Operations & Maintenance Agreement

HVAC Operations Maintenance Terms US
August 8 2023

THIS OPERATIONS & MAINTENANCE AGREEMENT (the “Agreement”) is made effective as of _______________ (the “Effective Date”) by and between Johnson Controls, Inc. (“Manager”) and ___________________ (“Owner”).  Manager and Owner are each a “Party” and are together the “Parties” to this Agreement.

 

RECITALS

1. Manager provides facility infrastructure operations and maintenance services.
2. Owner desires to retain Manager to provide the services described on Attachment A to this Agreement (the “Services”) for its facility located at ___________________ (the “Facility”), and Manager is willing to provide such Services, each according to the terms of this Agreement

 

AGREEMENT

1. Services; Subcontractors. Subject to the terms of this Agreement, Manager will provide the Services for the Facility. Manager will have the option to provide the Services by continuing to use existing subcontractors, vendors, consultants and suppliers (the “Subcontractors”), by assuming and performing the work itself, or by assigning the work to another Subcontractor(s).  Manager is authorized (a) to directly perform the Services, or (b) to enter into contracts with Subcontractors to perform the Services, or (c) to modify contracts with Subcontractors to perform the Services.  Upon request by Manager, Owner will either terminate or assign the existing subcontracts (between Owner and the third parties) to Manager.  Manager will assume responsibility for such Subcontractors only upon negotiating and signing an agreement between Manager and the affected Subcontractors.  All Subcontractors will possess the skills and experience and/or materials and supplies appropriate to the Services provided.
   
   Connected Equipment Services means a data-analytics and monitoring Software platform that uses a cellular or network connection to gather equipment performance data to assist Manager in advising Owner on such equipment’s health, performance or potential malfunction. By default Services will include Manager’s Connected Equipment Services. If Owner’s equipment includes Connected Equipment Services, such services will be on by default and the remote connection will continue to connect to Owner’s equipment through the full equipment lifecycle, unless Owner specifically requests in writing that Manager disable the remote connection or Manager discontinues or removes such remote connection.  For more information on whether Owner’s particular equipment includes Connected Equipment Services, a subscription to such services and the cost, if any, of such subscription, please see the Attachments to this Agreement or your applicable order, quote, proposal, or purchase documentation or talk to your Johnson Controls sales representative.  If Owner’s equipment includes Connected Equipment Services, Johnson Controls will provide a cellular modem or other gateway device (“Gateway Device”) owned by Manager or Owner will supply a network connection suitable to establish a remote connection with Owner’s applicable equipment to permit Manager to use Connected Equipment Services to perform remote services such as troubleshooting, quarterly health reports, remote diagnostic and monitoring and aftermarket services.  For certain subscriptions, Owner will be able to access equipment information from a mobile or smart device using Connected Equipment Service’s mobile or web app.  Any Gateway Devices provided hereunder shall remain Manager’s property, and Manager may upon reasonable notice access and remove such Gateway Device and discontinue services in accordance with the Software Terms.  Owner acknowledges that, while Connected Equipment Services generally help improve equipment performance and Services, Connected Equipment Services does not prevent all potential malfunction, insure against all loss or guarantee a certain level of performance and that Manager shall not be responsible for any injury, loss or damage caused by any act or omission of Manager related to or arising from the additional monitoring of the equipment under Connected Equipment Services
   
   Remote Monitoring Services means remote monitoring of Covered Equipment and/or systems including building automation, HVAC equipment, and fire alarm, intrusion, and/or other life safety systems for alarm and event notifications using a UL Certified Central Station. If Remote Monitoring Services or Remote Operating Services are provided, Owner agrees to furnish Manager with a list of the names, titles, addresses, email addresses, and phone numbers of all persons authorized to be contacted by, or be able to contact the ROC to perform specific agreed upon actions with the appropriate authority. If Manager’s Services include “Remote Monitoring Services with Open and Close,” Owner also agrees to furnish Manager with Owner’s daily and holiday opening and closing schedules. Owner agrees to maintain and update the call lists with accurate information. Owner further agrees to notify Manager of such changes as soon as possible. Manager/ROC is not responsible to find new contacts/numbers if the contacts on the call lists cannot be reached. A maximum of three contacts are allowed for any time of the day. If none of those contacts can be reached, then neither Manager nor the ROC are responsible for damages. Owner is responsible for any and all costs and expenses arising from Owner’s failure to provide timely updates for any of the contact information submitted to the ROC.
   
   In the event Owner retains Manager to supply equipment, perform installation work or additional services outside the scope of Services set forth in this Agreement, Owner agrees it will be performed in accordance with and Owner will be bound by Johnson Controls’ standard Owner Terms, which may be modified from time to time and are incorporated herein by reference. A copy of the Owner Terms currently in effect is found at www.johnsoncontrols.com/customerterms.


2. Independent Contractor and Employee Status.  Manager is an independent contractor of Owner and is not an employee of, partner of, or in a joint venture with Owner.  Manager will exercise general and overall control over its employees, as the employer of such employees.  Should Owner have a complaint regarding the performance of the services or the behavior of Manager’s employees under this Agreement, or request a change in the manner in which services are being performed, it will transmit same to Manager, which will take immediate action to resolve the problem.


3. Transfer of Personnel.  Manager will have the option to offer employment the Owner’s employees made available to Manager by Owner for the purpose of performing the Services (the terms of such employment offers, if any, will be solely determined by Manager), and Manager will hire those employees who accept the offer of employment (the “Transferred Employees”).   Any Transferred Employees must satisfy Manager’s hiring criteria, be subject to Manager’s policies and procedures, and execute agreements providing for protections of confidential information and adherence to business conduct guidelines.   Owner will remain responsible for all obligations and liabilities arising out of, or relating to, the employment relationship between it and the Transferred Employees, including, without limitation, payment of wages, benefits, and severance pay incurred or vesting prior to the date of hire of the Transferred Employees by Manager.


4. No Solicitation.  Owner acknowledges that Manager’s employees who provide the Services pursuant to this Agreement represent a valuable resource for Manager.  Owner agrees that during the Term of this Agreement or any renewal thereof, it will not offer to employ or accept for employment any such employees of Manager without the prior written consent of Manager.  If this Agreement is terminated by Owner for any reason (or no reason) at any time, other than for default by Manager pursuant to this Agreement, Owner agrees that it will not offer to employ or accept for employment any such employees of Manager for a period of one hundred eighty (180) days following termination of this Agreement. If Owner hires any employees of Manager in breach of this section, Owner agrees to pay Manager a sum equal to one year's salary of the employee calculated at the rate paid by Manager to the respective employee on the date of his/her termination of employment with Manager.


5. Policies and Procedures.  All Services provided by Manager will be consistent with building rules and regulations of Owner provided to Manager in writing, which may be amended from time to time with written notice to Manager.  Manager will take such safety precautions as are customary in the industry for the services to be performed


6. Facilities and Equipment.  Owner will make available to Manager such reasonable facilities, equipment, and supplies as are required for Manager to perform the Services under this Agreement as set forth in Attachment B. The facilities and equipment provided by Owner; hereunder will remain the property of Owner; however, Manager will be responsible for maintaining the cleanliness of such facilities and equipment, unless otherwise instructed by Owner.


