Monitoring Agreement

THESE MONITORING TERMS AND CONDITIONS FORM PART OF THE FEDORA INTERTECH PROPOSAL.  FEDORA INTERTECH IS WILLING TO PROVIDE MONITORING SERVICES TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THESE TERMS AND CONDITIONS.

For valuable consideration, the receipt of which is hereby acknowledged, and intending to be legally bound hereby, Company and Customer agree as follows:

A. CUSTOMER ACKNOWLEDGEMENTS AND OBLIGATIONS RELATING TO THE SERVICES

1. 1. Company agrees to provide the services described on Schedule A attached hereto (collectively, the “Services”).  The Services will be provided at the location, and only at the location, identified on Schedule A (the “Site”).  Company shall not be required or obligated to provide any Services except those specifically described on Schedule A.
      
      
   2. Customer is solely responsible for acquiring, installing, servicing, maintaining and upgrading all of the software, equipment and systems located at the Site and needed by Customer in order to receive the Services (collectively, the “Equipment”).  Company shall not be obligated to provide any Equipment under this Agreement.  Customer will provide Company with such access to the Equipment as is needed by Company in order to provide the Services.
      
      
   3. All risk of loss or damage to the Equipment shall be borne exclusively by Customer.  Company is not responsible for the condition of the Equipment or any failure of the Equipment.
      
      
   4. Customer shall be solely responsible for (a) providing Company with all of the information required by Company pursuant to this Agreement or otherwise needed by Company in order to provide the Services (collectively, the “Information”), (b) making sure that the Information is accurate, complete and up-to-date, and (c) providing written notification to Company of any changes, modifications, corrections or updates to the Information.  Company is entitled to rely solely on the Information, as modified in writing from time to time by Customer.
      
      
   5. Customer understands and agrees that the Services shall be provided by Company in accordance with (a) Company’s standard written procedures, policies and protocols (and Customer acknowledges receipt thereof), as modified by Company from time to time in its sole discretion, and/or (b) such customized and Customer-specific procedures, policies and protocols as may be separately agreed to in writing by Customer and Company from time to time (collectively, the “Procedures”).
      
      
   6. Company may in its sole discretion add, change or discontinue Services, provided that Company give Customer at least thirty (30) days prior written notice of any such addition, change or discontinuance.
      
      
   7. Customer is responsible for, and has secured and paid for, all permits, licenses and other approvals from all governmental officials and authorities that are necessary for Company to provide the Services.
      
      
   8. In the event Customer shall misuse or abuse the Equipment or the Services, such that Company cannot provide the Services in the normal course of its business, such misuse or abuse shall constitute a material breach of this Agreement, and Company in its sole discretion may, in addition to all other legal remedies, be entitled to terminate this Agreement as set forth herein.  In the event a fine, penalty or fee shall be assessed against Company by any governmental or municipal agency as a result of such misuse or abuse of the Equipment or the Services, Customer agrees to pay Company the amount set by Company according to its schedule of charges in effect at such time.
      
      
   9. Company is authorized to record and maintain Customer’s audio and video transmission, data and voice communications to Company, and Company shall be the exclusive owner of such property.

 

A RESIDENTIAL CUSTOMER MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION.  SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT.

PLEASE CAREFULLY READ ALL TERMS ON THE FRONT AND BACK PAGES OF THIS AGREEMENT AND EACH APPLICABLE ATTACHMENT BEFORE SIGNING.  PLEASE CONTACT COMPANY IF YOU REQUIRE AN AGREEMENT PREPARED IN LARGER PRINT.

ACKNOWLEDGEMENT OF CUSTOMER:

By signing this Agreement, Customer acknowledges that Company is not an insurer; that Customer assumes all risk of loss, damage, personal injury and death to Customer and third parties; that Company has made no representations or warranties, express or implied, except as set forth herein; that Customer has not relied on any representations or warranties, express or implied, except as set forth herein; and that Customer has received a copy of this Agreement and has read and understood it, especially those sections relating to Company’s disclaimers  and limited liability and Customer’s duty to indemnify Company under certain circumstances.  The terms of this Agreement have been reviewed by both parties and both parties acknowledge that they accept these terms and conditions.  Furthermore, each party represents and warrants that it has the legal authority to enter into this binding Agreement.

