Terms and Conditions for Standard Supervisory Equipment Sales Monitoring Service
ONE SOURCE SECURITY & AUTOMATION, INC. is hereinafter referred to as “OSS” or “Seller" and Customer is hereinafter referred to as "Buyer".
The parties hereto agree that:
1. OSS agrees to sell, instruct Buyer in the proper use of the security system
, and install at Buyer’s premises, and Buyer agrees to buy, supervisory equipment described in the Proposal which has been provided to the Buyer and is a part of this agreement.
2. SCHEDULE OF SERVICES: SEE PROPOSAL WHICH IS PART OF THIS CONTRACT AND MAY PROVIDE FOR:
CCTV – local Service of Equipment
Access Control Labor & Material
Subscriber Remote Video Monitoring Labor Only
Central Station Remote Video Monitoring Data Storage and Retrieval
3. SERVICE CHARGES: Buyer agrees to pay OSS:
Buyer agrees to pay OSS:
(a) For purchase and installation of equipment, of which 50% is due upon execution of this contract and the balance is due upon completion of installation.
(b) The monthly fee, payable annually in advance for the services selected on the Schedule of Services for the term of this agreement commencing on the first day of the month next succeeding the date hereof, and continuing annually thereafter, all payments being due in advance of the subsequent term.
4. TERM OF AGREEMENT: RENEWALS/ INCREASES OF MONTHLY CHARGE:
The term of this agreement shall be for a period of two years and shall automatically renew year to year thereafter under the same terms and conditions, unless either party gives written notice to the other by certified mail, return receipt requested, of their intention not to renew the contract at least 30 days prior to the expiration of any term. After the expiration of one year from the date hereof OSS shall be permitted from time to time to increase its charge under the contract by an amount not to exceed nine percent each year and Buyer agrees to pay such increase as invoiced.
5. SYSTEM OPERATION AND LIMITATIONS: CCTV
equipment is attached to a digital recorder computer and Buyer shall not use the computer for any other purpose. Buyer shall be permitted to access and make changes to the system’s operation on site and if applicable over the internet. If applicable, OSS shall store data received from Buyer’s system for one year. OSS shall have no liability for data corruption or inability to retrieve data even if caused by OSS’s negligence. Buyer’s data shall be maintained confidential and shall be retrieved and released only to Buyers or upon Buyers' authorization or by legal process. Telephone or internet access is not provided by OSS and OSS has no responsibility for such access or IP address service. OSS shall have no liability for unauthorized access to the system through the internet or other communication networks or data corruption or loss for any reason whatsoever.
6. CENTRAL STATION REMOTE MONITORING
Upon receipt of a video signal the video system is designed to activate in the central station and record CCTV reception, upon which, OSS or its designee communication center, shall make every reasonable effort to notify Buyer by email or alpha numeric page to a beeper or cell phone or hand held device so enabled, and the appropriate municipal police or fire department. Buyer acknowledges that signals transmitted from Buyer's premises directly to municipal police or fire departments or subscriber’s internal security stations are not monitored by personnel of OSS or OSS’s designee communication center and OSS does not assume any responsibility for the manner in which such signals are monitored or the response, if any, to such signals. Buyer acknowledges that signals which are transmitted through the internet, over telephone lines, wire, air waves or other modes of communication pass through communication networks wholly beyond the control of OSS and are not maintained by OSS and, therefore, OSS shall not be responsible for any failure which prevents transmission signals from reaching the central office monitoring center or damages arising there from. Buyer agrees to furnish OSS with a written list of names and telephone numbers of those persons Buyer wishes to receive notification of signals. All changes and revisions shall be supplied to OSS in writing. Buyer authorizes OSS to access the supervisory panel to input or delete data and programming. If Buyer requests OSS to remotely activate or deactivate the system, change combinations, openings or closings, or re-program system functions, Buyer shall pay OSS for each such service. OSS may, without prior notice, suspend or terminate its services, in central station’s sole discretion, in event of Buyer’s default in performance of this agreement or in event central station facility or communication network is nonoperational or subscriber’s alarm system is sending excessive false alarms. Central station is authorized to record and maintain audio and video transmissions, data and communications, and shall be the exclusive owner of such property.