7. Compensation for the Services. Owner will pay Manager for the Services in accordance with the fee schedule contained in Attachment C attached to this Agreement. Unless otherwise agreed to by the Parties, Manager will invoice for all fees on an annual basis in advance and Owner agrees to pay the fees upon receipt of the invoice.  All invoices not paid when due will bear interest from the date of invoice at the rate of twelve percent (12%) per annum, or the highest lawful rate if applicable, until paid.  Owner will pay all amounts in United States dollars to Manager at its headquarters in Milwaukee, Wisconsin in accordance with instructions provided by Manager.  In addition to the fees, Owner will pay Manager for any and all applicable taxes, that maybe due in connection with the payment of such fees, including but not limited to sales tax, VAT, or other similar taxes or tariffs.  Owner will be responsible for any and all costs associated with special requirements imposed by law or any governmental entity or subdivision, including a change in law.  Manager may increase prices upon notice to the Owner to reflect increases in material and labor costs caused by Force Majeure as defined herein or other causes beyond Manager’s control.  Failure by Owner to make payments when due will give Manager, without prejudice to any other right or remedy, the right to stop performing any Services, withhold deliveries of equipment and other materials, terminate or suspend any software licenses provided hereunder and/or terminate this Agreement.  This Agreement is entered into with the understanding that the Services to be provided by Manager 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 Manager, Manager reserves the right to issue a modification or change order to adjust the wage rates to the required prevailing wage rate. Owner agrees to pay for the applicable prevailing wage rates. Owner shall provide financial information requested by Manager to verify Owner’s ability to pay for goods or Services. If Owner fails to provide financial information or if Manager, in its sole discretion determines that reasonable grounds exist to question Owner’s ability or willingness to make payments when due (e.g., not making payments when due, late payments, or a reduction in Owner's credit score), Manager may defer shipments, change payment terms, require cash in advance and/or require other security, without liability and without waiving any other remedies Manager may have against Owner. Manager shall provide Owner with advance written notice of changes to payment terms


8.  Indemnification.
1. In General.  To the fullest extent permitted by law, each Party (“Indemnifying Party”) shall indemnify the other (“Indemnified Party”) for all damages, losses and expenses with respect to any third-party claims against the Indemnified Party for personal injury (including death) or tangible property damage, but only to the extent such damages, losses and expenses are caused by the negligence or misconduct of the Indemnifying Party. Neither Party shall indemnify the other against claims, damages, expenses or liabilities to the extent attributable to the acts or omissions of the other Party. If the parties are both at fault, the obligation to indemnify shall be proportional to their relative fault.


2. Owner’s Property.  Subject to 7(a) above, Manager will not be liable for and will not bear any risk of claim, liability or obligation for damage to the Owner’s property. Owner expressly agrees to assume all risk of damage to Owner’s property and waives all rights of subrogation against Manager and any of Manager’s contractors.


3. Total Liability. Manager and Owner agree that Manager’s total legal liability under this Agreement for all claims (regardless of legal theory), demands, liabilities, damages, attorney’s fees, costs of any kind, character or description will not exceed a total sum of One Million Dollars ($1,000,000).


4. Hazardous Materials and Environmental Issues.
1. Asbestos-Containing Materials.  Neither party desires to or is licensed to undertake direct obligations relating to the identification, abatement, cleanup, control, removal or disposal of asbestos-containing materials (“ACM”).  Consistent with applicable laws, Owner will supply Manager with any information in its possession relating to the presence of ACM in areas where Manager undertakes any Services that may result in the disturbance of ACM.  It is Manager’s policy to seek certification for facilities constructed prior to 1982 that no ACM is present, and Owner will provide such certification for the Facility, or aid Manager in receiving such certification from Facility owner if Owner does not own the Facility, if Manager will undertake Services in the Facility that could disturb ACM.  Furthermore, for facilities constructed prior to 1982, if a complete copy of a current, comprehensive ACM survey or assessment does not exist for the area of the Facility where Manager will undertake Services that could disturb ACM, Manager will engage a qualified asbestos inspector to conduct an ACM assessment/ survey of that area of the Facility at Owner’s expense.  If either Owner or Manager becomes aware of or suspects the presence of ACM that may be disturbed by Manager’s Services, it will immediately stop the Services in the affected area and notify the other’s contacts.  As between Owner and Manager, Owner will be responsible at its sole expense for addressing the potential for or the presence of ACM in conformance with all applicable laws and addressing the impact of its disturbance before Manager continues with its Services, unless Manager had actual knowledge that ACM was present and acted in disregard of that knowledge, in which case (i) Manager will be responsible at is sole expense for remediating areas impacted by the disturbance of  the ACM, and (ii) Owner will resume its responsibilities for the ACM after Manager’s remediation has been completed.


2. Other Hazardous Material.  “Hazardous Materials” means any material or substance that, whether by its nature or use, is now or hereafter defined or regulated as a hazardous waste, hazardous substance, pollutant or contaminant under any local, state or federal law, regulation or ordinance, relating to or addressing public and employee health and safety and protection of the environment, or which is toxic, explosive, corrosive, flammable, radioactive, carcinogenic, mutagenic or otherwise hazardous or which is or contains petroleum, gasoline, diesel, fuel, another petroleum hydrocarbon product or polychlorinated biphenyls.  “Hazardous Materials” specifically includes mold and lead-based paints and specifically excludes ACM.  Manager will have no obligations relating to the identification, abatement, cleanup, control, removal or disposal of mold, regardless of the cause of the mold.  Manager will be responsible for removing or disposing of any Hazardous Materials that it uses in providing Services (“Manager Hazardous Materials”) and for the remediation of any areas impacted by the release of Manager Hazardous Materials.  For other Hazardous Materials that may be otherwise present at its facilities (“Non-Manager Hazardous Materials”), Owner will supply Manager with any information in its possession relating to the presence of such materials if their presence may affect Manager’s performance of the Services.  If either Owner or Manager becomes aware of or suspects the presence of Non-Manager Hazardous Materials that may interfere with Manager’s Services, it will immediately stop the Services in the affected area and notify the other’s contacts.  As between Owner and Manager, Owner will be responsible at its sole expense for removing and disposing of Non-Manager Hazardous Materials from it facilities and the remediation of any areas impacted by the release of the Non-Manager Hazardous Materials, unless Manager had actual knowledge that Non-Manager Hazardous Materials were present and acted in disregard o that knowledge, in which case (i) Manager will be responsible at its sole expense for the remediation of any areas impacted by its release of such Hazardous Materials, and (ii) Owner will remain responsible at its sole expense for the removal of Hazardous Materials that have not been released and for releases not resulting from Manager’s performance of the Services.


3. Environmental Indemnity.  Notwithstanding any other provision of the Agreement, and to the fullest extent permitted by law, Owner will indemnify and hold harmless Manager and Manager’s subcontractors, and their respective directors, officers, employees, agents, representatives, shareholders, affiliates, and assigns and successors, from and against any and all Losses directly or indirectly relating to or arising from the Owner’s use, or the storage, release, discharge, handling or presence of ACM, mold (actual or alleged and regardless of the cause of such condition) or Non-Manager Hazardous Materials on, under or about the facility, or the non-compliance with this subsection titled “Hazardous Materials and Environmental Issues.”
5. Waiver of Certain Damages.  IN NO EVENT, WHETHER IN CONTRACT, TORT OR OTHERWISE (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), WILL A PARTY BE LIABLE FOR INDIRECT OR CONSEQUENTIAL (INCLUDING LOSS OF BUSINESS, LOSS OF PROFITS, AND THE LIKE), EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. The waiver of consequential damages and the limitation of liability set forth above are fundamental elements of the basis for this Agreement between Manager and Owner.  Manager would not be able to provide the Services on an economic basis, and would not have entered into this Agreement, without such waiver and limitation

9. Health and Safety of Facility.  The Parties will notify each other as promptly as is reasonably possible upon becoming aware of an inspection under, or any alleged violation of the Occupational Safety and Health Act relating in any way to the undertakings of either party under this Agreement.  Notwithstanding anything to the contrary within this Agreement, the Parties acknowledge and agree that Owner retains all responsibility for the health and safety of the Facility, and its own employees, agents, contractors, and persons invited into the Facility by the Owner and/or its employees, agents and contractors.


