The Customer understands that if digital communicator is checked, it uses standard telephone lines to send signals to the Central Station, and Customer must provide and pay for this line. Customer also understands that SAS will not receive signals when the telephone line is cut, out of service, or otherwise damaged. When an alarm occurs, Customer will be unable to use their telephone to make other calls (such as calls to the 911 emergency operator), and therefore, Customer may wish to have the System connected to a second telephone line. Customer has been offered alternative methods for transmission of alarm signals. Customer understands, acknowledges and agrees that System is not infallible and the transmission and receipt of data from System, regardless of the communications equipment or service used, may be interrupted, circumvented or otherwise compromised and there can be no indication of such interruption or compromise at the monitoring facility unless Customer has purchased some form of redundant communication equipment or service at additional cost. Customer understands that SAS doesnot receive signals when the transmission mode is or becomes non-operational. Immediately after the installation of DSL or other broadband service Customer must test the System’s signal transmission because it may prevent the System from sending alarm signals.
The parties agree, that due to the nature of the services to be provided by SAS, the payments to be made by Customer for the term of this agreement are an integral part of SAS’s anticipated profits and in the event of Customer’s breach of this agreement it would be difficult if not impossible to reasonably estimate SAS’s actual damages. Therefore, in the event of Customers default or premature cancellation of this agreement Customer shall immediately pay 90% of the charges remaining to be paid under the terms and life of this agreement as liquidated damages. The parties further agree that Customer shall pay all court costs, collection fees and reasonable attorney’s fees of thirty-three and one-third percent (33 1/3%) of all monies remaining to be paid under this Agreement, should SAS have to place this Agreement in the hands of any attorney for collection.
Customer authorizes SAS to investigate its credit, employment, income history and references. Customer will provide access to premises to SAS for installation of system or service. Customer understands SAS may use subcontractors to provide installation, repair, monitoring and other services and agrees that installation of System does not create a fixture to Customer’s premises. In the event Customer is not the owner of premises, Customer warrants that they have obtained the written consent of owner for the installation and removal of System. SAS will have the right to install transmitting and receiving equipment Customer’s buildings or structures. Customer agrees to furnish necessary continuous 110 volt non-switched dedicated electrical circuits and outlets at Customer’s expense for SAS equipment. Customer will provide adequate lighting for any CCTV system and otherwise provide the proper environment for the system as SAS may reasonably request. Customer also agrees to allow surface wiring as needed and understands that any requirement for (A) plenum wire, (B) conduit, (C) a non-standard business hour schedule, (D) union workers, or (E) prevailing wage rates will be at an additional charge unless specified in Agreement. Customer has the affirmative duty to inform SAS, prior to beginning of installation, of every location at the premises where SAS should not (because of concealed obstructions or hazards such as pipes, wires, or asbestos) enter or drill holes. Unless so notified, SAS will determine where to drill holes and place equipment. SAS will take reasonable precautions to avoid concealed obstructions, but has no means of determining with certainty if they exist. Any costs incurred to repair pipes, wire, or other obstructions, and any resuming damaged walls, ceiling, floors or furnishings shall be Customer’s sole expense and responsibility.
Except as otherwise limited by this Agreement, upon written notice within one year of the date of this Agreement, SAS will repair or replace, subject to the availability of the original part or equipment from original manufacturer, at its sole option, any defective equipment. This limited warranty does not cover equipment damaged by Customer or by vandalism, lightning, flood, fire, or other acts of God. The costs of unnecessary alarms caused by the Customer are chargeable to the Customer. If Extended Warranty is checked, SAS, upon request, will provide ordinary repair due to normal wear. Repair or replacement of equipment damaged or misused by Customer, or damaged by vandalism, lightning, flood, fire, or other acts of God is chargeable to the Customer. Moved or relocated equipment, non-SAS installed equipment, exterior mounted devices, telephone equipment, alterations to the system by non-SAS personnel, and batteries are NOT covered by Extended Warranty.
