Where the context permits:
Agreement means the agreement between the Vendor and the Customer for the supply of Goods by the Vendor to the Customer and shall be constituted by these Terms and Conditions of Sale and if any, the Vendor’s quotation, Credit Arrangement and Guarantee.
Credit Arrangement means the credit terms available to the Customer pursuant to an application by the Customer for the provision of Goods on credit submitted to the Vendor using the Vendor’s standard credit application form and accepted in writing by the Vendor.
Customer means the person with whom the Vendor has agreed to supply Goods pursuant to the Agreement.
Goods means the goods and services agreed to be supplied by the Vendor and purchased by the Customer pursuant to the Agreement.
Guarantee means the guarantee document provided by the Customer or the Customer’s directors, shareholders or principals to the Vendor to guarantee the performance of the Agreement by the Customer.
Proprietary Informationmeans any and all information and intellectual property relating to the Goods or the installation or operation of the Goods including but not limited to patents, designs, drawings, instruction booklets, specifications, circuit drawings, componentry, trade secrets, trade marks and copyright in such information and intellectual property.
Vendor means, Alarm and Communications Technologies Inc, and their subsidiaries PO Box 596 Wharton NJ 07885.
1. Termination for Non-Payment or Breach of Contract. The failure to pay any sum due and owing within fifteen (30) days of the scheduled payment date, or the termination of this Agreement by the Customer before the end of the applicable Term, shall constitute a breach of this Agreement, and Alarm & Communication Technologies Inc (ACT) may elect, in its sole discretion, (i) to terminate this Agreement, and/or (ii) on any sale and installation work, recover from Customer the unpaid balance due and owing for all work completed or performed at the time of termination, along with court costs, attorneys’ fees, interest at twelve percent (12%) per annum, and ACT anticipated profits for the remainder of work, if any, that is incomplete at the time of termination; and (iii) on any Lease, Maintenance Contract, Central Station Monitoring, ACTNET Service and all other Services, recover from Customer the unpaid balance due and owing at the time of termination, along with court costs, attorneys’ fees, interest at twelve percent (10%) per annum and sixty five percent (65%) of the accelerated balance for the remaining unexpired Term of the Agreement pursuant to D., below. ACT may also pursue any rights permitted under the Construction Lien Law, N.J.S.A. 2A:44A-1, and/or Public Contract law and Regulations, 40A:11-16.1 - 40A:11-16.4 et seq.
2. Termination Due to Other Circumstances. If Monitoring Service is contracted-for under this Agreement (the “Monitoring Service”), the Monitoring Service may be terminated at the option of ACT if the Central Monitoring Station subcontracted by ACT is substantially damaged by fire or catastrophe, or if ACT is unable to have connections or privileges necessary to transmit signals between the Customer's premises and the Central Station or the Municipal Fire or Police Department or another Agency. In the event of any such termination of the Monitoring Service, ACT shall not be liable for any damages or subject to any penalty as a result of such termination.
3. Termination Due to Customer ’s Acts. ACT may terminate this Agreement upon thirty (30) days written notice in the event of any of the following: (i) Customer fails to follow any recommendations ACT may make for the repair, service or replacement of parts, components or devices not covered under the Warranty or any Maintenance Service Contract, or (ii) if the Customer’s existing equipment which is integrated with any equipment or system installed by ACT fails to perform, or (iii) in the event that the Customer's failure to follow the operating instructions provided by ACT results in an unreasonable number of false alarms, or (iv) if the premises in which the system is installed are so modified or altered after installation as to render continuation of service impractical, or (v) if modifications or alterations are made to the System installed by ACT by other vendors or contractors without the prior written consent of ACT.
B. Additional Charges. Customer agrees to pay, in addition to the fees and charges set forth in this Agreement, (i) any taxes, fees, false alarm assessments or charges that are imposed by any governmental body relating to the installation, service or Customer’s use of the System or Services provided under this Agreement, and (ii) any increase in charges assessed to ACT for facilities required for transmission of signals under this Agreement. In the event ACT is sent to the Customer’s premises in response to a service call or alarm signal not covered by Warranty or Maintenance Service Contract, and caused by Customer improperly following instructions or failing to close or properly secure a window, door or other protected point, or improperly adjusting monitors or Fire Alarm accessory components, there shall be a service charge to Customer at the Company’s then prevailing rate for labor and materials, which the Customer agrees to pay.
C. No Oral Changes. This Agreement can only be changed by an agreement in writing signed by both ACT and the Customer. No variations, alterations, deviations, deletions, or extra work can be made unless both ACT and the Customer specifically agree in writing.