10. Fire and Safety Equipment.  If this Agreement covers fire safety or security equipment, Owner understands that Manager is not an insurer regarding those services.  Owner will be responsible for any damage or loss that may result from fire safety or security equipment that fails to perform properly or fails to perform.


11. Insurance.  Manager will obtain and continue in force during the Term all insurance specified below.  Before starting the Services, Manager will deposit with Owner certificates evidencing the insurance it is required to provide

1. Manager will provide the following insurance:
1. Worker's Compensation and Occupational Disease Disability insurance as required by the laws of the jurisdiction where the work is being performed, or by self-insurance;
2. Employer's liability insurance in the amount of $100,000 bodily injury for each accident;
3. Comprehensive automobile liability insurance for vehicles furnished by Manager with a combined single limit of $2,000,000 for each occurrence; and
4. Comprehensive General Liability insurance with a combined single limit of $5,000,000 for each occurrence/$5,000,000 aggregate.
2. Manager will cause the aforesaid insurance policies, where applicable, to include:
1. Owner as an additional insured with respect to liability arising out of operations performed for Owner, by or on behalf of Manager, but only to the extent required in this section 8, for damages directly caused by the negligence of Manager;
2. language that said insurance will be primary with respect to liability arising out of operations performed for Owner, by or on behalf of Manager, but only to the extent of damages directly caused by the negligence of Manager; and
3. Manager will maintain in full force and effect all of the above required insurance policies.  Should any of the above described policies be cancelled before the expiration date, notice will be delivered in accordance with policy provisions

12. Agreement Term. The initial term of this Agreement will begin on the Effective Date and continue until for ____ years (the “Initial Term”).  Upon expiration of the Initial Term, this Agreement will automatically renew for successive additional ____ year terms (each a “Renewal Term”) unless either Party provides written notice to the other Party of its desire to not renew this Agreement at least ninety (90) days before the expiration of the Initial Term or the current Renewal Term.  Together, the Initial Term and any Renewal Terms are the “Term” of this Agreement.


13. Termination
1. For Convenience.  This Agreement may be terminated by Manager for convenience (i.e., without cause) by providing written notice delivered to the Owner at least one hundred eighty (180) days before the effective date of termination


2. For Cause.  Upon the occurrence of any material default or breach of this Agreement by either Party that is not cured within thirty (30) days of receipt of written notice, the non-breaching Party may immediately terminate this Agreement.  However, if a receiver, liquidator or trustee for Owner is appointed by court order; or a petition is filed against Owner under any bankruptcy, reorganization or insolvency law; or Owner files a petition in voluntary bankruptcy or requests reorganization under any provision of voluntary bankruptcy, reorganization or insolvency laws; or if Owner makes an assignment for the benefit of creditors, then the entire Agreement shall immediately terminate upon the happening of any such event.


3. If Manager’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 the Manager 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, Manager may terminate this Agreement, or the affected portions, at its sole discretion upon notice to Owner.  Manager may terminate this Agreement, or the affected portions, at its sole discretion upon notice to the Owner if Manager’s performance of its obligations are prohibited because of changes in applicable laws, regulations or codes.


4. Transition Assistance.  To assist Owner with transitioning the Services to another provider at the expiration of this Agreement, upon Owner’s written request which must be provided at least thirty (30) days before the effective date of Termination or the expiration date, Manager will provide the some or all of Services (as requested by Owner) for up to an additional ninety (90) days after such expiration or termination.   During this transition period Manager will continue to be compensated in the manner set forth in this Agreement for actual time spent and Services performed.  These transition services will include providing Owner and its agents, contractors and consultants as necessary with reasonable access to and use of all systems then being used by Manager to provide the Services. The assistance services described above will include, but are not limited to:
   
   1. Notifying all outside vendors of procedures to be followed during the turnover phase;
   
   
   2. Reviewing all software libraries and operations and maintenance procedures with the new service provider;
   
   
   3. Delivering documentation relating to the Services;
   
   
   4. Providing transition training and assistance to new operations and maintenance staff;
   
   
   5. Assisting in the execution of a parallel operation, until the effective date of termination of transition services; and
   
   
   6. Providing consulting support, on an as-needed basis.
   
   

   If any transition assistance provided by Manager requires the utilization of additional resources that Manager would not otherwise use in the performance of this Agreement, Owner will pay Manager for such usage at the then-current Agreement prices.  If the transition assistance requires Manager to incur expenses in addition to the expenses that Manager would otherwise incur in the performance of the Agreement, the Owner will reimburse Manager for such additional expenses.

   
   
   1. Effect of Termination. Upon termination of this Agreement for any reason, Manager and Owner will account to each other for all matters outstanding with respect to this Agreement Manager will deliver to Owner the following
   1. A final accounting, reflecting the balance of income and expenses and assets and liabilities as of the date of termination to be delivered within thirty (30) days after such termination or withdrawal;
   2. Any balance or monies of Owner held by Manager to be delivered upon such termination.  Owner will simultaneously deliver to Manager any monies due Manager; and
   3. All original records, contracts, leases, receipts for deposits, unpaid bills, warranties, and other papers or documents which pertain to the Facility to be delivered immediately upon termination.  Upon termination Owner will assume responsibility for payment of all approved or authorized unpaid bills.
   
   
   2. Rights Not Affected.  The termination of this Agreement will not affect the rights of either Party with respect to any damages it has suffered as a result of any breach of this Agreement, nor will it affect the rights or obligations of either Party with respect to liability or claims accrued, or arising out of events occurring, prior to the date of termination, all of which will survive such termination.  If Owner terminates this Agreement, other than for material cause in accordance with Section 13(b), Owner shall be in default under this Agreement, and in addition to any additional remedies, Owner shall also pay Manager 35% of the charges for Services remaining to be paid for the unexpired Term of this Agreement as liquidated damages and not as a penalty


14. Representations and Warranties.
1. Mutual Representations and Warranties. Each Party warrants and represents to the other that:
1. It has all the requisite corporate power and authority to execute and deliver this Agreement and perform its obligations hereunder.


2. Its execution, delivery and performance of this Agreement have been duly authorized by, or are in accordance with, its certificate of incorporation and by-laws; this Agreement has been duly executed and delivered for it by authorized signatories; and, this Agreement constitutes its legal, valid and binding obligation.


3. Its execution, delivery and performance of this Agreement does not and will not result in a breach or violation of, or constitute a default under any law, or any agreement, lease or instrument to which it is a Party or by which it or its properties may be bound or affected


4. It has not received any notice, nor to its knowledge is there pending or threatened any notice of any violation of any applicable laws, awards, or orders against it or any of its affiliates which would materially adversely affect its ability to perform hereunder


5. It will abide by all applicable laws, regulations, and ordinances, including the US Foreign Corrupt Practices Act and any other anti-corruption laws.
2. Owner Representations and Warranties.  Owner warrants and represents to Manager that:
1. Owner presently intends to continue to use the Facility during the Term in a manner similar to its present use.
2. Owner has provided Manager with all records previously requested by Manager, and the information set forth therein is, and all information in other records to be subsequently provided pursuant to this Agreement will be, true and accurate in all material respects.
3. Owner will provide a work environment that is not hostile and is free from harassment to Manager’s on-site employees and for all other Manager’s employees and agents when on-site with Owner.
4. Owner will consult with Manager on all material, industrial, insurance, safety, regulatory, or public relations matters and matters where litigation arises or is threatened or there are grounds for litigation arising which are known to the Owner arising out of or in connection with this Agreement as soon as Owner is aware of the same where such matters affect the performance of the Services by Manager.
5. Owner will cooperate with Manager generally, and in particular, provide Manager in a timely and complete manner with any information, policies and procedures relevant to the performance by Manager of its obligations under this Agreement.
6. Owner will at no charge provide Manager, its employees, agents and subcontractors with reasonable access to the Facility throughout the Term for the purposes of fulfilling all of its obligations under this Agreement


7. Owner furnish Manager with general offices, work areas, support areas, telephone and data communication equipment, storage facilities, light, identification, parking facilities, cafeterias and rest rooms, heat, air conditioning and other items to enable Manager to provide the Services as further outlined in this Agreement.  In addition, Owner will, at its option, provide Manager with access to either personal computers or high speed Internet connections at the Facility.  All such equipment will be provided to Manager free of charge, and will be used by Manager solely in connection with the performance of the Services.  The items provided by the Owner hereunder will remain the property of Owner.