 

B. CUSTOMER ACKNOWLEDGEMENTS AND OBLIGATIONS RELATING TO SERVICE CHARGES

1. In exchange for the Services, Customer agrees to pay the service charges and any other charges provided for hereunder in such amounts and at such times as are described on Schedule A (collectively, the “Service Charges”).  Customer shall also pay all applicable taxes and other charges, including sales taxes, imposed by governmental or taxing authorities on the Service Charges.
   
   
2. Company shall have the right, at its option and upon thirty (30) days written notice to Customer, to increase the Service Charges at any time after the expiration of one (1) year from the date of this Agreement, and at any time thereafter, provided that there shall be no more than one such increase during any twelve (12) month period and each such increase shall be for no more than ten (10%) percent of the Service Charges in effect prior to such increase.
   
   
3. Customer acknowledges that the Service Charges are based, in part, upon existing federal, state and local taxes and utility charges, including telephone company line charges, if any.  Company shall have the right, at any time, to increase the Service Charges to reflect any additional taxes, fees or charges which hereafter may be imposed on Company by any utility or government agency relating to the Services, and Customer agrees to pay the same.
   
   
4. All Service Charges are to be paid within thirty (30) days of the due date of payment for such charges.  If Customer is late with any payment, Company, if allowed by law, can charge the Customer a late fee of $25 on such payment to offset administrative charges related to the collection of the late payment.  Company may also impose and collect a delinquency charge of 1.5% per month (18% per annum), or the highest amount allowed by law, whichever is less, of the amount of the delinquency.  Time is of the essence with respect to the payment of all Service Charges.
   
   
5. Customer shall continue to pay Company for all Service Charges unless and until this Agreement is terminated in writing by Customer.  Customer shall not be entitled to any refund for prepaid Service Charges if Services are cancelled, terminated or discontinued by Customer for any reason.

 

C. CUSTOMER ACKNOWLEDGEMENTS AND OBLIGATIONS RELATING TO TERM, DEFAULT AND TERMINATION

1. Unless sooner terminated in accordance with this Agreement, the initial term of this Agreement shall be for a period of thirty-six (36) months from the date of this Agreement or the date Services are first provided, whichever is later (the “Term”).  The Term shall renew automatically for successive periods of thirty-six (36) months each unless either party gives the other at least sixty (60) days written notice of termination prior to the expiration date of the then-current Term.  Notwithstanding the foregoing:a. If (i) Customer fails to make any payment of Service Charges or other amounts when due hereunder or is otherwise in material breach of this Agreement, (ii) Customer ceases doing business as a going concern, (iii) Customer becomes insolvent, (iv) Customer makes an assignment for the benefit of creditors, (v) Customer files a petition or a petition is filed against Customer under the Bankruptcy Act or any similar law, including a petition for reorganization, arrangement or extension, (vi) Customer fails to perform any other provision of this Agreement or elects to terminate this Agreement prior to the end of the then-current Term, or (vii) any representation, warranty, or financial information made or submitted by Customer shall be untrue in any material respect; then, in any such event, Company may notify Customer that it is terminating this Agreement  effective five (5) business days from the date of such notice.  In such event, the entire amount due under this Agreement through the date of termination and 80% of all payments which would be due hereunder for the remainder of the Term (as liquidated damages and not as a penalty) shall become immediately due and payable; and Company shall have no further obligation to perform under this Agreement.

   b. Company may terminate this Agreement, at any time and for any reason, upon at least sixty (60) days prior written notice to Customer.

2. Exercise or failure to exercise the right of termination shall not be deemed to preclude or bar any claim for damages or other remedies at law or in equity, all of which remedies shall be cumulative.  Upon any default or breach by Customer that results in the termination of this Agreement, Company shall be entitled to retain all prepayments of Service Charges and other amounts received under this Agreement.

