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1. LIMITATION OF COMPANY’S LIABILITY. IF THE COMPANY AND/OR ITS SUBCONTRACTORS IS FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, GROSS NEGLIGENCE, NEGLIGENT MISREPRESENTATION, STRICT PRODUCT LIABILITY, SUBROGATION, INDEMNIFICATION OR CONTRIBUTION , OR ANY OTHER THEORY OF LIABILITY ARISING FROM THE DESIGN, LOCATION, POSITIONING, COVERAGES, NUMBER OF DEVICES, DEVICE SELECTION OR RECOMMENDATION, INSTALLATION, MONITORING, REPAIRING, SERVICING, OPERATION OR NON-OPERATION, OR TAKING OVER THE SYSTEM, IN ANY RESPECT AT ALL, THE MAXIMUM LIABILITY WILL BE LIMITED TO THE SUM OF $1000.00 COLLECTIVELY FOR COMPANY, ITS SUBCONTRACTORS AND REPRESENTATIVES, AND THIS LIABILITY SHALL BE EXCLUSIVE. THE COMPANY WILL ASSUME A GREATER LIABILITY, BUT ONLY FOR AN ADDITIONAL CHARGE TO BE AGREED UPON BY THE CUSTOMER AND THE COMPANY. IF THE COMPANY DOES SO, A RIDER WILL BE ATTACHED TO THIS AGREEMENT.
THE COMPANY AND/OR ITS SUBCONTRACTORS EXPRESSLY DENIES ALL LIABILITY FOR ANY LOSS OR DAMAGE ABOVE THE LIMITATION OF LIABILITY WHICH MAY OCCUR BEFORE OR AFTER SIGNING THIS AGREEMENT. THIS INCLUDES LIABILITY BASED ON CONTRACT, TORT, WARRANTY (INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) AND ANY OTHER THEORY OF LIABILITY.
THIS LIMITATION OF LIABILITY SPECIFICALLY COVERS LIABILITY FOR, AMONG OTHER THINGS, LOST PROFITS; LOST OR DAMAGED PROPERTY; LOSS OF USE OF PROPERTY OR THE PREMISES; GOVERNMENT FINES AND CHARGES; PERSONAL INJURIES; CROSS-CLAIMS AND OTHER CLAIMS FOR INDEMNITY AND CONTRIBUTION; AND THE CLAIMS OF THIRD PARTIES. ALSO COVERED BY THIS LIMITATION ARE THE FOLLOWING TYPES OF DAMAGES: DIRECT, INDIRECT, SPECIAL, INCIDENTAL, AND CONSEQUENTIAL (DAMAGES THAT RESULT FROM AN ACT, BUT DO NOT DIRECTLY RELATE TO THE ACT) AND PUNITIVE (DAMAGES USED TO MAKE AN EXAMPLE OF SOMEONE).
2. INSURANCE WAIVER OF SUBROGATION. The Customer understands that the COMPANY IS NOT AN INSURER. The Customer is responsible for obtaining all insurance the Customer thinks is necessary, including coverage for personal injury and property damage. The payments the Customer makes under this Agreement are not related to the value of the Premises or the Customer’s possessions, but rather are based on the cost of the System and the Company’s services.
The Customer and Customer’s insurance company release the Company and/or its Subcontractors from any liability for any loss, event or condition covered by the Customer’s insurance. THIS IS ALSO KNOWN AS A WAIVER OF SUBROGATION PROVISION.
The Customer understands that the System is designed to reduce, but not eliminate, certain risks. The Company does not guaranty that the System will prevent personal injury, property damages, or unauthorized entrances into the Premises.
3. LIMITED WARRANTY FOR SERVICE AGREEMENTS. (Does Not Apply to Take Over)
(a) For 12 months from the date of this Agreement and for Sales and Leases only, the Company warrants that if any part of the System does not work because of a defect or because of ordinary wear and tear, the Company will repair or replace that part at no charge to the Customer. This Limited Warranty does not apply to a Take Over.
The service agreement does not cover batteries, nor does it apply if the System has been damaged by the Customer, accidents, power surges, misuse, theft, vandalism, lack of proper maintenance, unauthorized changes or acts of God (such as fires, earthquakes, floods, tornadoes, etc.).
