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Terms of Conditions - August 2023 Security Service PSA Terms
TERMS AND CONDITIONS
A. Payments: Customer will pay (or reimburse) Company as follows:
1. General. The prices shown in this Agreement are based on the Equipment and Services described in Company’s proposal/quotation. If the actual Equipment installed or Services differ, the price will be adjusted accordingly. The prices shown are valid for thirty (30) days from the date such proposal is presented to the Customer. If Customer does not sign and deliver this Agreement to Company within 30-days of the date of the proposal, the prices may be adjusted to reflect Company’s then-current pricing. Company’s reserves the right to substitute Equipment based upon installation constraints, delivery requirements, or local code requirements. Installation charges are based on Company performing the installation with its own personnel. If for any reason installation must be performed by outside contractors, installation charges may be subject to revision.
2. Transportation and Delivery. All orders will be shipped FOB Company's warehouse or that of its suppliers, with freight and handling charges prepaid and added to Customer's invoice. Customer will pay all expenses, including insurance, for transporting the Equipment from and to Company's warehouse for any reason, other than Company's error or return or replacement of Equipment under warranty. Customer agrees to receive delivery of all orders at Customer’s designated point of delivery and shall preserve such equipment until installation by Company.
3. Pricing, Payment, Invoicing and Charges. Pricing is based upon the billing and payment terms set forth in this Agreement. Payment of all installation invoices are due upon receipt of the invoice. Invoices shall be paid by Customer via electronic delivery via ACH/EFT. Unless otherwise agreed by the parties in writing, fees for Services to be performed shall be paid annually in advance by EFT or ACH and invoices are due within thirty (30) days of the date of the invoice. Customer acknowledges and agrees that timely payments of the full amounts listed on invoices is an essential term of this Agreement and that Customer’s failure to make payment in full when due is a material breach of this Agreement. Customer further acknowledges that if there is any amount outstanding on an invoice, it is material to Company and shall give Company, in addition to any other available remedies, the right to, without notice, (a) suspend, discontinue or terminate performing any Services and/or withhold further deliveries of equipment and other materials, terminate or suspend any unpaid software licenses, and/or suspend Company’ obligations under or terminate this Agreement and (b) to charge interest on the amounts that remain unpaid more than thirty (30) days past the due date specified in the invoice(s) at a rate equal to the lesser of 1.5% per month or the maximum rate permitted under applicable law, until payment is made in full. Customer agrees to pay all costs, expenses and fees of Company’ enforcement of this Agreement, including collection expenses, court costs, and attorneys’ fees. Company’ election to continue providing future Services does not, in any way, diminish Company’ right to terminate or suspend Services or exercise any or all rights or remedies under this Agreement. Company shall not be liable for any damages, claims, expenses or liabilities arising from or relating to suspension of services for non-payment. In the event that there are exigent circumstances requiring Services or Company otherwise performs Services at the premises following suspension, those Services shall be governed by the terms of this Agreement unless a separate contract is executed. If Customer disputes any late payment notice or Company’ efforts to collect payment, Customer shall immediately notify Company in writing and explain the basis of the dispute. Company may invoice Customer for progress billings based upon Equipment components delivered or stored, installation of Equipment and/or System components, and/or Services performed before completion of the System/Equipment installation, activation of the System, connection to the CMC, or any other Service(s).. Customer will pay (or reimburse Company) for any permitting fees, taxes, fees or charges that are imposed by any governmental body or other changes related to the Equipment and/or Services. Non-warranty work performed after completion of the installation will be billed at Company’s then current equipment and labor rates. Customer will pay all costs, expenses and fees incurred by Company to enforce the terms of this Agreement, including collection expenses, court costs, and reasonable attorneys’ fees. Notwithstanding any other term in this Agreement, Company may increase prices upon notice to Customer to reflect increases in material and labor costs. In addition, prices for Equipment covered by this Agreement may be adjusted by Company, upon notice to Customer at any time prior to shipment and regardless of Customer’s acceptance of the Company’s proposal or quotation, to reflect any increase in Company’s cost of raw materials (e.g.,steel, aluminum) inability to secure Equipment, changes or increases in law, labor, taxes, duties, tariffs or quotas, acts of government, any similar charges, or to cover any extra, unforeseen and unusual cost elements. This Agreement is entered into with the understanding that the services to be provided by Company are not subject to any local, state, or federal prevailing wage statute. If it is later determined that local, state, or federal prevailing wage rates apply to the services to be provided by Company, Company reserves the right to issue a modification or change order to adjust the wage rates to the required prevailing wage rate. Customer agrees to pay for the applicable prevailing wage rates. Customer shall provide financial information requested by Company to verify Customer’s ability to pay for goods or services. If Customer fails to provide financial information or if Company, in its sole discretion determines that reasonable grounds exist to question Customer’s ability or willingness to make payments when due (e.g., not making payments when due, late payments, or a reduction in Customer's credit score), Company may defer shipments, change payment terms, require cash in advance and/or require other security, without liability and without waiving any other remedies Company may have against Customer. Company shall provide Customer with advance written notice of changes to payment terms.
4. Deposit. Unless otherwise agreed to in writing by the parties, Customer agrees to pay a deposit equal to 50% of the project sell price (pre-tax) prior to Company providing any labor or materials on the project. Company will generate an invoice for the 30% deposit within three business days after Company’s receipt of a written agreement or order from Customer. Company will not commence work until receipt of the deposit.
B. Ownership of Company Brand; Electronic Media; Personal Information; Confirmation of Appointments; Consent to Call/Email.
1. Ownership of Company Brand. Without exception, Company-branded signs, including window stickers and warning signs, will remain the property of Company and may be removed by Company at any time. Customer’s right to display Company-branded signs is not transferable.
2. Electronic Media. Either party may scan, fax, email, image, or otherwise convert this Agreement into an electronic format of any type or form, now known or developed in the future. Any unaltered or unadulterated copy of this Agreement produced from such an electronic format will be legally binding upon the parties and equivalent to the original for all purposes, including litigation. Company may rely upon Customer’s assent to the terms and conditions of this Agreement, if Customer has signed this Agreement or has demonstrated its intent to be bound whether by electronic signature or otherwise.
3. Personal Information. Customer represents and warrants that Customer has obtained all consents and has the right to (a) disclose to Company all personal information disclosed hereunder concerning individuals/employees/or other third parties including all information contained in Customer’s Emergency Call/Contact List (“ECL”); (b) collect (including consent to record telephone conversations with Company), use, disclose and transfer such personal information; and (c) authorizes Company to use such personal information to administer the relationship between Customer and Company, including the administration of this Agreement. Customer acknowledges and agrees that Company may share all such information with its parents, subsidiaries, affiliates and its/their successor corporations or any subcontractor or assignee, within and outside the country in which the Customer is located and thereby subject such information to the laws of such countries.
4. Confirmation of Appointments; Consent to Call/Email. Customer expressly authorizes Company and its authorized representatives to contact Customer at the telephone numbers and email addresses provided by Customer to Company: (a) using an automated calling device to deliver a prerecorded message to set/confirm a service/installation appointment; and (b) from time to time with information and offers about products and services that might interest Customer and to use email to provide sole notification to the customer of various alarm, supervisor and trouble signals received from the equipment installed at the customer location. Customer acknowledges that (1) when a calling device or email notification method is used, that delivery of the notification may be delayed or may fail due to private and or public network issues, telecommunication outages, internet delay or failures, and other conditions that can impede or delay electronic notifications; and (2) Company will not have knowledge of the failure of, or successful delivery of, such electron notifications.
C. Customer Responsibilities: Customer agrees to provide and be obligated by the following:
1. Site Preparation, Intrusion and Restoration. Customer shall be responsible for providing 110VAC power, telephone connections, network drops and any required conduit, wiremold, or other raceway unless otherwise noted herein. Customer shall also be responsible for any required IP address assignments and additional network software licensing. The installation of Equipment may necessarily require cutting, bolting or fastening into Customer's floors, walls and/or ceilings. Company shall not be responsible for any expenses related to patching, floor or wall finishing, or paint, tile, carpet or wallpaper matching, restoration or replacement resulting from installation or service of the Equipment.
2. Special Equipment Requirements. If Customer requires installation or service of Equipment in areas inaccessible without the use of lifts or cranes, or if non-standard conditions at the Customer site require special equipment for installation or service, Customer will either provide such equipment, or will reimburse Company for any applicable charges or fees.
3. Video Equipment Requirements. Customer will provide: (a) adequate illumination under all operational conditions for the proper operation of any video camera(s) and (b) the appropriate space for monitors and any recorders. Certain laws may limit or prohibit the use of video surveillance and/or audio enabled equipment. If Customer elects to install/use video surveillance equipment on its premises and/or enable audio capture functionality on such equipment, Customer also accepts the responsibility of knowing and fully complying with all applicable laws and agrees to indemnify and defend Company from any and all claims arising from Customer’s use of such equipment.
4. System Software; Network Connections. Except to the extent that Company’s proposal/quotation expressly states that Company’s work includes the development of software or other intellectual property for Customer’s exclusive use, none of the work, work product, or services provided hereunder shall constitute a “work made for hire” or otherwise become the property of Customer. Moreover, any firmware/software (“Software”) or other intellectual property provided with the System or in connection with the Services is proprietary to Company and/or Company’s suppliers and is licensed or sublicensed to Customer on a non-exclusive basis. Customer may not (a) disclose the Software or source code to any third parties, (b) duplicate, reproduce, or copy all or any part of the Software, or (c) use the Software on equipment other than with the designated System with which it was furnished. A separate Software License Agreement or End User License Agreement between Company and Customer and/or the software publisher may be required to use the software and/or obtain updates/upgrades. If the installed Equipment is to be connected to Customer’s computer network (“Network”), Company will furnish and install the software needed to run the Equipment and will connect the Equipment to the Network according to the Network settings supplied by Customer. Installation shall not include modifications to the Network, security, or firewall settings. Customer will supply a TCP/IP Ethernet network address and central processing unit per Company specifications for access control system operation. Company shall not be responsible for the setup, operation, or maintenance of the Network or Network performance or compatibility issues. Company may assess additional charges, if Company is unable to connect to the Network or if any additional Equipment is required to facilitate connectivity between the Network and the Equipment. Customer is solely responsible for the establishment, operation, maintenance, access, security and other aspects of its Network and shall supply Company secure Network access for providing its services. Equipment networked, connected to the internet, or otherwise connected to computers or other devices must be appropriately protected by Customer and/or end user against unauthorized access. Customer is responsible to take appropriate measures, including performing back-ups, to protect information, including without limit data, software, or files (collectively “Data”) prior to receiving the service or products.
5. Ownership and Security of Equipment. Until Customer has paid Company in full, Customer: (a) grants to Company a security interest in the Equipment and all proceeds thereof; (b) will not (i) assign, transfer, pledge, encumber, lease or relinquish possession or control of the Equipment; (ii) make or cause to be made any alteration, attachment or repair to the Equipment other than by Company; or (iii) remove the Equipment from the installed location; (c) will bear all risk of damage to, or loss or theft of, the Equipment while it is in Customer's possession or control; and (d) will hold the Equipment as personal property and not cause or permit any Equipment to become permanently affixed to any real property.
6. Export Control. Customer shall not export or re-export, directly or indirectly, any: (i) product or service provided under this Agreement; (ii) technical data; (iii) software; (iv) information; or (v) items acquired under this Agreement to any country for which the United States Government (or any agency thereof) requires an export license or other approval without first obtaining any licenses, consents or permits that may be required under the applicable laws of the U.S. or other foreign jurisdictions, including the Export Administration Act and Regulations, and shall incorporate in all export shipping documents the applicable destination control statements. Customer shall, at its own expense, defend, indemnify and save harmless Company from and against all third party claims, liability, loss or damage (including reasonable attorneys' fees and other defense costs), assessed against or suffered by Company as a result of an allegation or claim of noncompliance by Customer with this Section. The obligations contained in this Section shall survive the termination or expiration of this Agreement.
7. FARs. Company supplies “commercial items” within the meaning of the Federal Acquisition Regulations (FAR), 48 CFR Parts 1-53. As to any customer order for a U.S. Government contract, Company will comply only with those mandatory flow-downs for commercial item and commercial services subcontracts listed either at FAR 52.244-6, or 52.212-5(e)(1), as applicable.