If SAS takes over rendering services in whole or in part, to Customer at the request of Customer, or as a result of the acquisition of Customer from another alarm company, Customer has no expectation and SAS has no duty to re-engineer, verify compliance to code or test System during any service visit or at any other time, unless specifically requested to do so by Customer. SAS shall make any necessary repairs as soon after receipt of notice as is reasonably practical and may use new or refurbished substitute components or replacement parts of similar operational intent. Customer agrees that all changes to System necessitated by a change in telephone service provider, area code or dialing changes, addition or removal of answering machine, DSL, T-1, ISDN, call waiting or other calling features, fax or modem, or all repair services to System caused by remodeling, code requirements, corrosive atmosphere, improper use of System, misuse, abuse, vandalism, lightening of any other act of God are not warranted and are billable. SAS is in no way obligated to maintain, repair, service, or to assure the operation of the installation, system or any device or devices of the Customer’s or of others to which the SAS system may be attached or connected nor to repair or redecorate any portion of the Customer’s premises upon removal of all or part of SAS system. SAS assumes no liability for interruption of service or installation due to labor disputes, floods, riots, fires, interruptions in communication services, acts of God, or any causes beyond the control of SAS, and SAS is not required to supply service to Customer while such interruptions exist. If asbestos or other health hazardous material is encountered during installation, SAS will cease work until Customer has, at its sole expense, obtained clearance from a licensed asbestos removal or hazardous material contractor that continuation of work will not pose danger to personnel. In no case shall SAS be liable for discovery or exposure of hidden asbestos or other hazardous material.
In the event an alarm signal is received and acknowledged by SAS, after attempting verification calls to Customer, SAS will make a reasonable attempt to notify the appropriate, if any, municipal agency (police, fire department), responding agency, and Customer’s responsible party. If a cancellation signal is received; and no notification has been made no action will be taken; after SAS has made a notification SAS may attempt to abort any dispatch that has already been arranged. If the Customer has not designated their responding agency, SAS may dispatch a response agency and the Customer will be charged for each response. The responding agency is not providing a guard or policing function and has no duty to attempt to apprehend unauthorized people. Customer agrees to furnish to SAS a written list of names and telephone numbers of all responsible parties authorized to enter the Customer’s premises, SAS must be notified of updates and/ or changes to this list immediately. This Agreement may be suspended or cancelled without notice and without liability or penalty in the event SAS’s central station is destroyed by fire, other catastrophe or is so substantially damaged that it is impractical to continue service. SAS shall have the right to assign this Agreement or subcontract its obligations under this Agreement without notice to the Customer. This Agreement is not assignable by Customer unless such assignment shall be consented to in writing by SAS.
LIMITATION OF LIABILITY
It is understood and agreed: That SAS or its directors, officers, shareholders, agents, assigns, employees, or independent contractors providing portions of the services for Customer (including, but not limited to, signal carriers, telephone companies, municipal agencies, monitoring services, etc.), all hereinafter referred to as “Sub,” are not an insurer; that insurance covering all loss, damage, and expense arising out of or from, in connection with, related to, as a consequence of or resulting from this Agreement, shall be obtained and continuously maintained by Customer; that payments provided for herein are based solely on thevalue of System and services as set forth herein and are unrelated to the value of Customer’s property or property of others located on Customer’s premises; that SAS and Sub make no guarantee, representation or warranty, including any implied warranty of merchantability or fitness that System or services supplied may not be compromised, circumvented, or System or services will in all cases provide signaling, monitoring and response for which it was intended; that Customer is not relying on SAS’s skill or judgment in selecting or furnishing a System or service suitable for any particular purpose.
