Advanced Security, LLC Monitoring Agreement
This Service Agreement (the “Agreement”) is made as of the Agreement Date between the customer procuring the services (“Customer”) and Advanced Security, LLC (“Provider”), an Indiana limited liability company.
A. Background and Services
Customer desires to engage Provider as an independent contractor to provide and/or facilitate the remote monitoring (“Monitoring Service[s]”) of security alarms systems (“System[s]”) located at real estate owned, leased, or controlled by Customer (a “Service Address”).
This Agreement is intended to provide the general terms and conditions under which Provider will provide Monitoring Services to Customer. The execution of this Agreement will not obligate Provider to accept any specific monitoring assignment or provide Monitoring Services at any Service Address.
It is intended that the parties will also enter into a separate order form(s) describing the specific services to be provided to a Service Address and associated fees (each, an “Order”). All Orders executed by Customer and accepted by Provider will be automatically incorporate into and made a part of this Agreement. In the event of any conflict between the terms of an Order and the body of this Agreement, the terms of the Order will prevail for that specific engagement.
B. Fees and Payments
Customer will pay Provider all fees described in any Order or other scope of services agreed to by the parties. It is acknowledged that the general means in which Provider is contemplated for recurring Monitoring Services is by way of a monthly fee. However, Provider may also be entitled to additional fees for setup, consultation, repair/troubleshooting, or other non-recurring services it may agree to provide to Customer. Quoted fees for Monitoring Service may not be inclusive of applicable taxes and governmental agency fees.
1. ACTIVATION OF SYSTEM: Unless otherwise specifically stated in an Order, all recurring charges for Monitoring Services will commence when the applicable System is activated and registered. No refunds of any fees will be owed or provided once a System is activated. Recurring fees for Monitoring Services are due in advance, and Customer may be charged prorated fees for any partial calendar months of Monitoring Services.
2. PAYMENT METHOD: Customer authorizes Provider to accept and initiate payments for fees through any payment method provided by Customer, specifically including the initiation of a withdrawal by electronic transfer and the charge of a credit card. Customer agrees to keep its payment information (whether credit card, ACH information, or otherwise) provided to Provider current at all times during the Term and to notify Provider of any updates to such payment method. Customer acknowledges that Provider may not have exact control over the date on which a third-party payment processor initiates charges.
3. REACTIVATION CHARGE: If Monitoring Services have been suspended or terminated and Customer later desires to reactivate, Customer agrees to pay a reactivation charge at Provider’s then-standard rate (which is acknowledged to be $20.00 as of the Agreement Date) together with any past due balances for services to be reactivated.
4. UNPAID FEES: Past due balances of Customer shall accrue interest at the rate of one and a half (1.5%) percent per month from the date of delinquency. Provider reserves the right to refuse to repair or provide technical support or perform Monitoring Services until all past amounts have been paid in full. Customer agree to pay a $30.00 administrative fee for any payment transaction that is returned to Provider as unpaid or declined for any reason, including insufficient funds and cancelled or disputed charges, as well as, collection costs and expenses, including without limitation, reasonable attorneys’ fees incurred by the Provider to collect amounts owed. These penalty payments are in addition to any other collection-related expenses owed under this Agreement.
5. PRICING ADJUSTMENT. Provider reserves the right to increase fees at any time for Monitoring Service with written notice (notice via E-mail to an address provided by Customer will satisfy this notice requirement) for any reason, regardless of anything published on its website.
C. Term of the Agreement
The Term of this Agreement begins on the Agreement Date and continues until cancelled by written notice issued by either party. Unless expressly stated otherwise in an Order, all Monitoring Services are provided on a month-to-month basis. Either party may cancel Monitoring Service at any time with 30 days’ advance written notice to the other party. Additionally, Provider may immediately terminate Monitoring Service at any time for cause (e.g., nonpayment) or frustration of purpose (e.g., malfunctioning or antiquation of the Customer’s system, regulatory changes, destruction of necessary equipment, etc.) with notice to Customer. Provider’s termination of service shall not constitute a waiver of its right to collect any charges or expenses which have accrued prior to or become due after termination or to pursue any remedy permitted under law or in equity. In the event of any termination of this Agreement, Customer will be obligated to pay Provider: (i) all fees earned prior to the effective date of the termination, within 10 days following termination.
