This EMC Security System and Monitoring Service Agreement this "Agreement") is entered into on {date} by and between Cooperative Choice LLC d/b/a EMC Security ("EMC Security") and the Customer identified above ("Customer"), whose billing address is specified above. EMC Security and Customer mutually agree to the terms and conditions set forth on pages 1 - 3 of this Agreement.
Section 1. Effective Date: Term, This Agreement becomes effective when executed by Customer, an EMC Security salesperson, and an authorized agent of EMC Security (the "Effective Date"). This Agreement commences on the Effective Date and automatically continues until terminated by either Customer or EMC Security as provided in Section 16.
Section 2. Sale of System and/or Monitoring Service.
A. EMC Security agrees to sell to Customer and Customer agrees to purchase from EMC Security, at the prices determined by EMC Security, a security system and/or monthly monitoring service (as specified in this Agreement) as outlined above, at the address listed above in the Customer Information (the "Premises"). Except as otherwise provided, the System, as used herein, means any security system Customer purchases from EMC Security as well as any other security system Customer uses in connection with Monitoring Service.
B. Customer's obligation to pay the monthly fee of {typeA80} for Monitoring Service commences on the day the Monitoring Service becomes active, as provided in Section 5. EMC Security may change the monthly fees for Monitoring Service at any time after the initial term is fulfilled by providing Customer prior notice of such change, and such change becomes effective on the first day of billing cycle immediately following the billing cycle in which notice is received or deemed received.
Section 3. Payment. EMC Security must receive Customer's payment for fees due under this Agreement on or before the due dates specified on any invoice Customer receives from EMC Security. EMC Security may charge the Customer interest on any amount that has been due and payable by Customer for 30 days or more at a rate not in excess of 1.5% per month, calculated on the amount owed from the date upon which it became due and payable until paid.
Section 4. Emergency Contact Schedule. Customer shall be responsible for providing accurate emergency contact information on the Monitoring Service-Customer Information form provided by EMC Security ("Emergency Contact Schedule") and for keeping the Emergency Contact Schedule current.
Section 5. Monitoring Service. If Customer purchases Monitoring Service under this Agreement, EMC Security shall provide continuous monitoring of the System from EMC Security's controlling facility (the "Controlling Facility"), except as otherwise provided in this Agreement. Monitoring Service consists of (1) the Controlling Facility receiving and analyzing signals from the System, including signals from any other additional device EMC Security may install at the request of Customer, and (2) the Controlling Facility making a reasonable effort to notify the emergency agencies or other persons listed on the Emergency Contact Schedule. Such Monitoring Service becomes active upon the successful connection of the System to the Controlling Facility, provided that on or before the date of such connection (1) Customer has acquired all the necessary licenses and permits required by any and all governmental entities in connection with the System and/or Monitoring Service, and (2) Customer has returned the Emergency Contact Schedule to EMC Security.
A. Customer acknowledges that (1) the transmission of signals from the System to the Controlling Facility to the emergency agencies and other persons listed on the Emergency Contact Schedule and the transmission of signals from cellular devices (except for the use of connecting lines for the Premises) is typically accomplished by telephone lines unless additional protection is provided through an additional communication device; and (2) no signal can be received by the Controlling Facility while the telephone line is inoperative. EMC Security does not represent or warrant that any transmission by telephone lines may not be interrupted or unsuccessfully received, and EMC Security assumes no liability for the interruption of Monitoring Service due to the conditions beyond its control, including, but not limited to, electrical storms, power failures, and interruption or compromise of telephone service or cellular or radio frequency. Transmission of signals other than by telephone lines may be accomplished by other devices, including radio telemetry and/or other potential media (collectively, "Devices"), which may provide additional protection if telephone service is compromised. Such devices may be made available to Customer at an additional cost. EMC Security may have the capacity to reprogram the System from a remote location by inputting, modifying, deleting, and using electronic data. Customer consents to such reprogramming by EMC Security. Disconnection of the phone line, phone line failure, or failure of a cellular IP transmission path does not mitigate or in any way change the initial term of the agreement.
