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which Company should not under any circumstances be held responsible or
<br />liable; that the equipment furnished for Personal Emergency Response
<br />Services is not foolproof and may experience signal transmission failures or
<br />delays for any number of reasons, whether or not our fault or under Company's
<br />control; that the actual time required for medical emergency providers to arrive
<br />at the premises and/or to transport any person requiring medical attention is
<br />unpredictable and that many contributing factors, including but not limited to
<br />such things as telephone network operation, distance, weather, road and traffic
<br />conditions, alarm equipment function and human factors, both with responding
<br />authorities and with Company, may affect response
<br />18. Limited Warranty. COMPANY WARRANTS THAT ITS WORKMANSHIP
<br />AND MATERIAL, EXCLUDING MONITORING SERVICES, FURNISHED
<br />UNDER THIS AGREEMENT WILL BE FREE FROM DEFECTS FOR A
<br />PERIOD OF NINETY (90) DAYS FROM THE DATE OF FURNISHING.
<br />Where Company provides product or equipment of others, Company will
<br />warrant the product or equipment only to the extent warranted by such
<br />third party. EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY
<br />DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT
<br />NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY
<br />OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
<br />SERVICES PERFORMED OR THE PRODUCTS, SYSTEMS OR
<br />EQUIPMENT, IF ANY, SUPPORTED HEREUNDER. COMPANY MAKES NO
<br />WARRANTY OR REPRESENTATION, AND UNDERTAKES NO
<br />OBLIGATION TO ENSURE BY THE SERVICES PERFORMED UNDER THIS
<br />AGREEMENT, THAT COMPANY'S PRODUCTS OR THE SYSTEMS OR
<br />EQUIPMENT OF THE CUSTOMER WILL CORRECTLY HANDLE THE
<br />PROCESSING OF CALENDAR DATES BEFORE OR AFTER DECEMBER
<br />31,1999.
<br />19. Taxes, Fees, Fines, Licenses, and Permits. Customer agrees to pay all
<br />sales tax, use tax, property tax, utility tax and other taxes required in
<br />connection with the equipment and services listed, including telephone
<br />company line charges, if any. Customer shall comply with all laws and
<br />regulations relating to the equipment and its use and shall promptly pay when
<br />due all sales, use, property, excise and other taxes and all permit, license and
<br />registration fees now or hereafter imposed by any government body or agency
<br />upon the equipment or its use. Company may, without notice, obtain any
<br />required permit, license or registration for Customer at Customer's expense
<br />and charge a fee for this service. If Customer fails to maintain any required
<br />licenses or permits, Company shall not be responsible for performing the
<br />services and may terminate the services without notice to Customer.
<br />20. Outside Charges. Customer understands and accepts that Company
<br />specifically denies any responsibility for charges associated with the
<br />notification or dispatching of anyone, including but not limited to fire
<br />department, police department, paramedics, doctors, or any other emergency
<br />personnel, and if there are any charges incurred as a result of said notification
<br />or dispatch, said charges shall be the responsibility of Customer.
<br />21. Insurance. Customer shall name Company, its officers, employees,
<br />agents, subcontractors, suppliers, and representatives as additional insureds
<br />on Customer's general liability and auto liability policies.
<br />22. Waiver of Subrogation. Customer does hereby for itself and all other
<br />parties claiming under it release and discharge Company from and against all
<br />hazards covered by Customer's insurance, it being expressly agreed and
<br />understood that no insurance company or insurer will have any right of
<br />subrogation against Company.
<br />23. Force Majeure, Exclusions. Company shall not be responsible for delays,
<br />interruption or failure to render services due to causes beyond its control,
<br />including but not limited to material shortages, work stoppages, fires, civil
<br />disobedience or unrest, severe weather, fire or any other cause beyond the
<br />control of Company. This Agreement expressly excludes, without limitation,
<br />provision of fire watches; reloading of, upgrading, and maintaining computer
<br />software; making repairs or replacements necessitated by reason of
<br />negligence or misuse of components or equipment or changes to Customer's
<br />premises; vandalism; power failure; current fluctuation; failure due to
<br />non-Company installation; lightning, electrical storm, or other severe weather;
<br />water; accident; fire; acts of God; testing inspection and repair of duct
<br />detectors, beam detectors, and UV/IR equipment; provision of fire watches;
<br />clearing of ice blockage; draining of improperly pitched piping; batteries;
<br />recharging of chemical suppression systems; reloading of, upgrading, and
<br />maintaining computer software; corrosion (including but not limited to
<br />micro-bacterially induced corrosion ("MIC")); cartridges greater that 16 grams;
<br />gas valve installation; or any other cause external to the Covered System(s)
<br />and Company shall not be required to provide Service while interruption of
<br />service due to such causes shall continue. This Agreement does not cover
<br />and specifically excludes system upgrades and the replacement of obsolete
<br />systems, equipment, components or parts. All such services may be provided
<br />by Company at Company's sole discretion at an additional charge. If
<br />Emergency Services are expressly included in the Service Solution, the
<br />Agreement price does not include travel expenses.
<br />24. Delays. Company shall have no responsibility or liability to Customer or
<br />any other person for delays in the installation or repair of the System or the
<br />performance of our Services regardless of the reason, or for any resulting
<br />consequences.
