1. AFA Protective Systems, Inc., AFA Southeast Inc., AFA Massachusetts, Inc., hereinafter called “Contractor” and Customer hereinafter called “Subscriber.”
2. Any tax applicable to, based upon, or measured by the receipts from or amount paid for service rendered by Contractor hereunder, and payable by Subscriber, shall be paid by Subscriber as an addition to the respective amounts otherwise payable by Subscriber as herein provided. Subscriber agrees to pay, in addition to any other sums herein provided to be paid all taxes, false alarms fees and other fees and charges imposed by any governmental authority, Fire and/or Police Department, relating to the contract inspection and/or maintenance service
3. To the extent it is found that Subscriber’s system is not in good condition and/or working order, Subscriber authorizes Contractor to make necessary repairs on a time and material basis, at Contractor’s then current rates, in addition to the charges set forth in the proposal. Subscriber must provide any codes for software or other equipment needed.
4. Subscriber authorizes and empowers Contractor, its agents or assigns, to make inspections and tests thereof and to make, at the expense of Subscriber, any changes or replacements therein or alterations thereof made necessary by changes in or alterations of said premises.
5. IT IS UNDERSTOOD THAT NEITHER THE CONTRACTOR NOR ANY THIRD PARTY DESIGNATED BY THE CONTRACTOR WHICH PROVIDES SERVICE TO THE SUBSCRIBER IS AN INSURER, THAT INSURANCE, IF ANY, SHALL BE OBTAINED BY THE SUSCRIBER AND THAT THE AMOUNTS PAYABLE TO THE CONTRACTOR HEREUNDER ARE BASED UPON THE VALUE OF THE SERVICES AND THE SCOPE OF LIABILITY AS HEREIN SET FORTH AND ARE UNRELATED TO THE VALUE OF THE SUBSCRIBER’S PROPERTY OR THE PROPERTY OF OTHERS LOCATED IN SUBSCRIBER’S PREMISES. CONTRACTOR MAKES NO GUARANTEE OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, THAT THE SYSTEM OR SERVICES SUPPLIED WILL AVERT OR PREVENT OCCURENCES OR THE CONSEQUENCES THEREFROM, WHICH THE SYSTEM OR SERVICE IS DESIGNED TO DETECT. THE SUBSCRIBER DOES NOT DESIRE THIS CONTRACT TO PROVIDE FOR FULL LIABILITY OF THE CONTRACTOR OR ANY SUCH THIRD PARTY AND AGREES THAT THE CONTRACTOR AND ANY SUCH THIRD PARTY SHALL BE EXEMPT FROM LIABILITY FOR LOSS OR DAMAGE DUE DIRECTLY OR INDIRECTLY TO OCCURRENCES, OR CONSEQUENCES THEREFROM, WHICH THE SERVICE IS DESIGNED TO DETECT OR AVERT; THAT IF THE CONTRACTOR OR ANY SUCH THIRD PARTY SHOULD BE FOUND LIABLE FOR LOSS OR DAMAGE DUE TO A FAILURE OF SERVICE IN ANY RESPECT, ITS LIABILITY SHALL BE LIMITED TO A SUM EQUAL TO TEN PERCENT OF THE SERVICE CHARGE ATTRIBUTABLE TO THE EFFECTED PREMISES OR $250., WHICHEVER IS GREATER, AND THAT THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY IF LOSS OR DAMAGE, IRRESPECTIVE OF CAUSE OR ORIGIN, RESULTS DIRECTLY OR INDIRECTLY TO PERSON OR PROPERTY FROM PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS IMPOSED BY THIS CONTRACT OR FROM NEGLIGENCE OF ANY DEGREE, ACTIVE OR OTHERWISE OF THE CONTRACTOR AND ANY SUCH THIRD PARTY AND THEIR AGENTS OR EMPLOYEES. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST THE CONTRACTOR MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF THE CAUSE OF ACTION THEREFORE.
