Customer agrees to purchase the equipment and services identified by the service request and to all of the terms and conditions of this agreement. Martin Systems, Inc. (hereinafter referred to as "MSI") agrees to provide the services specified herein; sell, install, service and instruct Customer in the proper use of the electronic system provided by MSI at the Customer’s premise. All dealer programming of the electronic system(s) remain the property of MSI.
In the event that any part of the installed electronic system becomes defective, MSI agrees to make all repairs and replacement of parts without costs to the Customer for a period of 90 days from the date of installation by MSI during normal business hours. MSI reserves the right to substitute materials of equal quality at the time of replacement, or to use reconditioned parts in fulfillment of this warranty. MSI’s warranty does not include; batteries, reprogramming, damage by lightning or other “acts of God”, building or environmental changes and shifts, electrical surges, wire breaks, accidents or misuse. MSI’s warranty of products and services only covers equipment both sold and installed by MSI. All warranties become null and void if there is an attempted or unauthorized repair, tampering, modification, or improper installation by anyone other than MSI. MSI shall not be liable for consequential damages. MSI is not the manufacturer of the equipment and other than MSI’s limited warranty the Customer agrees to look exclusively to the manufacturer of the equipment for repairs under its warranty coverage if any. Upon Customer request, if the equipment is still under the terms of the manufacturer’s warranty, MSI will send the defective equipment to the manufacturer on the customer’s behalf. If the manufacturer deems the equipment is covered under warranty, MSI will honor the warranty for the equipment only. If the manufacturer deems the repairs are not covered under warranty, the cost of the equipment is the responsibility of the customer. Except as set forth in this agreement, MSI 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. MSI does not represent nor warrant that the electronic system may not be compromised or circumvented, or that the system will prevent any loss by burglary, hold-up, fire or otherwise; or that the system will in all cases provide the protection for which it is installed. Customer acknowledges that any affirmation of fact or promise made by MSI shall not be deemed to create an express warranty unless included in this contract in writing, and that Customer is not relying on MSI’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. Customer’s exclusive remedy for MSI’s breach of this contract or negligence to any degree under this contract is to require MSI to repair or replace, at MSI’s option, any equipment which is non-operational. Some states do not allow the exclusion or limitation of consequential or incidental damages, or a limitation on the duration of implied warranties, so the above limitations or exclusion may not apply to you. The warranty gives you specific legal rights and you may also have other rights which may vary from state to state.
TERMS & CONDITIONS
- PAYMENT: An interest rate of 1.5% per month shall be assessed to any balance not paid by the Customer within 30 days of the completion of the installation or service of the electronic system. In the event the Customer should default in any obligation hereunder, the Customer shall pay for all costs and expenses incurred by MSI in connection with but not limited to the removal of equipment, the collection of the unpaid amount, and attorney fees and costs. MSI shall in no way be obligated to repair, restore, or redecorate the premise in the event an electronic system is removed for non-payment. MSI may substitute any equipment with models of equal performance. Quote(s) are subject to change after 30 days.
- DELAY IN INSTALLATION AND SERVICE: Neither Party will be liable for any failure or delay in performing an obligation under this Agreement that is due to any of the following causes, to the extent beyond its reasonable control: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, government acts or omissions, changes in laws or regulations, national strikes, fire, explosion, generalized lack of availability of raw materials or energy including MSI’s negligence in the performance of this contract. The estimated date work is to be substantially completed is not a definite completion date and time is not of the essence. For the avoidance of doubt, Force Majeure shall not include (a) financial distress nor the inability of either party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, or (c) a party’s financial inability to perform its obligations hereunder.
- TESTING OF SECURITY SYSTEM: All parties hereto agree that the electronic system, upon delivery, is in the exclusive possession and control of the Customer. It is the Customer’s sole responsibility to test the operation of the electronic system as recommended by the manufacturer, or at a minimum monthly, and to notify MSI immediately if any equipment is in need of service or repair. MSI shall not be required to service the electronic system unless it has received notice from Customer, and upon such notice, and provided Customer is not in default of this agreement, MSI shall during the warranty period service the electronic system to the best of its ability within 48 hours, exclusive of Saturday, Sunday and legal holidays, during the business hours of 8 a.m. and 4 p.m. Customer agrees to test and inspect the electronic system immediately upon completion of installation and to advise MSI in writing or by email within three days after installation of any defect, error or omission in the electronic system, monitoring, or hosted service. In any lawsuit between the parties in which the condition or operation of the electronic system is in issue, the Customer shall be precluded from raising the issue that the electronic system was not operating unless the Customer can produce evidence that MSI received a service request by Customer.
