TERMS AND CONDITIONS
I THE SYSTEM: COMPANY agrees to install in the premises of CLIENT alarm equipment and devices or to provide a centrally monitored signaling system and services necessary to transmit signals from the premises of Client to Company’s Central Monitoring Station, or both (referred to herein as the “System”) in accordance with the proceeding Description of Systems of Protection and Description of Monitoring/Services, and will repair such equipment as set forth in Paragraph 17 when advised or agreed to by CLIENT that such repair is needed or otherwise in accordance with agreed upon service schedule..
2 TERM AND RENEWAL: After the initial term stated on the face hereof, this Agreement (except for the limited warranty provided in Paragraph 17), including the Extended Service Program Agreement where contracted, shall automatically renew for a period of I (one) year, unless either party shall give written notice of cancellation at least thirty (30) days prior to the expiration of the original term or any renewal thereof.
3. FEE INCREASE: COMPANY shall have the right at any time during the term of this Agreement to increase the monitoring/service charges provided herein above to reflect any additional taxes, fees or charges relating to the services provided under the terms of this Agreement which may thereafter be imposed on COMPANY by any utility or government agency, and CLIENT agrees to pay the same. In addition, COMPANY may, at any time after one (I) year from the date of this Agreement, increase the monitoring/service charge by giving CLIENT notice in writing no less than thirty (30) days prior to the effective date of said increase. If CLIENT is unwilling to pay the increased monitoring/service charge, CLIENT may terminate this Agreement by giving notice in writing to COMPANY at least thirty (30) days prior to the effective date of the increase. CLIENT’S failure to notify COMPANY within said thirty (30) days shall constitute CLIENT’S acceptance of the increase.
4. TERMINATION: COMPANY shall have the right to terminate this Agreement and de-activate the system ten (10) days after written notice of nonpayment if CLIENT has failed to make timely payments during the term of this Agreement, or immediately if CLIENT willingly or negligently causes repeated false alarms. Upon any default by CLIENT, all sums shall be immediately due and payable. Upon any termination of this Agreement, COMPANY shall have no further liability or obligation hereunder.
5. ADDITIONAL CHARGES
A. Any cost incurred by COMPANY, including fines, penalties or costs of COMPANY’S response service at its customary charges, as a result of false alarms originating from CLIENT’S premise shall be promptly reimbursed by CLIENT to COMPANY. Any false alarm charge made directly against CLIENT shall be CLIENT’S sole responsibility.
B. CLIENT shall be liable for any expenses incurred for collection of any monies owed to COMPANY.
C. If any payment due hereunder is not paid within twenty (20) days of the service period on the face hereof, a delinquency charge calculated at the rate of one and one half percent (1.5%) per month on the amount due from the original due date may be charged, or at such other rate as may be permitted by law.
6. COMPANY SERVICES: COMPANY agrees to monitor the system from the time CLIENT causes the system to be activated until either CLIENT causes the system to be deactivated or the COMPANY deactivates the system as permitted under this Agreement. Upon receipt of a signal indicating an intrusion (or fire, if applicable), the COMPANY operator will make every reasonable effort to identify the signal and t to transmit said signal to the appropriate local authority. COMPANY will make reasonable efforts to transmit notice of said Signal to the appropriate local authority. COMPANY will make reasonable efforts to notify any agent designated in writing by CLIENT. COMPANY’S responsibility ends at the point of notification and COMPANY shall not be liable if the local authority determines the premises are secure or that no fire exists.
7. CLIENT RESPONSIBILITY. CLIENT agrees to perform reasonable and periodic (but not less than monthly) system checks, as recommended by COMPANY, in order to ascertain that the system is functioning properly. CLIENT is to notify COMPANY promptly of any deficiency.
8. ALARM DEVICES: If CLIENT’S equipment includes a local bell, alarm, or similar audible device (referred to as an “Alarm”), upon becoming aware of any signal from such Alarm indicating an emergency on CLIENT’S premises, COMPANY will make every reasonable effort to notify CLIENT or his designated representative at the phone number and/or address supplied to COMPANY in writing by CLIENT and to notify local police or fire authority, if required. If CLIENT cannot be reached or does not appear at the premises within thirty (30) minutes from the time COMPANY receives confirmation that the Alarm is sounding, or if COMPANY is called upon by local authorities to turn off the Alarm at any time, CLIENT authorizes COMPANY to turn off the Alarm and agrees to hold COMPANY harmless and indemnify COMPANY from any loss, damage, or liability that may result.