D. Warranty. Any original part of the Equipment (as distinguished from the software) installed under this Agreement, including the wiring, which proves to be defective in material or workmanship within ninety (90) days (unless a different period is set out in Company’s proposal/quotation) of the date of completion of the installation (“Warranty Period”), will be repaired or replaced, in Company's sole discretion, with a new or functionally operative part. Labor and materials required to repair or replace such defective components will be furnished at no charge during the Warranty Period. This Warranty does not cover Services required to correct conditions caused by: (a) Customer or other third parties; (b) accidents, acts of God, lightning, strikes, riots, floods, terrorism, acts of War, alteration, misuse, tampering or abuse; (c) adjustments necessitated by misalignment of video cameras, improper adjustment of equipment, or changes to ambient lighting conditions after initial installation and acceptance; or (d) adjustments, repairs or maintenance not done by Company or installation of parts, accessories, attachments or other devices not furnished by Company. Customer will be charged on a time and materials basis at Company's then applicable rates for labor and materials for Services not covered by this Warranty. Company makes no and specifically disclaims all representations or warranties that the Services, Equipment, products, software or third party product or software will be secure from cyber threats, hacking or other similar malicious activity, or will detect the presence of, or eliminate, treat, or mitigate the spread transmission, or outbreak of any pathogen, disease, virus or other contagion, including but not limited to COVID 19. Unless agreed to in writing by the parties, any technical support, assistance, or advice (“Technical Support”) provided by Company, such as suggestions as to design use and suitability of the Equipment and products for the Customer’s application, is provided in good faith, but Customer acknowledges and agrees that Company is not the designer, engineer, or installer of record. Any Technical Support is provided for informational purposes only and shall not be construed as a representation or warranty, express or implied, concerning the proper selection, use, and/or application of the Equipment and products. Customer assumes exclusive responsibility for determining if the equipment and products supplied by Company are suitable for its intended application and all risk and liability, whether based in contract, tort or otherwise, in connection with its application and use of the Equipment and products.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. THE CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO LOSSES OR DAMAGES RESULTING FROM A FAILURE OF THE EQUIPMENT TO PERFORM AS WARRANTED IS REPAIR OR REPLACEMENT AS SPECIFIED ABOVE.
E. Indemnity and Limitation of Liability.
1. Company shall defend, indemnify and hold Customer, its corporate affiliates, and their respective officers, directors, agents and employees harmless from damage, liability and expense resulting from the negligent acts or willful misconduct of Company's agents and employees committed while performing Services on Customer’s premises, to the extent that they are the direct cause of the loss, damage or injury to third parties or Customer’s property (e.g., equipment dislodging and striking a third party due to improper installation), as opposed to being caused by an occurrence, event, or the consequences therefrom that the Equipment or Services were intended to record, detect, notify, deter or avert (“Detection Events”).
2. Customer acknowledges that Company’s Equipment and Services do not cause and cannot eliminate Detection Events. Company is not an insurer against Detection Events and the amounts Company charges Customer are not insurance premiums. Such charges are based upon the value of the Equipment and Services provided and are unrelated to any such risk of loss. Company does not undertake and assumes no liability for such risk by providing the Equipment and/or Services. If Company is nevertheless found liable under any legal theory for loss, damage, expense or injury caused directly or indirectly by a Detection Event, Company’s liability for all such claims shall be limited in the aggregate to the sums paid by Customer within the previous year for the Equipment or Services at issue, or $500,000 whichever is less, as Customer’s sole remedy.
3. Customer shall defend, indemnify and hold Company, its corporate affiliates, and their respective officers, directors, agents and employees, harmless from damage, liability and expense to the extent that any such loss is not directly caused by the negligent acts or willful misconduct of Company’s agents and/or employees, or arises out of any claim related to Customer’s use of the Equipment or Services (e.g., Detection Events, violation of eavesdropping/wiretapping laws, invasion of privacy, et cetera).
4. In no event will either Customer or Company be liable for any consequential, incidental, or special damages of any kind or nature (including but not limited to injury or damage to business, person or property) arising out of any performance of the Agreement, even if the parties are advised of the possibility of such damages.
F. Services.
1. Company will furnish and install, or cause to be installed, the Equipment (or equivalent), as set forth in an Order in Customer’s designated facilities. As used herein, “installation” means: (i) affixing all Equipment and materials provided by Company at such locations within the facilities as are designated by Customer; (ii) providing and pulling cables/wires required to connect the Equipment to Customer’s communications facilities, and/or Network and making such connections; (iii), in the case of a digital communicator installation, mount Equipment and plug into RJ31X phone jack previously installed by Customer; (iv) in the case of radio installation, mount radio Equipment and program Equipment with number furnished by Customer; (v) providing and installing software/firmware required by the Equipment; (vi) performing testing as required to establish that the Equipment is connected, is functioning according to its specifications, and is communicating over Customer’s communications facilities and/or Network; and (vii) providing user-level training to Customer’s designated representative in the use of such Equipment.
2. If Maintenance Services are purchased, Company will, upon Customer’s request, provide ordinary maintenance, repair or replacement of the Equipment due to normal wear and tear (the “Maintenance Services”). Company shall bear the expense of such maintenance, repair or replacement for the specified maintenance charge. The expense of all extraordinary maintenance, repair or replacement due to alterations in the Customer’s facilities, alterations of the covered equipment made at the request of the Customer, or made necessary by changes in the facilities, damage to the premises or to the covered equipment, and EXCLUSIONS below, or to any cause beyond the control of Company, shall be borne by the Customer. The Customer agrees to furnish any necessary electric current at Customer’s own expense with an outlet within a reasonable distance of the Company Equipment. Maintenance Service shall be performed between Company’s normal working hours of 8:00 A.M. to 4:30 P.M., Monday through Friday, except holidays, unless mutually agreed in advance by the Parties. Company may discontinue providing Maintenance Service on any covered equipment if Company cannot obtain an adequate supply of replacement equipment, component parts and/or associated supplies on a commercially reasonable basis. In such event, Company will refund on a pro-rata basis any prepaid Maintenance Charge on the affected equipment. Company is not responsible for the preservation of any computer programs or data and Customer is responsible for maintaining adequate back-ups. EXCLUSIONS: Maintenance on the following equipment or equipment components will be provided only on a time and material basis: (1) any exterior mounted devices; (2) Conditions not covered by the Warranty; and (3) equipment and/or components, including but not limited to software, that are outdated, no longer manufactured or otherwise are no longer commercially available. It is understood and agreed that Company’s obligation relates to the maintenance solely of the equipment, and that Company is not obligated to maintain, repair, service, replace, operate or assure the operation of any equipment, component or devices of the Customer or of others not installed by Company.
3. Maintenance service charges (“Maintenance Charges”) are payable in advance on a quarterly basis plus applicable state and/or local taxes effective from the date such Services are operative under this Agreement as set forth in an Order.
G. Hazardous Substances. Customer represents and warrants that any site at which the Equipment is to be installed is free of asbestos and any other hazardous or toxic substances. If any such substance exists at any site, Company will not be required to install or service the the Equipment to be installed and serviced by persons qualified to handle such substances. Equipment at such site and Company may arrange, at Customer's expense, for
H. Waivers.
1. Waiver of Jury Trial. CUSTOMER AND COMPANY WAIVE THEIR RIGHTS TO A JURY TRIAL IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN ANY MANNER CONNECTED WITH OR RELATED TO THIS AGREEMENT.
2. SAFETY Act Waiver. Certain of Company’s systems and services have received Certification and/or Designation as Qualified Anti-Terrorism Technologies (“QATT”) under the Support Anti-terrorism by Fostering Effective Technologies Act of 2002, 6 U.S.C. §§ 441-444 (the “SAFETY Act”). As required under 6 C.F.R. 25.5 (e), to the maximum extent permitted by law, Company and Customer hereby agree to waive their right to make any claims against the other for any losses, including business interruption losses, sustained by either party or their respective employees, resulting from an activity resulting from an “Act of Terrorism” as defined in 6 C.F.R. 25.2, when QATT have been deployed in defense against, response to, or recovery from such Act of Terrorism.
I. Term and Termination. This Agreement shall be effective as of the Effective Date and unless sooner terminated, will continue for a period of five years ending on the anniversary of the Effective Date (“Initial Term”). Thereafter this Agreement will automatically renew for successive thirty-day periods. At any time after the Initial Term, either party will be entitled to terminate this Agreement on thirty (30) days prior written notice. Expiration or termination of this Agreement shall not relieve Customer from its financial obligations for Equipment or Services provided prior to the effective date of expiration or termination.
In addition to any other remedies available to Company, Company may terminate this Agreement and discontinue any Services if (a) Customer fails to follow Company’s recommendations for the repair or replacement of defective parts not covered under Warranty or Maintenance Service; (b) Customer's failure to follow the operating instructions provided by Company or the OEM results in Equipment malfunction; (c) in Company’s sole opinion, the premises in which the Equipment is installed are unsafe, unsuitable, or so modified or altered after installation as to render continuation of Services impractical or impossible; (d) Company’s performance of its obligations becomes impracticable due to obsolescence or unavailability of systems, Equipment, or products (including component parts and/or materials) or because Company or its supplier(s) has discontinued the manufacture or the sale of the Equipment and/or products or is no longer in the business of providing the Services; (e) Company is unable to obtain or continue to support technologies; or (f) Customer fails to make payments when due or otherwise breaches this Agreement. Company will not be liable for any damages or subject to any penalty as a result of any such termination. Company may terminate this Agreement, or the affected portions, at its sole discretion upon notice to the Customer if Company’s performance of its obligations are prohibited because of changes in applicable laws, regulations or codes.
J. Insurance. Company maintains General Comprehensive Liability and Automobile Liability Insurance of, at least, $1,000,000 per incident - $2,000,000 in the aggregate and Worker’s Compensation coverage as required by the applicable state authority. In addition, at Customer’s request, Company will name Customer and, if required, Customer’s Landlord, Property Manager, and/or Property Owner of the facilities in which Company is providing installation, maintenance, inspection or warranty services as an additional insured under Company’s General Liability and Automobile insurance policies; provided, however, that such additional insured coverage will not respond to the negligence or other wrongful conduct of Customer or any other additional insured.
K. Force Majeure. Company assumes no liability for delays in installation of the Equipment or for the consequences therefrom, however caused. Company shall not be liable, nor in breach or default of its obligations under this Agreement, for delays, interruption, failure to render services, or any other failure by Company to perform an obligation under this Agreement, where such delay, interruption or failure is caused, in whole or in part, directly or indirectly, by a Force Majeure Event. A “Force Majeure Event” is a condition or event that is beyond the reasonable control of Company, whether foreseeable or unforeseeable, including, without limitation, acts of God, severe weather (including but not limited to hurricanes, tornados, severe snowstorms or severe rainstorms), wildfires, floods, earthquakes, seismic disturbances, or other natural disasters, acts or omissions of any governmental authority (including change of any applicable law or regulation), epidemics, pandemics, disease, viruses, quarantines, or other public health risks and/or responses thereto, condemnation, strikes, lockouts, labor disputes, an increase of 5% or more in tariffs or other excise taxes for materials to be used on the project, fires, explosions or other casualties, thefts, vandalism, civil disturbances, insurrection, mob violence, riots, war or other armed conflict (or the serious threat of same), acts of terrorism, electrical power outages, interruptions or degradations in telecommunications, computer, network, or electronic communications systems, data breach, cyber-attacks, ransomware, unavailability or shortage of parts, materials, supplies, or transportation, or any other cause or casualty beyond the reasonable control of Company. If Company’s performance of the work is delayed, impacted, or prevented by a Force Majeure Event or its continued effects, Company shall be excused from performance under the Agreement. Without limiting the generality of the foregoing, if Company is delayed in achieving one or more of the scheduled milestones set forth in the Agreement due to a Force Majeure Event, Company will be entitled to extend the relevant completion date by the amount of time that Company was delayed as a result of the Force Majeure Event, plus such additional time as may be reasonably necessary to overcome the effect of the delay. To the extent that the Force Majeure Event directly or indirectly increases Company’s cost to perform the services, Customer is obligated to reimburse Company for such increased costs, including, without limitation, costs incurred by Company for additional labor, inventory storage, expedited shipping fees, trailer and equipment rental fees, subcontractor fees, compliance with vaccination requirements or other costs and expenses incurred by Company in connection with the Force Majeure Event.
L. Assignment. This Agreement is not assignable by the Customer except upon written consent of Company first being obtained. Company shall have the right to assign this Agreement, in whole or in part, or to subcontract any of its obligations under this Agreement without notice to Customer.
M. One-Year Claims Limitation; Governing Law. Company shall have the sole and exclusive right to determine whether any dispute, controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be submitted to a court of law or arbitrated. The laws of Delaware shall govern the validity, enforceability, and interpretation of this Agreement, without regard to conflicts of law principles thereof, and the exclusive venue for any such litigation or arbitration shall be in Milwaukee, Wisconsin. The parties waive any objection to the exclusive jurisdiction of the specified forums, including any objection based on forum non conveniens. In the event the matter is submitted to a court, Company and Customer hereby agree to waive their right to trial by jury. In the event the matter is submitted to arbitration by Company, the costs of arbitration shall be borne equally by the parties, and the arbitrator's award may be confirmed and reduced to judgement in any court of competent jurisdiction. Except as provided below, no claim or cause of action, whether known or unknown, shall be brought by either party against the other more than one year after the claim first arose. Claims not subject to the one-year limitation include claims for unpaid: (1) contract amounts, (2) change order amounts (approved or requested) and (3) delays and/or work in efficiencies. Customer will pay all of Company's reasonable collection costs (including legal fees and expenses).