(b) This limited warranty is the only warranty the Company makes, is made only if the Company installed the System, and takes the place of all other warranties whether express or implied. NO EXPRESS OR IMPLIED WARRANTIES EXTEND BEYOND THE FACE OF THIS AGREEMENT. THE COMPANY MAKES NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY AND ALL SUCH WARRANTIES BEING EXPRESSLY WAIVED UNDER THIS AGREEMENT.
4. CUSTOMER’S PROTECTION OF COMPANY. THIS AGREEMENT IS INTENDED ONLY FOR THE CUSTOMER’S BENEFIT. THEREFORE, THE CUSTOMER SHALL PROTECT, INDEMNIFY, DEFEND, RELEASE AND HOLD HARMLESS THE COMPANY AND ITS RELATED PARTIES FROM LIABILITY AGAINST ALL THIRD PARTY CLAIMS OR LOSSES (INCLUDING REASONABLE ATTORNEYS FEES) BROUGHT AGAINST THE COMPANY WHICH RELATE TO THE SYSTEM OR THE SERVICES THE COMPANY PROVIDES. THE COMPANY’S RELATED PARTIES INCLUDE THE COMPANY’S EMPLOYEES, AGENTS, MONITORING AND OTHER SUBCONTRACTORS.
THIS PROTECTION/INDEMNITY COVERS CLAIMS BROUGHT AGAINST THE COMPANY BY THE CUSTOMER’S INSURANCE COMPANY. IT ALSO INCLUDES CLAIMS AGAINST THE COMPANY AND/OR IT’S RELATED PARTIES ARISING UNDER CONTRACT, WARRANTY, COMPANIES OR ITS RELATED PARTIES’ OWN NEGLIGENCE OR GROSS NEGLIGENCE OR NEGLIGENT MISREPRESENTATION, STRICT PRODUCT LIABILITY, CROSS-CLAIMS OR OTHER CLAIMS FOR INDEMNIFICATION OR CONTRIBUTION, OR ANY OTHER THEORY OF LIABILITY.
5. THE CUSTOMER’S AGREEMENTS. The Customer has the authority to sign this Agreement and in doing so will not violate any other agreement. The Customer agrees that the Company and the Monitoring Subcontractor can record and use all communications with the Customer, or any one contacting the Company and/or its Monitoring Subcontractor on behalf of the Customer, in the normal course of business.
THE CUSTOMER UNDERSTANDS AND AGREES THAT ANY SUBCONTRACTOR RETAINED BY COMPANY TO PROVIDE ANY OF THE SERVICES UNDER THIS AGREEMENT (THIS INCLUDES THE MONITORING SUBCONTRACT), ARE INDEPENDENT CONTRACTORS AND INDEPENDENT OPERATING COMPANIES. THERE IS NO PARTNERSHIP, JOINT VENTURE, EMPLOYER/EMPLOYEE, MASTER/SERVANT, OR OTHER SIMILAR RELATIONSHIP BETWEEN THE COMPANY AND ITS SUBCONTRACTORS.
The Customer will pay the Company its then prevailing rates and charges on a time and materials basis for any service to the System not covered by the Limited Warranty, or Extended Limited Warranty.
All of Customer’s duties and obligations under this Agreement continue even if the Customer sells or leaves the Premises.
6. THE CUSTOMER’S DEFAULT/COMPANY’S RIGHT TO TERMINATE. If the Customer fails to perform its obligations under this Agreement, the Company will give the Customer written notice of default. If the Customer does not cure the default within 10 days of the date of the notice, the Company can terminate this Agreement and the Customer must pay the Company: (a) all amounts then due; (b) 75% of the amount due the Company for the remainder of this Agreement (as an agreed-upon amount of damages and has a penalty); and (c) the Company’s reasonable collection costs, including attorney’s fees and costs.
If this Agreement is terminated, the Company and its Subcontractors do not have to provide any service, including without limitation monitoring, after that date. If the Company waives any default by the Customer that does not mean the Company waives later defaults. Any waiver by the Company must be in writing.