9. AUTHORIZED PERSONNEL: Where required by system type installed and/or service contracted, CLIENT agrees to give COMPANY a list of names, addresses and telephone numbers of all persons: (a) authorized to enter the premises between any regularly scheduled times of opening or closing; (b) who may be called upon for a key to enter CLIENT’S premises during such periods; (c) authorized to arrange unscheduled opening/closing and/or authorized to enter or remain on the premises of CLIENT during regularly scheduled closed periods; and/or, (d) notified in the event of an alarm or an emergency. CLIENT shall also furnish COMPANY with a written daily and holiday opening and closing schedule. All changes, revisions and modifications to the above shall be supplied to COMPANY in writing.
10. SYSTEM INTERRUPTION: CLIENT understands that with respect to the equipment which transmits signals via the telephone circuit and/or radio telemetry, none of such services are infallible, and CLIENT specifically acknowledges that COMPANY does not represent or warrant that the transmission of said signals may not be interrupted, circumvented or compromised. In addition, CLIENT understands that a digital communicator is a non-supervised reporting device which requires the telephone line to be operative for a signal to be received by the central station. If the telephone line is inoperative, there is no indication of this fact at the central station and no signal can be received by the central station while the telephone line remains inoperative. This paragraph similarly applies for any other means of signal transmission.
11. CLIENT NOTIFICATION: Upon receipt of an out of service signal (if the system has that capability) or a supervisory service signal, COMPANY will make reasonable efforts to notify the representative designated in writing by CLIENT.
A. CLIENT hereby authorizes and empowers COMPANY, and its agents or assigns, to install the aforesaid system in said premises. Errors or omissions in the construction of the system must be called to the attention of COMPANY, in writing, within ten (10) days of the completion of the installation, and upon the expiration of such period the installation shall be construed as accepted by CLIENT. CLIENT agrees the COMPANY may inspect, test and repair the system and make further changes in or alterations to the system at the request of CLIENT, or as made necessary by any changes in CLIENT’S premises, property or equipment, after the original installation has been completed. The additional cost shall be paid by CLIENT. CLIENT shall not change its premises without written notice to COMPANY, and COMPANY shall not be responsible for any failure of the system due to a change in CLlENT’S premises. If CLIENT fails to notify COMPANY of such change, or fails to authorize any modifications to the system thereby required, CLIENT acknowledges that COMPANY has no way of knowing of the existence of hidden pipes, wires or other obstructions within walls or other concealed spaces, and it is the CLIENT’S obligation to make COMPANY aware of such conditions, failing which COMPANY shall have no responsibility whatsoever for any damages that might be caused. Any removal and replacement of carpets required for installation of pressure mats shall be at the expense of CLIENT. CLIENT agrees to furnish any necessary electric current through CLIENT’S meter and at CLIENT’S own expense. It is mutually agreed that the work of installation, and COMPANY’S inspections and tests of the system, shall be performed between the hours of 8:00 o’clock AM and 5:00 o’clock PM, exclusive of Saturdays, Sundays and Holidays.
B. All repairs required under the Limited Warranty in Paragraph 17, or the PREFERRED SERVICE PROGRAM Agreement and Limited Warranty, if in effect, shall be done at the expense of COMPANY. All other repairs, including damage caused by fire, burglary or work performed by unauthorized personnel, repairs after the expiration of the Limited Warranty, or any PREFERRED SERVICE PROGRAM Agreement, or service calls resulting from CLIENT’S improper operation of the System, shall be at the expense of the CLIENT. It is mutually agreed that the work of repairs rendered under the Limited Warranty or PREFERRED SERVICE PROGRAM Agreement shall be performed between the hours of 8 00 o’clock A M and 5 00 o’clock PM, exclusive of Saturdays, Sundays, and Holidays. Emergency labor fees will be charged for other times.
C. It is understood and agreed that COMPANY’S obligation relates solely to the installation and monitoring of the specified protective signaling system, and that COMPANY is in no way obligated to maintain, repair, service, replace, operate or assure the operation of the property, system or any device or devices of CLIENT or of others to which COMPANY’S said systems are attached. CLIENT acknowledges that if sprinkler supervisory or water flow alarm services are both provided, that CLIENT is solely responsible for proper maintenance of the sprinkler system including provision of temperature control, where necessary, and that COMPANY has no responsibility for the proper operation or non-operation of its equipment.
D. It is understood and agreed that COMPANY is not liable for any losses or damage to CLIENT if CLIENT elects not to have a full and complete system installed.
13. REMOVAL OR ABANDONMENT OF SYSTEM
A. The systems shall remain the personal property of COMPANY until fully paid for in cash by CLIENT. COMPANY reserves the right to remove any equipment owned by the COMPANY upon any default. CLIENT agrees to perform all acts necessary to assure title to the system.
B. Upon any default or termination of this contract, it is understood and agreed that COMPANY may enter CLIENT’S premises to deprogram or shut off the communicator or memory chip.