EXCULPATORY CLAUSE
Customer understands and agrees that SAS and Sub are released for all loss, damage or expense which may occur prior to, contemporaneously with, or subsequent to execution of this Agreement due to improper operation or non-operation of System (including, without limitation or example, communications equipment or services necessary to transmit to or receive any data at the monitoring facility), and should there arise any liability on the part of SAS or Sub for any damages of any kind, including, without limitation, economic losses, personal injury, including death, or property damage (real or personal) which is in connection with, arises out of or from, results from, is related to or is a consequence of the active or passive sole, joint or several negligence of any kind or degree of SAS or Sub including, without limitation, acts, errors or omissions which occur prior to, contemporaneously with or subsequent to execution of this Agreement, or breach of this Agreement, or any claim brought in product or strict liability, subrogation, contribution or indemnification, whether in contract, tort or equity, including, without limitation, any general, direct, special, incidental, exemplary, punitive, statutory or consequential damages, irrespective of cause, such liability shall be limited to the maximum sum of 10% of the annual service charge or $1,000.00, whichever is greater, collectively for SAS and Sub, as liquidated damages and not as a penalty as Customer’s exclusive remedy.
In the event that Customer wishes SAS or Sub to assume greater liability, Customer may, as a matter of right, obtain from SAS a higher limit by paying an additional amount proportioned to the increase in damages, but such additional obligation shall in no way be interpreted to hold SAS or Sub as insurers. This limitation of liability covers all of SAS supplied equipment and services, including monitoring, at all of Customer’s locations. Customer acknowledges that additional premises protection and a higher level of security for alarm signal transmission to the remote monitoring facility is available at additional cost to Customer. No suit or action shall be brought against SAS or Sub more than one year after the accrual of the cause of action.
INDEMNIFICATION
Customer agrees (A) that SAS and Sub shall have the right, but not obligation, to designate its or their attorneys to control the investigation, defense and settlement of any claim or suit against it or them, and (B) to protect, indemnify, defend and hold harmless SAS and Sub from and against and pay (without any condition that SAS or Sub first pay) for all claims, demands, suits, liabilities, damages, judgments, losses and expenses including, without limitation, attorneys’ fees, which may be asserted against or incurred by SAS or Sub by or due to any person not a party to this Agreement, including, without limitation, Customer’s insurance company or Customer’s employees or the personal representative of any employee, for any expense, loss or damage including, without limitation, statutory civil damages, economic damages, personal injury, death or property damage, real or personal, arising out of or from, in connection with, as a result of, related to or as a consequence of breach of this Agreement, recording of communications, video surveillance/recording, active or passive sole, joint or several negligence of any kind or degree of SAS or Sub, product or strict liability, or any claim for subrogation, contribution or indemnification, whether in contract, tort or equity; but this provision shall not apply to claims for loss or damage solely and directly caused by an employee of SAS or Sub while on Customer’s premises. Customer hereby releases SAS and Sub for all losses, damages and expenses (i) covered by Customer’s insurance policies, (ii) policy deductibles, co- pay percentage, or retained limits, Xiii) in excess of amounts paid by Customer’s insurance, and (iv) due to underinsurance. As an inducement to SAS to enter into this Agreement, Customer represents warrants and covenants that Customer’s insurance companies shall not have any right of subrogation against SAS or Sub.
All verbal or written communication between the parties which occurred prior to the date of this Agreement are merged into terms of this Agreement and the entire agreement of the parties is expressed hereinabove and no verbal understandings or agreement shall alter, change or modify the terms and provisions of this Agreement.
Customer is not relying on any advice or advertisement of SAS. In the event that any provision of this Agreement is found to be unenforceable, all other terms shall remain in full force and effect. It is understood and agreed that if there is any conflict between this Agreement and Customer’s purchase order, or any other document, this Agreement will govern whether such purchase order or other document is exe cuted prior or subsequent to this Agreement and that any work performed under any Customer construction type contract or purchase order is subject to the terms and conditions of this Agreement.
Customer agrees that SAS may, at SAS’s option, monitor and record telephone conversations and other communications to and from SAS’s offices.
This Agreement is deemed executed in and venue shall be exclusive in the State of Nevada should any portion of Agreement have to be legally enforced or litigated. The parties hereby waive any objection they may have to jurisdiction or venue of any such suit, and further waive trial by jury in any action between them. In any action commenced by SAS against Customer, Customer shall not be permitted to interpose any counterclaim. The interpretation of this Agreement shall not be construed against the drafter.