D. Term for Lease, Central Station Monitoring, ACTNET Services, Maintenance or inspections Contract and all other Services (collectively the “Lease & Services”). THE INITIAL TERM OF THIS AGREEMENT FOR ALL LEASE & SERVICES IS FIVE (5) YEARS COMMENCING UPON THE DATE THIS AGREEMENT IS SIGNED BY THE CUSTOMER AND COMPANY (THE “INITIAL TERM”). AFTER THE INITIAL TERM, THIS AGREEMENT SHALL AUTOMATICALLY AND CONTINUOUSLY RENEW FOR SUCCESSIVE THREE (3) YEAR RENEWAL TERMS (THE “RENEWALTERM(S)”). ACT OR THE CUSTOMER MAY TERMINATE THIS AGREEMENT AT THE END OF THE INITIAL TERM OR ANY RENEWAL TERM BY PROVIDING THE OTHER AT LEAST SIXTY (60) DAYS PRIOR WRITTEN NOTICE BEFORE THE END OF THE APPLICABLE INITIAL TERM OR RENEWAL TERM.
E. Permits. Unless otherwise noted, Customer shall be responsible for paying for and obtaining all building permits and/or approvals required by law.
F. Compliance with Laws. ACT will comply with all applicable federal, state and local laws regarding any work and services to be performed pursuant to this Agreement.
G. Failure to Complete Work. ACT shall complete the work provided for in this Agreement with reasonable diligence and in a workmanlike manner.
H. ACT Insurance. ACT and any subcontractors hired by ACT will maintain any insurance coverage required under the Worker’s Compensation Laws of New Jersey, and general commercial liability insurance in the amount of no less than $1 million per occurrence. Proof of insurance will be provided upon request by Customer.
HH. Credit Card Payments. There will be a 3% charge added to the invoice for credit card charges of $500.00 or more.
I. Care of Premises. ACT will reasonably protect the work, materials and property from damage or loss caused by ACT. ACT will also take proper precautions for the safety of the public while performing its work and services. The property will be kept free of waste, rubbish and surplus materials caused by ACT. ACT will leave the area of the property where its work or services was performed in “broom clean” condition upon completion of all work and services.
J. Notices. All notices under this Agreement must be in writing. The notices must be delivered personally or mailed by certified mail, return receipt requested, to the other party at the address written in this Agreement.
K. Parties. Both ACT and the Customer are bound by this Agreement, along with their respective successors, assigns, heirs and executors.
L. Governing Law. This Agreement is made in the State of New Jersey and shall be governed by New Jersey law.
M. Venue and Jurisdiction. Morris County, New Jersey shall be the sole and exclusive venue for any litigation arising from, or relating to, this this Agreement and the Customer hereby consents to such venue, and the personal jurisdiction of Morris County, New Jersey.
N. Assignment. This Agreement may not be assigned or delegated by the Customer without the prior written consent of ACT. ACT may assign or otherwise transfer this Agreement for any reason without the consent of Customer.
O. Limited Warranty. If this Agreement includes the sale of any intrusion alarm system, fire alarm system, MNEC, Intercom, clock, CCTV system, access control system, or other electronic security system (the “System”), any part of the System, including the wiring, sold and installed under this Agreement that proves to be defective in material or workmanship within one (1) year of the date of completion of installation will be repaired or replaced at ACT’S option with a new or functionally operative part of similar kind and quality. Labor and material required to repair or replace such defective components will be free of charge for a period of one (1) year following the completion of the original installation. The installation shall be considered complete when seventy-five (75%) of any installed System or component becomes operational. This Warranty does not apply to the conditions listed below and, in the event Customer calls ACT for service under the Warranty and upon inspection by ACT’S representative it is found that one of these conditions has, in whole or in part, led to the inoperability of the System, a charge will be made for the service call of ACT based on its then prevailing rates, which the Customer agrees to pay. Should ACT actually make repairs to the System necessitated by a condition not covered by Warranty, a service charge will be made for such work at ACT’s then prevailing rates for labor and materials, which the Customer agrees to pay. Service will be furnished by ACT during its normal working hours, 8:00 A.M. to 4:30P.M., Monday through Friday, except holidays.
