1. RECEIPT OF COPY: Subscriber acknowledges receipt of a copy of this agreement.
2. DEALER IS NOT AN INSURER, LIMITATION OF LIABILITY: It is understood and agreed: That Dealer is not an insurer, that insurance, if any, shall be obtained by subscriber, that the payments provided for herein are based solely on the value of the system and service as set forth herein and are unrelated to the value of the subscriber’s property or the property of the others located on subscriber’s premises; that Dealer makes no guaranty or warranty, including any implied warranty of merchantability or fitness that the equipment or services supplied will avert or prevent occurrences there from which the system or service is designed to detect or avert. Subscriber acknowledges that it is impractical and extremely difficult to fix the actual damages, if any, which may proximately result from Dealer’s active or passive negligence, a failure to perform any of the obligations herein, including, but not limited to, design of equipment, warranty service, service, monitoring service or the failure of the system to properly operate with resulting loss to subscriber because of among other things:
a) The uncertain amount or value by subscriber’s property or the property of others kept on the premises which may be lost, stolen, destroyed, damaged or otherwise affected by occurrences which the system or service is designed to detect or avert;
b) The uncertainty of the response time of any police or fire department, paramedic unit or others should they be dispatched as a result of a signal being received;
c) The inability to ascertain what portion, if any, of any loss would be proximately caused by Dealer’s failure to perform or by the System to operate;
d) The uncertain nature of occurrences which might cause injury or death to subscriber or any other person which the system or service is designed to detect or avert;
e) The inability of Dealer to know whether or not the system is operational;
f) The nature of Dealer’s services.
Subscriber understands and agrees that if Dealer should be found liable for loss or damage due from Dealer’s active or passive negligence, a failure of Dealer to perform any of the obligations herein, including but not limited to the failure of the service or equipment in any respect whatsoever, Dealer’s liability shall be limited to Two Hundred Fifty Dollars ($250.00) And this liability shall be exclusive; and that the provisions of this section shall apply if loss or damage, irrespective of cause or origin, results directly or indirectly to persons or property, from performance or nonperformance of the obligations imposed by this contract, or from negligence, active or otherwise, of Dealer, their agents, servants, assigns or employees.
3. SUBSCRIBER INSTALLATION: Field Representative shall instruct Subscriber in the proper use of the System. Subscriber understands that reliable and working internet is required for monitoring as well as telephone service for support or contact.
4. DEALER'S DISCLAIMER OF WARRANTIES: DEALER DOES NOT REPRESENT THAT THE SYSTEM MAY NOT BE COMPROMISED OR CIRCUMVENTED OR THAT THE SYSTEM OR SERVICE WILL PREVENT ANY LOSS BY BURGLARY, FIRE, MEDICAL EMERGENCY, HOLD-UP, OR OTHERWISE THAT THE SYSTEM OR SERVICE WILL IN ALL CASES PROVIDE THE PROTECTION FOR WHICH IT IS INSTALLED OR INTENDED. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT DEALER HAS MADE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION THE CONDITION OF THE EQUIPMENT, ITS MERCHANTABIL1TY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE AND THE LIMITED WARRANTY OF THE MANUFACTURER IS THE ONLY EXPRESS WARRANTY REGARDING THE SYSTEM. SUBSCRIBER FURTHER ACKNOWLEDGES AND AGREES THAT ANY AFFIRMATION OF FACT OR PROMISE SHALL NOT BE DEEMED TO CREATE AN EXPRESS WARRANTY, AND THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FACE OF THE AGREEMENT HEREOF, SUBSCRIBER FURTHER ACKNOWLEDGES AND AGREES THAT DEALER IS NOT AN INSURER, THAT SUBSCRIBER ASSUMES ALL RISK OF LOSS OR DAMAGE TO SUBSCRIBER'S PREMISES OR TO THE CONTENTS THEREOF, AND THAT SUBSCRIBER HAS READ AND UNDERSTANDS ALL OF THIS AGREEMENT. PARTICULARLY PARAGRAPH 2, WHICH SETSFORTH DEALER'S MAXIMUM LIABILITY IN THE EVENT OF ANY LOSS OR DAMAGE TO SUBSCRIBER OR ANYONE ELSE.