14. DAMAGE OR DESTRUCTION: This Agreement may be canceled without prior notice at the option of COMPANY COMPANY’S central station connection link or equipment within CLIENT’S premises are destroyed by fire or other catastrophe, or are so substantially damaged that it is impractical to continue service and may likewise be canceled at the option of CLIENT, in such event, any advance payment made for service to be supplied subsequent to the date of such termination shall he refunded to CLIENT. No refund will be made if CLIENT is in default at time of termination.
15. TERMINATION OF CONNECTIONS: This Agreement may be terminated at the option of COMPANY at any time in the event that COMPANY is unable either to secure or retain the connection or privileges necessary for the transmission of signals between CLIENT’S premises and COMPANY’S central station and the police or other authority, and COMPANY shall not be liable for any damages or subject to any penalty as a result of such termination. Any advance payments made for service to be supplied subsequent to the date of such termination shall be refunded to CLIENT. No refund will be made if the CLIENT is in default at time of termination.
16. ACTS OF GOD: COMPANY assumes no liability for delays in installation of equipment, or for damage or interruptions of service due to strikes, riots, floods, fires, acts of God or any cause beyond the control of the COMPANY, including interruption of alarm transmission, and will not be required to supply service to CLIENT while interruption of service due to any such cause shall continue. CLIENT understands that alarm signals may be transmitted by telephone, cable, radio or microwave, that all of these are outside the control of COMPANY, and COMPANY shall have no responsibility for any failure in transmission of alarm signals by any other means.
17. LIMITED WARRANTY
A. COMPANY hereby warrants that in the event that any part of the equipment installed shall become defective or shall be inoperative due to normal wear and tear within one (I) year from the date of original invoice for this installation, COMPANY shall either replace or repair the equipment at no cost. If the repair or replacement is required more than ninety (90) days after the invoice date, COMPANY reserves the right to substitute material of equal quality at the time of replacement. IN NO EVENT SHALL COMPANY BE LIABLE FOR MORE THAN, AND CLIENT’S EXCLUSIVE REMEDY FOR BREACH OF THIS LIMITED WARRANTY SHALL BE LIMITED TO, THE REPAIR OR REPLACEMENT OF THE DEFECTIVE EQUIPMENT INSTALLED UNDER THIS AGREEMENT, AND COMPANY SHALL NOT BE LIABLE FOR INJURIES TO PERSONS OR PROPERTY, INCLUDING BUT NOT LIMITED TO, ALL GENERAL, DIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES. THIS WARRANTY IS NOT ASSIGNABLE.
B. This warranty does not cover any damage to material or equipment caused by accident, vandalism, flood, water, lightning, intrusion, abuse, misuse, an act of God, any casualty, including electricity, attempted unauthorized repair service, modification or improper installation or repair by anyone other than COMPANY or any other cause beyond the control of the company.
C. If CLIENT shall discover a defect or damage in the equipment installed under this Agreement, CLIENT shall immediately contact COMPANY in writing or by telephone, at the address and telephone number set forth, and fully describe the nature of the defect so that repair service may be rendered. COMPANY shall not be responsible if the CLIENT does not notify COMPANY of such damage or defect immediately.
D. Except as set forth in paragraph A, COMPANY makes no express warranties as to any matter whatsoever, including without limitation, the condition of the equipment, its merchantability. or its fitness for a particular purpose. CLIENT acknowledges that any affirmation of a representation or promise made by COMPANY, whether oral or written, shall not be deemed to create an express warranty, that COMPANY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT THE SYSTEM OR SERVICE SUPPLIED MAY NOT BE COMPROMISED ORCIRCUMVENTED, OR THAT THE SYSTEM OR SERVICE WILL, IN ALL CASES, PROVIDE SIGNALING, MONITORING AND RESPONSE FOR WHICH IT WAS INTENDED, and that CLIENT is not relying on COMPANY’S skill or judgment in selecting or furnishing a system suitable for any particular purpose. THERE ARE NO EXPRESS WARRANTIES WHICH EXTEND BEYOND THOSE ON THE FACE OF THIS AGREEMENT. All implied warranties, including implied warranties of merchantability or worthiness for a particular purpose, shall not exceed in duration of the tern of this limited warranty.
E. PREFERRED SERVICE PROGRAM AGREEMENT· CLIENT may extend the warranty under this section beyond the initial term of the contract by paying an additional service charge as set forth on the cover page. The PREFERRED SERVICE PROGRAM covers the following:
1. All labor performed from 8:00 o’clock A M to 5:00 o’clock P.M. exclusive of Saturdays, Sundays & Holidays;
2. Repair or replacement of defective or inoperative equipment; and,
3. All other terms of this Paragraph 17 remain in effect.
18. LIQUIDATED DAMAGES
A. It is understood and agreed by the parties hereto that COMPANY is not an insurer and the insurance, if any, covering personal and property loss or damage on CLIENT’S premises shall be obtained by CLIENT, that the payments provided for herein are based solely on the value of the service as set forth herein and are unrelated to the value of CLIENT’S property or the property of others located on CLIENT’S premises.