3. Manager Representations and Warranties.  Manager warrants and represents to Owner that:
1. Manager will perform its obligations under this Agreement in compliance with all laws and in compliance with Owner’s policies, provided that such policies have been made known to Manager before commencing the Services under this Agreement.
2. Manager will supply sufficient and appropriately qualified and skilled employees and Subcontractors to provide the Services.
3. Manager will perform Services in a professional, workman-like manner and will promptly re-perform any non-conforming Services or replace defective newly furnished equipment labeled Johnson Controls, as long as Owner provides written notice to Manager within ninety (90) days following performance of the Services or supply of the equipment.  No warranty is provided for third-party products and equipment installed or furnished by Manager. Such products and equipment are provided with the third party manufacturer’s warranty to the extent available, and Manager will transfer the benefits, together with all limitations, of that manufacturer’s warranty to Owner.  The foregoing remedy with respect to the Services and furnished equipment shall be Owner’s sole and exclusive remedies for warranty claims.  Owner agrees that the one (1) year period shall be a reasonable time for purposes of submitting valid warranty claims with respect to the Services or equipment.  These exclusive remedies shall not have failed of their essential purpose so long as Manager transfers the benefits of any goods or equipment end-user warranty to Owner and remains willing to re-perform any non-conforming Services for no charge within the one (1) year period described above.  All transportation charges incurred in connection with the warranty for the products and/or equipment not covered under this Agreement shall be borne by Owner.  NO OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE PROVIDED BY MANAGER.  This warranty does not extend to any Services or equipment that has been abused, altered, or misused, or repaired by Owner or third parties without the supervision or prior written approval of Manager.  Manager makes no and specifically disclaims all representations or warranties that the Services, 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, prevent, treat, or mitigate the spread, transmission, or outbreak of any pathogen, disease, virus or other contagion, including but not limited to Covid-19. 


4. Unless agreed to in writing by the parties, any technical support, assistance, or advice (“Technical Support”) provided by Manager, such as suggestions as to design use and suitability of the equipment and products for the Owner’s application, is provided in good faith, but Owner acknowledges and agrees that Manager 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. Owner assumes exclusive responsibility for determining if the equipment and products supplied by Manager 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.
5. Except as otherwise provided in this Agreement, all Services will be performed in a manner consistent with industry standards.


15. Disputes.  The Parties will promptly seek in good faith and in a spirit of cooperation a rapid and equitable solution to any dispute, controversy or claim between them relating to this Agreement.


16. One-Year Claims Limitation; Forum; Choice of Law


1. The Parties will engage in direct and meaningful negotiations to arrive at such solution. The Parties will engage in good faith negotiations to resolve their differences.  
2. Manager 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, Manager and Owner hereby agree to waive their right to trial by jury. In the event the matter is submitted to arbitration by Manager, it shall be administered by a reputable arbitration provider chosen by Manager. The costs of arbitration shall be borne equally by the parties.  Such arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16.  No discovery shall be permitted.  The matter shall be decided by a single arbitrator who shall issue a reasoned written award within nine (9) months of the arbitrator’s written appointment, unless the total value in dispute is less than $500,000, in which case the arbitrator shall resolve the dispute on the papers only, without presentation of live testimony or argument, within six (6) months of his or her appointment.   The arbitrator’s award may be confirmed and reduced to judgment in any court of competent jurisdiction.  If Manager prevails in any collection action, Owner will pay all of Manager’s reasonable collection costs (including legal fees and expenses). Except as provide 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.
3. Order of Precedence. In the event of any conflict between the terms and conditions of this Agreement and any of its Attachments, the order of precedence will be: first this Agreement, then Attachment C, then Attachment B, then Attachment A, then other Attachments to this Agreement, if any. This contract supersedes all other contract memos or agreements


17. No Waiver; Cumulative Remedies.  No course of dealing between Owner and the Manager, nor any failure to exercise, nor any delay in exercising, on the part of any party, any right, power or privilege hereunder will operate as a waiver; nor will any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege.  Each of Owner’s and each Manager’s respective rights and remedies with respect to any breach of or default by the other Party, whether established by this Agreement or by law, will be cumulative and may be exercised singularly or concurrently.


18. Notices.  All notices and other communications made or required to be given pursuant to this Agreement will be in writing and shall be deemed duly served if and when mailed by certified or registered mail, or delivered by a nationally reputable overnight courier service (a) if to Manager, to Manager at the address indicated below; and (b) if to Owner, to Owner at Owner’s address as set forth below; provided, however, that the party intended to receive such notice may change the address for notices to such party under this Agreement by designating an alternative address in writing:

If to Owner, to:
_____________________
_____________________
_____________________
_____________________


If to Johnson Controls, to:
_____________________
_____________________
_____________________
_____________________

Unless otherwise provided herein, such notice or other communication may be mailed by United States registered or certified mail, return receipt requested, postage prepaid and may be deposited in a United States Post Office or a depository for the receipt of mail regularly maintained by the post office.  Such notices, demands, consents and reports may also be delivered by hand, by facsimile (followed by "hard copy" sent within one (1) business day using any other acceptable means set forth herein), by overnight courier service or by any other method or means permitted by law.  For purposes of this Agreement, notices will be deemed to have been given upon receipt or attempted (and refused) delivery whether given by personal delivery, facsimile, overnight courier service or the United States mails as provided above.




19. Force Majeure.  Manager 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 Manager 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 Manager, 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, lock-outs, 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 Manager. If Manager’s performance of the work is delayed, impacted, or prevented by a Force Majeure Event or its continued effects, Manager shall be excused from performance under the Agreement. Without limiting the generality of the foregoing, if Manager is delayed in achieving one or more of the scheduled milestones set forth in the Agreement due to a Force Majeure Event, Manager will be entitled to extend the relevant completion date by the amount of time that Manager 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 Manager’s cost to perform the services, Owner is obligated to reimburse Manager for such increased costs, including, without limitation, costs incurred by Manager 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 Manager in connection with the Force Majeure Event.


20. Permits, Laws, Regulations and Taxes.  Manager will comply with any and all applicable federal, state or local regulatory requirements and to secure such licenses as may be required for its employees and to conduct business in the state, municipality, province, or location. Manager will pay all applicable municipal, state, county or local sales, use, gross receipts or other related taxes arising out of, or relating to, the performance of this Agreement by Manager.  Owner will reimburse Manager for the amount of any such tax(es) paid.


21. Publicity.  Manager or Owner may issue press releases, publicity statements or promotional materials regarding this appointment or this Agreement.   Manager may not use any of Owner’s trademarks, service marks, other proprietary marks of Owner hereunder in any advertising press releases, publicity matters or other promotional materials without Owner's prior written permission, which will not be unreasonably withheld or delayed; provided, however, that Manager will be permitted to identify Owner as a client of Manager and describe the nature of the Services provided to Owner without Owner’s permission, so long as the material published does not contain words of endorsement -- expressly or implied -- by Owner of Manager’s services.