Section 6. Limited Warranty. Except as otherwise provided in Section 7 herein, EMC Security warrants that the System will be free from defects in materials, workmanship, and installation for a period of 24 months after the date of installation the System (the "Warranty Period"). If prior to the expiration of the Warranty Period, Customer notifies EMC Security, either in writing or by telephone, of any such defect, EMC Security, at its own expense and during its normal business hours, shall repair, or its option, replace any defective equipment with new or reconditioned parts of equal quality and shall repair any defective work relating to System installation. EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN THIS SECTION, EMC SECURITY DOES NOT MAKE ANY GUARANTEE REPRESENTATION OR WARRANTY AS TO THE SYSTEM OR MONITORING SERVICE, AND EMC SECURITY DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
Section 7. Limited Warranty Exclusions. The limited warranty in Section 6 excludes the following defects:
A. Defects with security systems, equipment, or devices Customer did not purchase from EMC Security, including defects in EMC Security's installation of such security systems, equipment, or devices, if applicable;
B. Defects with a System installed by a party other than EMC Security or a subcontractor of EMC Security. Repairs to the System that would otherwise be covered by the Limited Warranty, such as those necessary to remedy defects in the materials and/or workmanship of the System, are not covered by the Limited Warranty if the System is installed by a party other than EMC Security or a subcontractor of EMC Security;
C. Defects to the System arising from an event or condition beyond the control of EMC Security, including, but not limited to, surge, lightning, fire, acts of God, accident, misuse of or alterations to the System by Customer, and telecommunications failures; and Defects arising from ordinary wear and tear of the System.
Section 8. Repair Service. Unless covered by the Limited Warranty under this Agreement or unless Customer enters into a separate repair service agreement with EMC Security, Customer is solely responsible for repairs to the System and its operation. Notwithstanding the foregoing, if EMC Security consents to perform any repair service to the System at the request of Customer, EMC Security may charge Customer for such repair services on a time and materials basis based on EMC Security's service rates in effect at the time of the repair service rendered. EMC Security may use either new or reconditioned parts of equal quality to effect repairs. EMC Security may change such service rates at any time without notice to Customer.
Section 9. Ownership and Use of the System. A. Customer shall cooperate with EMC Security in the operation and monitoring of the System and shall follow all instructions and procedures prescribed by EMC Security for the operation of the System, the rendering of Monitoring Services, and the provision of security for the Premises.
A. Customer shall operate the System with care so as to prevent an excessive number of false alarms originating from the Premises.
B. Customer shall test the System at least monthly in accordance with the instructions that Customer acknowledges Customer has received from EMC Security.
C. Customer shall monitor battery strength and replace batteries as necessary if the System uses batteries for any purpose. At Customer's expense, EMC Security also may replace batteries used by the System, as necessary.
D. Customer is responsible for the furnishing, installation, and maintenance of the telephone transmission wires that will transmit alarm signals to the Controlling Facility, and the furnishing, installation, and maintenance of suitable 110 volt alternating current electrical outlets and electrical wiring. Customer acknowledges that EMC Security is not liable for the activation, interruption, operation or non-operation of the coupler, telephone, telephone transmission wires or cellular device, or electrical outlets or wiring, as EMC Security has no control over any such equipment. Unless otherwise arranged, any charges for the installation, continuance, or removal of the telephone, cellular, or electric service will be billed directly to Customer by the service provider, and Customer will pay the applicable service provider directly.
Section 10. Access to the Premises. Customer shall provide EMC Security and its subcontractors reasonable access to the Premises during normal business hours for all purposes necessary for the proper installation of the System and the performance of the System and/or Monitoring Service.
Section 11. Permits and Licenses. At Customer's own expense, Customer must acquire and renew when necessary all licenses and permits required by any and all governmental entities in connection with the System and/or Monitoring Service. Changes to the jurisdictional permit and licensing requirements will not affect the initial term of this agreement. Changes to the jurisdictional permit and licensing requirements resulting in additional costs or fees will be paid by the Customer.
Section 12. System Activation Fines and Penalties. Customer shall pay any and all fines or penalties assessed by any governmental entity or court resulting from System activation for any reason, including, but not limited to, any fine or penalty assessed due to a false alarm. Customer shall indemnify EMC Security for any fine or penalty assessed against EMC Security arising from System activation for any reason.
Section 13. Impairment of Monitoring Service. If the controlling Facility or its capacity to receive or process signals from the System is destroyed or impaired for any reason, EMC Security may suspend Monitoring Service without notice, and Customer releases EMC Security from any general, special, incidental, consequential, or other damages Customer incurs due to suspended service. If EMC Security determines, in its reasonable opinion, that it is unable to resume Customer's Monitoring Service within 24 hours of such impairment or destruction, EMC Security shall notify Customer by telephone or otherwise that Monitoring Service is suspended. If Monitoring Service is suspended for more than 24 hours, EMC Security shall reimburse Customer the pro-rata portion of any amounts Customer paid in advance for Monitoring Service.
