LIMITED WARRANTY ON SALE
14. If any part of the security system becomes defective, or if any repairs are required, 411 agrees to make all repairs and replacement of parts without costs to the Subscriber for a period of thirty (30) days from the date of installation. 411 reserves the option to either replace or repair the alarm equipment and reserves the right to substitute materials of equal quality at time of replacement, or to use reconditioned parts in fulfillment of this warranty. This warranty does not include batteries, electrical surges, lightning damage, software upgrades and repairs, communication devices that are no longer supported by communication pathways, obsolete components and components exceeding manufacturer’s useful life. 411 is not the manufacturer of the equipment and other than 411’s limited warranty Subscriber agrees to look exclusively to the manufacturer of the equipment for repairs under its warranty coverage if any. Except as set forth in this agreement, 411 makes no express warranties as to any matter whatsoever, including, without limitation, the condition of the equipment, its merchantability, or its fitness for any particular purpose. 411 does not represent nor warrant that the security system may not be compromised or circumvented, or that the system will prevent any loss by burglary, hold-up, or otherwise; or that the system will in all cases provide the protection for which it is installed. 411 expressly disclaims any implied warranties, including implied warranties of merchantability or fitness for a particular purpose. The warranty does not cover any damage to material or equipment caused by accident, misuse, attempted or unauthorized repair service, modification, or improper installation by anyone other than 411. 411 shall not be liable for consequential damages. Subscriber acknowledges that any affirmation of fact or promise made by 411 shall not be deemed to create an express warranty unless included in this agreement in writing; that Subscriber is not relying on 411 's skill or judgment in selecting or furnishing a system suitable for any particular purpose and that there are no warranties which extend beyond those on the face of this agreement, and that 411 has offered additional and more sophisticated equipment for an additional charge which Subscriber has declined. Subscriber's exclusive remedy for 411's breach of this agreement or negligence to any degree under this agreement is to require 411 to repair or replace, at 411's option, any equipment which is non-operational. This Limited Warranty is independent of and in addition to service contracted under paragraph 4(b)(ii) of this agreement. This Limited Warranty gives you specific legal rights and you may also have other rights which vary from state to state. If required by law, 411 will procure all permits required by local law and will provide certificate of workman 's compensation prior to starting work.
GENERAL PROVISIONS
15. DELAY IN INSTALLATION / RISK OF LOSS OF MATERIAL: 411 shall not be liable for any damage or loss sustained by Subscriber as a result of delay in installation of equipment, equipment failure, or for interruption of service due to electric failure, strikes, walk-outs, war, acts of God, or other causes, including 411 's negligence in the performance of this agreement. The estimated date work is to be substantially completed is not a definite completion date and time is not of the essence. Subscriber assumes all risk of loss of material once delivered to the job site.
16. TESTING OF SECURITY SYSTEM: Security System, once installed, is in the exclusive possession and control of the Subscriber, and it is Subscriber's sole responsibility to test the operation of the Security System and to notify 411 if it needs repair. Service if provided is pursuant to paragraph 4.
17. CARE AND SERVICE OF SECURITY SYSTEM: Subscriber agrees not to tamper with, remove or otherwise interfere with the Security System which shall remain in the same location as installed. All repairs, replacement or alteration to the security system made by reason of alteration to Subscriber's premises, or caused by unauthorized intrusion, lightning or electrical surge, or caused by any means other than normal usage, wear and tear, shall be made at the cost of the Subscriber. Batteries, electrical surges, lightning damage, software upgrades and repairs, communication devices that are no longer supported by communication pathways, obsolete components and components exceeding manufacturer’s useful life, are not included in warranty or service under paragraph 4(e) and will be repaired or replaced at Subscriber’s expense. No apparatus or device shall be attached to or connect with the security system as originally installed without 411 's written consent.
18. ALTERATION OF PREMISES FOR INSTALLATION: 411 is authorized to make preparations such as drilling holes, driving nails, making attachments or doing any other thing necessary in 411's sole discretion for the installation and service of the security system, and 411 shall not be responsible for any condition created thereby as a result of such installation, service, or removal of the security system, and Subscriber represents that the owner of the premises, if other than Subscriber, authorizes the installation of the security system under the terms of this agreement.