 

D. DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION

1. THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER IMPLIED WARRANTIES ARISING THROUGH TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
2. IF COMPANY IS FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO ITS NEGLIGENCE OR THE FAILURE TO PERFORM ITS OBLIGATIONS IN THIS AGREEMENT IN ANY RESPECT WHATSOEVER, THE COMPANY’S MAXIMUM LIABILITY WILL BE $1,000.00.  THE COMPANY WILL ASSUME A GREATER LIABILITY, BUT ONLY FOR AN ADDITIONAL CHARGE TO BE AGREED UPON BY CUSTOMER AND COMPANY, IN WHICH CASE A RIDER WILL BE ATTACHED TO THIS AGREEMENT.COMPANY EXPRESSLY DENIES ALL LIABILITY FOR ANY OTHER LOSS OR DAMAGE WHICH MAY OCCUR PRIOR TO, AT OR AFTER SIGNING THIS AGREEMENT.  THIS INCLUDES LIABILITY BASED ON CONTRACT, TORT, NEGLIGENCE, WARRANTY (INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) AND ANY OTHER THEORY OF LIABILITY.

   THIS EXCLUSION SPECIFICALLY COVERS LIABILITY FOR:  LOST PROFITS; LOST OR DAMAGED PROPERTY; LOSS OF USE OF PROPERTY OR THE PREMISES; GOVERNMENTAL FINES AND CHARGES; AND THE CLAIMS OF THIRD PARTIES.  ALSO COVERED BY THIS EXCLUSION ARE THE FOLLOWING TYPES OF DAMAGES:  DIRECT, INDIRECT, SPECIAL, INCIDENTAL, 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).

   CUSTOMER UNDERSTANDS THAT COMPANY IS NOT AN INSURER.  CUSTOMER IS RESPONSIBLE FOR OBTAINING ALL INSURANCE CUSTOMER THINKS IS NECESSARY, INCLUDING COVERAGE FOR PERSONAL INJURY AND PROPERTY DAMAGE.  THE PAYMENTS CUSTOMER MAKES UNDER THIS AGREEMENT ARE NOT RELATED TO THE VALUE OF THE SITE OR CUSTOMER’S POSSESSIONS, BUT RATHER ARE BASED ON THE COST OF THE SERVICES.  CUSTOMER RELEASES COMPANY FROM ANY LIABILITY FOR ANY EVENT OR CONDITION COVERED BY CUSTOMER’S INSURANCE.  CUSTOMER UNDERSTANDS THAT THE EQUIPMENT AND THE SERVICES ARE DESIGNED TO REDUCE, BUT NOT ELIMINATE, CERTAIN RISKS.  COMPANY DOES NOT GUARANTY THAT THE EQUIPMENT OR THE SERVICES WILL PREVENT PERSONAL INJURY, UNAUTHORIZED ENTRANCES OR FIRE AND SMOKE DAMAGE TO THE SITE.  COMPANY ASSUMES NO LIABILITY FOR THOSE RISKS.

3. THIS AGREEMENT IS INTENDED SOLELY FOR THE BENEFIT OF CUSTOMER.  THEREFORE, CUSTOMER AGREES TO INDEMNIFY AND   HOLD HARMLESS COMPANY AND ITS MEMBERS, MANAGERS, EMPLOYEES AND REPRESENTATIVES (THE “REPRESENTATIVES”) FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES, JUDGMENTS, LOSSES, COSTS AND EXPENSES, INCLUDING ATTORNEYS FEES AND EXPENSES, INCURRED BY COMPANY OR ANY REPRESENTATIVE AS A RESULT OF ANY ACTION, CLAIM OR DEMAND BY ANY THIRD PARTY, INCLUDING CUSTOMER’S INSURANCE CARRIER, THAT ARISES OUT OF OR RELATES TO COMPANY’S OR ANY REPRESENTATIVE’S ACTS, OMISSIONS, DUTIES AND/OR OBLIGATIONS PURSUANT TO THIS AGREEMENT, INCLUDING THE OPERATION OR NON-OPERATION OF THE EQUIPMENT, THE PERFORMANCE OF THE SERVICES, OR THE NEGLIGENCE (EXCLUDING GROSS NEGLIGENCE OR WILFUL MISCONDUCT) OF COMPANY OR ANY REPRESENTATIVE, WHETHER BASED ON CONTRACT, TORT, WARRANTY, EQUITY OR ANY OTHER LEGAL THEORY.  IN THE CASE OF ANY CLAIM OR LOSS COVERED BY CUSTOMER’S INSURANCE, CUSTOMER AGREES NOT TO LOOK TO COMPANY OR THE RESPRESENTATIVES FOR REIMBURSEMENT.  CUSTOMER WAIVES ANY SUBROGATION OR OTHER RIGHTS THAT ITS INSURANCE CARRIER MAY HAVE AGAINST COMPANY OF THE REPRESENTATIVES.  CUSTOMER’S INDEMNIFICATION OBLIGATION DOES NOT APPLY TO CLAIMS BASED ON INJURIES TO THIRD PARTIES OR TO THEIR PROPERTY THAT OCCUR WHILE COMPANY’S EMPLOYEES ARE ON THE SITE AND WHICH ARE CAUSED SOLELY BY COMPANY’S EMPLOYEES.