B. CLIENT acknowledges that it is impractical and extremely difficult to fix the actual damages, if any, which may proximately result from COMPANY’S negligence, or failure by COMPANY to perform any of its obligations, or a failure or malfunction in the system because of, among other things, the uncertain amounts or value of CLIENT’S property or the property of others which may be lost or damaged; the uncertainty of the response time of the police or other authority; the inability to ascertain what portion, if any, of any loss would be proximately caused by COMPANY’S failure to perform any of its obligations, or the failure of its equipment to properly operate; and, the nature of the services to be performed by COMPANY.
C. CLIENT understands and agrees that if COMPANY should be found liable for any loss or damage due to COMPANY’S intentional acts or negligence, or a failure to perform any of its obligations, or failure of the equipment to properly operate. COMPANY’S LIABILITY SHALL BE LIMITED TO A SUM EQUAL TO THE TOTAL OF ONE HALF YEAR’S PAYMENTS OR FIVE HUNDRED DOLLARS, WHICHEVER IS THE LESSER, and this liability shall be exclusive and shall apply if loss or damage, irrespective of cause or origin, results directly or indirectly to persons or property from:(1) a failure of the system: (2) performance or nonperformance of any COMPANY’S obligations; or, (3) negligence, active or otherwise, of COMPANY, its employees, agents, or assigns. COMPANY SHALL NOT BE LIABLE FOR ANY GENERAL, DIREC, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
19. THIRD PARTY INDEMNIFICATION: When CLIENT in the ordinary course of business has the property of others in its custody, or the alarm system extends to protect the property of another party, CLIENT agrees to and shall indemnify, defend, and hold harmless COMPANY, its employees and agents, for and against all claims brought by parties other than the parties to this Agreement. This provision shall apply to all claims regardless of cause, including COMPANY’S performance or failure to perform and including defects in products, design, repair service, installation of equipment, and operation or non-operation of the system, whether based upon active or passive negligence, express or implied warranty, contribution of indemnification, or strict/product liability on the part of COMPANY, its employees, agents, or assigns. This contract is not, in any way, intended to benefit third party beneficiaries or other parties not specifically named herein.
20. COMMENCEMENT OF ACTION
A. Notwithstanding any statute of limitations to the contrary, all claims, actions or proceedings, legal or equitable, against COMPANY must be commenced in court within one (I) year after either the cause of action has occurred or the act omission or event occurred from which the claim, action or proceeding arises, whichever is earlier, without judicial extension of time, or said claim, action or proceeding is barred. Time being of the essence of the paragraph in no event shall any cause of action accrue after the expiration of any applicable statute of limitations.
B. Arizona law will control, venue will be in Maricopa County, Arizona. and the COMPANY shall be entitled to recover its attorney fees, costs and interest in the event any action is maintained to enforce any term of this agreement.
21. BIND AND INURE: CLIENT acknowledges that the provisions of this Agreement, particularly those paragraphs relating to disclaimer of warranties, limitation of liability, and third party indemnification, inure to the benefit of and are applicable to any subcontractors engaged by COMPANY to provide monitoring, maintenance, installation or service of the System provided herein, and bind CLIENT to said subcontractors with the same force and effect as they bind CLIENT to COMPANY. CLIENT agrees to indemnify, defend and hold harmless COMPANY against claims by any business engaged to monitor CLIENT’S System or to which an alarm signal may be transmitted.
22. WAIVER OF SUBROGATION: In the case of damage to or destruction of CLIENT’S premises or property by any cause within the scope of CLIENT’S insurance, whether such damage was caused by negligence of COMPANY, or any party for whom COMPANY may be responsible under this Agreement, CLIENT will not look to COMPANY, or COMPANIES agents, employees or assigns for reimbursement to its insurer or to any third party against whom the CLIENT may have a claim therefor. This paragraph shall be effective only during such time as CLIENT’S insurance policies shall permit an executory waiver of subrogation without additional Premium.
23. SEVERABILITY: In the event that any provisions of this Agreement is found to be invalid, including but not Limited to any provision relating to limitation of COMPANY’S liability or remedies therefore, all other provisions shall survive in full force and effect.
24 .ENTIRE AGREEMENT: This Agreement represents the entire agreement of the parties. If there is any conflict between the Agreement and CLIENT’S purchase order, or any other document. This Agreement will govern, whether such purchase order document is prior or subsequent to this Agreement. This Agreement is not assignable by CLIENT except upon the prior written consent of COMPANY. It is mutually understood and agreed that any representation, promise, condition, inducement or warranty, express or implied, not included in writing in this Agreement shall not be binding upon any party and that the Agreement may not be altered, modified, or otherwise changed at any time except with the consent of each of the parties hereto, and in the form of an addendum to this agreement,