D. Contract Provider
Customer acknowledges and agrees Provider will have the right to engage a third-party subcontractor to perform some or all of the Monitoring Services.
E. Service Activation and Technical Assistance
1. SYSTEM INFORMATION
Customer agrees to provide all information necessary for Provider to commence Monitoring Services (including emergency contacts, system information, property location, and information for the zones) for any system by submitting Provider’s form for such purpose. For all monitored Systems, Customer agrees on an ongoing basis to promptly notify Provider of any changes to such information.
2. PROVIDER EQUIPMENT
For products or equipment purchased directly from Provider to be utilized in a monitored System, Provider will provide, at no cost for the first 30 days following purchase, instructions and reasonable assistance with installation, set-up, and proper use of the equipment in order to enable commencement of the Monitoring Services. After 30 days, a service fee may apply for any setup and activation assistance.
3. THIRD-PARTY EQUIPMENT
For products or equipment NOT purchased from Provider, Provider has no obligation to provide any technical support or set-up assistance. However, if Provider does agree to provide such assistance, it will be charged at Provider’s then-current rates for such support.
4. DIY EQUIPMENT
Customer acknowledges certain equipment may be purchased from Provider on a ‘do-it-yourself’ (a/k/a DIY) basis. For such DIY purchases, Provider will not have any responsibility for (i) the performance of any equipment; and.or (ii) the transmission of signals to and from the monitoring station.
5. CUSTOMER ACTIVATION RESPONSIBILITY
Customer agrees Provider is not responsible or liable in any way for any programming, alterations, additions, or any other changes to a system made by any party other than Provider. Customer is responsible for testing and verifying a System is programmed and reporting correctly to the monitoring station.
F. System Communications
Customer consents to Provider remotely accessing Customer’s System for the purpose of providing technical assistance or intervening to prevent a system from sending inadvertent signals to a monitoring station. Customer acknowledges Provider and/ or monitoring centers may record all communications with customers, and Customer hereby consents to being recorded for business records and training purposes. Customer further hereby authorizes and consents to Provider (and its subcontractors) retrieving, copying, and/or disclosing by any method any telephonic, video, written, or any other type of communication between Customer (including its representatives, agents, and occupants) and Provider (or its subcontractors) in connection with any investigation by law enforcement or other governmental agency, or pursuant to court order, related to any incident in connection with the Monitoring Services.
G. Customer’s Responsibilities and Representations
1. LEGAL COMPLIANCE: Customer acknowledges that Provider is not an attorney and cannot provide legal advice regarding the applicability or interpretation of any laws that may govern Customer’s Systems and/or Service Addresses. Customer retains all responsibility for the Compliance of the Systems with all laws, including state, county, and municipal ordinances, codes, and regulation. Customer is responsible for notifying Provider of all applicable state, county and local codes and ordinances and any changes of such codes and ordinances which may affect the Monitoring Service.
2. LICENSES AND PERMITS: Customer will be solely responsible for the maintenance of and any costs associated with all required licenses, permits, registrations or other governmental authorizations necessary for the Systems and/or the Monitoring Services, even if any such licenses, permits, or registrations are processed by Provider on Customer’s behalf. If Provider is charged for any fees, fines, or other charges related to a System or Service Address, Customer agrees to promptly reimburse Provider for such expenses and authorizes Provider to process payment Customer’s payment method on file. If any required authorization for a System or Service Address is denied, revoked, restricted, or not renewed, Provider shall not have any liability related thereto, and Customer will not be relieved of obligations for expenses incurred by Provider.
3. EQUIPMENT CONNECTIVITY: Customer is responsible at its sole expense for furnishing electricity and connectivity equipment as may be required, now or in the future, for provision of the Monitoring Services. Customer also agree to furnish at its cost a communication path appropriate for the equipment being monitored, such as: (i) plain ordinary telephone service (PSTN); (ii) cellular communicator; (iii) internet (e.g., cable, DSL, broadband, etc.); or (iv) voice over internet protocol (VoIP). Customer acknowledges that VoIP communication system should have the capacity to transmit signals to the monitoring station or to 911 emergency services. As VoIP communications are not recommended for use by Provider, Customer is encouraged to have a backup system, such as cellular radio, or other network monitoring device to ensure alarm signal transmission. Notwithstanding the generality of the foregoing, Customer acknowledges that emergency dispatch will not occur if emergency signals are not received at the monitoring station for any reason.