22. Confidentiality.  The Parties understand and acknowledge that the terms, provisions, conditions and agreements contained in this Agreement are strictly confidential as between Owner and Manager. Owner and Manager will keep in strictest confidence and not use for itself or disclose to any third party any Confidential Information disclosed by the other Party during the course of their dealings with each other, except as hereinafter provided.  Such Confidential Information may be disclosed only to such of the employees, agents or contractors of the recipient who has a need to know such information for the purpose for which it was disclosed and who owe their employer or principal a legally enforceable duty of confidentiality at least as stringent as the duty Owner and Manager owe one another under this Agreement.  The Parties agree to protect the others’ Confidential Information using the same degree of care with which they protect their own Confidential Information, but in no event less than reasonable care.  The Parties recognize as the exclusive property of the other all Confidential Information disclosed to it by the other Party.  The Parties will advise each other orally or in writing whether any information being disclosed to it is proprietary and/or confidential to the disclosing Party, and to the extent reasonably practicable, the disclosing Party shall mark all Confidential Information as “Confidential.” To the extent reasonably practicable, information that is disclosed orally or visually will be identified as “confidential” or “proprietary” at the time of disclosure, and its confidential or proprietary nature shall be confirmed in writing within twenty (20) days of disclosure.  The failure of either Party to mark Confidential Information as “Confidential” or provide the written confirmation shall in no way negate the other Party’s obligations with respect to such Confidential Information. The obligations in this section will not in any way restrict or impair the right of either Party to disclose and use the following:
1. Information which at the time of disclosure is published or is otherwise in the public domain;
2. Information which after disclosure becomes part of the public domain otherwise than through a breach of this Agreement by the recipient;
3. Information which was known to the recipient prior to receipt from the disclosing Party, provided such prior knowledge can be adequately substantiated by documentary evidence antedating the disclosure by the other Party;
4. Information which becomes known to the receiving Party from a source which legally derives such information independently of the disclosing Party under this Agreement; or
5. Information which is independently developed by the receiving party and the receiving party can so prove.

Each Party may disclose this Agreement to consultants, including attorneys, for internal purposes in connection with analyzing, amending, renewing, enforcing or terminating this Agreement, or in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof, required by law, or necessary to establish rights hereunder. Owner may not disclose the Agreement to any consultant who is a current customer of Manager, a prospective customer of Manager or a competitor with Manager, without Manager’s prior written consent, which can be withheld in Manager’s sole and absolute discretion.  Upon the request of the disclosing Party, the recipient will promptly deliver to the disclosing Party any and all documents, in whatever form, which contain or relate to the disclosing Party’s Confidential Information, whether or not made or compiled by the recipient or furnished to it by the disclosing Party.  Counsel for the receiving Party may retain one copy for archive purposes. No right or license whatsoever, either expressed or implied, is granted by either Party to the other pursuant to this Agreement under any patent, patent application, copyright, trademark or other proprietary right, now or hereafter owned or controlled by either party.  Any inventions, creations, or other intellectual property made jointly by the Parties, or their employees, will be jointly owned by the Parties. Unless otherwise agreed to in writing, neither Party will have any obligations of secrecy under this Agreement after three (3) years from the end of the Term or the termination of this Agreement, whichever is later.

23. Software and Data.


1. Software Manufactured By Third Parties. The Parties understand that software needed to provide the Services (“Software”) may be obtained from third parties.  Owner, as an end user of this product will be required to sign an End User License Agreement provided by the third party and abide by the terms of that Agreement.
2. Software and Data Provided By Manager. Title to the original of any item of proprietary (to Manager) Software and/or data delivered under this Agreement and any copies made by Owner in whole or in part are, and will at all times remain, in Manager.   If applicable, Owner acknowledges Manager’s claim that the Software and/or data contains valuable proprietary information and trade secrets and that unauthorized dissemination of the Software and/or data (including without limitation disassembly or reverse engineering) could cause irreparable harm, and Owner will not to disclose, transfer, provide or otherwise make available in any form the Software and/or data (including documentation and materials), the information contained in the Software, or any portion of the information, to any person other than Owner’s employees without the prior written consent of Manager.  Owner will use the Software and/or data, the information contained therein, or any portion thereof only as permitted in the Agreement. Use, implementation, and deployment of the software and hosted software products (“Software”) offered under these terms shall be subject to, and governed by, Manager'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 Manager’s General EULA set forth at www.johnsoncontrols.com/buildings/legal/digital/generaleula  governs access to and use of software installed on Owner’s premises or systems and the Manager 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, Manager 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 Owner 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.  Owner 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 Manager'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.


3. Digital Enabled Services; Data.  If Manager 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 Manager’s cloud-hosted software applications.  Owner consents to and grants Manager right to collect, ingest and use such data to enable Manager and its affiliates and agents to provide, maintain, protect, develop and improve the Digital Enabled Services and Manager products and services. Owner 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. Owner 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 Manager secure Network access for providing its Digital Enabled Services. As used herein, "Digital Enabled Services" mean services provided hereunder that employ Manager software and related equipment installed at Owner facilities and Manager 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.  


4. Owner Data:  Manager may use Owner data to provide Services to the customer.  Except as set forth herein, Manager will not disclose to any third party any individual Owner data acquired through performance of the Services without Owner consent.  Owner agrees that Manager and its subsidiaries, affiliates and approves third party contractors and developers may collect and use Owner data for any reason, as long as any external use of the data is on a de-identified basis that does not personally identify Owner or any individual.  Owner hereby grants Manager a perpetual, worldwide, irrevocable royalty free license to use, modify, manipulate sublicense, and create derivative works from such data. 


5. Data/Databases. It is understood that the Manager is in possession, and brings to the performance of Services for Owner, certain and specific knowledge and expertise relating to or arising out of its operations and maintenance experience (“Library Database”).  The Library Database is continually refined and updated during the course of the Manager performing Services.  Both Manager and Owner acknowledge that this Library Database will expand as a result of this Agreement.  It is further understood that the Manager will use this Library Database to develop site-specific operating procedures and data (“Site-Specific Operational Database”). As a condition of entering into this Agreement, Owner agrees to let Manager input such data pertaining to the Facility including, without limitation, management, cost, technical operations and maintenance, and real and personal property-related into both the Manager’s Library Database and the Site-Specific Operational Database.  It is further agreed and is a condition of entering into this Agreement, that the Manager will utilize data from Manager’s Library Database in the creation of the Site-Specific Operational Database. Manager will retain ownership of the Library Database, as amended from time to time, and Owner assigns all rights it might have in the data contained within the Library Database to Manager.  In consideration of the foregoing the Owner will have the right to use the Site-Specific Operational Database solely for the Facility, and for the duration of this Agreement.   If this Agreement is terminated, for whatever reason or by whatever means, Owner and Manager will cooperate to provide Owner with a copy of the data input by Manager during the Term of this Agreement.
6. Reports and documents. All reports or documents, including drawings, reports and related documentation (collectively the “Information”) specifically prepared for Owner by Manager during the course of this Agreement will become the property of Owner, provided however that Owner will have no right, title or interest in any of the underlying data, processes, methodologies or other intellectual property (in its broadest sense) used by Manager in compiling the Information.  The parties acknowledge and recognize that Manager, acting (by investment, training, or employing individuals possessed of special skills, or otherwise) on its own behalf, and in the course of ongoing business relationships with many clients, has developed certain standardized processes, formats, templates, procedures, and databases to assist in conducting the services described in this Agreement. Those standardized processes, formats, templates, procedures and databases will remain the property of Manager notwithstanding anything to the contrary contained in this Agreement.