N. Severability. If any provision of this Agreement is determined by a court to be invalid or unenforceable, that provision will be deemed amended and enforced to the maximum extent permitted by law; however, each and every other provision of this Agreement will continue to be valid and enforceable.
O. Paragraph and Section Headings; Captions. The headings and captions contained in this Agreement are inserted for convenience or reference only, and are not to be deemed part of or to be used in construing this Agreement.
P. Authority. Customer represents, warrants, acknowledges, and/or agrees that: (1) Customer owns the premises in which the Equipment is being installed or has the authority to engage Company to carry out the installation in the premises and (2) Customer will comply with all laws, codes and regulations pertaining to the use of the Equipment and/or Services.
Q. Entire Agreement. This Agreement, together with any Orders, addenda and/or exhibits, constitutes the entire agreement between the parties. In executing this Agreement; Customer is not relying on any advice or advertisement of Company. Any representation, promise, condition, inducement or warranty, express or implied, not expressly included in this Agreement will not be binding upon Company. The terms and conditions of this Agreement will prevail over any conflicting, inconsistent, or additional terms or conditions contained in any purchase order, agreement or Statement of Work (“SOW”) or other document issued by Customer. Any changes must be mutually agreed to in writing by the authorized representatives of the Customer and Company.
R. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such separate counterparts shall together constitute but one and the same agreement.
S. Privacy. A. Company as Processor: Where Company factually acts as Processor of Personal Data on behalf of Customer (as such terms are defined in the DPA) the terms at www.johnsoncontrols.com/dpa shall apply. B. Company as Controller: Company will collect, process and transfer certain personal data of Customer and its personnel related to the business relationship between it and Customer (for example names, email addresses, telephone numbers) as controller and in accordance with Company’s Privacy Notice at https://www.johnsoncontrols.com/privacy. Customer acknowledges Company’s Privacy Notice and strictly to the extent consent is mandatorily required under applicable law, Customer consents to such collection, processing and transfer. To the extent consent to such collection, processing and transfer by Company is mandatorily required from Customer’s personnel under applicable law, Customer warrants and represents that it has obtained such consent.
T. Software and Digital Services. Use, implementation, and deployment of the software and hosted software products (“Software”) offered under these terms shall be subject to, and governed by, Seller’s standard terms for such Software and Software related professional services in effect from time to time at https://www.johnsoncontrols.com/techterms (collectively, the “Software Terms”). Applicable Software Terms are incorporated herein by this reference. Other than the right to use the Software as set forth in the Software Terms, Seller and its licensors reserve all right, title, and interest (including all intellectual property rights) in and to the Software and improvements to the Software. The Software that is licensed hereunder is licensed subject to the Software Terms and not sold. If there is a conflict between the other terms herein and the Software Terms, the Software Terms shall take precedence and govern with respect to rights and responsibilities relating to the Software, its implementation and deployment and any improvements thereto.
U. Digital Enabled Services. Data. If Company provides Digital Enabled Services under this Agreement, these Digital Enabled Services require the collection, transfer and ingestion of building, equipment, system time series, and other data to Company’s cloud-hosted software applications. Customer consents to and grants Company right to collect, ingest and use such data to enable Company and its affiliates and agents to provide, maintain, protect, develop and improve the Digital Enabled Services and Company products and services. Customer acknowledges that, while Digital Enabled Services generally improve equipment performance and services, Digital Enabled Services do not prevent all potential malfunction, insure against all loss, or guarantee a certain level of performance. Customer shall be solely responsible for the establishment, operation, maintenance, access, security and other aspects of its computer network (“Network”), shall appropriately protect hardware and products connected to the Network and will supply Company secure Network access for providing its Digital Enabled Services. As used herein, "Digital Enabled Services" mean services provided hereunder that employ Company software and related equipment installed at Customer facilities and Company cloud-hosted software offerings and tools to improve, develop, and enable such services. Digital Enabled Service may include, but are not limited to, (a) remote servicing and inspection, (b) advanced equipment fault detection and diagnostics, and (c) data dashboarding and health reporting. If Customer accesses and uses Software that is used to provide the Digital Enabled Services, the Software Terms (defined below) will govern such access and use.
Company Digital Solutions. Use, implementation, and deployment of the software and hosted software products (“Software”) offered under these terms shall be subject to, and governed by, Company's standard terms for such Software and Software related professional services in effect from time to time at www.johnsoncontrols.com/techterms (collectively, the “Software Terms”). Specifically, the Company General EULA set forth at www.johnsoncontrols.com/buildings/legal/digital/generaleula governs access to and use of software installed on Customer’s premises or systems and the Company Terms of Service set forth at www.johnsoncontrols.com/buildings/legal/digital/generaltos govern access to and use of hosted software products. The applicable Software Terms are incorporated herein by this reference. Other than the right to use the Software as set forth in the Software Terms, Company and its licensors reserve all right, title, and interest (including all intellectual property rights) in and to the Software and improvements to the Software. The Software that is licensed hereunder is licensed subject to the Software Terms and not sold. If there is a conflict between the other terms herein and the Software Terms, the Software Terms shall take precedence and govern with respect to rights and responsibilities relating to the Software, its implementation and deployment and any improvements thereto.
Notwithstanding any other provisions of this Agreement, unless otherwise agreed, the following terms apply to Software that is provided to Customer on a subscription basis (i.e., a time limited license or use right), (each a “Software Subscription”): Each Software Subscription provided hereunder will commence on the date the initial credentials for the Software are made available (the “Subscription Start Date”) and will continue in effect until the expiration of the subscription term noted in the applicable statement of work, order or other applicable ordering document . At the expiration of the Software Subscription, such Software Subscription will automatically renew for consecutive one (1) year terms (each a “Renewal Subscription Term”), unless either party provides the other party with a notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term. To the extent permitted by applicable law, Software Subscriptions purchases are non-cancelable, and the sums paid nonrefundable. Fees for Software Subscriptions shall be paid annually in advance, invoiced on the Subscription Start Date and each subsequent anniversary thereof. Customer shall pay all invoiced amounts within thirty calendar days after the date of invoice. Payments not made within such time period shall be subject to late charges as set forth in the Software Terms. Unless otherwise agreed by the parties in writing, the subscription fee for each Renewal Subscription Term will be priced at Company's then-applicable list price for that Software offering. Any use of Software that exceeds the scope, metrics or volume set forth in this Agreement and applicable SOW will be subject to additional fees based on the date such excess use began.
V. Dispute Resolution. Company shall have the sole and exclusive right to determine whether any dispute, controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be submitted to a court of law or arbitrated. For Customers located in the United States, the laws of Delaware shall govern the validity, enforceability, and interpretation of this Agreement, without regard to conflicts of law principles thereof, and the exclusive venue for any such litigation or arbitration shall be in Milwaukee, Wisconsin. For customers located in Canada, this agreement shall be governed by and be construed in accordance with the laws of Ontario, without regard to conflicts of law principles thereof, the exclusive venue for any such litigation or arbitration shall be in Ontario, Canada. The parties waive any objection to the exclusive jurisdiction of the specified forums, including any objection based on forum non conveniens. In the event the matter is submitted to a court, Company and Customer hereby agree to waive their right to trial by jury. In the event the matter is submitted to arbitration by Company, the costs of arbitration shall be borne equally by the parties, and the arbitrator’s award may be confirmed and reduced to judgment in any court of competent jurisdiction. Except as provided below, no claim or cause of action, whether known or unknown, shall be brought by either party against the other more than one year after the claim first arose. Claims not subject to the one-year limitation include claims for unpaid: (1) contract amounts, (2) change order amounts (approved or requested) and (3) delays and/or work inefficiencies. Customer will pay all of Company's reasonable collection costs (including legal fees and expenses).
W. License Information (US Security System Customers): AL Alabama Electronic Security Board of Licensure 7956 Vaughn Road, Pmb 392, Montgomery, Alabama 36116 (334) 264-9388: AR Regulated by: Arkansas Board of Private Investigators And Private Security Agencies, #1 State Police Plaza Drive, Little Rock 72209 (501) 618-8600: CA Alarm company operators are licensed and regulated by the Bureau of Security and Investigative Services, Department of Consumer Affairs, Sacramento, CA, 95814. Upon completion of the installation of the alarm system, the alarm company shall thoroughly instruct the purchaser in the proper use of the alarm system. Failure by the licensee, without legal excuse, to substantially commence work within 20 days from the approximate date specified in the agreement when the work will begin is a violation of the Alarm Company Act: NY Licensed by N.Y.S. Department of the State: TX Texas Commission on Private Security, 5805 N. Lamar Blvd., Austin, 78752-4422, 512-424- 7710.License numbers available at www.johnsoncontrols.com or contact your local Company office.
Terms of Conditions - August 2023 Security Service PSA Terms
TERMS AND CONDITIONS
A. Payments: Customer will pay (or reimburse) Company as follows:
1. General. The prices shown in this Agreement are based on the Equipment and Services described in Company’s proposal/quotation. If the actual Equipment installed or Services differ, the price will be adjusted accordingly. The prices shown are valid for thirty (30) days from the date such proposal is presented to the Customer. If Customer does not sign and deliver this Agreement to Company within 30-days of the date of the proposal, the prices may be adjusted to reflect Company’s then-current pricing. Company’s reserves the right to substitute Equipment based upon installation constraints, delivery requirements, or local code requirements. Installation charges are based on Company performing the installation with its own personnel. If for any reason installation must be performed by outside contractors, installation charges may be subject to revision.
2. Transportation and Delivery. All orders will be shipped FOB Company's warehouse or that of its suppliers, with freight and handling charges prepaid and added to Customer's invoice. Customer will pay all expenses, including insurance, for transporting the Equipment from and to Company's warehouse for any reason, other than Company's error or return or replacement of Equipment under warranty. Customer agrees to receive delivery of all orders at Customer’s designated point of delivery and shall preserve such equipment until installation by Company.
3. Pricing, Payment, Invoicing and Charges. Pricing is based upon the billing and payment terms set forth in this Agreement. Payment of all installation invoices are due upon receipt of the invoice. Invoices shall be paid by Customer via electronic delivery via ACH/EFT. Unless otherwise agreed by the parties in writing, fees for Services to be performed shall be paid annually in advance by EFT or ACH and invoices are due within thirty (30) days of the date of the invoice. Customer acknowledges and agrees that timely payments of the full amounts listed on invoices is an essential term of this Agreement and that Customer’s failure to make payment in full when due is a material breach of this Agreement. Customer further acknowledges that if there is any amount outstanding on an invoice, it is material to Company and shall give Company, in addition to any other available remedies, the right to, without notice, (a) suspend, discontinue or terminate performing any Services and/or withhold further deliveries of equipment and other materials, terminate or suspend any unpaid software licenses, and/or suspend Company’ obligations under or terminate this Agreement and (b) to charge interest on the amounts that remain unpaid more than thirty (30) days past the due date specified in the invoice(s) at a rate equal to the lesser of 1.5% per month or the maximum rate permitted under applicable law, until payment is made in full. Customer agrees to pay all costs, expenses and fees of Company’ enforcement of this Agreement, including collection expenses, court costs, and attorneys’ fees. Company’ election to continue providing future Services does not, in any way, diminish Company’ right to terminate or suspend Services or exercise any or all rights or remedies under this Agreement. Company shall not be liable for any damages, claims, expenses or liabilities arising from or relating to suspension of services for non-payment. In the event that there are exigent circumstances requiring Services or Company otherwise performs Services at the premises following suspension, those Services shall be governed by the terms of this Agreement unless a separate contract is executed. If Customer disputes any late payment notice or Company’ efforts to collect payment, Customer shall immediately notify Company in writing and explain the basis of the dispute. Company may invoice Customer for progress billings based upon Equipment components delivered or stored, installation of Equipment and/or System components, and/or Services performed before completion of the System/Equipment installation, activation of the System, connection to the CMC, or any other Service(s).. Customer will pay (or reimburse Company) for any permitting fees, taxes, fees or charges that are imposed by any governmental body or other changes related to the Equipment and/or Services. Non-warranty work performed after completion of the installation will be billed at Company’s then current equipment and labor rates. Customer will pay all costs, expenses and fees incurred by Company to enforce the terms of this Agreement, including collection expenses, court costs, and reasonable attorneys’ fees. Notwithstanding any other term in this Agreement, Company may increase prices upon notice to Customer to reflect increases in material and labor costs. In addition, prices for Equipment covered by this Agreement may be adjusted by Company, upon notice to Customer at any time prior to shipment and regardless of Customer’s acceptance of the Company’s proposal or quotation, to reflect any increase in Company’s cost of raw materials (e.g.,steel, aluminum) inability to secure Equipment, changes or increases in law, labor, taxes, duties, tariffs or quotas, acts of government, any similar charges, or to cover any extra, unforeseen and unusual cost elements. This Agreement is entered into with the understanding that the services to be provided by Company are not subject to any local, state, or federal prevailing wage statute. If it is later determined that local, state, or federal prevailing wage rates apply to the services to be provided by Company, Company reserves the right to issue a modification or change order to adjust the wage rates to the required prevailing wage rate. Customer agrees to pay for the applicable prevailing wage rates. Customer shall provide financial information requested by Company to verify Customer’s ability to pay for goods or services. If Customer fails to provide financial information or if Company, in its sole discretion determines that reasonable grounds exist to question Customer’s ability or willingness to make payments when due (e.g., not making payments when due, late payments, or a reduction in Customer's credit score), Company may defer shipments, change payment terms, require cash in advance and/or require other security, without liability and without waiving any other remedies Company may have against Customer. Company shall provide Customer with advance written notice of changes to payment terms.