 

E. GENERAL TERMS AND CONDITIONS

1. This Agreement shall not be assigned by Customer without the prior written consent of Company.  Any attempt by Customer to assign this Agreement without the prior written consent of Company shall be invalid, and Company shall have no obligation to provide Services to any assignee of Customer unless Company consents to the assignment in writing.  Company shall have the right to assign this Agreement in whole or in part to any other person or entity without notice to Customer and shall have the further right to subcontract any of the Services.  Anyone to whom Company subcontracts its obligations shall have all of Company’s rights under this Agreement.  Company is not responsible, however, for any of the Services that might be performed negligently by any third party.  Upon any assignment of this Agreement, Company shall have no further obligations hereunder.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, personal representatives, successors and permitted assigns.
   
   
2. Cost of enforcement of this Agreement by Company and the collection of accounts overdue, including reasonable attorney’s fees and interest, shall be borne by Customer.
   
   
3. No understanding, promise, representation, waiver, alteration, or modification purporting to change this Agreement shall be binding unless evidenced in writing, signed by the party to be bound, and, in the case of Company, approved by an authorized officer of Company.  If Company shall waive any default by Customer, it shall not be construed as a waiver of any subsequent default, and Company’s failure to exercise any rights hereunder shall not be construed as a waiver of any default or be deemed to preclude or bar any claim for damages or other remedies at law or in equity unless specifically waived by Company in writing.
   
   
4. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all previous negotiations, understandings, agreements, proposals, quotes or commitments, either oral or in writing.  Should there arise any conflict between this Agreement and Customer’s purchase order or other document, this Agreement will govern, whether such purchase order or document is prior to or subsequent to this Agreement.  If any of the terms or provisions of this Agreement shall be determined to be invalid or unenforceable, all of the remaining terms and provisions shall remain in full force and effect.  All schedules, exhibits and other attachments referenced in this Agreement are incorporated by reference into this Agreement as if fully set forth herein.  The term “including” means “including without limitation.”  Signatures delivered by facsimile or other electronic transmission are binding on the parties.  This Agreement is not binding on the parties until signed by Company or until Company begins to provide the Services.
   
   
5. This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its conflict of law principles.  The parties agree and acknowledge that any claim arising out of this Agreement shall be filed in the Court of Common Pleas of Allegheny County, Pennsylvania or in the Federal District Court for the Western District of Pennsylvania.  Customer consents to jurisdiction and venue in such courts and consents to service of process therein.
   
   
6. Unless otherwise indicated, all notices provided under this Agreement must be in writing.  Unless prohibited by applicable law, all claims, actions or proceedings, legal or equitable, against Company or Representatives (collectively, a “Claim”) must be commenced in an appropriate court within one (1) year after the cause of action has accrued or the act, omission or event occurred from which the Claim arises, whichever is earlier.  If Customer fails to properly commence any such Claim within such time period, such Claim shall be barred and Customer shall have no right to pursue such Claim against Company, time being of the essence.  Any provisions of this Agreement that apply to any Claim shall remain in full force and effect after this Agreement terminates.

 

UNLESS PROHIBITED BY APPLICABLE LAW, CUSTOMER AND COMPANY EACH WAIVE ALL RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY CLAIM HEREUNDER.

Fedora Intertech (27 Sept 2024)