5. MEDICAL ALERT SERVICE LIMITATIONS: IN CONSIDERATION OF THE PROVISION OF MEDICAL ALERT SERVICE, SUBSCRIBER ACKNOWLEDGES THAT COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM OR MONITORING SERVICE WILL PREVENT DEATH, BODILY OR PERSONAL INJURY, OR ANY OTHER INJURY OR DAMAGE TO SUBSCRIBER OR OTHERS WHO USE THE SYSTEM. COMPANY MAKES NO REPRESENTATION OR WARRANTY AS TO THE PROMPTNESS OF ITS RESPONSE, AND HAS NO CONTROL OVER THE RESPONSE TIME OR CAPABILITY OF ANY AGENCY OR PERSON WHO MAY BE NOTIFIED AS A RESULT OF THE SYSTEM BEING USED. SUBSCRIBER FURTHER UNDERSTANDS THAT COMPANY MAY BE NEGLIGENT IN PROVIDING THE SERVICE, AND MAY FAIL TO PROPERLY RESPOND TO THE RECEIPT OF AN ALARM SIGNAL FROM THE SYSTEM, OR THAT THE SYSTEM MAY FAIL TO FUNCTION PROPERLY, SUBSCRIBER AGREES THAT IF COMPANY WAS TO HAVE ANY LIABILITY GREATER THAN THAT AGREED TO BY SUBSCRIBER PURSUANTTO SECTION 2 OF THIS AGREEMENT, COMPANY COULD NOT AND WOULD NOT PROVIDE THE SERVICE. SUBSCRIBER ACKNOWLEDGES THAT SUBSCRIBER SHOULD OBTAIN ANY LIFE, MEDICAL OR DISABILITY INSURANCE FOR THE PROTECTION OF SUBSCRIBER AND OTHERS WHO MAY USE THE SYSTEM. SUBSCRIBER UNDERSTANDS THAT THERE ARE ALTERNATIVES AVAILABLE TO SUBSCRIBER SUCH AS 911 EMERGENCY Telephone SERVICE AND SUBSCRIBER HAS SELECTED THIS SERVICE WITH A FULL UNDERSTANDING OF ITS LIMITATIONS AND THE LIMITATION OF COMPANY'S LIABILITY.
6. MONITORING SERVICES: Signals from the System owned by Subscriber at the premise hereinabove set forth or as amended by request of Subscriber shall be monitored by Vitall, Inc. Monitoring services consist of the receipt, analysis and response to signals from the System. All monitoring may be discontinued any time charges are unpaid for the System or Vitall, Inc. personnel are harassed. Written notice by U.S. mail, postage prepaid to the billing address shall be deemed sufficient notice of discontinuation. Dealer reserves the right to increase the monthly monitoring rate for any renewal period by giving thirty (30) days written notice to Subscriber. Upon receipt of an alarm signal from the premises of Subscriber, Vitall, Inc. will make every reasonable effort to promptly notify the police, fire department or paramedic unit having jurisdiction or other persons or entities designated by Subscriber in the Emergency Instructions provided to Dealer. Subscriber acknowledges that the System may enable Vitall, Inc. to "listen in" to Subscriber’s premises and to establish two-way voice communications with occupants of the premises. Subscriber authorizes Vitall, Inc. to utilize this feature upon receipt of an alarm to authenticate the nature of the emergency and to ascertain whether or not an emergency condition exists. VITALL, INC. MAY, IN ITS SOLE DISCRETION, ELECT NOT TO NOTIFY THE POLICE OR FIRE DEPARTMENT OR OTHERS IF VITALL, INC. HAS THE SLIGHTEST REASON TO BELIEVE THAT AN EMERGENCY CONDITION MAY NOT EXIST. Subscriber acknowledges that Vitall, Inc. is unable under any circumstances to activate the listen-in feature from the Security Center without having first received an alarm signal. NOTE: There will be a $25 reprogramming charge if the Subscriber wants the System monitored at a different location from the original installation address.
7. Internet Service: Subscriber shall pay all charges made by any internet service company or other utility for Installation, leasing and service charges of internet service lines and Jacks connecting Subscriber's System to monitoring center. Subscriber acknowledges that the signals from Subscriber’s System are transmitted over Subscriber's internet service to monitoring center, and in the event Subscriber’s internet service is out of order, disconnected, placed on vacation or otherwise Interrupted, signals from Subscriber’s alarm System will not be received by monitoring center during any such Interruption in internet service and the Interruption will not be known to monitoring center. Subscriber further acknowledges and agrees that signals are transmitted over the internet service company lines which are wholly beyond the control and Jurisdiction of monitoring center and are maintained and serviced by the applicable internet Service Company or utility. The Subscriber also acknowledges that GPS tracking, GSM connections, SMS messaging transmissions, and any other service from a cellular carrier communicated via cellular communications networks are wholly beyond the control of ATW and are maintained and serviced by the applicable cellular carriers, whether GSM/GPS/SMS services are provided by ATW or the dealer. ATW will not be liable for any GPS tracking, GSM connections and SMS messages sent by or to Subscribers in connection with any cellular carriers that are delayed or not delivered, regardless of the reason for delay or non-delivery, including, without limitation, triangulation accuracy, message processing and/or transmission errors. ATW makes no representations or warranties regarding the quality, reliability, timeliness or security of the GPS, GSM, SMS, or any other service from a cellular carrier or that they will be error-free, uninterrupted, and free from unauthorized access or that all GSM connections and SMS messages will be delivered.