4. Deposit. Unless otherwise agreed to in writing by the parties, Customer agrees to pay a deposit equal to 50% of the project sell price (pre-tax) prior to Company providing any labor or materials on the project. Company will generate an invoice for the 30% deposit within three business days after Company’s receipt of a written agreement or order from Customer. Company will not commence work until receipt of the deposit.
B. Ownership of Company Brand; Electronic Media; Personal Information; Confirmation of Appointments; Consent to Call/Email.
1. Ownership of Company Brand. Without exception, Company-branded signs, including window stickers and warning signs, will remain the property of Company and may be removed by Company at any time. Customer’s right to display Company-branded signs is not transferable.
2. Electronic Media. Either party may scan, fax, email, image, or otherwise convert this Agreement into an electronic format of any type or form, now known or developed in the future. Any unaltered or unadulterated copy of this Agreement produced from such an electronic format will be legally binding upon the parties and equivalent to the original for all purposes, including litigation. Company may rely upon Customer’s assent to the terms and conditions of this Agreement, if Customer has signed this Agreement or has demonstrated its intent to be bound whether by electronic signature or otherwise.
3. Personal Information. Customer represents and warrants that Customer has obtained all consents and has the right to (a) disclose to Company all personal information disclosed hereunder concerning individuals/employees/or other third parties including all information contained in Customer’s Emergency Call/Contact List (“ECL”); (b) collect (including consent to record telephone conversations with Company), use, disclose and transfer such personal information; and (c) authorizes Company to use such personal information to administer the relationship between Customer and Company, including the administration of this Agreement. Customer acknowledges and agrees that Company may share all such information with its parents, subsidiaries, affiliates and its/their successor corporations or any subcontractor or assignee, within and outside the country in which the Customer is located and thereby subject such information to the laws of such countries.
4. Confirmation of Appointments; Consent to Call/Email. Customer expressly authorizes Company and its authorized representatives to contact Customer at the telephone numbers and email addresses provided by Customer to Company: (a) using an automated calling device to deliver a prerecorded message to set/confirm a service/installation appointment; and (b) from time to time with information and offers about products and services that might interest Customer and to use email to provide sole notification to the customer of various alarm, supervisor and trouble signals received from the equipment installed at the customer location. Customer acknowledges that (1) when a calling device or email notification method is used, that delivery of the notification may be delayed or may fail due to private and or public network issues, telecommunication outages, internet delay or failures, and other conditions that can impede or delay electronic notifications; and (2) Company will not have knowledge of the failure of, or successful delivery of, such electron notifications.
C. Customer Responsibilities: Customer agrees to provide and be obligated by the following:
1. Site Preparation, Intrusion and Restoration. Customer shall be responsible for providing 110VAC power, telephone connections, network drops and any required conduit, wiremold, or other raceway unless otherwise noted herein. Customer shall also be responsible for any required IP address assignments and additional network software licensing. The installation of Equipment may necessarily require cutting, bolting or fastening into Customer's floors, walls and/or ceilings. Company shall not be responsible for any expenses related to patching, floor or wall finishing, or paint, tile, carpet or wallpaper matching, restoration or replacement resulting from installation or service of the Equipment.
2. Special Equipment Requirements. If Customer requires installation or service of Equipment in areas inaccessible without the use of lifts or cranes, or if non-standard conditions at the Customer site require special equipment for installation or service, Customer will either provide such equipment, or will reimburse Company for any applicable charges or fees.
3. Video Equipment Requirements. Customer will provide: (a) adequate illumination under all operational conditions for the proper operation of any video camera(s) and (b) the appropriate space for monitors and any recorders. Certain laws may limit or prohibit the use of video surveillance and/or audio enabled equipment. If Customer elects to install/use video surveillance equipment on its premises and/or enable audio capture functionality on such equipment, Customer also accepts the responsibility of knowing and fully complying with all applicable laws and agrees to indemnify and defend Company from any and all claims arising from Customer’s use of such equipment.
4. System Software; Network Connections. Except to the extent that Company’s proposal/quotation expressly states that Company’s work includes the development of software or other intellectual property for Customer’s exclusive use, none of the work, work product, or services provided hereunder shall constitute a “work made for hire” or otherwise become the property of Customer. Moreover, any firmware/software (“Software”) or other intellectual property provided with the System or in connection with the Services is proprietary to Company and/or Company’s suppliers and is licensed or sublicensed to Customer on a non-exclusive basis. Customer may not (a) disclose the Software or source code to any third parties, (b) duplicate, reproduce, or copy all or any part of the Software, or (c) use the Software on equipment other than with the designated System with which it was furnished. A separate Software License Agreement or End User License Agreement between Company and Customer and/or the software publisher may be required to use the software and/or obtain updates/upgrades. If the installed Equipment is to be connected to Customer’s computer network (“Network”), Company will furnish and install the software needed to run the Equipment and will connect the Equipment to the Network according to the Network settings supplied by Customer. Installation shall not include modifications to the Network, security, or firewall settings. Customer will supply a TCP/IP Ethernet network address and central processing unit per Company specifications for access control system operation. Company shall not be responsible for the setup, operation, or maintenance of the Network or Network performance or compatibility issues. Company may assess additional charges, if Company is unable to connect to the Network or if any additional Equipment is required to facilitate connectivity between the Network and the Equipment. Customer is solely responsible for the establishment, operation, maintenance, access, security and other aspects of its Network and shall supply Company secure Network access for providing its services. Equipment networked, connected to the internet, or otherwise connected to computers or other devices must be appropriately protected by Customer and/or end user against unauthorized access. Customer is responsible to take appropriate measures, including performing back-ups, to protect information, including without limit data, software, or files (collectively “Data”) prior to receiving the service or products.
5. Ownership and Security of Equipment. Until Customer has paid Company in full, Customer: (a) grants to Company a security interest in the Equipment and all proceeds thereof; (b) will not (i) assign, transfer, pledge, encumber, lease or relinquish possession or control of the Equipment; (ii) make or cause to be made any alteration, attachment or repair to the Equipment other than by Company; or (iii) remove the Equipment from the installed location; (c) will bear all risk of damage to, or loss or theft of, the Equipment while it is in Customer's possession or control; and (d) will hold the Equipment as personal property and not cause or permit any Equipment to become permanently affixed to any real property.
6. Export Control. Customer shall not export or re-export, directly or indirectly, any: (i) product or service provided under this Agreement; (ii) technical data; (iii) software; (iv) information; or (v) items acquired under this Agreement to any country for which the United States Government (or any agency thereof) requires an export license or other approval without first obtaining any licenses, consents or permits that may be required under the applicable laws of the U.S. or other foreign jurisdictions, including the Export Administration Act and Regulations, and shall incorporate in all export shipping documents the applicable destination control statements. Customer shall, at its own expense, defend, indemnify and save harmless Company from and against all third party claims, liability, loss or damage (including reasonable attorneys' fees and other defense costs), assessed against or suffered by Company as a result of an allegation or claim of noncompliance by Customer with this Section. The obligations contained in this Section shall survive the termination or expiration of this Agreement.
7. FARs. Company supplies “commercial items” within the meaning of the Federal Acquisition Regulations (FAR), 48 CFR Parts 1-53. As to any customer order for a U.S. Government contract, Company will comply only with those mandatory flow-downs for commercial item and commercial services subcontracts listed either at FAR 52.244-6, or 52.212-5(e)(1), as applicable.
D. Warranty. Any original part of the Equipment (as distinguished from the software) installed under this Agreement, including the wiring, which proves to be defective in material or workmanship within ninety (90) days (unless a different period is set out in Company’s proposal/quotation) of the date of completion of the installation (“Warranty Period”), will be repaired or replaced, in Company's sole discretion, with a new or functionally operative part. Labor and materials required to repair or replace such defective components will be furnished at no charge during the Warranty Period. This Warranty does not cover Services required to correct conditions caused by: (a) Customer or other third parties; (b) accidents, acts of God, lightning, strikes, riots, floods, terrorism, acts of War, alteration, misuse, tampering or abuse; (c) adjustments necessitated by misalignment of video cameras, improper adjustment of equipment, or changes to ambient lighting conditions after initial installation and acceptance; or (d) adjustments, repairs or maintenance not done by Company or installation of parts, accessories, attachments or other devices not furnished by Company. Customer will be charged on a time and materials basis at Company's then applicable rates for labor and materials for Services not covered by this Warranty. Company makes no and specifically disclaims all representations or warranties that the Services, Equipment, products, software or third party product or software will be secure from cyber threats, hacking or other similar malicious activity, or will detect the presence of, or eliminate, treat, or mitigate the spread transmission, or outbreak of any pathogen, disease, virus or other contagion, including but not limited to COVID 19. Unless agreed to in writing by the parties, any technical support, assistance, or advice (“Technical Support”) provided by Company, such as suggestions as to design use and suitability of the Equipment and products for the Customer’s application, is provided in good faith, but Customer acknowledges and agrees that Company is not the designer, engineer, or installer of record. Any Technical Support is provided for informational purposes only and shall not be construed as a representation or warranty, express or implied, concerning the proper selection, use, and/or application of the Equipment and products. Customer assumes exclusive responsibility for determining if the equipment and products supplied by Company are suitable for its intended application and all risk and liability, whether based in contract, tort or otherwise, in connection with its application and use of the Equipment and products.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. THE CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO LOSSES OR DAMAGES RESULTING FROM A FAILURE OF THE EQUIPMENT TO PERFORM AS WARRANTED IS REPAIR OR REPLACEMENT AS SPECIFIED ABOVE.
E. Indemnity and Limitation of Liability.
1. Company shall defend, indemnify and hold Customer, its corporate affiliates, and their respective officers, directors, agents and employees harmless from damage, liability and expense resulting from the negligent acts or willful misconduct of Company's agents and employees committed while performing Services on Customer’s premises, to the extent that they are the direct cause of the loss, damage or injury to third parties or Customer’s property (e.g., equipment dislodging and striking a third party due to improper installation), as opposed to being caused by an occurrence, event, or the consequences therefrom that the Equipment or Services were intended to record, detect, notify, deter or avert (“Detection Events”).
2. Customer acknowledges that Company’s Equipment and Services do not cause and cannot eliminate Detection Events. Company is not an insurer against Detection Events and the amounts Company charges Customer are not insurance premiums. Such charges are based upon the value of the Equipment and Services provided and are unrelated to any such risk of loss. Company does not undertake and assumes no liability for such risk by providing the Equipment and/or Services. If Company is nevertheless found liable under any legal theory for loss, damage, expense or injury caused directly or indirectly by a Detection Event, Company’s liability for all such claims shall be limited in the aggregate to the sums paid by Customer within the previous year for the Equipment or Services at issue, or $500,000 whichever is less, as Customer’s sole remedy.
3. Customer shall defend, indemnify and hold Company, its corporate affiliates, and their respective officers, directors, agents and employees, harmless from damage, liability and expense to the extent that any such loss is not directly caused by the negligent acts or willful misconduct of Company’s agents and/or employees, or arises out of any claim related to Customer’s use of the Equipment or Services (e.g., Detection Events, violation of eavesdropping/wiretapping laws, invasion of privacy, et cetera).
4. In no event will either Customer or Company be liable for any consequential, incidental, or special damages of any kind or nature (including but not limited to injury or damage to business, person or property) arising out of any performance of the Agreement, even if the parties are advised of the possibility of such damages.
F. Services.
1. Company will furnish and install, or cause to be installed, the Equipment (or equivalent), as set forth in an Order in Customer’s designated facilities. As used herein, “installation” means: (i) affixing all Equipment and materials provided by Company at such locations within the facilities as are designated by Customer; (ii) providing and pulling cables/wires required to connect the Equipment to Customer’s communications facilities, and/or Network and making such connections; (iii), in the case of a digital communicator installation, mount Equipment and plug into RJ31X phone jack previously installed by Customer; (iv) in the case of radio installation, mount radio Equipment and program Equipment with number furnished by Customer; (v) providing and installing software/firmware required by the Equipment; (vi) performing testing as required to establish that the Equipment is connected, is functioning according to its specifications, and is communicating over Customer’s communications facilities and/or Network; and (vii) providing user-level training to Customer’s designated representative in the use of such Equipment.