24. Privacy. 
1. Manager as Processor: Where Manager factually acts as Processor of Personal Data on behalf of Owner (as such terms are defined in the DPA) the terms at www.johnsoncontrols.com/dpa (“DPA”) shall apply.


2. Manager as Controller: Manager will collect, process and transfer certain personal data of Owner and its personnel related to the business relationship between it and Owner (for example names, email addresses, telephone numbers) as controller and in accordance with Manager’s Privacy Notice at https://www.johnsoncontrols.com/privacy. Owner acknowledges Manager’s Privacy Notice and strictly to the extent consent is mandatorily required under applicable law, Owner consents to such collection, processing and transfer. To the extent consent to such collection, processing and transfer by Manager is mandatorily required from Owner’s personnel under applicable law, Owner warrants and represents that it has obtained such consent.
25. Miscellaneous.
1. Invalidity of Provisions.  If any provisions of this Agreement are be held to be contrary to law or invalid or unenforceable in any respect and any jurisdiction, or as to any one or more periods of time, geographical areas or business activities, the remaining provisions will not be affected but will remain in full force and effect as to the other and remaining provisions, and any such invalid or unenforceable provision will be deemed without further action on the part of the parties hereto, modified, amended, limited, and reformed to the extent necessary to render the same valid and enforceable.
   


2. No Third Party Beneficiaries.  Nothing contained in this Agreement will create a contractual relationship with or cause of action in favor of a third party against either the Owner or Manager.  The Services under this Agreement are being performed solely for the Owner’s benefit, and no other party or entity will have any claim against Manager because of this Agreement or the performance or non-performance of the Services hereunder.  Owner will indemnify, defend and hold harmless Manager from and against any losses, costs, claims, causes of action or liability from or alleged by third parties, as a result of or relating to this Agreement or the Services provided under this Agreement.
3. Headings.  The headings contained in this Agreement are for convenience of reference only and are not to be used in construing the provisions that follow them.
4. Non-Discrimination and Non-Segregation. Neither Party will permit any discrimination against or segregation of any person or group of persons in connection with the performance of this Agreement on account of sex, marital status, race, age, religion, color, creed, national origin, ancestry or disability, nor will either Party, or any person claiming under or through either Party, establish or permit any such practice or practices of discrimination or segregation in connection with the performance of any of the Services or other obligations under this Agreement.
5. Estoppel Letters.  Upon request, Owner and Manager will provide to the other, upon five (5) days' written notice, a written statement certifying that this Agreement is in full force and effect, that the Parties are current in their respective obligations under this Agreement and that the other Party is not in default under any of the provisions of this Agreement, except that, if the Party being requested to provide such a statement does not believe the foregoing to be true, it will state with particularity any matters which would render the foregoing representations untrue.
   
    
6. Further Assurances. Owner and the Manager each will act in good faith to do all acts, furnish to the other all documents, and do or cause to be done all such other things as any Party may reasonably request from the other Party from time to time in order to give full effect to this Agreement and to secure each Party’s respective rights.
7. Cooperation. Should any claim, demand, suit or any other legal proceedings be made or instituted by any person against one Party which arises out of any of the matters relating to this Agreement or out of any matters relating to another Party’s obligations to such Party or to third parties, such other Party will give such Party any pertinent information in the defense or other disposition thereof.
   
    
8. Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance will, to any extent, be invalid or unenforceable, the remainder of this Agreement, and the application of such term or provision to persons or circumstances other than those to which it has been held invalid or unenforceable, will not be affected thereby, but will be valid and enforceable to the fullest extent permitted by law.
   
    
9. Assignment. This Agreement is not assignable by the Owner except upon written consent of Manager first being obtained. Manager 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 Owner.
10. Entire Agreement. This Agreement represents the entire understanding between the Parties and supersedes any prior oral understandings, written agreements, proposals, or other communications between the two Parties. Any modification or amendment hereof must be made in writing and executed by both Parties

AGREED:

JOHNSON CONTROLS, INC.

___________________________________________
By:  
Title:  



[OWNER NAME]

___________________________________________
By:  
Title:  


Attachment A: Scope of Services

The Services will consist of the following:

(High Level Scope Description)

Manager will conform to all of the Johnson Controls standards, processes and procedures including but not limited to payroll, safety, annual reviews, employee conduct and business ethics.

The labor provided as part of this Agreement is to be performed during normal business hours that are approved by both Manager and Owner. These hours will not exceed a normal 40 hour work week unless otherwise approved by and paid for by ____________________ or unless otherwise stated within this Agreement. Manager’s employees at the Facility will be afforded all of the rights and privileges accrued and provided by Johnson Controls Benefits Plan inclusive of Manager vacations, sick days, holidays and personal time.

The Owner will provide all material, supplies, office space, furniture and equipment necessary for the functionality of these positions.

The section to follow will outline the primary duties and responsibilities of Manager’s on-site staff.

 


(Matrix of job descriptions, roles & responsibilities)

(Site team and branch support org chart)

(Matrix of managed and/or subcontracted services)

 

Attachment B: Facilities & Equipment

Attachment C: Compensation for Services

 

Attachment D: Addendum to Agreement for Monitoring of Intrusion, Fire and Other Life Safety Systems


If Remote Monitoring Services explicitly includes remote fire alarm monitoring, security alarm monitoring or video monitoring in the scope of work or customer charges, the Agreement is hereby modified and amended to include the terms and provisions of this Addendum to the Agreement for Monitoring of Intrusion, Fire and Safety Systems (the “Addendum”).  Capitalized terms that are not defined herein, shall have the meaning given to them in the Agreement. In the event of a conflict between the terms and conditions of this Addendum and those appearing in the Agreement, the terms and conditions of this Addendum shall prevail. 
1. Remote Monitoring of Alarm Signals. If Manager receives an emergency alarm signal at Manager’s ROC, Manager shall endeavor to notify the appropriate police or fire department, or other emergency response agency having jurisdiction and Manager shall endeavor to notify Owner or its designated representative by email unless instructed to do otherwise by Owner in writing and/or based on standard operating procedures for the ROC.  Manager, upon receipt of a non-emergency signal from the Premises, shall endeavor to notify Owner’s representative pursuant to Owner’s written instructions, defaulting to email or text notification.  Owner acknowledges that if the signals transmitted from the Premises will be monitored in a monitoring facility not operated by Manager, the personnel in such monitoring facilities are not the agents of Manager, nor does Manager assume any responsibility for the manner in which such signals are monitored or the response to such signal. 


2. Remote Monitoring Services Pricing. Remote Monitoring Services shall be provided by Manager if the Agreement includes a charge for such Service. If such Service is purchased, Manager will monitor the number of alarms for the Premises and the initial charge is based on the pricing agreed to by the parties, subject to the terms and conditions of this Addendum. If the number of alarms produced at the Premises goes beyond the contracted number of alarms in a month, Owner will be billed an overage fee.


3. Communications Media.  Owner acknowledges that monitoring of Covered Equipment requires transmission of signals over standard telephone lines and/or the Internet and that these modes of transmission may be interrupted, circumvented, or compromised, in which case no signal can be transmitted from the Premises to the monitoring facility.  Owner understands that to allow the monitoring facility to be aware of such a condition, additional or alternative protection can be installed, such as line security devices, at Owner’s cost and expense and for transmission via telephone line only.  Owner acknowledges it is aware that line security devices are available and, unless expressly identified in Schedule A - Equipment List, has declined to purchase such devices.  Owner further acknowledges that such additional protection is not available for Internet transmission under this Agreement.  
   