6. SUBSCRIBER IS HEREBY GIVEN AN ABSOLUTE AND UNEQUIVOCAL OPTION TO REQUIRE THE CONTRACTOR TO ASSUME LIABILITY BEYOND THAT INDICATED ABOVE. IF THE SUBSCRIBER EXERCISES SUCH OPTION, A RIDER TO THIS CONTRACT WILL BE ENTERED INTO AND SIGNED BY THE PARTIES HERETO PROVIDING FOR THE EXTENT OF CONTRACTOR’S ADDITIONAL LIABILITY IN CONSIDERATION FOR WHICH SUBSCRIBER AGREES TO PAY THE CONTRACTOR ADDITIONAL SERVICE CHARGES SPECIFIED IN THE RIDER WHICH SHALL BE CONSONANT WITH CONTRACTOR’S ADDITIONAL COST OF OBTAINING LIABILITY INSURANCE COVERING THE FULL SCOPE OF LIABILITY REQUESTED BY SUBSCRIBER, IN WHICH EVENT THE DOLLAR AMOUNT CONTAINED IN CLAUSE NO. 6 ABOVE WILL BE NULL AND VOID, PROVIDED, HOWEVER, THAT SUCH ADDITIONAL OBLIGATION SHALL IN NO WAY BE INTERPRETED TO HOLD CONTRACTOR AS AN INSURER.
7. It is agreed that all test, inspections and maintenance provided for hereunder shall be performed during regular daytime business hours exclusive of Saturdays, Sundays and holidays unless the Subscriber otherwise directs, in which case the Subscriber hereby agrees to pay the Contractor any increased cost resulting.
8. If Subscriber shall default in the making of any payment herein provided for or fails to comply with any of the other terms, conditions or covenants of this Agreement, any amounts owed shall become immediately due and Contractor reserves its right to charge interest of 1.5% per month and reasonable attorney’s fees incurred in the collection process.
9. Subscriber does hereby for himself and any other parties claiming under him, release and discharge Contractor from and against all hazards covered by Subscriber’s insurance, it being expressly agreed and understood that no insurance company or insurer will have any right of subrogation against Contractor.
10. The Subscriber agrees to and shall indemnify and save/hold harmless the Contractor and any third party designated by the Contractor which provides service and all their employees and agents, for and against any claims, suits, losses, demands and expenses arising from any death or injury to any person or any loss or damage to property occasioned or alleged to be occasioned by Contractor’s or any third party’s performances of failure to perform its obligations under this Agreement whether due to Contractor’s negligence or otherwise, or through burglary, theft, robbery, fire or any other cause.
11. Contractor assumes no liability for delays in installation or alterations of equipment or for interruptions of service due to strikes, riots, floods, fires, acts of God, or any cause beyond its control, and will not be required to supply service while any such delay or interruptions continue. Additionally any repairs necessary due to these causes shall be billed on a time and material basis.
12. The parties agree that there are no third party beneficiaries to these terms and conditions arising from the work between Contractor and Subscriber.
13. These terms and conditions may be assigned by Subscriber provided the written consent of Contractor is first obtained, which consent shall not be unreasonably withheld and shall be conditioned upon the assignee’s agreement, in form satisfactory to Contractor, to make the payments herein provided and to perform and comply with all the other terms, covenants, and conditions hereof on Subscriber’s part to be performed and complied with. There are no agreements, understandings, or representations changing, modifying, or otherwise affecting any of the terms herein. This terms cannot be changed, modified, or discharged orally.
14. In the event the parties execute a contemporaneous writing, Subscriber acknowledges that these terms and conditions shall control and govern the scope of work and/or any dispute between the parties relating to the services provided hereunder.
15. The Subscriber does hereby waive its right to a trial by jury and the right to assert any counterclaim in any action brought against Subscriber.
16. Subscriber acknowledges and understands that Contractor accepts these terms with the understanding that Contractor’s fulfilling the terms and conditions hereof shall in no way impair or interfere with any other party’s contractual rights with respect to Subscriber for alarm inspection at Subscriber’s premise.
17. If any term, covenant, condition or provision contained herein is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of this Contract shall remain in full force and effect and shall in no way be affected, impaired or invalidated.