2. If Maintenance Services are purchased, Company will, upon Customer’s request, provide ordinary maintenance, repair or replacement of the Equipment due to normal wear and tear (the “Maintenance Services”). Company shall bear the expense of such maintenance, repair or replacement for the specified maintenance charge. The expense of all extraordinary maintenance, repair or replacement due to alterations in the Customer’s facilities, alterations of the covered equipment made at the request of the Customer, or made necessary by changes in the facilities, damage to the premises or to the covered equipment, and EXCLUSIONS below, or to any cause beyond the control of Company, shall be borne by the Customer. The Customer agrees to furnish any necessary electric current at Customer’s own expense with an outlet within a reasonable distance of the Company Equipment. Maintenance Service shall be performed between Company’s normal working hours of 8:00 A.M. to 4:30 P.M., Monday through Friday, except holidays, unless mutually agreed in advance by the Parties. Company may discontinue providing Maintenance Service on any covered equipment if Company cannot obtain an adequate supply of replacement equipment, component parts and/or associated supplies on a commercially reasonable basis. In such event, Company will refund on a pro-rata basis any prepaid Maintenance Charge on the affected equipment. Company is not responsible for the preservation of any computer programs or data and Customer is responsible for maintaining adequate back-ups. EXCLUSIONS: Maintenance on the following equipment or equipment components will be provided only on a time and material basis: (1) any exterior mounted devices; (2) Conditions not covered by the Warranty; and (3) equipment and/or components, including but not limited to software, that are outdated, no longer manufactured or otherwise are no longer commercially available. It is understood and agreed that Company’s obligation relates to the maintenance solely of the equipment, and that Company is not obligated to maintain, repair, service, replace, operate or assure the operation of any equipment, component or devices of the Customer or of others not installed by Company.
3. Maintenance service charges (“Maintenance Charges”) are payable in advance on a quarterly basis plus applicable state and/or local taxes effective from the date such Services are operative under this Agreement as set forth in an Order.
G. Hazardous Substances. Customer represents and warrants that any site at which the Equipment is to be installed is free of asbestos and any other hazardous or toxic substances. If any such substance exists at any site, Company will not be required to install or service the the Equipment to be installed and serviced by persons qualified to handle such substances. Equipment at such site and Company may arrange, at Customer's expense, for
H. Waivers.
1. Waiver of Jury Trial. CUSTOMER AND COMPANY WAIVE THEIR RIGHTS TO A JURY TRIAL IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN ANY MANNER CONNECTED WITH OR RELATED TO THIS AGREEMENT.
2. SAFETY Act Waiver. Certain of Company’s systems and services have received Certification and/or Designation as Qualified Anti-Terrorism Technologies (“QATT”) under the Support Anti-terrorism by Fostering Effective Technologies Act of 2002, 6 U.S.C. §§ 441-444 (the “SAFETY Act”). As required under 6 C.F.R. 25.5 (e), to the maximum extent permitted by law, Company and Customer hereby agree to waive their right to make any claims against the other for any losses, including business interruption losses, sustained by either party or their respective employees, resulting from an activity resulting from an “Act of Terrorism” as defined in 6 C.F.R. 25.2, when QATT have been deployed in defense against, response to, or recovery from such Act of Terrorism.
I. Term and Termination. This Agreement shall be effective as of the Effective Date and unless sooner terminated, will continue for a period of five years ending on the anniversary of the Effective Date (“Initial Term”). Thereafter this Agreement will automatically renew for successive thirty-day periods. At any time after the Initial Term, either party will be entitled to terminate this Agreement on thirty (30) days prior written notice. Expiration or termination of this Agreement shall not relieve Customer from its financial obligations for Equipment or Services provided prior to the effective date of expiration or termination.
In addition to any other remedies available to Company, Company may terminate this Agreement and discontinue any Services if (a) Customer fails to follow Company’s recommendations for the repair or replacement of defective parts not covered under Warranty or Maintenance Service; (b) Customer's failure to follow the operating instructions provided by Company or the OEM results in Equipment malfunction; (c) in Company’s sole opinion, the premises in which the Equipment is installed are unsafe, unsuitable, or so modified or altered after installation as to render continuation of Services impractical or impossible; (d) Company’s performance of its obligations becomes impracticable due to obsolescence or unavailability of systems, Equipment, or products (including component parts and/or materials) or because Company or its supplier(s) has discontinued the manufacture or the sale of the Equipment and/or products or is no longer in the business of providing the Services; (e) Company is unable to obtain or continue to support technologies; or (f) Customer fails to make payments when due or otherwise breaches this Agreement. Company will not be liable for any damages or subject to any penalty as a result of any such termination. Company may terminate this Agreement, or the affected portions, at its sole discretion upon notice to the Customer if Company’s performance of its obligations are prohibited because of changes in applicable laws, regulations or codes.
J. Insurance. Company maintains General Comprehensive Liability and Automobile Liability Insurance of, at least, $1,000,000 per incident - $2,000,000 in the aggregate and Worker’s Compensation coverage as required by the applicable state authority. In addition, at Customer’s request, Company will name Customer and, if required, Customer’s Landlord, Property Manager, and/or Property Owner of the facilities in which Company is providing installation, maintenance, inspection or warranty services as an additional insured under Company’s General Liability and Automobile insurance policies; provided, however, that such additional insured coverage will not respond to the negligence or other wrongful conduct of Customer or any other additional insured.
K. Force Majeure. Company assumes no liability for delays in installation of the Equipment or for the consequences therefrom, however caused. Company shall not be liable, nor in breach or default of its obligations under this Agreement, for delays, interruption, failure to render services, or any other failure by Company to perform an obligation under this Agreement, where such delay, interruption or failure is caused, in whole or in part, directly or indirectly, by a Force Majeure Event. A “Force Majeure Event” is a condition or event that is beyond the reasonable control of Company, whether foreseeable or unforeseeable, including, without limitation, acts of God, severe weather (including but not limited to hurricanes, tornados, severe snowstorms or severe rainstorms), wildfires, floods, earthquakes, seismic disturbances, or other natural disasters, acts or omissions of any governmental authority (including change of any applicable law or regulation), epidemics, pandemics, disease, viruses, quarantines, or other public health risks and/or responses thereto, condemnation, strikes, lockouts, labor disputes, an increase of 5% or more in tariffs or other excise taxes for materials to be used on the project, fires, explosions or other casualties, thefts, vandalism, civil disturbances, insurrection, mob violence, riots, war or other armed conflict (or the serious threat of same), acts of terrorism, electrical power outages, interruptions or degradations in telecommunications, computer, network, or electronic communications systems, data breach, cyber-attacks, ransomware, unavailability or shortage of parts, materials, supplies, or transportation, or any other cause or casualty beyond the reasonable control of Company. If Company’s performance of the work is delayed, impacted, or prevented by a Force Majeure Event or its continued effects, Company shall be excused from performance under the Agreement. Without limiting the generality of the foregoing, if Company is delayed in achieving one or more of the scheduled milestones set forth in the Agreement due to a Force Majeure Event, Company will be entitled to extend the relevant completion date by the amount of time that Company was delayed as a result of the Force Majeure Event, plus such additional time as may be reasonably necessary to overcome the effect of the delay. To the extent that the Force Majeure Event directly or indirectly increases Company’s cost to perform the services, Customer is obligated to reimburse Company for such increased costs, including, without limitation, costs incurred by Company for additional labor, inventory storage, expedited shipping fees, trailer and equipment rental fees, subcontractor fees, compliance with vaccination requirements or other costs and expenses incurred by Company in connection with the Force Majeure Event.
L. Assignment. This Agreement is not assignable by the Customer except upon written consent of Company first being obtained. Company shall have the right to assign this Agreement, in whole or in part, or to subcontract any of its obligations under this Agreement without notice to Customer.
M. One-Year Claims Limitation; Governing Law. Company shall have the sole and exclusive right to determine whether any dispute, controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be submitted to a court of law or arbitrated. The laws of Delaware shall govern the validity, enforceability, and interpretation of this Agreement, without regard to conflicts of law principles thereof, and the exclusive venue for any such litigation or arbitration shall be in Milwaukee, Wisconsin. The parties waive any objection to the exclusive jurisdiction of the specified forums, including any objection based on forum non conveniens. In the event the matter is submitted to a court, Company and Customer hereby agree to waive their right to trial by jury. In the event the matter is submitted to arbitration by Company, the costs of arbitration shall be borne equally by the parties, and the arbitrator's award may be confirmed and reduced to judgement in any court of competent jurisdiction. Except as provided below, no claim or cause of action, whether known or unknown, shall be brought by either party against the other more than one year after the claim first arose. Claims not subject to the one-year limitation include claims for unpaid: (1) contract amounts, (2) change order amounts (approved or requested) and (3) delays and/or work in efficiencies. Customer will pay all of Company's reasonable collection costs (including legal fees and expenses).
N. Severability. If any provision of this Agreement is determined by a court to be invalid or unenforceable, that provision will be deemed amended and enforced to the maximum extent permitted by law; however, each and every other provision of this Agreement will continue to be valid and enforceable.
O. Paragraph and Section Headings; Captions. The headings and captions contained in this Agreement are inserted for convenience or reference only, and are not to be deemed part of or to be used in construing this Agreement.
P. Authority. Customer represents, warrants, acknowledges, and/or agrees that: (1) Customer owns the premises in which the Equipment is being installed or has the authority to engage Company to carry out the installation in the premises and (2) Customer will comply with all laws, codes and regulations pertaining to the use of the Equipment and/or Services.
Q. Entire Agreement. This Agreement, together with any Orders, addenda and/or exhibits, constitutes the entire agreement between the parties. In executing this Agreement; Customer is not relying on any advice or advertisement of Company. Any representation, promise, condition, inducement or warranty, express or implied, not expressly included in this Agreement will not be binding upon Company. The terms and conditions of this Agreement will prevail over any conflicting, inconsistent, or additional terms or conditions contained in any purchase order, agreement or Statement of Work (“SOW”) or other document issued by Customer. Any changes must be mutually agreed to in writing by the authorized representatives of the Customer and Company.
R. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such separate counterparts shall together constitute but one and the same agreement.
S. Privacy. A. Company as Processor: Where Company factually acts as Processor of Personal Data on behalf of Customer (as such terms are defined in the DPA) the terms at www.johnsoncontrols.com/dpa shall apply. B. Company as Controller: Company will collect, process and transfer certain personal data of Customer and its personnel related to the business relationship between it and Customer (for example names, email addresses, telephone numbers) as controller and in accordance with Company’s Privacy Notice at https://www.johnsoncontrols.com/privacy. Customer acknowledges Company’s Privacy Notice and strictly to the extent consent is mandatorily required under applicable law, Customer consents to such collection, processing and transfer. To the extent consent to such collection, processing and transfer by Company is mandatorily required from Customer’s personnel under applicable law, Customer warrants and represents that it has obtained such consent.
T. Software and Digital Services. Use, implementation, and deployment of the software and hosted software products (“Software”) offered under these terms shall be subject to, and governed by, Seller’s standard terms for such Software and Software related professional services in effect from time to time at https://www.johnsoncontrols.com/techterms (collectively, the “Software Terms”). Applicable Software Terms are incorporated herein by this reference. Other than the right to use the Software as set forth in the Software Terms, Seller and its licensors reserve all right, title, and interest (including all intellectual property rights) in and to the Software and improvements to the Software. The Software that is licensed hereunder is licensed subject to the Software Terms and not sold. If there is a conflict between the other terms herein and the Software Terms, the Software Terms shall take precedence and govern with respect to rights and responsibilities relating to the Software, its implementation and deployment and any improvements thereto.
U. Digital Enabled Services. Data. If Company provides Digital Enabled Services under this Agreement, these Digital Enabled Services require the collection, transfer and ingestion of building, equipment, system time series, and other data to Company’s cloud-hosted software applications. Customer consents to and grants Company right to collect, ingest and use such data to enable Company and its affiliates and agents to provide, maintain, protect, develop and improve the Digital Enabled Services and Company products and services. Customer acknowledges that, while Digital Enabled Services generally improve equipment performance and services, Digital Enabled Services do not prevent all potential malfunction, insure against all loss, or guarantee a certain level of performance. Customer shall be solely responsible for the establishment, operation, maintenance, access, security and other aspects of its computer network (“Network”), shall appropriately protect hardware and products connected to the Network and will supply Company secure Network access for providing its Digital Enabled Services. As used herein, "Digital Enabled Services" mean services provided hereunder that employ Company software and related equipment installed at Customer facilities and Company cloud-hosted software offerings and tools to improve, develop, and enable such services. Digital Enabled Service may include, but are not limited to, (a) remote servicing and inspection, (b) advanced equipment fault detection and diagnostics, and (c) data dashboarding and health reporting. If Customer accesses and uses Software that is used to provide the Digital Enabled Services, the Software Terms (defined below) will govern such access and use.