Conditions not covered by Warranty: A) Damage resulting from accidents, acts of God, alteration of any kind without the prior written consent of ACT, misuse, tampering or abuse. B) Failure of the Customer to properly follow operating instructions provided by ACT at time of installation or at a later date. C) Adjustments necessitated by misalignment of CCTV cameras, improper adjustment of monitors and contrast settings or insufficient light on the area, viewed by the camera(s). D) Trouble due to interruption of commercial power or of the phone service. E) the extent to which the condition is caused by a failure or defect in the Customer’s existing equipment, improper use or which is integrated with the System or equipment installed by ACT; and F) any equipment, system, component or device installed by anyone other than ACT. THE FOREGOING WARRANTY IS IN LIEU OF, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
P. Lease of the System (if applicable). If this Agreement includes a lease of a System (“Lease”), then ACT shall always own the System and related parts, components and devices (the “Leased System”). The Customer agrees that no appliances, apparatus, or any attachments not approved by ACT shall be attached to or used in connection with the Leased System. Upon the termination of the Lease for any reason whatsoever, ACT shall have and is expressly given the right to enter the premises to remove the Leased System. The Lease shall not terminate in the event the Customer sells or vacates the premises, unless otherwise agreed to in writing by ACT. Nothing herein contained shall be deemed a waiver by ACT of the Customer's obligation to pay the fees, charges and remedies in this Agreement. The Customer hereby agrees that ACT shall have the right to increase or decrease the Lease fee at any time or times after the expiration of one year from the date this Agreement is signed by both the Customer and ACT upon giving the Customer written notice. If the Customer is unwilling to pay such increased charge, then ACT shall have the option of either rescinding the increased charge or terminating this Agreement with no further duties or obligations of either party, except for the Customer to pay for all work and services rendered as of the termination date. The Customer expressly covenants and agrees not to tamper with, disturb, injure, remove or otherwise interfere with the Leased System or to permit the same to be done and the Customer shall be responsible for the condition of the Leased System during the Term herein provided and until same is returned to the possession of ACT. It is further agreed that the Leased System shall remain in the same location as installed, and any removal or disturbance thereof resulting from painting, altering, or remodeling the fixtures and/or changes whatsoever necessitating any work by way of repairs, relocation or otherwise on said apparatus, shall be paid for by the Customer in accordance with the then prevailing labor and material charges of ACT.
Q. No Liability for Physical Damage to Premises. The Customer hereby authorizes ACT to make any preparations for installation, repair, service, maintenance, or (if applicable) removal of the System such as drilling holes, driving nails, making attachments or doing any other things necessary or pertinent thereto, and ACT shall not be responsible for any painting, patching, repairing or renovating any such conditions it creates. Customer warrants that it has full authority from the owner, landlord and/or any other person in control of the premises to permit the installation, repair, service, maintenance, or (if applicable) removal, of the System.
R. Maintenance Contract (if applicable). If the Customer has contracted for a Maintenance Contract under this Agreement, ACT will inspect and test the System at Customer's request no more than twice annually (unless otherwise noted in this Agreement) and, unless subject to an EXCLUSION below, bear the expense of all labor and materials to inspect, test and repair the System, if needed and due to normal wear and tear. All installation and testing shall be performed between the hours of 8:00 A.M. and 4:30 P.M. exclusive of Saturdays, Sundays and holidays. EXCLUSION: (i) damages resulting from accidents, acts of God, alteration of any kind without the prior written consent of ACT, misuse, tampering or abuse, (ii) failure of the Customer to properly follow operating instructions provided by ACT at the time of installation or at a later date, (iii) adjustments necessitated by misalignment of CCTV cameras, improper adjustment of settings or insufficient light on the area, viewed by the camera(s), (iv) trouble due to interruption of commercial power or of the phone service, (v) the extent to which the condition is caused by a failure or defect in the Customer’s existing equipment which is integrated with the System or equipment installed by ACT; (vi) any equipment, system, component or device installed by anyone other than ACT; and (vii) security screens, any exterior mounted devices, and PROM (Programmable Read Only Memory). Any labor and materials provided by ACT which is subject to Exclusion shall be paid for by Customer at ACT’s then prevailing rates and charges for labor and materials.
S. INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER SHALL INDEMNIFY, DEFEND,
RELEASE, AND HOLD HARMLESS ALARM & COMMUNICATION TECHNOLOGIES (ACT) FROM ALL CLAIMS, DEMANDS AND/OR LAWSUITS MADE BY THIRD PARTIES, AND ANY AND ALL RELATED LOSSES, SETTLEMENTS, JUDGMENTS AND LIABILITIES PAID OR INCURRED BY ACT (INCLUDING PAYMENT OF THE REASONABLE ATTORNEYS’ FEES AND COSTS OF ACT) WHICH ARISE FROM OR RELATE TO THIS AGREEMENT AND ANY WORK OR SERVICES PROVIDED OR CONTRACTED FOR UNDER THIS AGREEMENT, BUT ONLY TO THE EXTENT CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENT ACTS OR OTHER WRONGDOING OF (a) THE CUSTOMER OR ANY THIRD PARTY, AND (b) ACT’s OWN NEGLIGENCE OR OTHER WRONGDOING, BUT ONLY IF PERMITTED BY APPLICABLE LAW. NOTHING CONTAINED HEREIN, INCLUDING (b) ABOVE, SHALL BE CONSTRUED TO REQUIRE ANY INDEMNIFICATION WHICH WOULD RENDER OR MAKE THIS CLAUSE, IN WHOLE OR IN PART, VOID AND/OR UNENFORCEABLE. NOTWITHSTANDING THE FOREGOING, THIS INDEMNIFICATION SHALL NOT APPLY TO ANY WILLFUL OR INTENTIONAL MISCONDUCT OF ACT, OR ANY PERSONAL INJURY OR PROPERTY DAMAGE ACTUALLY CAUSED BY THE NEGLIGENCE OF ANY EMPLOYEE, AGENT OR SUBCONTRACTOR OR ACT TO A THIRD PARTY WHILE PHYSICALLY ON THE PREMISES OF THE CUSTOMER.
T. LIMIT OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF ACT IS FOUND LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGE WHATSOEVER (DIRECT DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES OR OTHERWISE), DUE TO BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OF ANY KIND OR DEGREE, PRODUCT LIABILITY, OR ANY OTHER THEORY OF LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT AND ANY WORK OR SERVICES PROVIDED OR CONTRACTED FOR UNDER THIS AGREEMENT, ACT’S MAXIMUM LIABILITY WILL BE LIMITED TO A SUM NEVER TO EXCEED ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500.00), AND THIS LIABILITY SHALL BE SOLE AND EXCLUSIVE. NOTWITHSTANDING THE FOREGOING, THIS LIMITATION OF LIABILITY SHALL NOT LIMIT THE LIABILITY OF ACT FOR RECKLESSNESS, WILLFUL OR INTENTIONAL MISCONDUCT, OR ANY PERSONAL INJURY OR PROPERTY DAMAGE ACTUALLY CAUSED BY THE NEGLIGENCE OF ANY EMPLOYEE, AGENT OR SUBCONTRACTOR OF ACT WHILE PHYSICALLY ON THE PREMISES OF CUSTOMER AND IN THE COURSE OF PERFORMING THE WORK.
U. False Alarm Charges/ Responsibility for Fines. ANY FINES IMPOSED BY THE LOCAL MUNICIPALITIES FOR FALSE ALARMS DUE TO MALFUNCTIONS OF EQUIPMENT, OR ACTS OF GOD SHALL BE THE SOLE RESPONSIBILITY OF THE CUSTOMER. At ACT’S option, the Customer may be charged for any false alarm caused by the Customer, and for any unnecessary and related response.
V. No Liability for Circumstances beyond ACT’S Control. ACT ASSUMES NO LIABILITY FOR DELAYS IN INSTALLATION OF THE EQUIPMENT, OR FOR INTERRUPTIONS OF ANY SERVICE DUE TO STRIKES, RIOTS, FLOODS, FIRES, ACTS OF GOD OR ANY CAUSES BEYOND THE REASONABLE CONTROL OF ACT, AND WILL NOT BE REQUIRED TO SUPPLY SERVICE TO THE SYSTEM OR CUSTOMER WHILE INTERRUPTION OF SERVICE DUE TO ANY SUCH CAUSE SHALL CONTINUE.
W. Severability. If any of the provisions of this Agreement shall be determined to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
X. Non-Waiver. The failure of ACT to insist upon a strict performance of any of the terms, conditions or covenants herein shall not be deemed a waiver of any rights or remedies that ACT have or may have.
Y. Non-Compatibility. In the event that the System is attached to or used in conjunction with any other form of signaling, alarm, IP transmissions, IOT transmissions, intercom or video system or components, ACT in no way assumes any obligations to maintain, service, replace, operate or assume the operation of the property system, components and/or devices to which the said System may be attached.
Z. Surveillance Equipment. If CCTV equipment is purchased or leased by the Customer, Customer agrees to provide adequate illumination under all operational conditions for the proper operation of the CCTV and will provide the 120VAC power supply where required as well as shelf or desk space for monitors.
