All sales by ADT Commercial LLC d/b/a Everon ("Everon") to any purchaser (“Customer”) of any and all products, equipment, components, hardware, and software (“Product(s)”), and/or security, fire, and life safety services (“Service(s)”), at any of Customer’s properties or locations (“Premises”) are effective as of the date of sale (“Effective Date”) and are subject to the Everon General Terms and Conditions (“GTCs”) below. Certain Products and Services are subject to the additional Product-Specific Terms and Conditions below. If Everon and Customer are parties to a mutually signed, written agreement, then the terms of that agreement controls.
General Terms and Conditions ("GTCs")
1. Charges, Invoicing, and Payment
a. Invoices. Everon shall issue invoices directly to Customer for amounts owed to Everon (“Charges”). Everon shall issue invoices to Customer on the following schedule:
- For ongoing Services under a contract term or on a month-to-month basis (“Recurring Services”), Everon shall issue invoices quarterly in advance.
- For projects requiring installation of Products and that have a written schedule of values, Everon shall issue invoices as set forth in the schedule of values; or if no schedule of values exists, Everon shall issue invoices over time on a progressive basis to reflect Everon's estimated percentage of work completed.
- For all other Products or Services, Everon shall issue invoices upon delivery of the Product or completion of the Service.
b. Payment. Customer shall pay each invoice in full within thirty (30) days of the date of the invoice, without discount, set-off, or deduction. Any acceptance by Everon of a partial payment shall not be construed as a waiver of Everon's right to receive any unpaid portion of an invoice. Customer shall make payment via wire, automated clearing house, check, or such other manner as may be agreed upon by Everon and Customer. If a payment due date falls on a weekend or any bank holiday, payment must be made on the next available banking day.
c. Past Due Amounts. Past due amounts shall accrue interest at a rate of two percent (2%) per month compounded or the maximum rate allowed by law, whichever is less. All overdue payments received from Customer shall first be applied to interest and collection costs before they will be applied to any principal amounts. Everon shall be entitled to recover from Customer any costs of collecting past due amounts, including reasonable attorneys’ fees.
d. Charges. Charges for Products are determined on a per-order basis and are valid for thirty (30) days from any written proposal. Charges for any Products ordered by Everon for Customer more than thirty (30) days after the date of the Agreement shall be at Everon's then-current prices. After the first year of the term of any Services, but no more frequently than once in any twelve (12) month period, Everon may increase the Charges, effective upon thirty (30) days prior written notice, by an amount not to exceed the United States Producer Price Index increase over the preceding twelve (12) months plus two (2) percent.
e. Delays. Everon shall be reimbursed for all costs incurred by Everon or its subcontractors due to actions by Customer or any of Customer’s vendors or customers that alters or delays the Services, whether before, during, or after Everon has started performing the Services. Any delays other than Force Majeure (as defined in Section 11, below) that cause Everon to incur more labor or overtime hours to complete the Services than originally bid will be the subject of an equitable adjustment to the Charges. Everon will give appropriate notice when possible to the Customer prior to either the Customer or Everon incurring such charges.
f. Taxes and Fees. Charges do not include any applicable taxes. The Customer shall pay the Charges, and as applicable the following:
- All applicable taxes, assessment, duties, fees, or charges now or hereafter levied by any domestic or foreign government or instrumentality thereof (“Taxes”) related to the Products and Services, other than Taxes based on Everon's net income;
- Any false alarm fines or Taxes imposed by any government, instrumentality thereof, law enforcement agency, or other public safety Authority Having Jurisdiction (“AHJ”) or costs for additional or modified Products or Services required by any AHJ;
- All charges related to telecommunication services required for the Products or Services to function, including expenses or costs required to modify or replace Products or Services to comply with changes made by or affecting telecommunication or related services required for the Products or Services to function;
- Any costs and service charges for Everon to repair or replace Customer-owned equipment necessary for Everon to provide the Products or Services;
- A service charge for (a) Everon to respond to a service call or alarm signal caused by Customer error, including, but not limited to, operating Products contrary to Everon instructions; (b) if Customer cancels an installation or service appointment less than forty-eight (48) hours prior to Everon's deployment of personnel to the Premises; or (c) any use of third-party portal for invoice, order, or service or transaction management requested by Customer;
- If payment and performance bonds are required by Customer, then Customer shall pay an administrative fee; and
- Everon may, from time-to-time and in its sole discretion, issue surcharges in order to mitigate and/or recover increased operating costs arising from or related to, without limitation: (a) foreign currency exchange variation, (b) increased cost of third-party supplies, labor, and/or Products, (c) impact of government tariffs or other actions, and (d) any conditions that increase Everon's costs, including without limitation increased labor, freight, material or supply costs, or increased costs due to inflation (collectively, “Surcharges”). Any Surcharges, as well as the timing, effectiveness, and method of determination thereof, will be separate from and in addition to any changes to pricing that are affected by any other provisions in this Agreement.