4. EQUIPMENT MAINTENANCE: Customer is responsible at its sole expense for maintaining all System equipment being monitored in good repair, condition, and working order. Customer agrees to perform system checks of all connected devices in accordance with manufacturer recommendations at least monthly to confirm proper functioning, including performing walk tests for installed motion detection devices and checking batteries (which shall be replaced by Customer at its own expense). Customer agrees to promptly notify Provider of any operating defect in a monitored System. Customer acknowledges Provider is in no way obligated to maintain or service any System or any device, product, or equipment not part of the system.
5. COOPERATION AND INFORMATION: Customer acknowledges that, in order to effectively provide the services, Provider expects to require assistance and information from Customer and its personnel. In order to assist Provider in its responsibilities related to this Agreement, Customer agrees to timely provide information and complete all forms necessary for the provision of Services (specifically including any applications for licenses or permits which Provider may choose to process on Customer’s behalf as an administrative convenience).
6. INDEMNIFICATION: Customer agrees to indemnify and hold harmless Provider (for this purpose, including its owners, members, managers, employees, agents, affiliates, and successors) from and against any claim, loss, liability, loss or damages incurred by Provider arising from Customer’s: (i) breach or default of any obligation under this Agreement; (ii) negligence or other wrongful act or omission, including that of Customer’s employees, representatives, or agents; and/or (iii) violation of any law, rule, regulation, code or ordinance. If the property of any third party is located at a Service Address, or a System extends to protect the persons or property of others, Customer’s indemnification obligations will extend to all claims brought by such third parties.
7. AUTHORITY AND CAPACITY: The person executing this Agreement on behalf of Customer represents that he or she has the full authority necessary to bind Customer to this Agreement. If Customer is a natural person, Customer represents that he or she is at least 18 years of age and has the competency and capacity to enter into this Agreement.
8. LEGAL REVIEW: Customer hereby acknowledges it had the opportunity to have this Agreement reviewed by an attorney representing Customer.
H. Insurance
Customer acknowledges Provider is not an insurer and that the Monitoring Services do not insure (or otherwise provide reimbursement for) and Service Address or property located therein. Customer acknowledges that it is responsible for containing adequate insurance coverage for any bodily injury, death, and damage to or loss of property. Customer acknowledges alarm systems are not fool proof nor infallible and can malfunction, and understands that the System and Monitoring Services should not be relied upon as a substitute for adequate insurance coverage.
I. Limited Warranty
CUSTOMER ACKNOWLEDGES THIS AGREEMENT CONTAINS ONLY THE FOLLOWING LIMITED WARRANTY RELATED TO MONITORING SERVICES. Provider warrants the Monitoring Services will be performed in a professional and workmanlike manner consistent with industry standards. If Provider receives written notice from Customer of any non-conformity of the Monitoring Services with this limited warranty, Customer’s sole and exclusive remedy for any breach of the foregoing limited warranty will be a refund to Customer of the fees paid for the non- confirming services.
This limited warranty and refund remedy are the exclusive warranty provided in relation to the Monitoring Services and IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW. TO THE EXTENT NOT PROHIBITED BY STATE LAW, THESE IMPLIED WARRANTY LIMITATIONS WILL APPLY IN DURATION AND SCOPE REGARDLESS OF THE BASIS OF LIABILITY, INCLUDING NEGLIGENCE, WILLFUL MISCONDUCT, MISREPRESENTATION, BREACH OF ANY KIND, OR ANY OTHER CLAIMS IN CONTRACT, TORT OR OTHERWISE.
J. Limitations of Liability
Provider (for this purpose, including its owners, members, managers, employees, agents, affiliates, and successors) will not have any liability or responsibility to Customer, nor to any other person making a claim through Customer or in relation to the Monitoring Services, in relation to any of the following. CUSTOMER EXPRESSLY ACKNOWLEDGES THIS AGREEMENT LIMITS LIABILITY AND REMEDIES RELATED TO THE MONITORING SERVICES.
1. PRIOR SERVICES: Provider is not liable for any claim of any other company related to the Monitoring Service and/or any services previously or later provided by any third party unrelated to Provider’s Monitoring Services.
