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TERMS AND CONDITIONS
<br />1. Term. The Initial Term of this Agreement shall commence on the date of this
<br />Agreement and continue for the period indicated in this Agreement. At the
<br />conclusion of the Initial Term, this Agreement shall automatically extend for
<br />successive terms equal to the Initial Term, each and together a "Term" of this
<br />Agreement, unless either party gives written notice to the other party at least
<br />thirty (30) days prior to the end of the then-current term.
<br />2. Payment. Payments shall be invoiced and due in accordance with the terms
<br />and conditions set forth in this Agreement. Work performed on a time and
<br />material basis shall be at the then-prevailing Company rate for material, labor,
<br />and related items, in effect at the time supplied under this Agreement.
<br />3. Pricing. The pricing set forth in this Agreement is based on the number of
<br />devices and services to be performed as set forth in this Agreement. If the
<br />actual number of devices installed or services to be performed is greater than
<br />that set forth in this Agreement, the price will be increased accordingly.
<br />Company may increase prices upon notice to the Customer or annually to
<br />reflect increases in material and labor costs. Customer agrees to pay all taxes,
<br />permits, and other charges, including but not limited to state and local sales
<br />and excise taxes, installation or alarm permits, false alarm assessments, or
<br />any charges imposed by any government body, however designated, levied or
<br />based on the service charges pursuant to this Agreement. The Customer's
<br />failure to make payment when due is a material breach of this Agreement.
<br />4. Code Compliance. Company does not undertake an obligation to inspect
<br />for compliance with laws or regulations unless specifically stated in this
<br />Agreement. Customer acknowledges that the Authority Having Jurisdiction
<br />(e.g. Fire Marshal) may establish additional requirements for compliance with
<br />local codes. Any additional services or equipment required will be provided at
<br />an additional cost to Customer.
<br />5. Limitation of Liability; Limitations of Remedy. Customer understands
<br />that Company offers several levels of protection services and that the level
<br />described has been chosen by Customer after considering and balancing
<br />various levels of protection afforded and their related costs. It is understood
<br />and agreed by the Customer that Company is not an insurer and that
<br />insurance coverage, if any, shall be obtained by the Customer and that
<br />amounts payable to Company hereunder are based upon the value of the
<br />services and the scope of liability set forth in this Agreement and are
<br />unrelated to the value of the Customer's property and the property of
<br />others located on the premises. Customer agrees to look exclusively to
<br />the Customer's insurer to recover for injuries or damage in the event of
<br />any loss or injury and that Customer releases and waives all right of
<br />recovery against Company arising by way of subrogation. Company
<br />makes no guaranty or Warranty, including any implied warranty of
<br />merchantability or fitness for a particular purpose that equipment or
<br />services supplied by Company will detect or avert occurrences or the
<br />consequences therefrom that the equipment or service was designed to
<br />detect or avert. It is impractical and extremely difficult to fix the actual
<br />damages, if any, which may proximately result from failure on the part of
<br />Company to perform any of its obligations under this Agreement.
<br />Accordingly, Customer agrees that, Company shall be exempt from
<br />liability for any loss, damage or injury arising directly or indirectly from
<br />occurrences, or the consequences therefrom, which the equipment or
<br />service was designed to detect or avert. Should Company be found
<br />liable for any loss, damage or injury arising from a failure of the
<br />equipment or service in any respect, Company's liability for Services
<br />performed on site at Customers premises shall be limited to an amount
<br />equal to the Agreement price (as increased by the price for any additional
<br />work) or, where the time and material payment term is selected,
<br />Customers time and material payments to Company. Where this
<br />Agreement covers multiple sites, liability shall be limited to the amount
<br />of the payments allocable to the site where the incident occurred.
<br />Company's liability with respect to Monitoring Services is set forth in
<br />Section 17 of this Agreement. Such sum shall be complete and
<br />exclusive. If Customer desires Company to assume greater liability, the
<br />parties shall amend this Agreement by attaching a rider setting forth the
<br />amount of additional liability and the additional amount payable by the
<br />Customer for the assumption by Company of such greater liability,
<br />provided however that such rider shall in no way be interpreted to hold
<br />Company as an insurer. IN NO EVENT SHALL COMPANY BE LIABLE FOR
<br />ANY DAMAGE, LOSS, INJURY, OR ANY OTHER CLAIM ARISING FROM
<br />ANY SERVICING, ALTERATIONS, MODIFICATIONS, CHANGES, OR
<br />MOVEMENTS OF THE COVERED SYSTEM(S), AS HEREINAFTER
<br />DEFINED, OR ANY OF ITS COMPONENT PARTS BY THE CUSTOMER OR
<br />ANY THIRD PARTY. COMPANY SHALL NOT BE LIABLE FOR INDIRECT,
<br />INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND,
<br />INCLUDING BUT NOT LIMITED TO DAMAGES ARISING FROM THE USE,
<br />LOSS OF THE USE, PERFORMANCE, OR FAILURE OF THE COVERED
<br />SYSTEM(S) TO PERFORM. The limitations of liability set forth in this
<br />Agreement shall inure to the benefit of all parents, subsidiaries and
<br />affiliates of Company, whether direct or indirect, Company's employees,
<br />agents, officers and directors.
