You agree to the following Terms of Service (Terms) and we agree to provide service, interactive services (if requested), energy management (if requested), and/or smart home system(s) (each a “System”) at our monitoring facility (the “Center”).
When the System sends a non-emergency signal, the Center will attempt to contact you, but will not notify emergency authorities. You and we are obligated to comply with all notification and response requirements imposed by governmental agencies having jurisdiction over your System. We may discontinue or change any particular response service due to governmental or insurance requirements. You consent to the tape recording of all telephonic communications between your premises and our office or the Center.
Response to Alarm Activations.
You understand, acknowledge agree that no emergency response is provided with the Service.
You will instruct all other persons who may use the System on its proper use. You will test the System’s devices and send test signals to the Center in accordance with our instructions at least monthly. If a problem in the System occurs, you will notify us. You will obtain and keep in effect all permits or licenses that may be required for the operation of the System. Some device features may require an internet connection and/or smart phone technology and any charges for same will be your sole expense and responsibility. If the System includes any wireless devices, you will replace the batteries as needed and at least once each year. If you fail to replace the batteries, alarm.
The System includes a communicator that sends signals to the Center over dedicated cellular service or long range radio or your regular telephone service, and will not work on standard cellular telephone service. You acknowledge that the use of cellular or radio transmission services may be controlled by local state agencies and the Federal Communications Commission and changes in rules, regulations and policies may necessitate our discontinuing such transmission facilities at our option, in which event, we will substitute another service. Cellular or radio transmissions may be impaired by atmospheric conditions, including electrical storms, power failures or other conditions and events beyond our control, and we make no representations or warranties as to how fast a signal will be received at the Center, because signal transmission speed may be adversely affected by causes beyond our control. For a regular telephone service connection, you will pay for all telephone charges including any installation fee for a special jack to connect the System to your telephone service, and we recommend the use of an RJ31X or equivalent telephone jack to give the System priority over the other telephones in your premises, however, when the System is activated, you will be unable to use your telephone to make other calls (such as calls to 911 emergency operator), therefore, you may wish to have the System connected to a second telephone line. If your telephone is out of order, placed on vacation status or otherwise not working, signals cannot be transmitted and the Center and we will not know of the telephone service problem. You acknowledge and agree that all software, firmware, computer codes and transmission facilities are our sole and exclusive property and are not part of the System. You further acknowledge that signals are transmitted over communications facilities provided by independent carriers or providers, which are wholly beyond our control and are maintained and serviced, solely by the applicable carrier or provider. Signal transmission may rely on various communication facilities and methods including, without limitation, household electric power, wireless networks, and broadband service, all of which are subject to periodic interruptions or outages, and we recommend the installation of a backup communications system that would allow the System to communicate with the Center during times of temporary loss, interruptions, or outages. You agree to reimburse usfor any costs we may incur to reprogram the communicator because of area code changes or other dialing pattern changes. You further understand that transmission facilities currently available and used may not be available in the future (e.g. the discontinuance of common landline telephone service or of existing cellular service), and in such event you agree that in order to provide monitoring service, we may be required to replace or modify your existing transmission facilities. In such event, you agree to pay our standard rates and charges for the installation and use of such facilities. For cellular service, you agree that if an event or events generate signals in excess of the cellular service plan limit included in the monthly services fee, you agree to pay for any excess cellular service charges at the rate then in effect. If regular telephone service is used, the use of DSL, VoIP or other broadband telephone service may prevent the System from transmitting alarm signals to the monitoring facility and/or interfere with the telephone line-seizure feature of the System. Such services should be installed on a telephone number that is not used for alarm signal transmission. You agree to notify us if you have installed or intend to install DSL, VoIP or other broadband service. Additionally, you will conduct follow-up testing to ensure that your System properly communicates with the Center.
OUR LIMITED LIABILITY
WHERE PERMITTED BY LAW, WE DISCLAIM ANY IMPLIED WARRANTIES PROVIDED BY LAW, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE. WE DO NOT WARRANT THAT THE SYSTEM CANNOT BE DEFEATED OR COMPROMISED OR THAT IT WILL ALWAYS OPERATE. WE DO NOT WARRANT ANY WORK OR PRODUCTS PROVIDED BY YOU OR A THIRD PARTY USED IN CONNECTION WITH YOUR SYSTEM. WE LIMIT OUR LIABILITY TO FIVE HUNDRED DOLLARS ($500.00) IF YOU OR ANYONE ELSE SUFFERS ANY HARM (DAMAGE OR LOSS OF PROPERTY, PERSONAL INJURY, OR DEATH) BECAUSE THE SYSTEM FAILED TO OPERATE PROPERLY OR WE WERE CARELESS OR ACTED IMPROPERLY.
Energy Management Attributes and Incentives. To the extent permitted by law, your use of our services does not include any entitlement to any environmental attributes or incentives available to (or that may become available to) an owner of the Energy Management Products (“EMP”) or on account of the energy reduction or efficiencies attributable to the use of EMP, all of which will be retained by and may be used or disposed of by us in our sole discretion. Such attributes and incentives include: (a) any and all current or future environmental attributes or renewable energy credits, including, but not limited to, carbon trading credits, renewable energy credits or certificates, emissions reduction credits, emis- sions allowances, green tags and tradable renewable credits, and (b) any local, state, regional or federal rebate, incentive, tax credit or tax benefit with respect to EMP, and all reporting rights with respect to such incentives. You agree to reasonably cooperate with us as may be necessary for us to obtain, certify and use any such attributes and incentives that are or may become available with respect to EMP. To the extent you receive or are other wise entitled to any such attributes or incentives by law, you hereby assign your right, title and interest in and to any such attributes and incentives to us.
