Either party may cancel this agreement with 30 day written notice
Agreement dated _____________________, by and between SMITH THOMPSON SECURITY SYSTEMS (hereinafter referred to as "STSS" or "Lessor") and ___________________________________, (hereinafter referred to as "Subscriber" or "Buyer"). Premises where communication software and security equipment is installed: ___________________________________________________________ *Either party may cancel this agreement with 30 day written notice* WHEREAS, Subscriber owns an electronic security system and desires central office monitoring service, the parties agree as follows:
1. COMMUNICATION SOFTWARE (Dealer Lockout Code) REMAINS PERSONAL PROPERTY OF STSS: STSS shall lease, install, program and service in the premises of the Subscriber, communication software, which together with lawn signs and decals, shall remain the sole property of STSS and shall not be considered a fixture or a part of the realty, and Subscriber shall not permit the attachment thereto of any apparatus not furnished by STSS. If the communication equipment is part of the instrument panel then the chip or software programmed to transmit a signal shall be leased, remain STSS's property, and all reference in this agreement to communication software shall be deemed to read chip or software. Dealer Code to CPU software remains property of STSS. Dealer code can be changed for a service fee.
2. DESCRIPTION OF SERVICE AND EQUIPMENT VALUE: Value of installed software and equipment is: $ ____________________ Initial service provided:____________________ Monitoring Approximate date of installation: _____________________
3. INSTALLLATION AND SERVICE CHARGES: Subscriber agrees to pay STSS: (a) The sum of $ ________________, plus tax for the installation of the communication software and equipment. The balance of payments for the term of this agreement is due upon execution of this agreement. For the convenience of the parties and so long as there is no default in payments, Subscriber may make the payments as provided in 3 (b).
(b) The sum of $ _________________, plus tax, per month, payable quarterly or annually in advance for the billed, monitoring and servicing of the communication software for the term of this agreement commencing on the first day of the month next succeeding the date hereof, and continuing quarterly thereafter, all payments being due within 30 days of receipt of invoice.
(c) Warranty: One year warranty on parts and labor is provided only on any equipment or components installed by STSS, lightning or acts of God are not covered by this warranty.
4. CENTRAL OFFICE MONITORING: Upon receipt of a signal from the communication software, STSS or its designee communication center shall make every reasonable effort to notify Subscriber and the appropriate municipal police or fire department. Subscriber acknowledges that signals transmitted from Subscriber's premises directly to municipal police or fire departments are not monitored by personnel of STSS or STSS's designee communication center and STSS does not assume any responsibility for the manner in which such signals are monitored or the response, if any to such signals. Subscriber acknowledges that signals which are transmitted over telephone lines, wire, air waves, or other modes of communication pass through communication networks wholly beyond the control of STSS and are not maintained by STSS and, therefore, STSS shall not be responsible for any failure which prevents transmission signals from reaching the central office monitoring center or damages arising therefrom. Subscriber agrees to notify STSS if any changes in telephone service are made such as eliminating land phone line, calling plans, VOIP, or DSL that could affect communication of alarm signal. STSS shall not be responsible for any alarm communication problems arising due to any of these changes made by the Subscriber. Subscriber agrees to furnish STSS with a written list of names and telephone numbers of those persons Subscriber wishes to receive notification of alarm signals. All changes and revisions shall be supplied to STSS in writing. Subscriber authorizes STSS to access the control panel to input or delete data and programming. If the equipment contains listening devices, permitting central office to monitor sound then upon receipt of an alarm signal central office shall monitor sound for so long as central office in its sole discretion deems appropriate to confirm an alarm condition. _______ (Initials)
5. NO WARRANTIES OR REPRESENTATIONS: SUBSCRIBER'S EXCLUSIVE REMEDY: STSS does not represent nor warrant that the security equipment and central office monitoring 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 security equipment will in all cases provide the protection for which it is installed or intended. Subscriber acknowledges that STSS is not an insurer, and the Subscriber assumes all risk for loss or damage to Subscriber's premises or its contents. STSS has made no representations or warranties, and hereby disclaims any warranty of merchantability or fitness for any particular use. Subscriber's exclusive remedy for STSS's default hereunder is to require STSS to repair or replace, at STSS's option, any equipment covered by this agreement which is non-operational.