<br />25. Termination. Company may terminate this Agreement immediately at its
<br />sole discretion upon the occurrence of any Event of Default as hereinafter
<br />defined. Company may also terminate this Agreement at its sole discretion
<br />upon notice to Customer if Company's performance of its obligations under this
<br />Agreement becomes impracticable due to obsolescence of equipment at
<br />Customer's premises or unavailability of parts.
<br />26. No Option to Solicit. Customer shall not, directly or indirectly, on its own
<br />behalf or on behalf of any other person, business, corporation or entity, solicit
<br />or employ any Company employee, or induce any Company employee to leave
<br />his or her employment with Company, for a period of two years after the
<br />termination of this Agreement.
<br />27. Default. An Event of Default shall include 1) any full or partial termination
<br />of this Agreement by Customer before the expiration of the then-current Term,
<br />2) failure of the Customer to pay any amount within ten (10) days after the
<br />amount is due and payable, 3) abuse of the System or the Equipment, 4)
<br />failure by Customer to observe, keep or perform any term of this Agreement; 5)
<br />dissolution, termination, discontinuance, insolvency or business failure of
<br />Customer. Upon the occurrence of an Event of Default, Company may pursue
<br />one or more of the following remedies, 1) discontinue furnishing Services, 2)
<br />by written notice to Customer declare the balance of unpaid amounts due and
<br />to become due under the this Agreement to be immediately due and payable,
<br />provided that all past due amounts shall bear interest at the rate of 1 1/2% per
<br />month (18% per year) or the highest amount permitted by law, 3) receive
<br />immediate possession of any equipment for which Customer has not paid. 4)
<br />proceed at law or equity to enforce performance by Customer or recover
<br />damages for breach of this Agreement, and 5) recover all costs and expenses,
<br />including without limitation reasonable attorneys' fees, in connection with
<br />enforcing or attempting to enforce this Agreement.
<br />28. One-Year Limitation on Actions; Choice of Law. It is agreed that no suit,
<br />or cause of action or other proceeding shall be brought against either party
<br />more than one (1) year after the accrual of the cause of action or one (1) year
<br />after the claim arises, whichever is shorter, whether known or unknown when
<br />the claim arises or whether based on tort, Agreement, or any other legal
<br />theory. The laws of Massachusetts shall govern the validity, enforceability, and
<br />interpretation of this Agreement.
<br />29. Assignment. Customer may not assign this Agreement without Company's
<br />prior written consent. Company may assign this Agreement without obtaining
<br />Customer's consent.
<br />30. Entire Agreement. The parties intend this Agreement, together with any
<br />attachments or Riders (collectively the "Agreement) to be the final, complete
<br />and exclusive expression of their Agreement and the terms and conditions
<br />thereof. This Agreement supersedes all prior representations, understandings
<br />or agreements between the parties, written or oral, and shall constitute the sole
<br />terms and conditions relating to the Services. No waiver, change, or
<br />modification of any terms or conditions of this Agreement shall be binding on
<br />Company unless made in writing and signed by an Authorized Representative
<br />of Company.
<br />31. Headings. The headings in this Agreement are for convenience only.
<br />32. Severability. If any provision of this Agreement is held by any court or
<br />other competent authority to be void or unenforceable in whole or in part, this
<br />Agreement will continue to be valid as to the other provisions and the
<br />remainder of the affected provision.
<br />33. Electronic Media. Customer agrees that Company may scan, image or
<br />otherwise convert this Agreement into an electronic format of any nature.
<br />Customer agrees that a copy of this Agreement produced from such electronic
<br />format is legally equivalent to the original for any and all purposes, including
<br />litigation. Customer agrees that Company's receipt by fax of the Agreement
<br />signed by Customer legally binds Customer and such fax copy is legally
<br />equivalent to the original for any and all purposes, including litigation.
<br />34. Legal Fees. Company shall be entitled to recover from the Customer all
<br />reasonable legal fees incurred in connection with Company enforcing the
<br />terms and conditions of this Agreement.
<br />35. License Information (Security System Customers): AL Alabama
<br />Electronic Security Board of Licensure 7956 Vaughn Road, PMB 392,
<br />Montgomery, Alabama 36116 (334) 264-9388: AR Regulated by: Arkansas
<br />Board of Private Investigators and Private Security Agencies, #1 State Police
<br />Plaza Drive, Little Rock 72209 (501)618-8600: CA Alarm company operators
<br />are licensed and regulated by the Bureau of Security and Investigative
<br />Services, Department of Consumer Affairs, Sacramento, CA, 95814. Upon
<br />completion of the installation of the alarm system, the alarm company shall
<br />thoroughly instruct the purchaser in the proper use of the alarm system. Failure
<br />by the licensee, without legal excuse, to substantially commence work within
<br />20 days from the approximate date specified in the agreement when the work
<br />will begin is a violation of the Alarm Company Act: NY Licensed by the N.Y.S.
<br />Department of the State: TX Texas Commission on Private Security, 5805 N.
<br />Lamar Blvd., Austin, TX 78752-4422, 512-424-7710. License numbers
<br />available at www.simplexgrinnell.com or contact your local SimplexGrinnell
<br />office.
<br />SG0001 US.ENG (Rev. 12/2010) Page 8 of 8 © 2010 SimplexGrinnell LP. All rights reserved
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