    


4. False/Unnecessary Alarms; Service Calls.  At Manager’s option, an additional fee may be charged for any false alarm or unnecessary Service Visit caused or necessitated by Owner.  In addition, Owner shall be fully responsible and liable for fines, penalties, assessments, taxes, fees or charges imposed by a governmental body, telephone, communication, or signal transmission company as the result of any false alarm and shall reimburse Manager for any costs incurred by Manager in connection therewith.  Owner shall operate the system carefully so as to avoid causing false alarms. False alarms can be caused by severe weather or other forces beyond the control of Manager. If an undue number of false alarms are received by Manager, in addition to any other available remedies available to Manager, Manager may terminate this Agreement and discontinue any Service(s) and seek to recover damages. If an agent is dispatched, by a governmental authority or otherwise, to respond to a false alarm, where the Owner, or any other party has intentionally, accidentally or negligently activated the alarm signal, Owner shall be responsible for and pay any and all fees and/or fines assessed with respect to the false alarms and pay to Manager the additional charges and costs incurred by it from a false alarm. If the Owner's system has a local audible device, Owner authorizes Manager to enter the Premises to turn off the audible device if Manager is requested or ordered to do so by governmental authorities, neighbors or anyone else and Owner will pay Manager its standard service call charge for each such visit.  Police agencies require repair of systems which cause false dispatches. Owner shall maintain the equipment necessary for Manager to supply the Services and Owner shall pay all costs for such maintenance. At least monthly, Owner will test the system's protective devices and send test signals to the ROC for all monitoring equipment in accordance with instructions from Manager or the ROC. Owner agrees to test the monitoring systems, including testing any ultrasonic, microwave, infrared, capacitance or other electronic equipment prior to the end of each month and will immediately report to Manager if the equipment fails to respond to the test. Owner shall make any necessary repairs as soon after receipt of notice as is reasonably practical. Owner shall at all times be solely responsible for maintaining any sprinkler system in good working order and provide adequate heat to the Premises.


5. Remote Monitoring of Video Monitoring Services. During the Term, Manager's sole and only obligation arising from the inclusion of Video Monitoring Services in any Service offering shall be to monitor the digital signals actually received by Manager at its ROC from means of the Video System and upon receipt of a digital signal indicating that an alarm condition exists, to endeavor, as permitted by law, to notify the police or other municipal authority deemed appropriate in Manager’s absolute discretion and to such persons Owner has designated in writing to Manager to receive notification of such alarm condition as set forth herein. . No alarm installation, repair, maintenance or guard responses will be provided under this Video Monitoring Services option. Manager may, without prior notice to Owner, in response to applicable law or insurance requirements, revise, replace, discontinue and/or rescind its response policies and procedures. 


1. Inception and conclusion of service. Video Monitoring shall be provided by Manager if this Agreement includes a charge for Video Monitoring Services. If such Video Monitoring Service is purchased, Video Monitoring Services will begin when the Video System is installed and operational, and when the necessary communications connection is completed. No obligation for the provision of this Video Monitoring Service will commence until these requirements are met.
2. Owner Equipment. Owner shall obtain, at its own cost and expense: (a) the equipment necessary to connect to Manager’s ROC; and (b) whatever permission, permits or licenses that may be necessary from all persons, governmental authorities, utility, and any other related service providers in connection with the Services.  The video system to be used by the Owner is intended to produce and transmit video images (the “Video System Images”) of the Premises to the ROC (the “Video System”). Manager makes no promise, warranty or representation that the video system will operate as intended. Owner further agrees that, notwithstanding any role or participation by Manager in Video System and Video System Images, Manager shall have no responsibility or obligation with regard to Owner, the Video System or any other Owner equipment.
3. System Location. The Video System related cameras shall be located and positioned by Owner along with attendant burglary digital alarm signal(s). Owner shall ensure that the Video System related cameras will be positioned and located such that it will only produce or capture Video System Images of areas of the Premises.  Owner will provide adequate illumination under all operating conditions for the proper viewing of the cameras. Owner acknowledges and agrees that Manager has exercised no control over, or participated in locating or positioning the Video System related camera including, but not limited to selecting what areas, locations, things or persons that the Video System Images may depict or capture.
4. Images. Owner shall be solely responsible for the Video System Images produced or captured by the Video System and Owner shall defend, indemnify and hold harmless Manager and its officers, agents, directors, and employees, from any and all damages, losses, costs and expenses (including reasonable attorneys’ fees) arising out of third party claims, demands, or suits in connection with the use, operation, location and position of the Video System, and the Video System Images resulting there from, including, but not limited to, any claims of any person depicted in a Video System image, including but not limited to, any claim by such person that his or her privacy has been invaded or intruded upon or his or her likeness has been misappropriated. Any duty to obtain the consent or permission of any person depicted in a Video System Image to have his or her likeness to be depicted, received, transmitted or otherwise used, and the duty to determine and comply with any and all applicable laws, regulations, standards and other obligations that govern the legal, proper and ethical use of video capturing devices, such as the Video System, including, but not limited to, notification that the Video System is in use at the Premises, shall be the sole responsibility of the Owner. Manager agrees to make Video System Images available to Owner and upon their respective request.  Manager makes no promise, warranty or representation as to the length of time that it retains Video Images, or the quality thereof. 
5. Video System Signals.  When a signal from the Video System is received, Manager reserves the right to verify all alarm signals before notifying emergency personnel, and may choose not to notify emergency personnel if it has reason to believe, in its sole discretion, that an emergency condition does not exist. Manager will first attempt to verify the nature of the emergency by using visual verification and/or the two-way voice system (if applicable) of the Video System included in Owner's system.  If Manager determines that an emergency condition exists, Manager will endeavor to notify the proper police or emergency contact on a notification call list provided in writing by Owner to Manager, or its designee. When a non-emergency signal is received, Manager will attempt to contact the first available Owner representative on the notification call list but will not notify emergency authorities, this notification will be in the form of email or text and follow ROC processes. If the customer requires phone calls to the call list for any emergency or non-emergency situation, the customer will need to make this request in writing. Owner authorizes and directs Manager, as its agent, to use its full discretion in causing the arrest or detention of any person or persons on or around the premises who are not authorized by Owner. MANAGER WILL NOT ARREST OR DETAIN ANY PERSON. 
6. Recordings.  Owner consents to the tape recording of all telephonic communications between the Premises and Manager.   Manager will have no liability arising from recording (or failure to record) or publication of any two-way voice communications, other video recordings or their quality. Manager shall have no liability in connection with Video System or the Video System Images, including, but not limited to, any failure, omission, negligence or other act by Manager, or any of its officers, employees, representatives, agents, contractors, or any other third party in connection with the receipt (or failure of receipt), transmission, reading, interpreting, or response to any Video Image.
   
    
6. Risk of Loss is Owner’s.  Manager does not represent or warrant that the Services will detect or prevent the events they are intended to help detect or prevent including any loss by burglary, holdup, fire or otherwise ("Detection Events"), or that the Services will be uninterrupted or error-free. Owner assumes all risk of loss or damage to Owner's person or property, or the property of others, if such an event occurs and has not relied on any representations and warranties of Manager, express or implied, except as specifically out herein. Neither Manager nor its suppliers shall have any liability for loss, damage or injury due directly or indirectly to Detection Events, or the consequences therefrom.  Further, expressly excluded from this Agreement are the warranties of merchantability or fitness or suitability for a particular purpose. 
   NOTWITHSTANDING THE FOREGOING, IF JOHNSON CONTROLS SHOULD BE FOUND LIABLE FOR LOSS, DAMAGE OR INJURY DUE TO AN ACT OR OMISSION BY JOHNSON CONTROLS OR A FAILURE OF THE EQUIPMENT OR SERVICE IN ANY RESPECT, ITS LIABILITY WILL BE LIMITED TO A SUM EQUAL TO 10% OF THE ANNUAL SERVICE CHARGE OR $1,000, WHICHEVER IS GREATER, AS THE AGREED UPON DAMAGES AND NOT AS A PENALTY, AND AS THE EXCLUSIVE REMEDY. THIS PARAGRAPH SHALL APPLY IF LOSS, DAMAGE OR INJURY, IRRESPECTIVE OF CAUSE OR ORIGIN, AND REGARDLESS OF LEGAL THEORY, RESULTS DIRECTLY OR INDIRECTLY TO PERSON OR PROPERTY OR FROM PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS IMPOSED BY THIS AGREEMENT. IF ANY THIRD PARTY, INCLUDING CUSTOMER’S SUBROGATING INSURER, MAKES A CLAIM OR FILES A LAWSUIT AGAINST JOHNSON CONTROLS IN ANY WAY RELATING TO THE EQUIPMENT OR SERVICES,  CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS JOHNSON CONTROLS FROM ANY AND ALL SUCH CLAIMS AND LAWSUITS INCLUDING THE PAYMENT OF ALL DAMAGES, EXPENSES, COSTS AND ATTORNEYS' FEES.