6. EXCULPATORY CLAUSE: Subscriber agrees that STS is not an insurer and no insurance coverage is offered herein. The security equipment is designed to reduce certain risks of loss, though STSS does not guarantee that no loss will occur. STSS is not assuming liability, and, therefore shall not be liable to Subscriber for any loss, personal injury or property damage sustained by Subscriber 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 STSS's negligent performance, failure to perform any obligation or strict products liability. Subscriber releases STSS from any claims for contribution, indemnity or subrogation.
7. LIMITATION OF LIABILITY: Subscriber agrees that should there arise any liability on the part of STSS as a result of STSS's negligent performance to any degree failure to perform any of STSS's obligations, equipment failure or strict products liability, that STSS's liability shall be limited to the sum of six times the monthly payment at time liability is fixed or the sum of $250, whichever is greater. If Subscriber wishes to increase STSS's maximum amount of STSS's limitation of liability, Subscriber 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 STSS's increased liability. This shall not be construed as insurance coverage.
8. LIQUIDATED DAMAGES: The parties agree that in the event Subscriber suffers damages as a result of STSS's negligence to any degree or failure to perform any obligation, it would be impractical and extremely difficult to anticipate or fix actual damages. Therefore, Subscriber agrees that should there arise any liability on the part of STSS, Subscriber agrees to accept $250.00, or the amount provided for in paragraph 7, whichever is greater, as liquidated damages in complete satisfaction of such liability and STSS is released and discharged from any further liability.
9. CARE OF EQUIPMENT: Subscribers agrees not to taper with, remove or otherwise interfere with the communication software which shall remain in the same location as installed and Subscriber agrees to bear the cost of repairs or replacement made necessary as a result of nay painting, alteration, remodeling or damage, including damage cause by unauthorized intrusion to the premises, lightning or electrical surge, except for ordinary wear and tear, in which event repair or replacement shall be made by STSS without additional charge.
10. ALTERATION OF PREMISES FOR INSTALLATION: STSS is authorized to make preparations such as drilling holes, driving nails, making attachments or doing any other thing necessary in STSS's sole discretion for the installation and service of the communication software, and STSS shall not be responsible for any condition created thereby as a result of such installation, service, or removal of the communication software, and Subscriber represents that the owner of the premises, if other than Subscriber, authorizes the installation of the communication software under the terms of this agreement.
SEE REVERSE SIDE FOR ADDITIONAL TERMS AND CONDITIONS OF THIS CONTRACT. READ THEM BEFORE YOU SIGN THIS AGREEMENT. BUYER ACKNOWLEDGES RECEIVING A FULLY EXECUTED COPY OF THIS CONTRACT AT TIME OF EXECUTION.
NOTICE OF CANCELLATION (For Residential Customers Only) YOU, THE BUYER, MAY CANCEL THIS CONTRACT AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY OF THIS TRANSACTION.
_____________________________________ SMITH THOMPSON SECURITY SYSTEMS (Subscriber Signature) _____________________________________ BY: _____________________________ (Print Full Name) _____________________________________ _____________________________ (Address) (Print Name)
11. SUBSCRIBER'S DUTY TO SUPPLY ELECTRIC AND TELEPHONE SERVICE: Subscriber agrees to furnish, at Subscriber's expense, all 110 Volt AC power, electrical outlets, receptacles, telephone hook-ups, RJ31 Block or equivalent, internet connection, high speed broadband cable or DSL and IP Address, as deemed necessary by STSS in its sole discretion. STSS assumes no responsibility per failure to communicate due internet problems and unreliability. Customer agrees to perform a weekly test to confirm system function. An extra charge will apply to convert any telephone changes after time of install, especially conventional phone service to voice over internet provider. If needed, STSS can install a DSL filter on alarm system for a service fee.
