Terms Of ServiceIn consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the Customer (herein "Subscriber"), Dealer, and Company agree as follows:
1. Subscriber is contracting (or has contracted) with Dealer for the installation or service of an electronic protective system (herein "Protective System") that is located on Subscriber's owned or occupied premises. Subscriber has also requested that Dealer provide a monitoring service for that Protective System. Dealer contracts with Security Central, a division of Lake Norman Security Patrol, Inc. (herein "Company"), to provide such monitoring Services for the Dealer to Subscribers. In order to provide its monitoring Services, Company must have accurate information about Subscriber and the Protective System. Subscriber and Dealer agree that they have provided accurate information on this Agreement, and that Company may rely upon that information in providing its Services.
2. Company's only obligation under this Agreement is to monitor for signals from the Protective System and respond appropriately (herein the "Services"). No obligation of Company to Subscriber, or to Dealer with respect to a Subscriber, whatsoever shall arise until a test signal has been sent from Subscriber's Protective System and properly received by Company. Company, upon receipt of a signal, shall make every commercially reasonable effort to promptly transmit notification of such signal to the police, fire, or other authority, and also to a person identified by Subscriber on the Call List on this Agreement, unless Company has a reasonable basis to believe that an emergency condition does not exist.
3. Company does not own and did not design, approve, or install Subscriber's Protective System, and makes no representations as to the suitability or condition of such system. Company assumes no responsibility for the operation or non-operation, actuation or non-actuation, maintenance, or repair of Subscriber's Protective System. Subscriber agrees to test and set the Protective System in compliance with the manufacturer's instructions, and will notify Dealer promptly upon discovering any operational defect in the system. Upon receipt of such notification, Dealer will promptly investigate and resolve any defect in Subscriber's Protective System.
4. Company reacts to unscheduled signals that it receives (and also the absence of scheduled signals that it expects to receive) from Subscriber's Protective System, and those signals are sent to Company over a network (which may include landline, cable, cellular, and Internet signal paths) that is wholly beyond the ownership or control of Company. In the event of any disruption in the network between Subscriber's Protective System and Company's network interface, or in the event of any change in the network beyond Company's control which causes Company's monitoring system to not recognize or associate signals from Subscriber's Protective System, then signals from Subscriber's Protective System will not be received by Company, the failure to receive such signals will not be known to Company, and Company shall not be responsible for any monitoring during such period of disruption or change. In addition, various services provided by Subscriber's network provider, such as call blocking, call restricting, voice over internet protocol, or service problems such as suspension of service, disconnection of service, or interference of network services, may prevent the Protective System from communicating with Company. Subscriber shall therefore notify Dealer of any changes in Subscriber's network service (whether telephone, cable, cellular, or other, as appropriate), and Dealer shall then take such action, including notification to Company, as is appropriate.
5. Company may (but is not required to) terminate or suspend Services to Subscriber if the Protective System is so disabled or damaged (including sending false alarm signals with unreasonable frequency) that providing further Services is impracticable, or on account of strikes, riots, natural disasters, acts of God, or any other causes beyond the control of Company, and Company will not be liable for any damages or penalties resulting from termination or suspension under such circumstances.
6. (a) While Company is being paid to monitor a Protective System that is designed to reduce certain risks of loss or damage, Company cannot guarantee that loss or damage will not occur. Company encourages Subscriber to carry adequate insurance to safeguard its valuables. Adequate insurance may compensate Subscriber's losses due to burglary, fire, or
other disaster, and which may occur regardless of whether signals from Subscriber's Protective System are received by
Company. COMPANY MAKES NO WARRANTY OR GUARANTY WHATSOEVER, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS, THAT SUBSCRIBER'S PROTECTIVE SYSTEM OR COMPANY'S SERVICES WILL PREVENT OR AVERT OCCURRENCES OR CONSEQUENCES THAT THE PROTECTIVE SYSTEM OR SERVICES ARE DESIGNED TO DETECT OR AVERT. COMPANY MAKES NO WARRANTIES OTHER THAN THOSE EXPRESSED IN WRITING BY COMPANY, AND NO REPRESENTATIVE OF COMPANY OR DEALER HAS ANY AUTHORITY TO MAKE ANY ADDITIONAL WARRANTIES OR OTHERWISE VARY THE TERMS OF THIS AGREEMENT. (b) Protective Systems are not foolproof, and are not intended to replace insurance. Company is in no way an insurer of Subscriber's person or premises against loss or damage. Any payments made by Subscriber or Dealer relating to Company Services are therefore based solely upon the value of the Services, and are unrelated to the value of any property or persons located on Subscriber's premises. Subscriber does not intend that this Agreement provide for full liability of Company. It is impractical and extremely difficult to determine what damages, if any, might proximately result from Company or Dealer's failure to perform any duty owed to another person, including Subscriber, or the failure of the Protective System or Services to properly operate, with resulting loss to Subscriber because of, among other things: (i) the uncertain value of property which may be affected by occurrences which the Protective System or Services is designed to detect or avert; (ii) the uncertainty of response time by any police, fire, or other emergency responder dispatched as a result of a signal; and (iii) the inability to ascertain what portion, if any, of any loss would be proximately caused by failure of the Services. (c) Company shall be exempt from all liability for loss or damages, including consequential or incidental damages, due directly or indirectly to occurrences, or consequences there from, which the Protective System and Services are designed to detect or avert. If Company shall be found liable for loss or damages due to a failure of Services in any respect, its liability shall be limited to replacement or repair of any defective equipment or to a sum equal to the annual Services charge paid by Subscriber or Five Hundred Dollars ($500), whichever is greater, as liquidated damages and not as a penalty, and the choice of which shall be at the election of Company. As the exclusive remedy, the provisions of this Paragraph 6 and its subparts shall apply, if loss or damage, irrespective of cause or origin, results directly or indirectly to person or property from performance or nonperformance or obligations imposed by this Agreement or from negligence, active or otherwise, of Company.