Suspension or Cancellation ofthisAgreement. You understand that we may stop or suspend the service for any reason upon thirty (30) days’ prior written notice, and if: (A) strikes, weather, earthquakes or other such events beyond our control affect the operation of the Center or so severely damage your premises that continuing service would be impractical; (B) there is an interruption or unavailability of the telephone service between the System and the Center; (C) you do not pay the service charge due to us, after we have given you ten (10) days notice that we are canceling service because of non-payment; (D) we are unable to provide monitoring or repair service because of some action or ruling by any governmental authority; or (E) you become a debtor in a bankruptcy proceeding. If service is canceled or this Agreement is terminated for any reason, you authorize us to remotely disconnect your communicator from the Center and remotely disconnect the communications/system software and/or enter your premises to disconnect your System from our monitoring equipment and remove our communications equipment and software and all of our signs and decals from your premises for our then-prevailing disconnect fee. If service is suspended because you have failed to pay your landlord the services fees, and you ask us to reactivate the System, you will pay, in advance, our then-prevailing reconnection fee. You understand that the System may not work with equipment used by other alarm companies or monitoring centers. You agree that you will grant us access to your premises to allow us to repossess or disable the equipment. You agree that we are not required to redecorate or repair your premises. We do not waive our right to any other legal remedy, including our right to charge you interest at the highest legal rate on the unpaid amount, by stopping the alarm monitoring and repair services or repossessing or disabling the equipment.
Software License. The System is programmed with copyrighted and proprietary software (the “Soft- ware”) to work solely with our monitoring service. Subject to the terms and conditions of this Agree- ment, we hereby grant to you a non-exclusive, revocable, non- transferable license, without any right to sub-license, to use the Software during service, solely for your use of the System (the “License”). You agree that you will not make any modifications to the System, its programming or the Software to enable the System to work with any other monitoring service. You agree that you shall not permit any third party(ies) to use, rent, modify or reprogram the Software. You acknowledge that we are the sole owners of the Software, and of all copyright, trade secret, patent, trademark and other intellectual or industrial property rights to the Software. All copies of the Software, in whatever form provided by us to you shall remain our property. You acknowledge that the License granted hereunder does not provide you with ownership of the Software, but only a right of limited use consistent with the express terms and conditions of this Agreement. You shall have no rights to the source code for the Software and you agree that only we shall have the right to maintain, enhance, or otherwise modify the Software. Misuse. In the event of misuse of the License as identified above, we shall have the right to terminate the License at any time and in our sole discretion upon written notice to you (of which email shall suffice) and, upon such revocation by us, you shall immediately cease the use of the Software, provided you have been given have failed to do so.
Termination or Expiration. In the event of a termination or expiration of the Agreement, your License to use the Software will immediately terminate.
Vivint is not an Insurer; Limitation of Liability. You understand that: (A) we are not an insurer of your premises, property or the personal safety of persons in your premises; (B) you are solely responsible for providing any life, health or disability insurance for yourself and persons who use the System, and insurance on your premises and its contents; (C) the amount you pay to us is based only on the value of the service we provide and not on the value of your premises or its contents; and (D) it is difficult to determine in advance what portion, if any, of any property loss, personal injury or death would be proximately caused by our failure to perform, our negligence, or a failure of the System or service. Therefore you agree: Even if a court decides that our breach of this Agreement, or a failure of the System, or our negligence, or a failure of the installation or monitoring caused or allowed any harm or damage (whether property damage, personal injury or death) to you or anyone in your premises, you agree that our liability shall be limited to five hundred dollars ($500.00), and this shall be your sole and exclusive remedy regardless of what legal theory (including without limitation, negligence, breach of contract, breach of warranty or product liability) is used to determine liability for the injury or loss.
Third Party Indemnification and Subrogation. If anyone other than you asks us to pay for any harm or damages (including property damage, personal injury or death) connected with or resulting from (i) our breach of this Agreement, (ii) a failure of the System or service, (iii) our negligence, (iv) any other improper or careless activity of ours in providing the System or services, or (v) a claim for indemnification or contribution, you will pay us (A) any amount which a court orders us to pay or which we reasonably agree to pay and (B) the amount of our reasonable attorney’s fees and any other losses or costs that we may pay in connection with the harm or damages. Your obligation to pay us for such harm or damages shall not apply if the harm or damages happens while one of our employees or subcontractors is in or about your premises, and such harm or damages is solely caused by that employee or subcontractor. Unless prohibited by your property insurance policy, you agree to release us from any claims of any parties suing through your authority or in your name, such as your insurance company, and you agree to defend us against any such claim. You will notify your insurance company of this release.
Binding Arbitration. To the extent permitted by law, both parties agree that no lawsuit or any other legal proceeding connected with this Agreement shall be brought or filed more than one (1) year after the incident giving rise to the claim occurred. Each party agrees to binding arbitration as the sole and ex- clusive remedy for any controversy, dispute, or claim of any kind or nature between the parties and their respective affiliates, directly or indirectly arising out of, relating to, or in connection with the Agreement regardless of what legal theory (including without limitation, negligence, breach of contract, breach of warranty or product liability) is used to allege or determine liability for the injury or loss. The parties agree that they may bring claims against the other only in their individual capacity and not as a class or rep- resentative action plaintiff or class action member in any purported class or representative proceeding. The arbitration shall not be conducted pursuant to the Federal Arbitration Act, but shall be conducted in accordance with the arbitration laws of the State of Utah. The arbitration shall be administered by Arbitration Services, Inc., under its Consumer Arbitration Rules (www.ArbitrationServicesInc.com). The arbitrator shall award and allocate all the costs of the arbitration, including fees of the arbitrator, against the party who did not prevail. Arbitrator is bound by the terms of this Agreement as it relates to available damages and other limitations. Judgment on the arbitration award may be entered in any court having jurisdiction.