12. TESTING AND SERVICE OF COMMUNICATION SOFTWARE: The parties hereto agree that the communication software, once installed, is in the exclusive possession and control of the Subscriber, and it is Subscriber's sole responsibility to test the operation of the communication software and to notify STSS if it is in need of repair. STSS shall not be required to service the communication software if subscriber is in default and unless it has received notice from Subscriber, and upon such notice, STSS shall service the communication software to the best of its ability within 36 hours, exclusive of Saturday, Sunday and legal holidays, during the business hours of 9 a.m. and 5 p.m. Any repair or other services provided by STSS to Subscriber's alarm or security equipment shall be at STSS's option on a per call request by Subscriber, and Subscriber shall pay for such labor and material at time such repair or other service is performed. All such repair or other service shall be governed by the terms of this contract. In the event Subscriber complies with the terms of this agreement and STSS fails to repair the communication software within 36 hours after notice is given, excluding Saturdays, Sundays, and legal holidays, Subscriber agrees to send notice that the communication software is in need of repair to STSS, in writing, by certified or registered mail, return receipt requested and Subscriber shall not be responsible for payments due while the security equipment remains inoperable. In any lawsuit between the parties in which the condition or operation of the communication software is in issue, the Subscriber shall be precluded from raising the issue that the communication software was not operating unless Subscriber can produce a post office certified or registered receipt, signed by STSS, evidencing that service was requested by Subscriber. Only communication and security system software is covered by service. It shall be Subscriber's sole responsibility to maintain the communication hardware in working order.
13. LEGAL ACTION: The parties agree that due to the nature of the services to be provided by STSS, the payments to be made by the Subscriber for the term of this agreement pursuant to paragraph 3(b) form an integral part of STSS's anticipated profits; that in the event of Subscriber's default it would be difficult if not impossible to fix STSS's actual damages. Therefore, in the event Subscriber defaults in the payment of any charges to be paid to STSS, the balance of all payments for the entire term herein shall immediately become due and payable, and Subscriber shall be liable for 80% thereof as liquidated damages and STSS shall be permitted to remotely re-program or delete any programming without relieving Subscriber of any obligation herein. In the event of Subscriber's breach of this agreement, STSS may at its option either remove its software or deem same sold to Subscriber for 80% of the amount specified as the value of the equipment in addition to the liquidated damages provided for herein. Should STSS prevail in any litigation between the parties Subscriber shall pay STSS's legal fees. The parties waive trial by jury in any action between them. In any action commenced by STSS against Subscriber, Subscriber shall not be permitted to interpose any counterclaim. Any action by lessee against STSS much be commenced within thirteen months of the accrual of the cause of action or shall be barred. All actions or 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. Any action or dispute between the parties, including issues of arbitrability, shall, at the option of either party, be determined by arbitration administered by the National Arbitration Association, under its Commercial Arbitration Rules.www.natarb.com.
14. DELAY IN INSTALLATION: STSS shall not be liable for any damage or loss sustained by Subscriber 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 STSS's negligence in the performance of this contract. The estimated date work is to be substantially completed is not a definite completion date and time is not of the essence.
15. SUBSCRIBER TO INSURE SOFTWARE: Subscriber shall insure STSS's software against fire and casualty and Subscriber agrees to name STSS in said insurance policy as "loss payee" to the extent of the value of the software as set forth herein above, Subscriber shall be responsible for any loss occasioned by fire or casualty and the cost of replacing or restoring the security equipment. Notwithstanding the condition of Subscriber's premises, or STSS's impossibility of performance occasioned by condition of Subscriber's premises, Subscriber shall remain liable for monthly payments for the term of this agreement without offset or reduction.
16. INSURANCE: The Subscriber shall maintain a policy of public liability, property damage, burglary and theft insurance under which STSS is named as insured, and under which the insurer agrees to indemnify and hold STSS harmless from and against all costs, expenses including attorney's fees and liability arising out of or based upon any and all claims, injuries and damages arising under this agreement, including, but no limited to, those claims, injuries and damages contributed to by STSS'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 any amount necessary to indemnify Subscriber for property on its premises. STSS shall not be responsible for any portion of any loss or damage which is recovered or recoverable by the Subscriber from insurance covering such loss or damage or for such loss or damage against which the Subscriber is indemnified or insured.