19. SUBSCRIBER'S DUTY TO SUPPLY ELECTRIC AND TELEPHONE SERVICE: Subscriber agrees to furnish, at Subscriber 's expense, all 110 Volt AC power, electrical outlet, ARC Type circuit breaker and dedicated receptacle, Internet connection, high speed broadband cable or DSL and IP Address, telephone hook-ups, RJ31x Block or equivalent, as deemed necessary by 411.
20. LIEN LAW: 411 or any subcontractor engaged by 411 to perform the work or furnish material who is not paid may have a claim against purchaser or the owner of the premises if other than the purchaser which may be enforced against the property in accordance with the applicable lien laws.
21. INDEMNITY / WAIVER OF SUBROGATION RIGHTS / ASSIGNMENTS: Subscriber agrees to indemnify and hold harmless 411, its employees, agents and subcontractors, from and against all claims, lawsuits, including those brought by third-parties or by Subscriber, including reasonable attorneys' fees and losses, asserted against and alleged to be caused by 411's performance, negligence or failure to perform any obligation under this agreement. Parties agree that there are no third-party beneficiaries of this agreement. Subscriber on its behalf and any insurance carrier waives any right of subrogation Subscriber's insurance carrier may otherwise have against 411 or 411's subcontractors arising out of this agreement or the relation of the parties hereto. Subscriber shall not be permitted to assign this agreement without written consent of 411. 411 shall have the right to assign this agreement and shall be relieved of any obligations herein upon such assignment.
22. EXCULPATORY CLAUSE: 411 and Subscriber agree that 411 is not an insurer and no insurance coverage is offered herein. The security equipment and 411’s services are designed to reduce certain risks of loss, though 411 does not guarantee that no loss will occur. 411 is not assuming liability, and, therefore, shall not be liable to Subscriber for any loss, data corruption or inability to retrieve data, personal injury or property damage sustained by Subscriber as a result of intrusion, burglary, theft, hold-up, fire, equipment failure, smoke, or any other cause whatsoever, regardless of whether or not such loss or damage was caused by or contributed to by 411’s negligent performance to any degree in furtherance of this agreement, any extra contractual or legal duty, strict products liability, or negligent failure to perform any obligation pursuant to this agreement or any other legal duty. In the event of any loss or injury to any person or property, Subscriber agrees to look exclusively to Subscriber’s insurer to recover damages. Subscriber releases 411 from any claims for contribution, indemnity or subrogation.
23. INSURANCE: The Subscriber shall maintain a policy of public liability, property damage, burglary and theft insurance under which 411 is named as additional insured. 411 shall not be responsible for any portion of any loss or damage which is recovered or recoverable by the Subscriber from insurance covering such loss or damage or for such loss or damage against which the Subscriber is indemnified or insured. In the event of any loss or injury to any person or property, Subscriber agrees to look exclusively to Subscriber’s insurer to recover damages. Subscriber shall obtain insurance to cover any loss the security services are intended to detect to one hundred percent of the insurable value, and Subscriber and all those claiming rights under Subscriber waive all rights against 411 and its subcontractors for loss or damages caused by burglary, theft, water, smoke, fire or other perils intended to be detected by the security services or covered by insurance to be obtained by Subscriber, except such rights as they may have to the proceeds of insurance.
24. LIMITATION OF LIABILITY: Subscriber agrees that should there arise any liability on the part of 411 as a result of 411 's negligent performance to any degree or negligent failure to perform any of 411's obligations pursuant to this agreement or any other legal duty, equipment failure, or strict products liability, that 411's liability shall be limited to the sum of $250.00 or 5% of the sales price or 6 times the aggregate of monthly payments for services being provided at time of loss, whichever is greater. If Subscriber wishes to increase 411's amount of limitation of liability, Subscriber may, as a matter of right, at any time, by entering into a supplemental agreement, obtain a higher limit by paying an annual payment consonant with 411's increased liability. This shall not be construed as insurance coverage.