2. INJURY OR PROPERTY DAMAGE: Provider is not liable for injuries to persons, or damage to or loss of property, for any general, direct, special, indirect, incidental, punitive, exemplary, or consequential losses, damages, or expenses (including, but not limited to, loss of revenue, profits, savings, or loss of business, inventory, or personal property, or other financial loss, loss of use or cost of procurement of substitute goods or services, third party products or services or the sale, license, installation, servicing, maintenance, use, warranty, performance, failure or interruption of the Monitoring Services under any legal theory or for any cause whatsoever, whether based upon warranty, contract, tort, negligence, or other theory, regardless of whether Customer was advised of the possibility thereof.
3. SYSTEM FAILURE: Provider does not represent nor warrant that Customer’s System will not be compromised or circumvented, or that the System or monitoring service will in all cases provide the signaling, monitoring, and response for which they are intended, or that the Monitoring Services will prevent any personal injury or loss by burglary, hold-up, fire or otherwise, or that Customer’s System will in all cases provide the protection for which it is installed. Provider shall not be liable for the failure of any System devices to send signals. Customer is solely responsible for the proper installation, programming, operation, maintenance, and regular testing of all devices connecting to the system being monitored to send signals to the monitoring station.
4. NO IMPLIED WARRANTIES: Provider makes no representation or warranting regarding suitability or condition of any System. Provider makes no implied warranty of merchantability or fitness for particular purpose nor any warranty that the Monitoring Services will avert or prevent occurrences or the consequences therefrom, even if the System is intended to detect or avert such occurrences.
5. PAYMENT PROCESSING: Customer acknowledges its payments may be processed using a third-party processor and agrees Provider has no control of the third party or the process. Provider will have no financial or other liability for any loss or damages Customer may suffer from the use of such payment processing methods or for any disclosure, theft, or unauthorized use of any information provided by Customer.
6. MAXIMUM LIABILITY: Provider’s maximum liability for damages arising from this Agreement, including, without limitation, arising out of or related to the Monitoring Services, will not exceed, in the aggregate, the price paid to Provider for the prior six (6) months of monitoring service or $1,00.00, whichever is less. This limitation of liability is cumulative and not per incident. Some jurisdictions do not permit the limitation or exclusion of certain liabilities so the above limitations may not apply in whole or in part in such jurisdiction.
The limitations and disclaimers described in this section will survive the termination of this Agreement. Customer has accepted these limitations as part of the bargain for the pricing of the Monitoring Service and understands that the price of the service would be higher if Provider were required to bear additional liability for damages.
K. Alarm.Com Incorporated Terms
For any Monitoring Services in which some or all of the service is provided by Alarm.com Incorporated (including any successor or affiliate thereof, “Alarm.com”), the terms of this paragraph will apply. Customer acknowledges it is purchasing residential or commercial security products and services from an independently owned and operated security services dealer. Alarm.com has authorized Provider to market and sell to Customer “Alarm.com Services” for your use with certain hardware and other products (“Equipment”) that enable the Alarm.com Services. Alarm.com maintains a set of standard terms (the “Alarm.com Terms”) which contain among other things, important warranty disclaimers and limitations of liability applicable to Customer’s use of the Alarm.com Services and products. By entering into this Agreement with Provider and by accessing the Alarm.com customer website or using any other part of the Alarm.com Services, Customer agrees to be bound by the Alarm.com Terms. Although the Alarm.com Terms are part of this legal agreement with Provider, Customer acknowledges and agrees that they may also be enforced by Alarm.com directly.
L. Right to Amend Terms
It may be necessary for Provider from time-to-time to amend the terms under which it provides Monitoring Services in order to accommodate new technologies, industry practices, regulatory requirements, or for other purposes. Provider will have the right to amend any term in this Agreement with 30 days’ advance written notice to Customer. If Customer objects to any proposed amendment to this Agreement, Customer may terminate its Monitoring Service effective upon written notice to Provider. However, if Customer continues to utilize Provider’s services following the effective date of such an amendment, such continued use will be deemed to constitute Customer’s acceptance of the changes and an amendment to this Agreement.
M. Default
Customer will be in default of this Agreement if: (a) any Customer payment is not timely received or is declined (unless Customer provides a valid form of payment within 5 days of notification of denial); (b) Customer willfully or negligently causes or permits repeated false alarms/signals and fails to take immediate corrective measures upon notice by the monitoring station of the problem; (c) Customer fails to perform any other obligation under this Agreement and not correct the same within 5 days of notice of your breach by Provider In any such default, Provider has the right to immediately terminate Monitoring Service to some or all Customer Locations without notice.