<br />6. Reciprocal Waiver of Claims (SAFETY Act). Certain of Company's
<br />systems and services have received Certification and/or Designation as
<br />Qualified Anti-Terrorism Technologies ("QATT") under the Support
<br />Anti-terrorism by Fostering Effective Technologies Act of 2002, 6 U.S.C. §§
<br />441-444 (the "SAFETY Act"). As required under 6 C.F.R. 25.5 (e), to the
<br />maximum extent permitted by law, Company and Customer hereby agree to
<br />waive their right to make any claims against the other for any losses, including
<br />business interruption losses, sustained by either party or their respective
<br />employees, resulting from an activity resulting from an "Act of Terrorism" as
<br />defined in 6 C.F.R. 25.2, when QATT have been deployed in defense against,
<br />response to, or recovery from such Act of Terrorism.
<br />7. Indemnity. Customer agrees to indemnify, hold harmless and defend
<br />Company against any and all losses, damages, costs, including expert
<br />fees and costs, and expenses including reasonable defense costs,
<br />arising from any and all third party claims for personal injury, death,
<br />property damage or economic loss, arising in any way from any act or
<br />omission of Customer or Company relating in any way to this Agreement,
<br />including but not limited to the Services under this Agreement, whether
<br />such claims are based upon contract, warranty, tort (including but not
<br />limited to active or passive negligence), strict liability or otherwise.
<br />Company reserves the right to select counsel to represent it in any such
<br />action. Customer's responsibility with respect to indemnification and
<br />defense of Company with respect to Monitoring Services is set forth in
<br />Section 17 of this Agreement.
<br />8. General Provisions. Customer has selected the service level desired after
<br />considering and balancing various levels of protection afforded, and their
<br />related costs. Customer acknowledges and agrees that by this Agreement,
<br />Company, unless specifically stated, does not undertake any obligation to
<br />maintain or render Customer's system or equipment as Year 2000 compliant,
<br />which shall mean, capable of correctly handling the processing of calendar
<br />dates before or after December 31, 1999. All work to be performed by
<br />Company will be performed during normal working hours of normal working
<br />days (8:00 a.m. - 5:00 p.m.), Monday through Friday, excluding Company
<br />holidays), as defined by Company, unless additional times are specifically
<br />described in this Agreement. All work performed unscheduled unless
<br />otherwise specified in this Agreement. Appointments scheduled for four-hour
<br />window. Additional charges may apply for special scheduling requests, e.g.
<br />working around equipment shutdowns, after hours work.
<br />Company will perform the services described in the Service Solution ("Services
<br />") for one or more system(s) or equipment as described in the Service Solution
<br />or the listed attachments ("Covered System(s)"). UNLESS OTHERWISE
<br />SPECIFIED IN THIS AGREEMENT, ANY INSPECTION (AND, IF SPECIFIED,
<br />TESTING) PROVIDED UNDER THIS AGREEMENT DOES NOT INCLUDE
<br />ANY MAINTENANCE, REPAIRS, ALTERATIONS, REPLACEMENT OF
<br />PARTS, OR ANY FIELD ADJUSTMENTS WHATSOEVER, NOR DOES IT
<br />INCLUDE THE CORRECTION OF ANY DEFICIENCIES IDENTIFIED BY
<br />COMPANY TO CUSTOMER. COMPANY SHALL NOT BE RESPONSIBLE
<br />FOR EQUIPMENT FAILURE OCCURRING WHILE COMPANY IS IN THE
<br />PROCESS OF FOLLOWING ITS INSPECTION TECHNIQUES, WHERE THE
<br />FAILURE ALSO RESULTS FROM THE AGE OR OBSOLESCENCE OF THE
<br />ITEM OR DUE TO NORMAL WEAR AND TEAR. THIS AGREEMENT DOES
<br />NOT COVER SYSTEMS, EQUIPMENT, COMPONENTS OR PARTS THAT
<br />ARE BELOW GRADE, BEHIND WALLS OR OTHER OBSTRUCTIONS OR
<br />EXTERIOR TO THE BUILDING, ELECTRICAL WIRING, AND PIPING.
<br />9. Customer Responsibilities. Customer shall regularly test the System(s) in
<br />accordance with applicable law and manufacturers' and Company's
<br />recommendations. Customer shall promptly notify Company of any malfunction
<br />in the Covered System(s) which comes to Customer's attention. This
<br />Agreement assumes any existing system(s) are in operational and
<br />maintainable condition as of the Agreement date. If, upon inspection, Company
<br />determines that repairs are recommended, repair charges will be submitted for
<br />approval by Customer's on-site representative prior to work. Should such
<br />repair work be declined, Company shall be relieved from any and all liability
<br />arising therefrom.
<br />Customer further agrees to:
<br />• Provide Company clear access to Covered System(s) to be serviced
<br />including, if applicable, lift trucks or other equipment needed to reach
<br />inaccessible equipment;
<br />• Supply suitable electrical service, heat, heat tracing adequate water supply,
<br />and required system schematics and/or drawings,
<br />• Notify all required persons, including but not limited to authorities having
<br />jurisdiction, employees, and monitoring services, of scheduled testing
<br />and/or repair of systems;
<br />• Provide a safe work environment;
<br />• In the event of an emergency or Covered System(s) failure, take reasonable
<br />precautions to protect against personal injury, death, and/or property
<br />damage and continue such measures until the Covered System(s) are
<br />operational; and
<br />• Comply with all laws, codes, and regulations pertaining to the equipment
<br />and/or services provided under this agreement.
<br />Customer represents and warrants that it has the right to authorize the
<br />Services to be performed as set forth in this Agreement.
<br />10. Repair Services. Where Customer expressly includes repair, replacement,
<br />and emergency response services in the Service Solution section of this
<br />Agreement, such services apply only to the components or equipment of the
<br />SG0001 US.ENG (Rev. 12/2010) Page 5 of 8 © 2010 SimplexGrinnell LP. All rights reserved
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