25. LEGAL ACTION: The parties agree that due to the nature of the services to be provided by 411, the monthly or other periodic payments to be made by the Subscriber for the term of this agreement form an integral part of 411's anticipated profits; that in the event of Subscriber's default it would be difficult if not impossible to fix 411's actual damages. Therefore, in the event Subscriber defaults in the payment or any charges to be paid to 411, the balance of all payments for the entire term herein shall immediately become due and payable, and Subscriber shall be liable for 80% thereof as liquidated damages and 411 shall be permitted to terminate all its services , including but not limited to terminating monitoring service, under this agreement and to remotely re-program or delete any programming without relieving Subscriber of any obligation herein. If 411 prevails in any litigation or arbitration between the parties, Subscriber shall pay 411’s legal fees. In any action commenced by 411 against Subscriber, Subscriber shall not be permitted to interpose any counterclaim. The parties agree that they may bring claims against the other only in their individual capacity, and not as a class action plaintiff or class action member in any purported class or representative proceeding. Subject to Subscriber’s right to bring any claim against 411 for up to $1,000 in small claims court having jurisdiction, any dispute between the parties or arising out of this agreement, including issues of arbitration, shall, at the option of any party, be determined by arbitration before a single arbitrator. Service of process or papers in any legal proceeding or arbitration between the parties may be made by First-Class Mail delivered by the U.S. Postal Service addressed to the party's address in this agreement or another address provided by the party in writing to the party making service. Subscriber submits to the jurisdiction and laws of Arizona and agrees that any litigation or arbitration between the parties must be commenced and maintained in the county where 411’s principal place of business is located. The parties waive trial by jury in any action between them unless prohibited by law. Any action by Subscriber against 411 must be commenced within six months of the accrual of the cause of action or shall be barred. All actions or proceedings against 411 must be based on the provisions of this agreement. Any other action that Subscriber may have or bring against 411 in respect to other services rendered in connection with this agreement shall be deemed to have merged in and be restricted to the terms and conditions of this agreement, and this consent to arbitrate shall survive the termination of this agreement.
26. 411'S RIGHT TO SUBCONTRACT SPECIAL SERVICES: Subscriber agrees that 411 is authorized and permitted to subcontract any services to be provided by 411 to third parties who may be independent of 411, and that 411 shall not be liable for any loss or damage sustained by Subscriber by reason of fire, theft, burglary or any other cause whatsoever caused by the negligence of third parties. Subscriber appoints 411 to act as Subscriber’s agent with respect to such third parties, except that 411 shall not obligate Subscriber to make any payments to such third parties. Subscriber acknowledges that this agreement, and particularly those paragraphs relating to 411's disclaimer of warranties, exemption from liability, even for its negligence, limitation of liability and indemnification, inure to the benefit of and are applicable to any assignees, subcontractors, manufacturers, vendors and central offices of 411.
27. NON-SOLICITATION: Subscriber agrees that it will not solicit for employment for itself, or any other entity, or employ, in any capacity, any employee of 411 assigned by 411 to perform any service for or on behalf of Subscriber for a period of two years after 411 has completed providing service to Subscriber. In the event of Subscriber's violation of this provision, in addition to injunctive relief, 411 shall recover from Subscriber an amount equal to such employee's salary based upon the average three months preceding employee's termination of employment with 411, times twelve, together with 411's counsel and expert witness fees.
28. CONFIDENTIALITY AND NON-DISPARAGMENT: Subscriber agrees that its relationship with 411 is and shall remain confidential. Neither party to this agreement shall, without prior written consent of the other, publish or communicate in any manner any comment, review, recommendation, evaluation, or report of the other unless required by law, and neither party shall refer to the other in any written or electronic forum for any reason. Because a violation of this provision would result in damages that maybe difficult to prove the parties agree that a party violating this provision shall be liable for damages in the amount of $10,000.00 as and for liquidated damages and not as a penalty, and no actual damages need to be proved. Additionally, a party to this agreement required to commence any lawsuit or arbitration to enforce this provision shall be entitled to injunctive relief and its legal fees.
29. FALSE ALARMS / PERMIT FEES: Subscriber is responsible for all alarm permits and fees, agrees to file for and maintain any permits required by applicable law and indemnify or reimburse 411 for any fines relating to permits or false alarms. 411 shall have no liability for permit fees, false alarms, false alarm fines, police or fire response, any damage to personal or real property or personal injury caused by police or fire department response to alarm, whether false alarm or otherwise, or the refusal of the police or fire department to respond. In the event of termination of police or fire response by the municipal police or fire department this agreement shall nevertheless remain in full force and Subscriber shall remain liable for all payments provided for herein. Should 411 be required by existing or hereafter enacted law to perform any service or furnish any material not specifically covered by the terms of this agreement Subscriber agrees to pay 411 for such service or material.
30. SECURITY INTEREST / COLLATERAL: To secure Subscriber’s obligations under this agreement Subscriber grants 411 a security interest in the security equipment installed by 411 and 411 is authorized to file a financing statement.