7. MANAGER’S RECEIPT OF ALARM SIGNALS, ELECTRONIC DATA, VOICE DATA OR IMAGES (COLLECTIVELY, “ALARM SIGNALS”) FROM THE EQUIPMENT OR SYSTEM INSTALLED IN THE PREMISES IS DEPENDENT UPON PROPER TRANSMISSION OF SUCH ALARM SIGNALS. MANAGER’S ROC CANNOT RECEIVE ALARM SIGNALS WHEN THE CUSTOMER’S TELCO SERVICE OR OTHER TRANSMISSION MODE IS NOT OPERATING OR HAS BEEN CUT, INTERFERED WITH, OR IS OTHERWISE DAMAGED, OR IF THE ALARM SYSTEM IS UNABLE TO ACQUIRE, TRANSMIT OR MAINTAIN AN ALARM SIGNAL OVER CUSTOMER’S TELCO SERVICE OR TRANSMISSION MODE FOR ANY REASON INCLUDING BUT NOT LIMITED TO NETWORK OUTAGE OR OTHER NETWORK PROBLEMS SUCH AS CONGESTION OR DOWNTIME, ROUTING PROBLEMS, OR INSTABILITY OF SIGNAL QUALITY. CUSTOMER UNDERSTANDS THAT SIGNAL TRANSMISSION FAILURE MAY OCCUR OVER CERTAIN TYPES OF TELCO SERVICES SUCH AS SOME TYPES OF DSL, ADSL, VOIP, DIGITAL PHONE, INTERNET PROTOCOL BASED PHONE OR OTHER INTERNET INTERFACE-TYPE SERVICE OR RADIO SERVICE, INCLUDING CELLULAR, WIRELESS OR PRIVATE RADIO, OR CUSTOMER'S PROPRIETARY TELCOMMUNICATION NETWORK, INTRANET OR IP-PBX, OR OTHER THIRD-PARTY EQUIPMENT OR VOICE/DATA TRANSMISSION NETWORKS OR SYSTEMS OWNED, MAINTAINED OR SERVICED BY CUSTOMER OR THIRD PARTIES, IF: (1) THERE IS A LOSS OF NORMAL ELECTRIC POWER TO THE MONITORED PREMISES OCCURS (THE BATTERY BACK-UP FOR MANAGER’S ALARM PANEL DOES NOT POWER CUSTOMER’S COMMUNICATION FACILITIES OR TELCO SERVICE); OR (2) ELECTRONIC COMPONENTS SUCH AS MODEMS MALFUNCTION OR FAIL. CUSTOMER UNDERSTANDS THAT MANAGER WILL ONLY REVIEW THE INITIAL COMPATIBILITY OF THE ALARM SYSTEM WITH CUSTOMER’S TELCO SERVICE AT THE TIME OF INITIAL INSTALLATION OF THE ALARM SYSTEM AND THAT CHANGES IN THE TELCO SERVICE’S DATA FORMAT AFTER MANAGER’S INITIAL REVIEW OF COMPATIBILITY COULD MAKE THE TELCO SERVICE UNABLE TO TRANSMIT ALARM SIGNALS TO MANAGER’S ROC. IF MANAGER DETERMINES IN ITS SOLE DISCRETION THAT CUSTOMER’S TELCO SERVICE IS COMPATIBLE, MANAGER WILL PERMIT CUSTOMER TO USE ITS TELCO SERVICE AS THE PRIMARY METHOD OF TRANSMITTING ALARM SIGNALS, ALTHOUGH CUSTOMER UNDERSTANDS THAT MANAGER RECOMMENDS THAT CUSTOMER ALSO USE AN ADDITIONAL BACK-UP METHOD OF COMMUNICATION TO CONNECT CUSTOMER’S ALARM SYSTEM TO MANAGER’S ROC REGARDLESS OF THE TYPE OF TELCO SERVICE USED. CUSTOMER ALSO UNDERSTANDS THAT IF MANAGER DETERMINES IN ITS SOLE DISCRETION THAT CUSTOMER’S TELCO SERVICE IS, OR LATER BECOMES, NON-COMPATIBLE, OR IF CUSTOMER CHANGES TO ANOTHER TELCO SERVICE THAT IS NOT COMPATIBLE, THEN MANAGER WILL REQUIRE THAT CUSTOMER USE AN ALTERNATE METHOD OF COMMUNICATION ACCEPTABLE TO MANAGER AS THE PRIMARY METHOD TO CONNECT CUSTOMER’S ALARM SYSTEM TO MANAGER’S ROC. MANAGER WILL NOT PROVIDE FIRE OR SMOKE ALARM MONITORING FOR CUSTOMER BY MEANS OTHER THAN AN APPROVED TELCO SERVICE AND CUSTOMER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE FOR ASSURING Representations and Warranties.THAT IT USES APPROVED TELCO SERVICE FOR ANY SUCH MONITORING AND THAT IT COMPLIES WITH NATIONAL FIRE ALARM STANDARDS AND LOCAL FIRE CODES. CUSTOMER ALSO UNDERSTANDS THAT IF CUSTOMER’S ALARM SYSTEM HAS A LINE CUT FEATURE, IT MAY NOT BE ABLE TO DETECT ALARM SIGNALS IF THE TELCO SERVICE IS INTERRUPTED, AND THAT MANAGER MAY NOT BE ABLE TO DOWNLOAD SYSTEM CHANGES REMOTELY OR PROVIDE CERTAIN AUXILIARY MONITORING SERVICES THROUGH A NON-APPROVED TELCO SERVICE. CUSTOMER ACKNOWLEDGES THAT ANY DECISION TO USE A NON-APPROVED TELCO SERVICE AS THE METHOD FOR TRANSMITTING ALARM SIGNALS IS BASED ON CUSTOMER’S OWN INDEPENDENT BUSINESS JUDGMENT AND THAT ANY SUCH DECISION IS MADE WITHOUT ANY ASSISTANCE, INVOLVEMENT, INPUT, RECOMMENDATION, OR ENDORSEMENT ON THE PART OF MANAGER. CUSTOMER ASSUMES SOLE AND COMPLETE RESPONSIBILITY FOR ESTABLISHING AND MAINTAINING ACCESS TO AND USE OF THE NON-APPROVED TELCO SERVICE FOR CONNECTION TO THE ALARM MONITORING EQUIPMENT.  CUSTOMER FURTHER UNDERSTANDS THAT THE ALARM SYSTEM MAY BE UNABLE TO SEIZE THE TELCO SERVICE TO TRANSMIT AN ALARM SIGNAL IF ANOTHER CONNECTION HAS DISABLED, IS INTERFERING WITH, OR BLOCKING THE CONNECTION.

 

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