7. CREDIT INVESTIGATION:
Buyer and any guarantor authorize OSS to conduct credit investigations to determine Buyer’s and guarantor’s credit worthiness.
8. BUYER'S CARE OF EQUIPMENT: REPAIRS AND ADDITIONS:
Buyer agrees not to tamper with, remove or otherwise interfere with the system. The equipment shall remain in the same location as installed and Buyer agrees to bear the cost of repairs, replacement, relocation or additions to the system made necessary as a result of any painting, alteration, remodeling or damage, including damage caused by unauthorized intrusion to the premises, lightning or electrical surge.
9. ALTERATION OF PREMISES FOR INSTALLATION:
OSS is authorized to make preparations such as drilling holes, driving nails, making attachments or doing any other thing necessary in OSS’s sole discretion for the installation and service of the system, and OSS shall not be responsible for any condition created thereby as a result of such installation, service, or removal of the system. OSS shall not be responsible for the condition of the premises upon removal of the system and Buyer represents that the owner of the premises, if other than Buyer, authorizes the installation of the system under the terms of this agreement.
10. BUYER'S DUTY TO SUPPLY ELECTRIC AND TELEPHONE SERVICE:
Buyer agrees to furnish, at Buyer's expense, all 110 Volt AC power and electrical outlets and receptacles, internet access, high speed broadband cable or DSL and IP Address, telephone hook-ups, RJ31 Block or equivalent, as deemed necessary by OSS in its sole discretion and to notify Lessor of any change in such service.
11. DELAY IN INSTALLATION
OSS shall not be liable for any damage or loss sustained by Buyer as a result of delay in installation of equipment, equipment failure, or for interruption of service due to electric failure, strikes, walk-outs, war, acts of God, or other causes, including OSS’s negligence in the performance of this agreement, and Buyer shall not be relieved from payments due under this agreement for such period.
12. TESTING OF SYSTEM:
The parties hereto agree that the system, once installed, is in the exclusive possession and control of Buyer, and it is Buyer's sole responsibility to test the operation of the system and to notify OSS if any equipment is in need of repair. OSS shall not be required to service the system unless it has received notice from Buyer and all Buyer payments are current, and upon such notice, and provided Buyer is not in default of this agreement, OSS shall during the warranty period service the system to the best of its ability within 72 hours, exclusive of Saturday, Sunday and legal holidays, during the business hours of 7 a.m. and 3 p.m. Buyer agrees to test and inspect the system immediately upon completion of installation and to advise OSS in writing within three days after installation of any defect, error or omission in the system. In the event Buyer complies with the terms of this agreement and OSS fails to repair the system within 36 hours after notice is given, excluding Saturdays, Sundays, and legal holidays, Buyer agrees to send notice that the system is in need of repair to OSS, in writing, by certified or registered mail, return receipt requested and Buyer shall not be responsible for payments due while the security system remains inoperable. In any lawsuit between the parties in which the condition or operation of the equipment is in issue, Buyer shall be precluded from raising the issue that the equipment was not operating unless Buyer can produce a post office certified or registered receipt signed by OSS, evidencing that service was requested by Buyer.
13. BUYER RESTORES EQUIPMENT:
Buyer shall be responsible for any loss occasioned by fire or casualty and the cost of replacing or restoring the system. Notwithstanding the condition of Buyer's premises, or OSS’s impossibility of performance occasioned by condition of Buyer's premises, Buyer shall remain liable for monthly payments for the term of this agreement without offset or reduction.