7. Unless sooner terminated as provided for herein, the initial term of this Agreement is one (1) year from the date that it is
signed by Company. The Agreement shall then automatically renew for successive one (1) year terms, unless sooner
terminated as provided for herein, or by any Party giving written notice of non-renewal to the other Parties at least thirty (30) days before the expiration of the then-current term. Notwithstanding the foregoing, in the event that Dealer notifies Company of its termination of a Subscriber for any reason, or in the event of a breach by Dealer of any term or condition of this Agreement or its Dealer Contract with Company, Company will give Subscriber and/or Dealer at least fifteen (15) days notice of termination of Services to Subscriber and, upon such notice, this Agreement and all Company's responsibilities here under shall end as of the date fixed in such notice. Subscriber understands that Company's Services are initially provided on a temporary basis for thirty (30) days, and if Company does not receive this signed Agreement and payment for its Services within that time, temporary Services are terminated and this Agreement is void.
8. Company may, upon renewal of this Agreement, adjust the monthly charges to reflect additional costs, taxes, licenses,
permits, fees, or charges imposed upon Company relating to the Services, and Subscriber agrees to pay same. Subscriber
agrees to assume all responsibility for any fines, penalties, or charges assessed by any regulatory body against a Party for
any false alarm or signal. If any payment due from Subscriber to Dealer or Company here under is dishonored or otherwise
not paid in full within thirty (30) days of invoice date, Company may terminate this Agreement and all monitoring
Services. Dealer is responsible to notify any Subscriber of termination of Company Services. In the event of a dishonored payment, Company may thereafter require payment by certified funds. Any delinquent amounts due Company under this Agreement shall be subject to a late payment or finance charge of one and one-half percent (1 1/2%) per month, or eighteen percent (18%) per annum, until paid.
9. Dealer and Company are independent contractors, and Company is not responsible for any act or omission of Dealer or any other person. Except as provided otherwise in this Agreement, each Party (as "Indemnitor") shall indemnify, defend and hold harmless the other Party(ies) and their respective officers, directors, and employees, and their respective successors and permitted assigns, from and against any and all liability, loss, claim, lawsuit, injury, cost, judgment, damage, or expense whatsoever (including, but not limited to, reasonable attorneys' fees, court costs and costs of settlement) which directly results from or arises out of any breach by the Indemnitor or any of its officers, directors, or employees of any of the Indemnitor's representations, warranties, covenants, or agreements in this Agreement.
10. Any notices required to be given by a Party must be in writing and mailed by certified mail, return receipt requested,
addressed to the recipient(s) at the address(es) shown on this Agreement.
11. Any claim arising out of or relating to this Agreement, or breach thereof, shall be resolved first by mediation, then by binding arbitration administered by the American Arbitration Association in accordance with its Mediation and Commercial Arbitration Rules, and judgment upon an arbitration award so rendered may be entered in any court of
competent jurisdiction. Dealer agrees to be joined as a party in any mediation or arbitration. The arbitration shall be
conducted in the city with a federal courthouse nearest to the property being monitored by this Agreement. For residential consumer Subscribers, if a Subscriber demonstrates an inability to pay all or part of the filing fees and mediator/arbitrator fees, the Company may (but is not required to) advance all or a portion of such costs to the tribunal, subject to allocation in the mediation settlement or arbitration award. The arbitrator may award the prevailing party in the arbitration costs and reasonable attorneys' fees (prevailing party being defined as a claimant recovering more than 50% of the amount in its claim or a respondent who succeeds in limiting any award to 50% of lesser of the amount in the claim), all to the extent permitted by applicable law.
12. This Agreement contains the entire understanding and agreement between Subscriber and Company. Only
representations contained in this Agreement are binding upon Company, and no prior statements or representations of
any type shall be received in evidence or otherwise used to vary the express terms set forth herein. This Agreement may
be amended only in a writing signed by the Parties; no oral modification of this Agreement shall be enforceable. This
Agreement shall be binding upon and inure to the benefit of the Parties hereto, their successors and permitted assigns,
and may not be assigned by Subscriber or Dealer without the written consent of Company. If any term or provision of this
Agreement shall be determined to be invalid or inoperative, all remaining terms and provisions shall remain in full force
and effect. This Contract shall be governed and construed solely under the laws of the State of New York.