Section 14. Use of Subcontractors. EMC Security may use subcontractors to perform any of its obligations under this Agreement. This Agreement inures to the benefit of is applicable to any of EMC Security's subcontractors. Customer acknowledges that when any service is performed on EMC Security's behalf by a third party, EMC Security's relationship to such third party is that of principal and independent contractor, not that of employer and employee.
Section 15. Notification or Dispatching of Emergency Services. Customer releases and holds EMC Security harmless from any liability or damages related to or arising from the notification of or dispatching of paramedics and other medical personnel and/or ambulance services. Customer is responsible for any charges incurred as the result of the notification or dispatching of emergency services, whether requested or not and whether such emergency services were correctly or incorrectly notified or dispatched by EMC Security.
Section 16. Termination. This Agreement may be terminated at any time after the initial term:
A. By the Customer for any reason during the initial term by paying the balance of the initial term balance;
B. By either EMC Security or Customer upon furnishing at least 30 days prior notice of termination to the other party;
C. By EMC Security if Customer breaches any provision of this Agreement and such breach is not cured within 10 days after EMC Security provides Customer notice of the breach. EMC Security may, but is not obligated to, provide Customer notice of termination if Customer fails to cure such breach within 10 days after the notice of the breach.
D. By EMC Security, with notice to Customer, if the Controlling Facility, the connecting lines, or the System is destroyed, damaged, or impaired so that it is impractical, in the reasonable opinion of EMC Security, to continue service;
E. By EMC Security, with notice to Customer, if EMC Security is unable to either secure or retain the connection or privileges necessary for the transmission of signals between Premises and the Controlling Facility, or between the Controlling Facility and the appropriate emergency agencies.
Section 17. Disconnection: Reconnect Fee. Upon termination of this Agreement, EMC Security, without notice to the Customer, any reprogram or disconnect the System so that it no longer communicates with the Controlling Facility. If EMC Security is unable to or fails to reprogram or disconnect the System for any reason, the Monitoring Service is nevertheless terminated on the date service was terminated in accordance with Section 16, and EMC Security may disregard any further communications received from the System. If Monitoring Service is terminated and Customer subsequently desires to reconnect Monitoring Service, EMC Security reserves the right to charge Customer a reconnect fee.
Section 18. Attorney's Fees, Costs, and Expenses. If EMC Security institutes legal proceeding to collect any fees that are due and payable by the Customer, Customer shall reimburse EMC Security for any and all court costs, litigation expenses, and reasonable attorney's fees incurred by EMC Security in connection with such proceeding or any appeal or enforcement of any judgment obtained in such proceedings.
Section 19. Release. Limitation of Liability.
A. Customer acknowledges that Monitoring Service is designed to reduce, but not eliminate, certain risks of loss and that the amounts being charged by EMC Security are not sufficient to warrant that no loss or damage will occur. Customer understands that EMC Security as well as its affiliates, its parent, and any directors, officers, shareholders, agents, employees, or subcontractors of EMC Security (collectively, "EMC Security Representatives") are not insurers and are not responsible for acts or omissions of others or for events beyond their control.
B. Except as otherwise provided, Customer releases EMC Security and EMC Security Representatives from any and all losses, liabilities, damages, judgments, claims, costs, or expenses (including reasonable attorney's fees and costs and expenses of litigation) (hereinafter referred to as "Losses"), which may occur prior to, contemporaneous with, or subsequent to the execution of this Agreement due to delay in the installation of the System, the improper operation or in-operation of the System, breach of contract, express or implied, breach of express or implied warranty, negligence of EMC Security or EMC Security Representatives in installing the System or providing Monitoring Service, or loss or damage to or malfunction of facilities or equipment necessary to operate the Controlling Facility or any remote station. Customer does not release EMC Security from Losses covered by the Limited Warranty under this Agreement or Losses arising from the gross negligence or intentional misconduct of EMC Security or EMC Security Representatives.