Buyer shall maintain a policy of public liability, property damage, burglary and theft insurance under which OSS is named as additional insured, and under which the insurer agrees to indemnify and hold OSS harmless from and against all costs, expenses including attorneys fees and liability arising out of or based upon any and all claims, injuries and damages arising under this agreement, including, but not limited to, those claims, injuries and damages contributed to by OSS’s negligent performance to any degree or its failure to perform any obligation. The minimum limits of liability of such insurance shall be one million dollars for any injury or death, and property damage, burglary and theft coverage in an amount necessary to indemnify Buyer for property on its premises. OSS shall not be responsible for any portion of any loss or damage which is recovered or recoverable by Buyer from insurance covering such loss or damage or for such loss or damage against which Buyer is indemnified or insured.
15. ASSIGNMENTS/WAIVER OF SUBROGATION RIGHTS:
Buyer shall not be permitted to assign this agreement without written consent of OSS. Any such assignment without OSS’s prior approval shall be deemed a breach of this agreement. OSS shall have the right to assign this contract and shall be relieved of any obligations created herein upon such assignment. Buyer on its behalf and any insurance carrier waives any right of subrogation Buyer's insurance carrier may otherwise have against OSS or OSS’s subcontractors arising out of this agreement or the relation of the parties hereto. Buyer shall not be permitted to assign this agreement without written consent of OSS.
Buyer agrees to and shall indemnify and hold harmless OSS, its employees, agents and subcontractors, from and against all claims, lawsuits, including those brought by third parties or Buyer, including reasonable attorneys' fees, and losses asserted against and alleged to be caused by OSS’s performance, negligent performance or failure to perform its obligations under this agreement. Parties agree that there are no third party beneficiaries of this contract.
17. DELETE PROGRAMMING:
Upon termination of this agreement OSS shall be permitted to remotely delete programming and OSS shall not be required to service the system, and may order the termination of any central office monitoring or other services, and Buyer shall remain liable for all payments called for herein for the remaining balance of the contract term.
18. LEGAL ACTION:
The parties agree that due to the nature of the services to be provided by OSS the payments to be made by Buyer for the term of this agreement are an integral part of OSS’s anticipated profits, and in the event of Buyer's breach of this agreement it would be difficult if not impossible to reasonably estimate OSS’s actual damages. Therefore, in the event of Buyer's default of this agreement Buyer shall pay to OSS 80% of the balance due for the full term of this agreement as liquidated damages and OSS shall be permitted to terminate all its services under this agreement without relieving Buyer of any obligation herein. Additionally, in the event of Buyer's breach of this agreement OSS may, at its option, either remove its equipment or deem same sold to Buyer for 80 % the amount specified as the value of the equipment. The parties waive trial by jury in any action between them. In any action commenced by OSS against Buyer, Buyer shall not be permitted to interpose any counterclaim. Any action by Buyer against OSS must be commenced within one year of the accrual of the cause of action or shall be barred. All actions or proceedings against OSS must be based on the provisions of this agreement. Any other action that Buyer may have or bring against OSS in respect to other services rendered in connection with this agreement shall be deemed to have merged in and be restricted to the terms and conditions of this agreement. Should OSS prevail in any litigation between the parties including arbitration, Buyer shall pay OSS’s legal fees.
19. ADDITIONAL PAYMENTS:
In addition to the payments set forth herein, Buyer agrees to be liable for and pay to OSS any excise, sales, property, or other tax, telephone line charges, and any increases thereof, which may be imposed upon OSS because of this agreement. Should OSS be required by existing or hereinafter enacted law to perform any service or furnish any material not specifically covered by the terms of this agreement Buyer agrees to pay OSS for such service or material.
20. FALSE ALARMS - POLICE RESPONSE:
OSS shall have no liability for false alarms, false alarm fines, police response, or the refusal of the police or fire department to respond. In the event of termination of police or fire response by the municipal police or fire departments this contract shall nevertheless remain in full force and Buyer shall remain liable for all payments provided for herein. Buyer shall indemnify and hold OSS harmless for all false alarm fines, permit fees or other charges imposed by any municipality, including OSS’s attorney fees, arising out of the system or OSS’s services related thereto, excluding sales or income tax, if any.
