1. FIRE SENTRY SYSTEMS IS NOT AN INSURER; LIQUIDATED DAMAGES; LIMITATION OF LIABILITY:
1.1. It is understood and agreed: That FIRE SENTRY SYSTEMS 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 services as set forth herein and are unrelated to the value of the Subscriber’s property or the property of others located on Subscriber’s premises: That FIRE SENTRY SYSTEMS makes no guaranty or warranty, including any implied warranty of merchantability or fitness that the system or services supplied will avert or prevent occurrences or the consequences 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 FIRE SENTRY SYSTEMS’ negligence, or failure to perform any of the obligations herein, including but not limited to installation, monitoring, or repair service or the failure of the system to properly operate with resulting loss to Subscriber because of, any of the following things:
1.1.1. The uncertain amount or value of 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.
1.1.2. The uncertainty of the response time of any police, fire department, paramedic unit or others should they be notified of a signal being activated or an audible device sounding.
1.1.3. The inability to ascertain what portion, if any, of any property loss, personal injury or death would be proximately caused by FIRE SENTRY SYSTEMS’ failure by person or by its equipment to operate.
1.1.4. The nature of the service to be performed by FIRE SENTRY SYSTEMS.
1.2. Subscriber understands and agrees that if FIRE SENTRY SYSTEMS should be found liable for loss or damage due from (1) failure of FIRE SENTRY SYSTEMS to perform any of the obligations herein, including, but not limited to, installation, monitoring or repair service, (2) the failure of the service or equipment in any respect whatsoever, or (3) FIRE SENTRY SYSTEMS’ active or passive negligence, FIRE SENTRY SYSTEMS’ liability shall be limited to a sum equal to Two Hundred Fifty Dollars ($250.00) as liquidated damages and not as a penalty, 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 to persons or property, from performance or nonperformance of the obligations imposed by this agreement, or from negligence, active or otherwise, of FIRE SENTRY SYSTEMS, ist agents, servants, assigns, employees or subcontractors.
1.3. If subscriber wishes FIRE SENTRY SYSTEMS to assume a limited liability in lieu of the liquidated damages as hereinabove set forth, Subscriber may obtain from FIRE SENTRY SYSTEMS a limitation of liability by paying additional charge to FIRE SENTRY SYSTEMS. If Subscriber elects to exercise this option, a rider shall be attached to this agreement setting forth the terms, conditions and amount of the limited liability and the additional charge. Such rider and additional obligation shall in no way be interpreted to hold FIRE SENTRY SYSTEMS as an insurer.
2. THIRD PARTY INDEMNIFICATION:
When Subscriber ordinarily has the property of others in Subscriber’s custody, or the system extends to protect others or their property, Subscriber agrees to and shall indemnify, defend, and hold harmless FIRE SENTRY SYSTEMS, 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 FIRE SENTRY SYSTEMS’ performance or failure to perform and including defects in products, design, installation, monitoring, repair service, operation or non-operation of the system whether based upon active or passive negligence, monitoring, contribution, indemnification, or strict or product liability on the part of FIRE SENTRY SYSTEMS, its employees or agents, but this provision shall not apply to claims for loss or damage made during the installation arising from FIRE SENTRY SYSTEMS’ sole negligence.
If permitted by Subscriber’s property insurance coverage. Subscriber hereby releases, discharges and agrees to hold FIRE SENTRY SYSTEMS harmless from any and all claims, liabilities, damages, losses or expenses arising from or caused by any hazard covered by insurance in or on the Subscriber’s premises whether said claims are made by Subscriber, Subscriber’s agents, insurance company or other parties claiming under or through Subscriber. Subscriber agrees to indemnify FIRE SENTRY SYSTEMS against, defend and hold FIRE SENTRY SYSTEMS harmless from any action for subrogation which may be brought against FIRE SENTRY SYSTEMS by any insurer or insurance company or its agents or assigns including the payment of all damages, expenses, costs, and attorney’s fees. Subscriber shall notify his insurance carrier of the terms of this provision.
4. LIMITATION ON ACTIONS; WAIVER OF JURY TRIAL:
Subscriber acknowledges that the statute of limitations for the commencement of action under a written contract is four (4) years, and both parties hereby agree that no suit or action that relates in any way to the agreement (whether based upon contract, negligence or otherwise, shall be brought against the other more than one (1) year after the accrual of the cause of action therefore. In addition, both parties hereby waive any rights to a jury trial in any judicial action brought by either party which relates in any way to this agreement (whether based upon contract, negligence or otherwise).
5. REPAIR OR SERVICE:
Full Service: Repairs necessitated by ordinary wear and tear shall be at Subscriber’s expense (includes batteries).