C. NOTWITHSTANDING SECTION 19.B., IF EMC SECURITY OR EMC SECURITY REPRESENTATIVES ARE LIABLE FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY, BREACH OF CONTRACT, OR OTHERWISE, THE TOTAL LIABILITY OF EMC SECURITY AND EMC SECURITY REPRESENTATIVES COLLECT-IVELY SHALL BE LIMITED TO THE MAXIMUM SUM OF $1,000.00, EXCLUDING FROM THE SUM ANY AMOUNT PAID BY EMC SECURITY PURSUANT TO THE LIMITED WARRANTY UNDER THIS AGREEMENT. Customer accepts responsibility for Losses exceeding the $1,000.00 limit, and Customer shall acquire and maintain any insurance coverage it desires to protect the Customer and others from Losses exceeding such limit. Except for the 1,000.00 for which EMC Security or EMC Security Representatives may be responsible, Customer shall indemnify EMC Security or EMC Security Representatives for damages or expenses EMC Security or EMC Security Representatives incur in a subrogation action brought by Customer's insurer.
Section 20. Indemnification. Except for Losses arising from the gross negligence or intentional misconduct of EMC Security or EMC Security Representatives, Customer agrees to release, defend, indemnify, and hold EMC Security and EMC Security Representatives harmless from any and all Losses of any person not a party to this Agreement, arising from or in connection with the System and/or Monitoring Service, including claims or lawsuits based on the negligence of EMC Security or EMC Security Representatives, breach of warranty, and strict liability.
Section 21. Notice. Unless otherwise provided in this Agreement, all notices required under this Agreement must be in writing and sent by certified mail or U.S. mail, postage prepaid, addressed as follows:
If to EMC Security: 55 Satellite Blvd. NW. Suwanee GA 30024
If to Customer: To Customer billing address. Unless notice is sent by certified mail, notice sent by U.S. mail is deemed received five (5) business days after the date on which the notice was mailed. Either party must notify the other party of any change of address for the purpose of giving notice under this Agreement.
Section 22. Assignment. EMC Security, in its sole and absolute discretion, may assign this Agreement, in whole or in part, without notice to the Customer. Customer may not assign this Agreement, in whole or in part, without the receipt of the prior written consent of EMC Security, and any assignment in which Customer fails to receive the prior written consent of EMC Security has no force or effect. This Agreement shall inure to the benefit of and be binding upon respective successors and permitted assigns of EMC Security and Customer.
Section 23. Amendment. This Agreement may be amended by a written agreement executed by Customer and an authorized agent (other than the salesperson) of EMC Security.
A. This Agreement also may be amended from time to time by EMC Security sending Customer notice of an amendment, and such amendment becomes effective on the first day of the billing cycle immediately following the billing cycle in which notice of the amendment is received or deemed received.
B. Customer may amend the Monitoring Service Customer receives from EMC Security, as specified by providing EMC Security 30 days' prior notice of the amendment.
Section 24. Miscellaneous. This Agreement, including the Notice of Cancellation, if applicable, attached hereto and incorporated by reference, constitutes the entire agreement between Customer and EMC Security pertaining to the System and/or Monitoring Service and supersedes all prior and contemporaneous negotiations, agreements, and understandings of either or both parties in connection therewith. The terms and conditions of this Agreement apply as printed without alteration unless an alteration to the printed terms is approved in writing by an authorized agent of EMC Security (other than a salesperson).
A. The waiver by either Customer or EMC Security of a breach or a default in any provision contained in this Agreement shall not be construed or operate as a waiver of any subsequent breach or default.
B. The validity, interpretation, and performance of the Agreement and each of its provisions shall be governed by the laws of the State of Georgia.
D. The provisions of the Agreement relating to indemnification, limited warranty, and its exclusions, the disclaimer of warranties, and release and limitation of liability survive any termination of this Agreement.
E. If any provision of this Agreement is held unenforceable, no other provision of this Agreement shall be affected thereof and the remaining provisions of this Agreement shall be affected thereof and the remaining provisions of this Agreement shall remain in full force and effect as though such unenforceable provision had not been contained in the Agreement.
F. Electronic or duplicate originals of this Agreement shall be executed, each of which shall be deemed an original but all of which shall constitute the same instrument.
G. EMC Security will not be deemed to be in default of any provision of this Agreement or held responsible for any delay or failure in performance of any of its obligations under this Agreement to the extent that such delay or failure is caused by fire, flood, explosion, other acts of God, war, strike, embargo, government requirement and/or military authority, or any similar cause beyond the control and without the fault of EMC Security.