8. DEALER'S OBLIGATION: Subscriber and Dealer agree that Dealer's sole and only obligations under this Agreement shall be to monitor signals received by means of the System and respond thereto as set forth in Sections 4, 5 or 6 of this Agreement. Services provided to each Subscriber by Dealer will begin only after Dealer has received an executed copy of this Agreement, the first period monitoring payment, and a completed and signed copy of the Emergency Information Instructions. It is the responsibility of Subscriber to contact monitoring center for his first on-line test and all subsequent tests to ensure proper functioning of all equipment.
9. ALARM PERMITS: Subscriber shall apply for, retain and pay for all licenses, permits, or other charges imposed by any governmental agency necessary for the installation and use of the System. Subscriber is responsible for investigating specific permits required by his local municipality, law enforcement agency or other appropriate jurisdictional body.
10. FALSE ALARMS: In the event of an excessive number of false alarms caused by Subscriber's carelessness, malicious action or accidental use of the alarm System, Dealer may in its sole discretion deem same to be a material breach of contract on the part of Subscriber and, at its option, in addition to all other legal remedies available to Dealer, be excused from further performance, upon the giving of ten (10) days written notice to Subscriber. Dealer's excuse from performance shall not affect its right to recover damages from Subscriber. In the event a fine, penalty or fee is assessed against Dealer by any governmental or municipal agency as a result of any alarm originating from Subscriber’s premises, Subscriber agrees to forthwith reimburse Dealer for same.
11. INTERRUPTION OF SERVICE: Dealer assumes no liability for interruption of monitoring service due to strikes, riots, floods, storms, earthquakes, fires, power failures, insurrection, interruptions or unavailability of internet or telephone service, acts of God, or for any other abuse beyond the control of Dealer and will not be required to supply monitoring service to Subscriber while interruption of service due to any such cause may continue.
12. SUSPENSION OR CANCELLATION: This Agreement may be suspended or cancelled without notice at the option of Dealer if Dealer's Security Monitoring facilities or Subscriber's premises or equipment are destroyed by fire or other catastrophe, or so Substantially damaged that it is impractical to continue service or in the event Dealer is unable to render service as a result of any action by any governmental authority.
13. SUBSCRIBER'S DUTIES: Subscriber shall carefully use this System and instruct all members of his or her household proper use of the System. Subscriber shall use the Security System alarm only to report incidents or occurrences that impose an immediate and present danger of burglary, robbery or other circumstances that endanger the personal safety of Subscriber or others in Subscriber's home. In addition, Subscriber agrees to keep current the Subscriber information provided to monitoring center. All changes, revisions and modifications of the information shall be supplied to Dealer in writing. It is the responsibility of the Subscriber to perform on-line tests of the System for proper operation no less than monthly.
14. DEFAULT BY SUBSCRIBER: TERMINATION: If Subscriber fails to pay any amount herein provided within ten (10) days after the same is due and payable, or if Subscriber fails to perform any other provisions hereof within ten (10) days after Dealer shall have requested in writing performance thereof, or Dealer shall have the right but shall not be obligated to exercise any one or more of the following remedies: (a) Recover the existing amounts due from Subscriber and continue to monitor the System, in which case Dealer may be entitled to recover, in addition, the annual charge due under the contract for said services; or (b) Recover from Subscriber all sums Dealer may be entitled to under the law. Upon termination of the Agreement for any reason. Should Subscriber cancel services prior to expiration of any contract terms, the entire balances become due immediately for any unexpired period remaining on the contract?
15. THIRD PARTY INDEMNIFICATION: When Subscriber in the ordinary course of business has the opportunity of others in his custody, or the alarm System extends to protect property of others, Subscriber agrees to and shall indemnify, defend and hold harmless Dealer, its employees, or 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 Dealer's performance or failure to perform and including defects in products, design, installation, maintenance, operation or non-operation of the System whether based upon active or passive negligence, express or implied warranty, contribution, indemnification, or strict or product liability on the part of Dealer, its employees or agents, but this provision shall not apply to claims for loss or damage which occurs while an employee of Dealer is on Subscriber’s premises and are solely and directly caused by said employee.
16. INVALID PROVISIONS: In the event of any of the terms or provisions of this Agreement shall be declared to be invalid or inoperative, all of the remaining terms and provisions shall remain in full force and effect.
17. ENTIRE INTEGRATED AGREEMENT: MODIFICATION: ALTERATION: WAIVER: This writing intended by the parties as a final expression of their Agreement and as a complete and exclusive statement of the terms thereof. This Agreement supersedes all prior representations, understandings, or agreements of the parties and the parties rely only upon the contents of this Agreement in executing it. This Agreement can only be modified by a writing signed by the parties or their duly authorized agent. No waiver of a breach of any term or condition of this Agreement shall be construed to be a waiver of any succeeding breach.
18. NOTICES: All notices to be given hereunder shall be in writing and may be served, either personally or by mail, postage prepaid to the address set forth in the Agreement or to any other address provided by one to the other from time to time in writing.