17. INDEMNITY/WAIVER OF SUBROGATION RIGHTS/ASSIGNMENTS: Subscriber agrees to and shall indemnify and hold harmless STSS, its employees, agents and subcontractors, from and against all claims, lawsuits, including those brought by third parties or Lessee, including obligation under this agreement. Parties agree that there are no third party beneficiaries of this contract. Subscriber on its behalf and any insurance carrier waives any right of subrogation Subscriber's insurance carrier may otherwise have against STSS or STSS's subcontractors arising out of this agreement or the relation of the parties hereto. Subscriber shall not be permitted to assign this agreement without written consent of STSS. STSS shall have the right to assign this contract and shall be relieved of any obligations herein upon such assignment. STSS shall be permitted to assign this contract and upon such assignment shall have no further obligation hereunder.
18. FALSE ALARMS AND PERMITS: STSS shall have no liability for false alarms, false alarm fines, police response, or the refusal of the police to respond. In the event of termination of police response by the municipal police this contract shall nevertheless remain in full force and Subscriber shall remain liable for all payments provided for herein. Should STSS 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 Subscriber agrees to pay STSS for such service or material. Subscriber agrees to apply and acquire a current alarm permit as required by their city ordinance or municipality. STSS shall not be responsible for expired permit or failure to get a permit. STSS shall not be responsible for dispatch is refused or denied due to no permit on file with city. Subscriber is responsible to supply STSS the current permit number. _________(Initials)
19. STSS's RIGHT TO SUBCONTRACT SPECIAL SERVICES: Subscriber agrees that STSS is authorized and permitted to subcontract any services to be provided by STSS to third parties who may be independent of STSS, and that STSS shall not be liable for any loss or damage sustained by Subscriber by reason of fire, theft, burglary or any other cause whatsoever caused by the negligence of third parties, and Subscriber appoints STSS to act as Subscriber's agent with respect to such third parties, except that STSS shall not obligate Subscriber to make any payments or such third parties. Subscriber acknowledges that this agreement, and particularly those paragraphs relating to STSS'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 assignee, subcontractors and communication centers of STSS.
20. GUARD RESPONSE: If guard response is specified as a service to be provided, upon receipt of a burglar alarm signal, STSS or its subcontractor shall as soon as may be practical send one or more of its guards to the subscriber's premises. Subscriber acknowledges that the guard is not required to enter the premises or to render any service to the security equipment and shall not be required to remain stationed at subscriber's premises for more than 15 minutes after his initial arrival. In the event STSS responds to a false alarm condition occasioned by Subscriber's negligence, Subscriber shall pay STSS $50.00 for each such response.
21. PERSONAL EMERGENCY RESPONSE: If personal emergency response is specified as a service to be provided, upon receipt of an alert signal, STSS or its subcontractor shall as soon as may be practicable, make every reasonable effort to notify by telephone those persons that STSS provides no response to a personal emergency signal except notification to the appropriate party, and that the provisions of this agreement exculpating and limiting STSS's liability are fully applicable to the personal emergency service.
22. NON-SOLICITATION. Subscriber agrees that it will not solicit for employment for itself, or any other entity, or employ, in any capacity, any employee of STSS assigned by STSS to perform any service for or on behalf of Subscriber for a period of two years after STSS has completed providing service to Subscriber. In the event of Subscriber's violation of this provision, in addition to injunctive relief, STSS shall recover from providing service to Subscriber. In the event of Subscriber's violation of this provision, in addition to injunctive relief, STSS shall recover from Subscriber an amount equal of such employee's salary based upon the average three months preceding employee's termination of employment with STSS, times twelve, together with STSS's counsel and expert witness fees.
23. SECURITY INTEREST/COLLATERAL: To secure Subscriber's obligations under this agreement Subscriber grants STSS a security interest in the security equipment installed by STSS and STSS is authorized to file a financing statement.
24. 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, except that in the event STSS issues a UL certificate to Lessee, STSS will comply with Underwriters Laboratory Inc. requirements regarding items of protection provided for in this agreement. Should there arise any conflict between this agreement and Lessee'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 Texas. Should any provision of this agreement be deemed void, all other provisions will remain in effect.