2. Products and Installation
a. Timing. If the Agreement calls for the installation of any Products by Everon (“Installation”), then Everon will use commercially reasonable efforts to complete the Installation within the timeframe set forth in the Agreement, or if no timeframe is set forth, within a reasonable timeframe. Unless agreed otherwise in writing, Installation shall be during Everon's normal business hours. If no such agreement is made and Customer requests the Installation be performed outside Everon's normal business hours, Monday through Friday (excluding holidays), then additional charges will apply. Within 5 days of completion of the Installation, Customer shall either provide final acceptance of the Installation or identify in writing any corrections required (if no written corrections are provided, Customer will be deemed to have provided final acceptance). If Customer is past due on any invoices at the time Installation is completed, activation of Products may be delayed until past due amounts are paid, at Everon's sole discretion, to the extent permitted by any applicable laws or regulations.
b. Compliance. Customer is responsible for providing the necessary specifications, drawings, designs, or instructions for the Installation and for ensuring they comply with all applicable codes and ordinances. Unless agreed in writing otherwise, Customer shall secure and pay for any required building permits and governmental fees, licenses, and inspection necessary for the Installation. Customer shall give all notices and comply with all laws, ordinances, rules, regulations and lawful orders of any public authority relating to the Installation.
c. Products Ownership. Title and risk of loss to Products sold to Customer under the Agreement shall transfer to Customer upon the earlier of (i) receipt of the Products by Everon or (ii) delivery of the Products to Customer. If Products for an Installation are received by Everon prior to the commencement of Installation, then a fee for Products storage shall be added to the Charges. Customer shall retain title to all Customer-owned equipment that Everon utilizes to provide Services.
d. Substituted Products. If any Product becomes unavailable or discontinued after a Customer order and before Installation, then Everon may substitute an equivalent Product, upon written notice to Customer. The Charges shall be adjusted for any price difference for such substituted Product.
a. General Warranty. Subject to the exclusions stated herein, and in addition to any product-specific warranty terms or exclusions set forth in the Product-Specific Terms, Everon provides the warranties below. EXCEPT FOR THE WARRANTIES SPECIFICALLY SET FORTH BELOW OR IN THE PRODUCT-SPECIFIC TERMS, EVERON EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
- Products Warranty. Products installed under this Agreement are warranted against defects in material or workmanship for a period of ninety (90) days from installation by Everon. Defective Products will be repaired or replaced at Everon's option.
- Services Warranty. Everon warrants that the Services provided hereunder will be performed in accordance with generally accepted industry standards and practices. If any Services fail to comply with the foregoing standard within ninety (90) days from the date Services are completed, then Everon will re-perform the non-complying Services during normal business hours, at no additional charge.
b. Limitations and Exclusions.
- Everon shall perform warranty services during normal business hours, Monday through Friday, excluding Everon holidays. Customer requests for Everon to perform warranty services outside these hours may result in additional charges.
- Everon is not responsible under any warranty for any defect in Products or Services caused by: (a) damage or alterations to the Products or Premises caused by or resulting from any Force Majeure event (defined herein) or the actions or omissions of any third party, whether intentional or unintentional; (b) Customer’s failure to follow Products’ operating instructions; (c) Customer’s failure to provide ordinary care and maintenance to the Products; (d) battery failure or the Products otherwise losing power supply; (e) telecommunications malfunctions or modifications that render it incompatible with the Products or Everon's central station; (f) failure of devices or components designed to fail in order to protect the Products, including but not limited to fuses and circuit breakers; (g) changes requested by Customer after Installation acceptance, including but not limited to adjustments to camera alignment or settings, monitor settings, or other items subject to discretion, after Installation and acceptance by Customer; (h) Customer’s use of Products in combination with equipment or software not supplied by Everon, or changes in any of Customer’s systems connected (e.g. HVAC) that are connected to the Products but not supplied by Everon; (i) repair of Products for which replacement parts or components are no longer available due to obsolescence or end-of-product life; (j) replacement of Products that are at the end-of-product life, obsolete, and/or are no longer supported by the manufacturer; and (l) normal wear and tear.