- SERVICE OF ELECTRONIC SYSTEM: Customer authorizes MSI, its agents and assigns, to install the electronic equipment or system in the designated premise, and to service the system and to make any necessary inspections, tests, and repairs as required or requested, according to our limited liability as in this agreement. Customer acknowledges that as the installation or service company, MSI may have access to; programming, data, monitoring or hosted services, including the remote operation of the electronic system. Customer agrees that MSI is not liable or responsible for any equipment not sold or installed by MSI. The minimal service charge for an onsite visit during normal business hours (Monday through Friday between 8 a.m. and 4 p.m.) is $129.00 for residential and $159.00 for commercial accounts. The service charge includes the first 30 minutes of labor. Labor beyond the included 30 minutes is billed at a minimum of $125.00 per hour in 15-minute increments. Afterhours or emergency service rates are time and half (150%) the normal rates. Rates do not include tax or travel to any location further than 20 miles from the closest Martin Systems office.
- MSI’s RIGHT TO SUBCONTRACT SPECIAL SERVICES: Customer agrees that MSI is authorized and permitted to subcontract any services to be provided by MSI to third parties who may be independent of MSI, and that MSI shall not be liable for any loss or damage sustained by Customer by reason of fire, theft, burglary or any other cause whatsoever caused by the negligence of third parties and Customer appoints MSI to act as Customer’s agent with respect to such third parties, except that MSI shall not obligate Customer to make any payments to such third parties. MSI shall be permitted to assign this contract and upon such assignment shall have no further obligation hereunder. Customer acknowledges that this agreement, and particularly those paragraphs relating to MSI'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 assignee, subcontractors and communication centers of MSI.
- ALTERATION OF PREMISES FOR INSTALLATION OR SERVICE: Customer authorizes MSI to make any and all preparations MSI deems necessary for the installation and service of the electronic system including but not limited to drilling holes, driving nails, and making attachments. MSI shall not be responsible for any condition created thereby as a result of such installation, service, or removal of the equipment. Customer represents that the owner of the premises, if other than Customer, authorizes the installation or service of the system and equipment under the terms of this agreement.
- CUSTOMER'S DUTY TO SUPPLY ELECTRIC, TELEPHONE, & INTERNET: Customer agrees to furnish, at Customer’s expense, all AC power, electrical outlets and receptacles, telephone hook-ups or high speed internet connections, telephone numbers or IP Address, as deemed necessary by MSI for the proper installation and service of the electronic system. Customer acknowledges that using a Voice over Internet (VoIP) or digital telephone service can prevent telephone line seizure and prevent alarm signal transmission. Customer also acknowledges that interruptions in 3rd party telephone, internet, or cellular communication services will prevent alarm signals transmission.
- CUSTOMER'S RESPONSIBILITIES: Customer is solely responsible for any false alarm fines, permits and fees, and any other municipal assessments related to the electronic system and shall promptly on demand reimburse and indemnify MSI for any such expenses. Should MSI be required by existing or hereinafter enacted law to perform any service or furnish any material not specifically covered by the terms of this agreement Customer agrees to pay MSI for such service or material. Customer or others should not tamper with, disturb, injure, remove, relocate, or interfere with electronic system or allow anyone else to do so. Customer agrees to not use MSI equipment and services for illegal, immoral, or unethical purposes. MSI shall not be held responsible and accepts no liability whatsoever in the event that its products or services are used for such by the Customer, or in the event that contracted work results in any breach of any act or statute of law. Customer accounts are protected by a password for privacy and security. Customer needs to take all appropriate actions possible to prevent unauthorized access to the Customer’s account and personal information including but not limited to limiting access to any phone, computer, tablet or browser used to access Customer account information and by signing off after you have finished accessing your security system and/or account information. MSI is not and will not be held responsible for any actions taken by persons with valid account passwords or credentials. It is the Customer’s responsibility to change all customer passwords and other credentials, and notify MSI immediately, if there is any suspicion or proof that such passwords or other credentials have been accessed, copied, or used by unauthorized parties.
- MONITORING & HOSTED SERVICES NOT INCLUDED: Customer understands that this Agreement does not cover monitoring services for a Security or Fire System at any time. If Customer requires or desires monitoring or hosted services, such services will be the subject of a separate or additional agreement with additional compensation to MSI. Any disputes related to MSI’s contracted monitoring of a Security or Fire System will be governed by the separate monitoring agreements.
- INDEMNITY/WAIVER OF SUBROGATION RIGHTS: MSI agrees to perform their duties in a professional competent manner and agrees to correct and/or repair any damage caused by MSI. Customer agrees to and shall indemnify and hold harmless MSI, its employees, agents and subcontractors, from and against all claims, lawsuits, including those brought by third parties or Customer, including reasonable attorneys' fees and losses asserted against and alleged to be caused by MSI's performance, negligent performance, or failure to perform any obligation. Parties agree that there are no third-party beneficiaries of this contract. Customer on its behalf and any insurance carrier waives any right of subrogation Customer’s insurance carrier may otherwise have against MSI or MSI's subcontractors arising out of this agreement or the relation of the parties hereto. Customer shall not be permitted to assign this agreement without written consent of MSI. MSI shall have the right to assign this contract and shall be relieved of any obligations created herein upon such assignment.