If Customer is leasing the System, the Customer grants the Company a security interest in any equipment the Company installs on the Premises to secure compliance with this Agreement. The Company has the rights of a secured party under the Uniform Commercial Code.
The Company reserves the right to terminate the Monitoring, with no further obligation to the Customer, upon fourteen (14) days written notice to the Customer in the event of (i) excessive runaway and/or false signals, or (ii) non-monetary material breaches of this Agreement or of the reasonable policies and procedures of the Monitoring Subcontractor (the right of termination for monetary breaches are discussed above in this paragraph 6).
7. SYSTEM CHARGES. The Customer agrees to obtain all licenses and pay all taxes, fines and other assessments, including sales taxes. The Company’s fees are based upon existing taxes and charges, and the Company can increase the Company’s fees to reflect changes in these taxes or charges.
After the initial term of this Agreement, the Company can increase the periodic charges by giving Customer thirty (30) days advance written notice. If you are unwilling to pay the increased charges, you must notify the Company in writing fifteen (15) days prior to the effective date of the change and Company may then, in its sole discretion, terminate the Agreement with no further liability whatsoever to either party or rescind the charges in which event the Agreement will continue in full force and affect per any applicable automatic renewal provisions.
All invoices of Company are due and owing within 10 days of receipt, unless otherwise stated in writing. If the Customer is more than 30 days late with payment, the Company can charge the Customer interest of 1.5% per month (18% per annum), if permitted by applicable law.
8. TRANSFERS. The Customer cannot transfer or assign this Agreement without the Company’s consent. HOWEVER, THE COMPANY CAN TRANSFER AND/OR SUBCONTRACT THIS AGREEMENT (IN WHOLE OR IN PART) WITHOUT THE CUSTOMER’S CONSENT, WHICH INCLUDES MONITORING. IF THE COMPANY DOES SO, ANYONE TO WHOM THE COMPANY TRANSFERS OR SUBCONTRACTS ANY OF ITS DUTIES OR OBLIGATIONS WILL HAVE THE RIGHT TO ENFORCE, AND RECEIVE THE BENEFIT OF, THE TERMS & PROVISIONS OF THS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE LIMITATION OF COMPANY’S LIABILITY, CUSTOMER’S PROTECTION OF COMPANY, AND WAIVER OF SUBROGATION.
9. LIMITATION ON LAWSUITS; JURY TRIAL. The Customer must bring any lawsuit against the Company within 1 year after the act, omission or event occurred upon which the lawsuit is based. If the Customer does not, the Customer has no right to sue the Company and the Company has no liability to the Customer for that claim. It is critical that the Customer bring any claim in a timely manner. Time is of the essence. TO THE FULL EXTENT PERMITTED BY LAW, THE COMPANY AND THE CUSTOMER BOTH GIVE UP THEIR RIGHT TO A JURY TRIAL.
10. FALSE ALARM CHARGES. In the event a fine, penalty or fee is assessed against the Customer or the Company by any governmental or municipal authority, department or agency as a result of any alarm condition, false or otherwise, originating from the Premises, Customer agrees to pay the same and forthwith reimburse Company for any such fine, penalty or fee so assessed against, or paid by, the Company.
11. PURCHASERDERS/ OTHER AGREEMENTS. In the event of any conflict between this Agreement and any other agreement, proposal, contract or purchase order, the terms of this Agreement shall govern and control.
12. MISCELLANEOUS. This Agreement contains the entire understanding between the Customer and the Company and replaces any earlier discussions or agreements. This Agreement cannot be changed except by a writing signed by Customer and Company. If any provision of this Agreement is found to be invalid, the remaining provisions are still effective. This Agreement is governed by the law of the State where the Premises is located.
This Agreement is not binding on the Company until the earlier of: (i) Company, through its Authorized Representative, signs this Agreement; or (ii) services are commenced under this Agreement. If the Company does not approve this Agreement, the Company’s only obligation is to refund any payments the Customer has made.
Any repairs, additions, service, testing, or equipment which the Company provides to the Customer in the future are subject to the terms of this Agreement, including without limitation, the Limitation of Liability, Customer’s Protection of Company, and Waiver of Subrogation.
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