Time Plus Materials Service: Repairs shall be Subscriber’s expense. Subscriber agrees to pay for all materials, parts and labor used for said repairs with a minimum of two (2) hours labor charge at FIRE SENTRY SYSTEMS’ then prevailing rates, for each visit.
How to Get Service: To obtain service, contact FIRE SENTRY SYSTEMS at the telephone number set forth above and fully describe the problem. Service shall be provided between the hours of 8:00am and 4:00pm, Monday through Friday, excluding holidays observed by FIRE SENTRY SYSTEMS. Service is available at other times at FIRE SENTRY SYSTEMS’ premium labor rates with a two (2) hours minimum charge per visit.
6. TRANSMISSION TO CENTRAL STATION:
Subscriber acknowledges that FIRE SENTRY SYSTEMS utilizes various types of digital communication equipment for the purpose of sending alarm signals from Subscriber’s premises to FIRE SENTRY SYSTEMS’ central station, and that if the Subscriber’s regular telephone or internet service is out of order, disconnected placed on vacation or otherwise interrupted, signals from Subscriber’s system will not be received in FIRE SENTRY SYSTEMS’ central station during any such interruption and the interruption will not be known to FIRE SENTRY SYSTEMS. Subscriber further acknowledges and agrees that signals are sent over telephone company lines, internet service provider lines or cellular service provider systems and these systems are wholly beyond the control and jurisdiction of FIRE SENTRY SYSTEMS and are maintained and serviced by the applicable companies. The system is designed to seize telephone lines and take priority over other telephones and therefore other calls (such as calls to 911 emergency operators) cannot be made while the system is attempting to transmit a signal. Therefore, Subscriber may elect to have the system placed on a separate, dedicated phone line. Subscriber agrees to pay for all telephone or internet services connecting Subscriber’s system to FIRE SENTRY SYSTEMS’ central station. Subscriber acknowledges that if radio, cellular monitoring or internet protocol transmitters become inoperative for any reason, signals will not be received in FIRE SENTRY SYSTEMS’ central station. Subscriber acknowledges that radio or cellular monitoring transmissions may be impaired or interrupted by atmospheric conditions, including electrical storms, power failures or other conditions beyond the control of FIRE SENTRY SYSTEMS.
7. FALSE ALARMS:
In the event an excessive number of false alarms or service calls are caused by Subscriber or in the event Subscriber in any manner misuses or abuses the system, FIRE SENTRY SYSTEMS may, in its sole discretion, deem same to be a material breach of contract on the part of Subscriber, and
at its option be excused from further performance upon the giving of ten (I0) days written notice to Subscriber FIRE SENTRY SYSTEMS’ excuse from performance shall not affect its right to recover damages from Subscriber. In the event a fine, penalty or fee is assessed against FIRE SENTRY SYSTEMS by any governmental or municipal agency as a result of any alarm originating from Subscriber’s premises, Subscriber agrees to forthwith reimburse FIRE SENTRY SYSTEMS for same.
In the event FIRE SENTRY SYSTEMS dispatches an agent to respond to an alarm originating from Subscriber’s premises, where Subscriber intentionally, accidentally or negligently activated the alarm signal, And no alarm condition exists, or if FIRE SENTRY SYSTEMS makes any maintenance or repairs caused by the inadvertence or negligence of Subscriber, Subscriber shall pay to FIRE SENTRY SYSTEMS a charge to be set by FIRE SENTRY SYSTEMS for each call. Subscriber represents that Subscriber fully understands that the equipment, because. of its sensitivity and
nature, is subject to the influence of external events which are not within the control of FIRE SENTRY SYSTEMS and which may cause the alarm to activate. Any or all of such alarms shall not excuse any of the obligations of Subscriber as set forth in this agreement.
8. PURCHASE ORDERS:
It is understood and agreed by and between the parties hereto, that if there is any conflict between this Agreement and Subscriber’s purchase order, or any other document, this Agreement will govern, whether such purchase order or other document is prior or subsequent to this Agreement.
9. INVALID PROVISIONS:
In the event any of the terms or provisions of this Agreement shall be declared to be invalid or inoperative, all of the remaining terms and provision shall remain in full force and effect.
I0. ENTIRE INTEGRATED AGREEMENT; MODIFICATION; ALTERATIONS; WAIVER:
This writing is 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, understanding or agreements of the parties and the parties rely only upon the contents of the Agreement in executing it. This Agreement can only be modified by a writing signed by the parties or their duly authorized agents. No waiver of a breach of any term or condition of this Agreement shall be construed to be a waiver of any succeeding breach.