Company Digital Solutions. Use, implementation, and deployment of the software and hosted software products (“Software”) offered under these terms shall be subject to, and governed by, Company's standard terms for such Software and Software related professional services in effect from time to time at www.johnsoncontrols.com/techterms (collectively, the “Software Terms”). Specifically, the Company General EULA set forth at www.johnsoncontrols.com/buildings/legal/digital/generaleula governs access to and use of software installed on Customer’s premises or systems and the Company Terms of Service set forth at www.johnsoncontrols.com/buildings/legal/digital/generaltos govern access to and use of hosted software products. The applicable Software Terms are incorporated herein by this reference. Other than the right to use the Software as set forth in the Software Terms, Company and its licensors reserve all right, title, and interest (including all intellectual property rights) in and to the Software and improvements to the Software. The Software that is licensed hereunder is licensed subject to the Software Terms and not sold. If there is a conflict between the other terms herein and the Software Terms, the Software Terms shall take precedence and govern with respect to rights and responsibilities relating to the Software, its implementation and deployment and any improvements thereto.
Notwithstanding any other provisions of this Agreement, unless otherwise agreed, the following terms apply to Software that is provided to Customer on a subscription basis (i.e., a time limited license or use right), (each a “Software Subscription”): Each Software Subscription provided hereunder will commence on the date the initial credentials for the Software are made available (the “Subscription Start Date”) and will continue in effect until the expiration of the subscription term noted in the applicable statement of work, order or other applicable ordering document . At the expiration of the Software Subscription, such Software Subscription will automatically renew for consecutive one (1) year terms (each a “Renewal Subscription Term”), unless either party provides the other party with a notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term. To the extent permitted by applicable law, Software Subscriptions purchases are non-cancelable, and the sums paid nonrefundable. Fees for Software Subscriptions shall be paid annually in advance, invoiced on the Subscription Start Date and each subsequent anniversary thereof. Customer shall pay all invoiced amounts within thirty calendar days after the date of invoice. Payments not made within such time period shall be subject to late charges as set forth in the Software Terms. Unless otherwise agreed by the parties in writing, the subscription fee for each Renewal Subscription Term will be priced at Company's then-applicable list price for that Software offering. Any use of Software that exceeds the scope, metrics or volume set forth in this Agreement and applicable SOW will be subject to additional fees based on the date such excess use began.
V. Dispute Resolution. Company shall have the sole and exclusive right to determine whether any dispute, controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be submitted to a court of law or arbitrated. For Customers located in the United States, the laws of Delaware shall govern the validity, enforceability, and interpretation of this Agreement, without regard to conflicts of law principles thereof, and the exclusive venue for any such litigation or arbitration shall be in Milwaukee, Wisconsin. For customers located in Canada, this agreement shall be governed by and be construed in accordance with the laws of Ontario, without regard to conflicts of law principles thereof, the exclusive venue for any such litigation or arbitration shall be in Ontario, Canada. The parties waive any objection to the exclusive jurisdiction of the specified forums, including any objection based on forum non conveniens. In the event the matter is submitted to a court, Company and Customer hereby agree to waive their right to trial by jury. In the event the matter is submitted to arbitration by Company, the costs of arbitration shall be borne equally by the parties, and the arbitrator’s award may be confirmed and reduced to judgment in any court of competent jurisdiction. Except as provided below, no claim or cause of action, whether known or unknown, shall be brought by either party against the other more than one year after the claim first arose. Claims not subject to the one-year limitation include claims for unpaid: (1) contract amounts, (2) change order amounts (approved or requested) and (3) delays and/or work inefficiencies. Customer will pay all of Company's reasonable collection costs (including legal fees and expenses).
W. License Information (US Security System Customers): AL Alabama Electronic Security Board of Licensure 7956 Vaughn Road, Pmb 392, Montgomery, Alabama 36116 (334) 264-9388: AR Regulated by: Arkansas Board of Private Investigators And Private Security Agencies, #1 State Police Plaza Drive, Little Rock 72209 (501) 618-8600: CA Alarm company operators are licensed and regulated by the Bureau of Security and Investigative Services, Department of Consumer Affairs, Sacramento, CA, 95814. Upon completion of the installation of the alarm system, the alarm company shall thoroughly instruct the purchaser in the proper use of the alarm system. Failure by the licensee, without legal excuse, to substantially commence work within 20 days from the approximate date specified in the agreement when the work will begin is a violation of the Alarm Company Act: NY Licensed by N.Y.S. Department of the State: TX Texas Commission on Private Security, 5805 N. Lamar Blvd., Austin, 78752-4422, 512-424- 7710.License numbers available at www.johnsoncontrols.com or contact your local Company office.
TERMS AND CONDITIONS
A. Payments: Customer will pay (or reimburse) Company as follows:
1. General. The prices shown in this Agreement are based on the Equipment and Services described in Company’s proposal/quotation. If the actual Equipment installed or Services differ, the price will be adjusted accordingly. The prices shown are valid for thirty (30) days from the date such proposal is presented to the Customer. If Customer does not sign and deliver this Agreement to Company within 30-days of the date of the proposal, the prices may be adjusted to reflect Company’s then-current pricing. Company’s reserves the right to substitute Equipment based upon installation constraints, delivery requirements, or local code requirements. Installation charges are based on Company performing the installation with its own personnel. If for any reason installation must be performed by outside contractors, installation charges may be subject to revision.
2. Transportation and Delivery. All orders will be shipped FOB Company's warehouse or that of its suppliers, with freight and handling charges prepaid and added to Customer's invoice. Customer will pay all expenses, including insurance, for transporting the Equipment from and to Company's warehouse for any reason, other than Company's error or return or replacement of Equipment under warranty. Customer agrees to receive delivery of all orders at Customer’s designated point of delivery and shall preserve such equipment until installation by Company.
3. Pricing, Payment, Invoicing and Charges. Pricing is based upon the billing and payment terms set forth in this Agreement. Payment of all installation invoices are due upon receipt of the invoice. Invoices shall be paid by Customer via electronic delivery via ACH/EFT. Unless otherwise agreed by the parties in writing, fees for Services to be performed shall be paid annually in advance by EFT or ACH and invoices are due within thirty (30) days of the date of the invoice. Customer acknowledges and agrees that timely payments of the full amounts listed on invoices is an essential term of this Agreement and that Customer’s failure to make payment in full when due is a material breach of this Agreement. Customer further acknowledges that if there is any amount outstanding on an invoice, it is material to Company and shall give Company, in addition to any other available remedies, the right to, without notice, (a) suspend, discontinue or terminate performing any Services and/or withhold further deliveries of equipment and other materials, terminate or suspend any unpaid software licenses, and/or suspend Company’ obligations under or terminate this Agreement and (b) to charge interest on the amounts that remain unpaid more than thirty (30) days past the due date specified in the invoice(s) at a rate equal to the lesser of 1.5% per month or the maximum rate permitted under applicable law, until payment is made in full. Customer agrees to pay all costs, expenses and fees of Company’ enforcement of this Agreement, including collection expenses, court costs, and attorneys’ fees. Company’ election to continue providing future Services does not, in any way, diminish Company’ right to terminate or suspend Services or exercise any or all rights or remedies under this Agreement. Company shall not be liable for any damages, claims, expenses or liabilities arising from or relating to suspension of services for non-payment. In the event that there are exigent circumstances requiring Services or Company otherwise performs Services at the premises following suspension, those Services shall be governed by the terms of this Agreement unless a separate contract is executed. If Customer disputes any late payment notice or Company’ efforts to collect payment, Customer shall immediately notify Company in writing and explain the basis of the dispute. Company may invoice Customer for progress billings based upon Equipment components delivered or stored, installation of Equipment and/or System components, and/or Services performed before completion of the System/Equipment installation, activation of the System, connection to the CMC, or any other Service(s).. Customer will pay (or reimburse Company) for any permitting fees, taxes, fees or charges that are imposed by any governmental body or other changes related to the Equipment and/or Services. Non-warranty work performed after completion of the installation will be billed at Company’s then current equipment and labor rates. Customer will pay all costs, expenses and fees incurred by Company to enforce the terms of this Agreement, including collection expenses, court costs, and reasonable attorneys’ fees. Notwithstanding any other term in this Agreement, Company may increase prices upon notice to Customer to reflect increases in material and labor costs. In addition, prices for Equipment covered by this Agreement may be adjusted by Company, upon notice to Customer at any time prior to shipment and regardless of Customer’s acceptance of the Company’s proposal or quotation, to reflect any increase in Company’s cost of raw materials (e.g.,steel, aluminum) inability to secure Equipment, changes or increases in law, labor, taxes, duties, tariffs or quotas, acts of government, any similar charges, or to cover any extra, unforeseen and unusual cost elements. This Agreement is entered into with the understanding that the services to be provided by Company are not subject to any local, state, or federal prevailing wage statute. If it is later determined that local, state, or federal prevailing wage rates apply to the services to be provided by Company, Company reserves the right to issue a modification or change order to adjust the wage rates to the required prevailing wage rate. Customer agrees to pay for the applicable prevailing wage rates. Customer shall provide financial information requested by Company to verify Customer’s ability to pay for goods or services. If Customer fails to provide financial information or if Company, in its sole discretion determines that reasonable grounds exist to question Customer’s ability or willingness to make payments when due (e.g., not making payments when due, late payments, or a reduction in Customer's credit score), Company may defer shipments, change payment terms, require cash in advance and/or require other security, without liability and without waiving any other remedies Company may have against Customer. Company shall provide Customer with advance written notice of changes to payment terms.
4. Deposit. Unless otherwise agreed to in writing by the parties, Customer agrees to pay a deposit equal to 50% of the project sell price (pre-tax) prior to Company providing any labor or materials on the project. Company will generate an invoice for the 30% deposit within three business days after Company’s receipt of a written agreement or order from Customer. Company will not commence work until receipt of the deposit.
B. Ownership of Company Brand; Electronic Media; Personal Information; Confirmation of Appointments; Consent to Call/Email.
1. Ownership of Company Brand. Without exception, Company-branded signs, including window stickers and warning signs, will remain the property of Company and may be removed by Company at any time. Customer’s right to display Company-branded signs is not transferable.
2. Electronic Media. Either party may scan, fax, email, image, or otherwise convert this Agreement into an electronic format of any type or form, now known or developed in the future. Any unaltered or unadulterated copy of this Agreement produced from such an electronic format will be legally binding upon the parties and equivalent to the original for all purposes, including litigation. Company may rely upon Customer’s assent to the terms and conditions of this Agreement, if Customer has signed this Agreement or has demonstrated its intent to be bound whether by electronic signature or otherwise.
3. Personal Information. Customer represents and warrants that Customer has obtained all consents and has the right to (a) disclose to Company all personal information disclosed hereunder concerning individuals/employees/or other third parties including all information contained in Customer’s Emergency Call/Contact List (“ECL”); (b) collect (including consent to record telephone conversations with Company), use, disclose and transfer such personal information; and (c) authorizes Company to use such personal information to administer the relationship between Customer and Company, including the administration of this Agreement. Customer acknowledges and agrees that Company may share all such information with its parents, subsidiaries, affiliates and its/their successor corporations or any subcontractor or assignee, within and outside the country in which the Customer is located and thereby subject such information to the laws of such countries.
4. Confirmation of Appointments; Consent to Call/Email. Customer expressly authorizes Company and its authorized representatives to contact Customer at the telephone numbers and email addresses provided by Customer to Company: (a) using an automated calling device to deliver a prerecorded message to set/confirm a service/installation appointment; and (b) from time to time with information and offers about products and services that might interest Customer and to use email to provide sole notification to the customer of various alarm, supervisor and trouble signals received from the equipment installed at the customer location. Customer acknowledges that (1) when a calling device or email notification method is used, that delivery of the notification may be delayed or may fail due to private and or public network issues, telecommunication outages, internet delay or failures, and other conditions that can impede or delay electronic notifications; and (2) Company will not have knowledge of the failure of, or successful delivery of, such electron notifications.
C. Customer Responsibilities: Customer agrees to provide and be obligated by the following:
1. Site Preparation, Intrusion and Restoration. Customer shall be responsible for providing 110VAC power, telephone connections, network drops and any required conduit, wiremold, or other raceway unless otherwise noted herein. Customer shall also be responsible for any required IP address assignments and additional network software licensing. The installation of Equipment may necessarily require cutting, bolting or fastening into Customer's floors, walls and/or ceilings. Company shall not be responsible for any expenses related to patching, floor or wall finishing, or paint, tile, carpet or wallpaper matching, restoration or replacement resulting from installation or service of the Equipment.
2. Special Equipment Requirements. If Customer requires installation or service of Equipment in areas inaccessible without the use of lifts or cranes, or if non-standard conditions at the Customer site require special equipment for installation or service, Customer will either provide such equipment, or will reimburse Company for any applicable charges or fees.
3. Video Equipment Requirements. Customer will provide: (a) adequate illumination under all operational conditions for the proper operation of any video camera(s) and (b) the appropriate space for monitors and any recorders. Certain laws may limit or prohibit the use of video surveillance and/or audio enabled equipment. If Customer elects to install/use video surveillance equipment on its premises and/or enable audio capture functionality on such equipment, Customer also accepts the responsibility of knowing and fully complying with all applicable laws and agrees to indemnify and defend Company from any and all claims arising from Customer’s use of such equipment.