21. OSS’S RIGHT TO SUBCONTRACT SPECIAL SERVICES:
Buyer agrees that OSS is authorized and permitted to subcontract any services to be provided by OSS to third parties who may be independent of OSS, and that OSS shall not be liable for any loss or damage sustained by Buyer by reason of fire, theft, burglary or any other cause whatsoever caused by the negligence of third parties, and that Buyer appoints OSS to act as Buyer’s agent with respect to such third parties, except that OSS shall not obligate Buyer to make any payments to such third parties. Buyer acknowledges that this agreement, and particularly those paragraphs relating to OSS’s disclaimer of warranties, exemption from liability, even for its negligence, limitation of liability and indemnification, inure to the benefit of and are applicable to any assignees, subcontractors and communication centers of OSS.
22. NO WARRANTIES OR REPRESENTATIONS: Buyer's EXCLUSIVE REMEDY:
OSS does not represent nor warrant that the system will prevent any loss, damage or injury to person or property, by reason of burglary, theft, hold-up, fire or other cause, or that the system will in all cases provide the protection or service for which it is installed or intended. Buyer acknowledges that OSS is not an insurer, and that Buyer assumes all risk for loss or damage to Buyer's premises or its contents. OSS has made no representation or warranties, and hereby disclaims any warranty of merchantability or fitness for any particular use. Buyer's exclusive remedy for OSS’s default hereunder is to require OSS to repair or replace, at OSS’s option, any equipment or part of the system which is non-operational.
23. EXCULPATORY CLAUSE:
Buyer agrees that OSS is not an insurer and no insurance coverage is offered herein. The equipment is designed to reduce certain risks of loss, though OSS does not guarantee that no loss will occur. OSS is not assuming liability, and, therefore shall not be liable to Buyer for any loss, personal injury or property damage sustained by Buyer as a result of burglary, theft, hold-up, fire, equipment failure, smoke, or any other cause, whatsoever, regardless of whether or not such loss or damage was caused by or contributed to by OSS’s negligent performance, failure to perform any obligation or strict products liability. Buyer releases OSS from any claims for contribution, indemnity or subrogation.
24. LIMITATION OF LIABILITY:
Buyer agrees that should there arise any liability on the part of OSS as a result of OSS’s negligent performance to any degree, failure to perform any of OSS’s obligations, equipment failure or strict products liability, that OSS’s liability shall be limited to the sum of three times the monthly payment at time liability is fixed or the sum of $250.00, whichever is greater. If Buyer wishes to increase OSS’s maximum amount of OSS’s limitation of liability, Buyer may, as a matter of right, at any time, by entering into a supplemental contract, obtain a higher limit by paying an annual payment consonant with OSS’s increased liability. This shall not be construed as insurance coverage.
Buyer agrees that it will not solicit for employment for itself, or any other entity, or employ, in any capacity, any employee of OSS assigned by OSS to perform any service for or on behalf of Buyer for a period of two years after OSS has completed providing service to Buyer. In the event of Buyer's violation of this provision, in addition to injunctive relief, OSS shall recover from Buyer an amount equal to such employee's salary based upon the average three months preceding employee's termination of employment with OSS, times twelve, together with OSS's counsel and expert witness fees.
26. SECURITY INTEREST/COLLATERAL:
To secure Buyer’s obligations under this agreement Buyer grants OSS a security interest in Buyer’s accounts receivable, inventory and equipment located at premises where the equipment is installed by OSS and OSS is authorized to file a financing statement.
27. FULL AGREEMENT/SEVERABILITY/ CONFLICTING DOCUMENTS:
This agreement constitutes the full understanding of the parties and may not be amended or modified or canceled except in writing signed by both parties, Should there arise any conflict between this agreement and Buyer's purchase order or other document, this agreement will govern, whether such purchase order or document is prior to or subsequent to this agreement. This contract shall be governed by the laws of the State of New Hampshire. Should any provision of this agreement be deemed void, all other provisions will remain in effect.