- EXCULPATORY CLAUSE: MSI and Customer agree that the electronic system, once delivered, becomes the personal property of the Customer. Customer agrees that MSI is not an insurer and no insurance coverage is offered herein. The electronic system is designed to reduce certain risks of loss, though MSI does not guarantee that no loss will occur. MSI has offered additional and more sophisticated equipment and services for an additional charge which Customer has declined. MSI is not assuming liability, and, therefore shall not be liable to Customer for any loss, personal injury or property damage sustained by Customer as a result of 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 MSI’s negligent performance, failure to perform any obligation or strict products liability. Customer releases MSI from any claims for contribution, indemnity, or subrogation.
- WE ARE NOT AN INSURER: We are not an insurer and you will obtain from an insurer any insurance you desire. The amount you pay us is based upon the services we perform and the limited liability we assume under this contract and is unrelated to the value of your property or the property of others located in your premises. In the event of any loss or injury to any person or property, you agree to look exclusively to your insurer to recover damages. You wave all subrogation and other rights of recovery against us that any insurer or other person may have as a result of paying any claim for loss or injury to any other person.
- LIMITATION OF LIABILITY AND DAMAGES: Customer agrees that should there arise any liability on the part of MSI as a result of MSI’s negligent performance to any degree, failure to perform any of MSI’s obligations, equipment failure or strict products liability, that MSI’s liability shall be limited to the sum of $500.00. If Customer wishes to increase MSI’s maximum amount of MSI’s limitation of liability, Customer may, as a matter of right, at any time, by entering into a supplemental contract, obtain a higher limit by paying an annual payment consonant with MSI’s increased liability. This shall not be construed as insurance coverage.
- LEGAL ACTION: In the event MSI institutes legal action to recover any amounts owed by Customer to MSI hereunder, the parties agree that the amount to be recovered, and any judgment to be entered, shall include interest at the rate of 1 1/2% per month from the date payment is due. Should MSI prevail in any litigation between the parties, Customer shall pay MSI’s legal fees. The parties waive trial by jury in any action between them. In any action commenced by MSI against Customer, Customer shall not be permitted to interpose any counterclaim. Any action by Customer against MSI must be commenced within one year of the accrual of the cause of action or shall be barred. All actions or proceedings against MSI must be based on the provisions of this agreement. Any other action that Customer may have or bring against MSI 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.
- NON-SOLICITATION: Customer agrees that it will not solicit for employment for itself, or any other entity, or employ, in any capacity, any employee of MSI assigned by MSI to perform any service for or on behalf of Customer for a period of two years after MSI has completed providing service to Customer. In the event of Customer’s violation of this provision, in addition to injunctive relief, MSI shall recover from Customer an amount equal to such employee's salary based upon the average three months preceding employee's termination of employment with MSI, times twelve, together with MSI's counsel and expert witness fees.
- SECURITY INTEREST/COLLATERAL: To secure Customer’s obligations under this agreement Customer grants MSI a security interest in the electronic system installed by MSI and MSI is authorized to file a financing statement.
- TERMINATION OF AGREEMENT: Upon termination of this agreement MSI shall be permitted to remotely, or at the Customer’s premise, delete any dealer related programming, and that MSI will no longer be required to service the electronic system. MSI may order the termination of any central station alarm monitoring, hosted or other services related to the electronic system, and Customer shall remain liable for all payments called for herein for the remaining balance of the agreement.
- INSPECTIONS: When burglary/fire test and inspection services are performed, such inspection shall be completed on MSI’s NFPA72 current inspection form which shall be given to Customer, and, where applicable, MSI may submit a copy thereof to the local Authority Having Jurisdiction. If recommendations are made by MSI, they are only advisory in nature and are intended to assist Customer in reducing the risk of loss of life and property by indicating obvious deficiencies, defects or impairments noted on the system, system design and equipment tested and/or inspected. The Customer is responsible for the condition and operation of the system, equipment, and components. If upon inspection MSI determines that repairs are recommended, then repair charges will be submitted for approval prior to any work. Should such repair work be declined, MSI shall be relieved from any and all liability arising therefrom.
- FULL AGREEMENT/SEVERABILITY: This agreement constitutes the full understanding of the parties and may not be amended, modified or canceled except in writing signed by both parties, except that in the event MSI issues a UL certificate to Customer, MSI will comply with Underwriters Laboratory Inc. or any local law requirements regarding items of protection provided for in this agreement. This contract shall be governed by the laws of the State of Wisconsin. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. Any provision held invalid shall be severable from the remaining portions of this section.