4. System Software; Network Connections. Except to the extent that Company’s proposal/quotation expressly states that Company’s work includes the development of software or other intellectual property for Customer’s exclusive use, none of the work, work product, or services provided hereunder shall constitute a “work made for hire” or otherwise become the property of Customer. Moreover, any firmware/software (“Software”) or other intellectual property provided with the System or in connection with the Services is proprietary to Company and/or Company’s suppliers and is licensed or sublicensed to Customer on a non-exclusive basis. Customer may not (a) disclose the Software or source code to any third parties, (b) duplicate, reproduce, or copy all or any part of the Software, or (c) use the Software on equipment other than with the designated System with which it was furnished. A separate Software License Agreement or End User License Agreement between Company and Customer and/or the software publisher may be required to use the software and/or obtain updates/upgrades. If the installed Equipment is to be connected to Customer’s computer network (“Network”), Company will furnish and install the software needed to run the Equipment and will connect the Equipment to the Network according to the Network settings supplied by Customer. Installation shall not include modifications to the Network, security, or firewall settings. Customer will supply a TCP/IP Ethernet network address and central processing unit per Company specifications for access control system operation. Company shall not be responsible for the setup, operation, or maintenance of the Network or Network performance or compatibility issues. Company may assess additional charges, if Company is unable to connect to the Network or if any additional Equipment is required to facilitate connectivity between the Network and the Equipment. Customer is solely responsible for the establishment, operation, maintenance, access, security and other aspects of its Network and shall supply Company secure Network access for providing its services. Equipment networked, connected to the internet, or otherwise connected to computers or other devices must be appropriately protected by Customer and/or end user against unauthorized access. Customer is responsible to take appropriate measures, including performing back-ups, to protect information, including without limit data, software, or files (collectively “Data”) prior to receiving the service or products.
5. Ownership and Security of Equipment. Until Customer has paid Company in full, Customer: (a) grants to Company a security interest in the Equipment and all proceeds thereof; (b) will not (i) assign, transfer, pledge, encumber, lease or relinquish possession or control of the Equipment; (ii) make or cause to be made any alteration, attachment or repair to the Equipment other than by Company; or (iii) remove the Equipment from the installed location; (c) will bear all risk of damage to, or loss or theft of, the Equipment while it is in Customer's possession or control; and (d) will hold the Equipment as personal property and not cause or permit any Equipment to become permanently affixed to any real property.
6. Export Control. Customer shall not export or re-export, directly or indirectly, any: (i) product or service provided under this Agreement; (ii) technical data; (iii) software; (iv) information; or (v) items acquired under this Agreement to any country for which the United States Government (or any agency thereof) requires an export license or other approval without first obtaining any licenses, consents or permits that may be required under the applicable laws of the U.S. or other foreign jurisdictions, including the Export Administration Act and Regulations, and shall incorporate in all export shipping documents the applicable destination control statements. Customer shall, at its own expense, defend, indemnify and save harmless Company from and against all third party claims, liability, loss or damage (including reasonable attorneys' fees and other defense costs), assessed against or suffered by Company as a result of an allegation or claim of noncompliance by Customer with this Section. The obligations contained in this Section shall survive the termination or expiration of this Agreement.
7. FARs. Company supplies “commercial items” within the meaning of the Federal Acquisition Regulations (FAR), 48 CFR Parts 1-53. As to any customer order for a U.S. Government contract, Company will comply only with those mandatory flow-downs for commercial item and commercial services subcontracts listed either at FAR 52.244-6, or 52.212-5(e)(1), as applicable.
D. Warranty. Any original part of the Equipment (as distinguished from the software) installed under this Agreement, including the wiring, which proves to be defective in material or workmanship within ninety (90) days (unless a different period is set out in Company’s proposal/quotation) of the date of completion of the installation (“Warranty Period”), will be repaired or replaced, in Company's sole discretion, with a new or functionally operative part. Labor and materials required to repair or replace such defective components will be furnished at no charge during the Warranty Period. This Warranty does not cover Services required to correct conditions caused by: (a) Customer or other third parties; (b) accidents, acts of God, lightning, strikes, riots, floods, terrorism, acts of War, alteration, misuse, tampering or abuse; (c) adjustments necessitated by misalignment of video cameras, improper adjustment of equipment, or changes to ambient lighting conditions after initial installation and acceptance; or (d) adjustments, repairs or maintenance not done by Company or installation of parts, accessories, attachments or other devices not furnished by Company. Customer will be charged on a time and materials basis at Company's then applicable rates for labor and materials for Services not covered by this Warranty. Company makes no and specifically disclaims all representations or warranties that the Services, Equipment, products, software or third party product or software will be secure from cyber threats, hacking or other similar malicious activity, or will detect the presence of, or eliminate, treat, or mitigate the spread transmission, or outbreak of any pathogen, disease, virus or other contagion, including but not limited to COVID 19. Unless agreed to in writing by the parties, any technical support, assistance, or advice (“Technical Support”) provided by Company, such as suggestions as to design use and suitability of the Equipment and products for the Customer’s application, is provided in good faith, but Customer acknowledges and agrees that Company is not the designer, engineer, or installer of record. Any Technical Support is provided for informational purposes only and shall not be construed as a representation or warranty, express or implied, concerning the proper selection, use, and/or application of the Equipment and products. Customer assumes exclusive responsibility for determining if the equipment and products supplied by Company are suitable for its intended application and all risk and liability, whether based in contract, tort or otherwise, in connection with its application and use of the Equipment and products.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. THE CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO LOSSES OR DAMAGES RESULTING FROM A FAILURE OF THE EQUIPMENT TO PERFORM AS WARRANTED IS REPAIR OR REPLACEMENT AS SPECIFIED ABOVE.
E. Indemnity and Limitation of Liability.
1. Company shall defend, indemnify and hold Customer, its corporate affiliates, and their respective officers, directors, agents and employees harmless from damage, liability and expense resulting from the negligent acts or willful misconduct of Company's agents and employees committed while performing Services on Customer’s premises, to the extent that they are the direct cause of the loss, damage or injury to third parties or Customer’s property (e.g., equipment dislodging and striking a third party due to improper installation), as opposed to being caused by an occurrence, event, or the consequences therefrom that the Equipment or Services were intended to record, detect, notify, deter or avert (“Detection Events”).
2. Customer acknowledges that Company’s Equipment and Services do not cause and cannot eliminate Detection Events. Company is not an insurer against Detection Events and the amounts Company charges Customer are not insurance premiums. Such charges are based upon the value of the Equipment and Services provided and are unrelated to any such risk of loss. Company does not undertake and assumes no liability for such risk by providing the Equipment and/or Services. If Company is nevertheless found liable under any legal theory for loss, damage, expense or injury caused directly or indirectly by a Detection Event, Company’s liability for all such claims shall be limited in the aggregate to the sums paid by Customer within the previous year for the Equipment or Services at issue, or $500,000 whichever is less, as Customer’s sole remedy.
3. Customer shall defend, indemnify and hold Company, its corporate affiliates, and their respective officers, directors, agents and employees, harmless from damage, liability and expense to the extent that any such loss is not directly caused by the negligent acts or willful misconduct of Company’s agents and/or employees, or arises out of any claim related to Customer’s use of the Equipment or Services (e.g., Detection Events, violation of eavesdropping/wiretapping laws, invasion of privacy, et cetera).
4. In no event will either Customer or Company be liable for any consequential, incidental, or special damages of any kind or nature (including but not limited to injury or damage to business, person or property) arising out of any performance of the Agreement, even if the parties are advised of the possibility of such damages.
F. Services.
1. Company will furnish and install, or cause to be installed, the Equipment (or equivalent), as set forth in an Order in Customer’s designated facilities. As used herein, “installation” means: (i) affixing all Equipment and materials provided by Company at such locations within the facilities as are designated by Customer; (ii) providing and pulling cables/wires required to connect the Equipment to Customer’s communications facilities, and/or Network and making such connections; (iii), in the case of a digital communicator installation, mount Equipment and plug into RJ31X phone jack previously installed by Customer; (iv) in the case of radio installation, mount radio Equipment and program Equipment with number furnished by Customer; (v) providing and installing software/firmware required by the Equipment; (vi) performing testing as required to establish that the Equipment is connected, is functioning according to its specifications, and is communicating over Customer’s communications facilities and/or Network; and (vii) providing user-level training to Customer’s designated representative in the use of such Equipment.
2. If Maintenance Services are purchased, Company will, upon Customer’s request, provide ordinary maintenance, repair or replacement of the Equipment due to normal wear and tear (the “Maintenance Services”). Company shall bear the expense of such maintenance, repair or replacement for the specified maintenance charge. The expense of all extraordinary maintenance, repair or replacement due to alterations in the Customer’s facilities, alterations of the covered equipment made at the request of the Customer, or made necessary by changes in the facilities, damage to the premises or to the covered equipment, and EXCLUSIONS below, or to any cause beyond the control of Company, shall be borne by the Customer. The Customer agrees to furnish any necessary electric current at Customer’s own expense with an outlet within a reasonable distance of the Company Equipment. Maintenance Service shall be performed between Company’s normal working hours of 8:00 A.M. to 4:30 P.M., Monday through Friday, except holidays, unless mutually agreed in advance by the Parties. Company may discontinue providing Maintenance Service on any covered equipment if Company cannot obtain an adequate supply of replacement equipment, component parts and/or associated supplies on a commercially reasonable basis. In such event, Company will refund on a pro-rata basis any prepaid Maintenance Charge on the affected equipment. Company is not responsible for the preservation of any computer programs or data and Customer is responsible for maintaining adequate back-ups. EXCLUSIONS: Maintenance on the following equipment or equipment components will be provided only on a time and material basis: (1) any exterior mounted devices; (2) Conditions not covered by the Warranty; and (3) equipment and/or components, including but not limited to software, that are outdated, no longer manufactured or otherwise are no longer commercially available. It is understood and agreed that Company’s obligation relates to the maintenance solely of the equipment, and that Company is not obligated to maintain, repair, service, replace, operate or assure the operation of any equipment, component or devices of the Customer or of others not installed by Company.
3. Maintenance service charges (“Maintenance Charges”) are payable in advance on a quarterly basis plus applicable state and/or local taxes effective from the date such Services are operative under this Agreement as set forth in an Order.
G. Hazardous Substances. Customer represents and warrants that any site at which the Equipment is to be installed is free of asbestos and any other hazardous or toxic substances. If any such substance exists at any site, Company will not be required to install or service the the Equipment to be installed and serviced by persons qualified to handle such substances. Equipment at such site and Company may arrange, at Customer's expense, for
H. Waivers.
1. Waiver of Jury Trial. CUSTOMER AND COMPANY WAIVE THEIR RIGHTS TO A JURY TRIAL IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN ANY MANNER CONNECTED WITH OR RELATED TO THIS AGREEMENT.
2. SAFETY Act Waiver. Certain of Company’s systems and services have received Certification and/or Designation as Qualified Anti-Terrorism Technologies (“QATT”) under the Support Anti-terrorism by Fostering Effective Technologies Act of 2002, 6 U.S.C. §§ 441-444 (the “SAFETY Act”). As required under 6 C.F.R. 25.5 (e), to the maximum extent permitted by law, Company and Customer hereby agree to waive their right to make any claims against the other for any losses, including business interruption losses, sustained by either party or their respective employees, resulting from an activity resulting from an “Act of Terrorism” as defined in 6 C.F.R. 25.2, when QATT have been deployed in defense against, response to, or recovery from such Act of Terrorism.
I. Term and Termination. This Agreement shall be effective as of the Effective Date and unless sooner terminated, will continue for a period of five years ending on the anniversary of the Effective Date (“Initial Term”). Thereafter this Agreement will automatically renew for successive thirty-day periods. At any time after the Initial Term, either party will be entitled to terminate this Agreement on thirty (30) days prior written notice. Expiration or termination of this Agreement shall not relieve Customer from its financial obligations for Equipment or Services provided prior to the effective date of expiration or termination.
In addition to any other remedies available to Company, Company may terminate this Agreement and discontinue any Services if (a) Customer fails to follow Company’s recommendations for the repair or replacement of defective parts not covered under Warranty or Maintenance Service; (b) Customer's failure to follow the operating instructions provided by Company or the OEM results in Equipment malfunction; (c) in Company’s sole opinion, the premises in which the Equipment is installed are unsafe, unsuitable, or so modified or altered after installation as to render continuation of Services impractical or impossible; (d) Company’s performance of its obligations becomes impracticable due to obsolescence or unavailability of systems, Equipment, or products (including component parts and/or materials) or because Company or its supplier(s) has discontinued the manufacture or the sale of the Equipment and/or products or is no longer in the business of providing the Services; (e) Company is unable to obtain or continue to support technologies; or (f) Customer fails to make payments when due or otherwise breaches this Agreement. Company will not be liable for any damages or subject to any penalty as a result of any such termination. Company may terminate this Agreement, or the affected portions, at its sole discretion upon notice to the Customer if Company’s performance of its obligations are prohibited because of changes in applicable laws, regulations or codes.
