSE PROCEDURES MAY NOT BE COMPROMISED, INTERRUPTED, DELAYED, BYPASSED, IMPAIRED, OR CIRCUMVENTED; (B) THAT THE ALARM SYSTEM OR MONITORING SERVICE WILL PREVENT OR MITIGATE ANY LOSS, DAMAGE, INJURY, DEATH, BURGLARY, HOLD-UP, FIRE, SMOKE, WATERFLOW, SPRINKLER, SUPERVISORY, TROUBLE, EMERGENCY, ENVIRONMENTAL, EQUIPMENT, COMMUNICATIONS, OR OTHER EVENT; (C) THAT THE ALARM SYSTEM OR MONITORING SERVICE WILL IN ALL CASES PROVIDE THE PROTECTION, DETECTION, REPORTING, DISPATCH, OR RESPONSE FOR WHICH IT IS INSTALLED OR INTENDED; OR (D) THAT ANY THIRD-PARTY EQUIPMENT, SOFTWARE, UTILITY, CARRIER, NETWORK, INTERNET, CELLULAR, RADIO, OR COMMUNICATIONS SERVICE WILL OPERATE WITHOUT INTERRUPTION OR ERROR. IF, IN THE OPINION OF THE COMPANY OR THE COMPANY CENTRAL STATION, CUSTOMER’S USE, EQUIPMENT, ACCOUNT ACTIVITY, INSTRUCTIONS, PREMISES CONDITIONS, OR COMMUNICATIONS ADVERSELY AFFECTS THE USE OR OPERATION OF THE MONITORING EQUIPMENT OR SERVICE, THIS AGREEMENT OR THE APPLICABLE MONITORING SERVICE MAY BE SUSPENDED OR TERMINATED THIRTY (30) DAYS FOLLOWING WRITTEN NOTICE TO CUSTOMER, OR SOONER IF REASONABLY NECESSARY TO ADDRESS AN OPERATIONAL, SAFETY, LEGAL, REGULATORY, OR SECURITY RISK. CUSTOMER AGREES THAT THE COMPANY’S MAINTENANCE OBLIGATION HEREUNDER RELATES SOLELY TO THE MAINTENANCE AND OPERATION OF COMPANY-OWNED EQUIPMENT EXPRESSLY INCLUDED IN THE WORK, AND THAT THE MONITORING PARTIES ARE NOT OBLIGATED TO MAINTAIN, REPAIR, SERVICE, REPLACE, OPERATE, OR ASSURE THE OPERATION OF CUSTOMER-OWNED, TENANT-OWNED, OCCUPANT-OWNED, OR OTHER NON-COMPANY EQUIPMENT, SYSTEMS, DEVICES, COMMUNICATIONS PATHS, UTILITIES, NETWORKS, OR SERVICES.