N. Miscellaneous Provisions
The parties agree as follows:
1. OTHER SERVICE PROVIDERS: Provider may, as a courtesy but not pursuant to any duties and without liability, refer Customer to other professionals, service providers, or product vendors. Provider has no responsibility for the performance of any third-party service provider. Customer is free to select providers other than those referred or recommended.
2. ENTIRE AGREEMENT: This Agreement (including any incorporated Orders) contains the entire agreement of the parties, and supersedes any and all prior agreements and understandings, whether written or oral, not incorporated herein. It is mutually understood and agreed that any representation, promise, advertising or other statement, condition, inducement, or warranty, express or implied, whether written or verbal, not included in writing in this Agreement will not be binding upon the parties.
3. INTERPRETIVE TERMS: If any terms or provisions of this Agreement shall be determined to be invalid or inoperative, all of the remaining terms and provisions herein shall remain in full force and effect. The relationship between the parties shall be that of contractors, and nothing in this Agreement is intended to create any relationship of employment, agency, partnership, or joint venture between the parties. The parties intend that electronically or digitally transmitted signatures constitute original signatures and are binding on the parties. Headings and captions used herein are for convenience only, do not form a part of the agreement, and shall in no way affect its interpretation. With respect to the interpretation of this Agreement concerning an ambiguity or otherwise, there shall be no presumption against Provider as the drafter of this Agreement. An electronic signature to this Agreement shall be deemed binding as if it were an original signature.
4. ASSIGNMENT AND SURVIVAL: This Agreement is binding upon the parties’ heirs, administrators, executors, successors, and assigns. Customer agrees that this Agreement may be assigned by Provider to an affiliated party of Provider or any purchaser of the assets of Provider. All provisions and obligations of an ongoing nature, or that are equitable to have survive for application and protection of a party’s rights following the termination of Provider’s service obligations, shall survive beyond any expiration or termination of this Agreement.
5. FORCE MAJEURE: The obligations of the parties under this Agreement (except the obligation of Customer to make timely payment of fees and expenses owed Provider) shall be excused for that period of time that a party cannot fulfill such obligations by reason of delays beyond its reasonable control, including without limitation acts of God, inclement weather, war, insurrection or civil unrest, terrorists acts, labor strikes, inability to obtain necessary materials or supplies, inability to obtain necessary permits, licenses or approvals, disruption or telephone or data services, or any other event commonly included within the definition of force majeure. Consequently, Provider will not be required to perform any Monitoring Service while such force majeure event continues and any such nonperformance shall not be deemed a breach or default by Provider, but will endeavor to resume service at soon as practical
6. WAIVER: The failure of Provider to enforce any of provision herein shall not be construed to be a waiver of Provider’s right thereafter to enforce such provision or any other provision.
7. GOVERNING LAW: The laws of the State of Indiana shall govern the terms of this Agreement and the courts located in St. Joseph County, Indiana, shall have exclusive jurisdiction over all matters related to this Agreement unless otherwise consented to by Provider or required by law.
8. DEFAULT: If it becomes necessary for Provider to institute any action, whether formal litigation or informal collection efforts, in order to secure compliance with this Agreement, then, in addition to all other sums Provider may recover, Provider will be entitled to recover court costs, attorney fees, pre-judgment and post-judgment interest, and all other costs incurred by Provider in connection therewith. Any sums not paid to Provider when due will accrue interest at the rate of 10.0% per annum between the date such sum was due and such sum was paid.
9. NOTICE: Notices given under this Agreement may be: (i) hand delivered to a representative of the party; (ii) sent to the address provided for the party (whether in this Agreement, any Order, or any subsequent communication, specifically including any Billing Address provided by Customer) by U.S. mail, postage prepaid, certified-return receipt requested or by a national overnight courier; or (iii) delivered by e-mail to the address provided by a representative of the party.
10. ELECTRONIC FORMAT: Customer agrees to enter into this agreement in electronic format pursuant to the federal Electronic Signatures in Global and National Commerce Act and the Uniform Electronic Transactions Act.
By accepting these terms, Customer agrees to be bound to this Agreement. Customer acknowledges that providing its acknowledgment/agreement via an online form will be treated as creating a contractual obligation.