AA. Life Safety Equipment Installation. Any work performed under this Agreement is subject to change if required by the local code enforcement agency or other authority having jurisdiction, including but not limited to insurance underwriter, landlord or Customer. If changes are minor, under five hundred dollars ($2500.00), Customer authorizes such changes to be made immediately without change order and agrees to be fully liable for the expense to effect required changes. This shall not apply to consumer contracts. All other changes must be by written change order.
BB. Monitoring Service (if applicable).
• Protocol in the Event of a Security Signal: Monitoring Service, if contracted-for under this Agreement, shall be provided by a Central Monitoring Station subcontracted by ACT (the “Central Station”). Once the Central Station receives a signal or data indicating the necessity for response, the Central Station will, depending on the nature of the signal or data so received, make reasonable efforts to communicate electronically or by telephone to the electronic addresses and telephone numbers provided by the Customer in writing (the “Call List”) and/or the appropriate governmental agencies, if applicable. Customer authorizes the Central Station to contact each person identified on the Call List by the telephone numbers and/or other electronic addresses or instructions provided on the Call List. The Central Station cannot control or be responsible for police or fire response time, or the response of those persons on the Call List. Monitoring Service is not error-free. Signals and data are sent from the System at the premises to the Central Station using the communications equipment at Customer’s premise tied into the System and/or a radio repeater station, which may include Customer’s regular telephone line(s); wireless radio, and/or the internet or cable system (collectively the “Communications Equipment”).
ACT is not responsible for the functioning of the Communications Equipment and, if it is not functioning, the Central Station will not receive a signal or data and will be unable to respond.
Before you change any Communications Equipment (or any antenna location for a wireless communicators set by ACT) you must call ACT and obtain its prior written consent to so change the Communications Equipment (or any antenna location for a wireless communicator set by ACT) because the new equipment may not work with the System and the Central Station may not receive any signals or data. ACT is not liable for any loss or damage caused by, or arising from, change made to the Communications Equipment (or any antenna location for a wireless communicator set by ACT) without the express written consent of ACT. The Customer hereby appoints ACT as the authorized agent of the Customer for purpose of providing information and direction to the Central Station.
• Testing Required by the Customer: The Customer agrees to periodically test (at least monthly) the System to be sure the Communications Equipment is operating and the System is sending signals and data to the Central Station, and to promptly notify ACT in the event of any failure of the System.
• Non-Refundable Fees. It is hereby agreed and understood that the fees for the Monitoring Service are NON-REFUNDABLE and will NOT be pro-rated if terminated during the existing Term.
CC. Entire Agreement. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE CUSTOMER AND ACT,
ANY MAY NOT BE MODIFIED EXCEPT IN A SEPARATE WRITING SIGNED BY CUSTOMER AND ACT. IN EXECUTING THIS
AGREEMENT, CUSTOMER IS NOT RELYING ON ANY ADVICE OR ADVERTISEMENT OF ACT. CUSTOMER AGREES THAT ANY
REPRESENTATION, PROMISE, CONDITION, INDUCEMENT OR WARRANTY, EXPRESS OR IMPLIED, NOT INCLUDED IN WRITING IN THIS AGREEMENT SHALL NOT BE BINDING UPON ANY PARTY. THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL GOVERN NOTWITHSTANDING ANY INCONSISTENT OR ADDITIONAL TERMS AND CONDITIONS OF ANY PURCHASE ORDER OR OTHER DOCUMENT SUBMITTED BY THE CUSTOMER.
DD. Emergency Rates. It is hereby understood and agreed that ACT will charge surcharges and higher labor rates for all work performed on an emergency basis and for all worked performed outside normal business hours (i.e., 8:30 a.m. to 4:30 p.m. Monday through Friday), including weekends and holidays.
EE. Remote Access. In the event Customer defaults or breaches this Agreement, the Customer hereby authorizes ACT the right to remotely access the Systems for purposes of terminating the Central Station Monitoring Service.
FF. INSURANCE/WAIVER OF SUBROGATION. CUSTOMER UNDERSTANDS THAT ACT IS NOT AN INSURER. CUSTOMER IS RESPONSIBLE FOR OBTAINING ALL INSURANCE CUSTOMER DEEMS NECESSARY AND APPROPRIATE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND THE CUSTOMER’S POLICIES OF INSURANCE, CUSTOMER, AND CUSTOMER’S INSURERS, RELEASES ACT FROM ANY LIABILITY FOR ANY LOSS, EVENT OR CONDITION COVERED BY CUSTOMER’S INSURANCE.
GG. Substantial Completion. Should ACT achieve substantial completion, we will invoice the customer for the completion of the project. Substantial completion shall include beneficial use of the system(s) and equipment by the customer.