J. Insurance. Company maintains General Comprehensive Liability and Automobile Liability Insurance of, at least, $1,000,000 per incident - $2,000,000 in the aggregate and Worker’s Compensation coverage as required by the applicable state authority. In addition, at Customer’s request, Company will name Customer and, if required, Customer’s Landlord, Property Manager, and/or Property Owner of the facilities in which Company is providing installation, maintenance, inspection or warranty services as an additional insured under Company’s General Liability and Automobile insurance policies; provided, however, that such additional insured coverage will not respond to the negligence or other wrongful conduct of Customer or any other additional insured.
K. Force Majeure. Company assumes no liability for delays in installation of the Equipment or for the consequences therefrom, however caused. Company shall not be liable, nor in breach or default of its obligations under this Agreement, for delays, interruption, failure to render services, or any other failure by Company to perform an obligation under this Agreement, where such delay, interruption or failure is caused, in whole or in part, directly or indirectly, by a Force Majeure Event. A “Force Majeure Event” is a condition or event that is beyond the reasonable control of Company, whether foreseeable or unforeseeable, including, without limitation, acts of God, severe weather (including but not limited to hurricanes, tornados, severe snowstorms or severe rainstorms), wildfires, floods, earthquakes, seismic disturbances, or other natural disasters, acts or omissions of any governmental authority (including change of any applicable law or regulation), epidemics, pandemics, disease, viruses, quarantines, or other public health risks and/or responses thereto, condemnation, strikes, lockouts, labor disputes, an increase of 5% or more in tariffs or other excise taxes for materials to be used on the project, fires, explosions or other casualties, thefts, vandalism, civil disturbances, insurrection, mob violence, riots, war or other armed conflict (or the serious threat of same), acts of terrorism, electrical power outages, interruptions or degradations in telecommunications, computer, network, or electronic communications systems, data breach, cyber-attacks, ransomware, unavailability or shortage of parts, materials, supplies, or transportation, or any other cause or casualty beyond the reasonable control of Company. If Company’s performance of the work is delayed, impacted, or prevented by a Force Majeure Event or its continued effects, Company shall be excused from performance under the Agreement. Without limiting the generality of the foregoing, if Company is delayed in achieving one or more of the scheduled milestones set forth in the Agreement due to a Force Majeure Event, Company will be entitled to extend the relevant completion date by the amount of time that Company was delayed as a result of the Force Majeure Event, plus such additional time as may be reasonably necessary to overcome the effect of the delay. To the extent that the Force Majeure Event directly or indirectly increases Company’s cost to perform the services, Customer is obligated to reimburse Company for such increased costs, including, without limitation, costs incurred by Company for additional labor, inventory storage, expedited shipping fees, trailer and equipment rental fees, subcontractor fees, compliance with vaccination requirements or other costs and expenses incurred by Company in connection with the Force Majeure Event.
L. Assignment. This Agreement is not assignable by the Customer except upon written consent of Company first being obtained. Company shall have the right to assign this Agreement, in whole or in part, or to subcontract any of its obligations under this Agreement without notice to Customer.
M. One-Year Claims Limitation; Governing Law. Company shall have the sole and exclusive right to determine whether any dispute, controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be submitted to a court of law or arbitrated. The laws of Delaware shall govern the validity, enforceability, and interpretation of this Agreement, without regard to conflicts of law principles thereof, and the exclusive venue for any such litigation or arbitration shall be in Milwaukee, Wisconsin. The parties waive any objection to the exclusive jurisdiction of the specified forums, including any objection based on forum non conveniens. In the event the matter is submitted to a court, Company and Customer hereby agree to waive their right to trial by jury. In the event the matter is submitted to arbitration by Company, the costs of arbitration shall be borne equally by the parties, and the arbitrator's award may be confirmed and reduced to judgement in any court of competent jurisdiction. Except as provided below, no claim or cause of action, whether known or unknown, shall be brought by either party against the other more than one year after the claim first arose. Claims not subject to the one-year limitation include claims for unpaid: (1) contract amounts, (2) change order amounts (approved or requested) and (3) delays and/or work in efficiencies. Customer will pay all of Company's reasonable collection costs (including legal fees and expenses).
N. Severability. If any provision of this Agreement is determined by a court to be invalid or unenforceable, that provision will be deemed amended and enforced to the maximum extent permitted by law; however, each and every other provision of this Agreement will continue to be valid and enforceable.
O. Paragraph and Section Headings; Captions. The headings and captions contained in this Agreement are inserted for convenience or reference only, and are not to be deemed part of or to be used in construing this Agreement.
P. Authority. Customer represents, warrants, acknowledges, and/or agrees that: (1) Customer owns the premises in which the Equipment is being installed or has the authority to engage Company to carry out the installation in the premises and (2) Customer will comply with all laws, codes and regulations pertaining to the use of the Equipment and/or Services.
Q. Entire Agreement. This Agreement, together with any Orders, addenda and/or exhibits, constitutes the entire agreement between the parties. In executing this Agreement; Customer is not relying on any advice or advertisement of Company. Any representation, promise, condition, inducement or warranty, express or implied, not expressly included in this Agreement will not be binding upon Company. The terms and conditions of this Agreement will prevail over any conflicting, inconsistent, or additional terms or conditions contained in any purchase order, agreement or Statement of Work (“SOW”) or other document issued by Customer. Any changes must be mutually agreed to in writing by the authorized representatives of the Customer and Company.
R. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such separate counterparts shall together constitute but one and the same agreement.
S. Privacy. A. Company as Processor: Where Company factually acts as Processor of Personal Data on behalf of Customer (as such terms are defined in the DPA) the terms at www.johnsoncontrols.com/dpa shall apply. B. Company as Controller: Company will collect, process and transfer certain personal data of Customer and its personnel related to the business relationship between it and Customer (for example names, email addresses, telephone numbers) as controller and in accordance with Company’s Privacy Notice at https://www.johnsoncontrols.com/privacy. Customer acknowledges Company’s Privacy Notice and strictly to the extent consent is mandatorily required under applicable law, Customer consents to such collection, processing and transfer. To the extent consent to such collection, processing and transfer by Company is mandatorily required from Customer’s personnel under applicable law, Customer warrants and represents that it has obtained such consent.
T. Software and Digital Services. Use, implementation, and deployment of the software and hosted software products (“Software”) offered under these terms shall be subject to, and governed by, Seller’s standard terms for such Software and Software related professional services in effect from time to time at https://www.johnsoncontrols.com/techterms (collectively, the “Software Terms”). Applicable Software Terms are incorporated herein by this reference. Other than the right to use the Software as set forth in the Software Terms, Seller and its licensors reserve all right, title, and interest (including all intellectual property rights) in and to the Software and improvements to the Software. The Software that is licensed hereunder is licensed subject to the Software Terms and not sold. If there is a conflict between the other terms herein and the Software Terms, the Software Terms shall take precedence and govern with respect to rights and responsibilities relating to the Software, its implementation and deployment and any improvements thereto.
U. Digital Enabled Services. Data. If Company provides Digital Enabled Services under this Agreement, these Digital Enabled Services require the collection, transfer and ingestion of building, equipment, system time series, and other data to Company’s cloud-hosted software applications. Customer consents to and grants Company right to collect, ingest and use such data to enable Company and its affiliates and agents to provide, maintain, protect, develop and improve the Digital Enabled Services and Company products and services. Customer acknowledges that, while Digital Enabled Services generally improve equipment performance and services, Digital Enabled Services do not prevent all potential malfunction, insure against all loss, or guarantee a certain level of performance. Customer shall be solely responsible for the establishment, operation, maintenance, access, security and other aspects of its computer network (“Network”), shall appropriately protect hardware and products connected to the Network and will supply Company secure Network access for providing its Digital Enabled Services. As used herein, "Digital Enabled Services" mean services provided hereunder that employ Company software and related equipment installed at Customer facilities and Company cloud-hosted software offerings and tools to improve, develop, and enable such services. Digital Enabled Service may include, but are not limited to, (a) remote servicing and inspection, (b) advanced equipment fault detection and diagnostics, and (c) data dashboarding and health reporting. If Customer accesses and uses Software that is used to provide the Digital Enabled Services, the Software Terms (defined below) will govern such access and use.
Company Digital Solutions. Use, implementation, and deployment of the software and hosted software products (“Software”) offered under these terms shall be subject to, and governed by, Company's standard terms for such Software and Software related professional services in effect from time to time at www.johnsoncontrols.com/techterms (collectively, the “Software Terms”). Specifically, the Company General EULA set forth at www.johnsoncontrols.com/buildings/legal/digital/generaleula governs access to and use of software installed on Customer’s premises or systems and the Company Terms of Service set forth at www.johnsoncontrols.com/buildings/legal/digital/generaltos govern access to and use of hosted software products. The applicable Software Terms are incorporated herein by this reference. Other than the right to use the Software as set forth in the Software Terms, Company and its licensors reserve all right, title, and interest (including all intellectual property rights) in and to the Software and improvements to the Software. The Software that is licensed hereunder is licensed subject to the Software Terms and not sold. If there is a conflict between the other terms herein and the Software Terms, the Software Terms shall take precedence and govern with respect to rights and responsibilities relating to the Software, its implementation and deployment and any improvements thereto.
Notwithstanding any other provisions of this Agreement, unless otherwise agreed, the following terms apply to Software that is provided to Customer on a subscription basis (i.e., a time limited license or use right), (each a “Software Subscription”): Each Software Subscription provided hereunder will commence on the date the initial credentials for the Software are made available (the “Subscription Start Date”) and will continue in effect until the expiration of the subscription term noted in the applicable statement of work, order or other applicable ordering document . At the expiration of the Software Subscription, such Software Subscription will automatically renew for consecutive one (1) year terms (each a “Renewal Subscription Term”), unless either party provides the other party with a notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term. To the extent permitted by applicable law, Software Subscriptions purchases are non-cancelable, and the sums paid nonrefundable. Fees for Software Subscriptions shall be paid annually in advance, invoiced on the Subscription Start Date and each subsequent anniversary thereof. Customer shall pay all invoiced amounts within thirty calendar days after the date of invoice. Payments not made within such time period shall be subject to late charges as set forth in the Software Terms. Unless otherwise agreed by the parties in writing, the subscription fee for each Renewal Subscription Term will be priced at Company's then-applicable list price for that Software offering. Any use of Software that exceeds the scope, metrics or volume set forth in this Agreement and applicable SOW will be subject to additional fees based on the date such excess use began.
V. Dispute Resolution. Company shall have the sole and exclusive right to determine whether any dispute, controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be submitted to a court of law or arbitrated. For Customers located in the United States, the laws of Delaware shall govern the validity, enforceability, and interpretation of this Agreement, without regard to conflicts of law principles thereof, and the exclusive venue for any such litigation or arbitration shall be in Milwaukee, Wisconsin. For customers located in Canada, this agreement shall be governed by and be construed in accordance with the laws of Ontario, without regard to conflicts of law principles thereof, the exclusive venue for any such litigation or arbitration shall be in Ontario, Canada. The parties waive any objection to the exclusive jurisdiction of the specified forums, including any objection based on forum non conveniens. In the event the matter is submitted to a court, Company and Customer hereby agree to waive their right to trial by jury. In the event the matter is submitted to arbitration by Company, the costs of arbitration shall be borne equally by the parties, and the arbitrator’s award may be confirmed and reduced to judgment in any court of competent jurisdiction. Except as provided below, no claim or cause of action, whether known or unknown, shall be brought by either party against the other more than one year after the claim first arose. Claims not subject to the one-year limitation include claims for unpaid: (1) contract amounts, (2) change order amounts (approved or requested) and (3) delays and/or work inefficiencies. Customer will pay all of Company's reasonable collection costs (including legal fees and expenses).
W. License Information (US Security System Customers): AL Alabama Electronic Security Board of Licensure 7956 Vaughn Road, Pmb 392, Montgomery, Alabama 36116 (334) 264-9388: AR Regulated by: Arkansas Board of Private Investigators And Private Security Agencies, #1 State Police Plaza Drive, Little Rock 72209 (501) 618-8600: CA Alarm company operators are licensed and regulated by the Bureau of Security and Investigative Services, Department of Consumer Affairs, Sacramento, CA, 95814. Upon completion of the installation of the alarm system, the alarm company shall thoroughly instruct the purchaser in the proper use of the alarm system. Failure by the licensee, without legal excuse, to substantially commence work within 20 days from the approximate date specified in the agreement when the work will begin is a violation of the Alarm Company Act: NY Licensed by N.Y.S. Department of the State: TX Texas Commission on Private Security, 5805 N. Lamar Blvd., Austin, 78752-4422, 512-424- 7710.License numbers available at www.johnsoncontrols.com or contact your local Company office.