31. CREDIT INVESTIGATION: Subscriber and any guarantor authorizes 411 to conduct credit investigations from time to time to determine Subscriber’s and guarantor’s credit worthiness.
32. FULL AGREEMENT / SEVERABILITY: This agreement along with the Schedule of Equipment and Services constitutes the full understanding of the parties and may not be amended, modified or canceled, except in writing signed by both parties, except 411’s requirements regarding items of protection provided for in this agreement imposed by Authority Having Jurisdiction. Subscriber acknowledges and represents that Subscriber has not relied on any representation, assertion, guarantee, warranty, collateral agreement or other assurance, except those set forth in this Agreement. Subscriber hereby waives all rights and remedies, at law or in equity, arising, or which may arise, as the result of Subscriber’s reliance on such representation, assertion, guarantee, warranty, collateral agreement or other assurance. To the extent this agreement is inconsistent with any other document, agreement, purchase order or understanding between the parties, the terms of this agreement shall govern. Should any provision of this agreement be deemed void,
Software/Training
Upon completion of installation, 411 shall provide customer with up to 1-hour of on-site training/setup. This includes providing the viewing software and mobile apps, configuring the necessary settings for the software, and providing training on basic usage of the system. Additional training time requested shall be billed at a rate of $175/hr.
Term & Conditions
1. Down Payment- required prior to installation scheduling or parts order.
2. If electronic payment is not provided for the recurring payments, an additional $5 per month will be applied to the recurring payments for processing fees.
3. Progress invoices will be issued as our work is performed, or material is stored on or off site.
4. Terms for all invoices: Net 10 Days
5. Overdue invoices are subject to penalties of 1.5% per month on outstanding balances.
6. 411 Alarm will honor the pricing and particulars of this Proposal for a period of thirty (30) days. After thirty (30) days, will require a formal review to ensure that the scope of work and material pricing originally encompassed by this Proposal has not materially changed. Due to the current volatility of the pricing on raw materials (I.E. Copper, FEP Plenum and Steel, and semiconductors required to produce the wiring, cables, and electronic equipment sold and installed under this proposal. 411 reserves the right to adjust material pricing of this proposal to reflect only potential cost increases in such products that take place from the date of the proposal generation and the actual procurement of materials. In the event that an “economic conditions” change order would be required, copies of all relevant distributor pricing schedules would be provided, and the change order would only reflect the actual cost increases to the customer.
7. Fees associated with required 3rd party software (such as compliance engines) will be charged as a pass-through fee to the customer. These fees will be in addition to 411 monthly service or installation fees.
Assumptions/Exclusions
1. 411 does not include permit costs or government fees in Proposal unless the Proposal specifically says otherwise.
2. Work to be performed has been estimated and is based on regular business hours of 9:00 am to 5:00 pm, Monday through Friday; national and local holidays are observed. Any alterations to the normal working schedule may result in additional billings and/or delays to the installation schedule. Customer recognizes that time is of the essence and will make all reasonable accommodations to allow 411 to complete the installation without delays.
3. Work environment has been assumed to be free of hazardous materials and free from asbestos or other toxic materials. Client will be responsible for supplying information concerning safety issues of hazardous material for the disclosure to all employees working on the project.
4. Any additional labor or materials requested by Client, not included in the scope of this Proposal, would constitute a change
order. All change orders must be in writing, or verbal phone call to who has authority, before any materials are ordered or labor is scheduled. If an unforeseen condition arises that was not reasonably accounted for in the above estimate, 411 will execute a change order verbally or in writing to clarify any changes necessary to accomplish the scope of work; also at our own discretion due to our expertise and knowledge for which we were hired/contracted.
5. 411 makes every effort to include all contingencies in Proposals. However, some conditions exist that are unforeseen (i.e., items hidden in walls or unusual installation requirements). If an unforeseen condition arises that was not reasonably accounted for in the above estimate, we will provide clear explanation of the reason for the change and 411 will execute a change order verbally or in writing to clarify any changes necessary to accomplish the scope of work; also at our own discretion due to our expertise and knowledge for which we were hired/contracted.
6. When 411 is utilizing existing equipment for all or any part of the system, it is assumed the system components are in working order unless otherwise noted. Existing equipment or wiring found to be inoperable during install will require a change order for replacement, or repair, to be billed as Time & Materials. 411 will execute a change order verbally or in writing to clarify any changes necessary to accomplish the scope of work; also at our own discretion due to our expertise and knowledge for which we were hired/contracted.