- To the full extent permitted by law, all warranties shall become voided immediately if Customer permits any person or entity other than Everon, Everon's employees, or Everon's agents to perform maintenance or service to the Products without Everon's prior written approval.
4. Customer’s Obligations
a. Customer’s Representations and Warranties. Customer represents and warrants that:
- Customer owns or leases any equipment Customer provides or allows Everon to use;
- Customer has legal authority to authorize Everon to (a) install Products, (b) use, modify, or connect to previously installed equipment, and (c) provide Services to the Premises;
- Customer will comply with all laws, codes, and regulations related to this Agreement, or to the Premises, the Products, and Services, including but not limited to any applicable requirements regarding notice of and/or consent to the use of video and/or audio recording devices;
- the Products and Services are ordered for commercial purposes and not for personal, family, or household purposes;
- Customer’s entry into this Agreement will not breach, violate, or interfere with any other contract or third-party’s rights;
- the Premises comply with all applicable safety and work rules, OSHA regulations, and other governmental and contractual requirements as to working conditions; and
- if any Services require payment of a prevailing wage under federal or state law, Customer will provide the applicable wage determination to Everon prior to the start of work.
b. Customer’s Responsibilities.
- Responsibilities regarding Products. Customer agrees to (a) instruct all users on the Products’ proper use, (b) test the Products’ protective devices and send monthly test signals through the Everon customer portal, (c) turn off, control, or remove all HVAC systems that interfere with alarm detection service, (d) notify Everon immediately upon discovering a defect in the Products, (e) obtain and keep current all necessary permits and licenses required for the Products, and (f) pay all usage fees imposed by any AHJ in connection with the Products.
- Responsibilities regarding the Premises. Customer agrees to (a) permit Everon to have reasonable access to the Premises during Everon's normal business hours, (b) cooperate with Everon to obtain any necessary consents and waivers from the Premises owner, if not the Customer, relating to the installation or operation of the Products, or the provision of the Services, (c) supply and maintain all supplemental equipment and facilities necessary for any installation or operation of Products or Services, such as structural changes, conduits, back boxes, commercial power electrical wiring, outlets, bypass or switch units, and associated equipment, equipment room(s), and necessary operating environment as specified by the manufacturers of any goods or equipment to be installed, and (d) remediate any materials defined as being radioactive, infectious, hazardous, dangerous, or toxic by any AHJ (“Hazardous Materials”) upon discovery by Everon, prior to Everon continuing work at the affected Premises.
5. Risk of Loss
Everon shall bear the risk of loss or damage to Products until delivery to the Premises. Everon shall be responsible for loss or damage to the Products during testing or installation only to the extent such loss or damage is directly caused by Everon. Customer shall be responsible for security and proper storage of Products after delivery to the Premises and shall bear risk of loss for Products on Premises unless the loss is directly caused by Everon. Customer shall keep all Everon-owned Products insured against all risks of loss in an amount equal to the replacement cost and, at Everon's request, list Everon on the policy as the "loss payee."
a. Termination by Everon.
- Everon may terminate the Agreement or any Service(s) provided thereunder, without penalty, upon thirty (30) days’ prior written notice, if: (a) Customer fails to follow any recommendations Everon may make for the repair or replacement of defective or discontinued Products not covered under Warranty or an Extended Service Plan; (b) Customer fails to follow the operating instructions provided by Everon; (c) the Products generate excessive false alarms due to circumstances beyond Everon's reasonable control; (d) in Everon's sole opinion, the Premises in which the Product is installed becomes unsafe, unsuitable, or so modified or altered after installation as to render continuation of Service impractical or impossible; (e) in Everon's sole opinion, continuation of the Agreement is impractical or impossible under the circumstances; (f) Everon is unable to obtain or continue to support technologies, communication facilities, or Products or component parts thereof that are discontinued, become obsolete or are otherwise not commercially available; or (g) Customer fails to cure any breach of this Agreement, including failure to make payments when due, within thirty (30) days of receiving written notice of such breach.
- Everon may terminate the Agreement or any Service(s) provided thereunder, without penalty, immediately upon written notice, if: (a) any representation by Customer herein or in any other agreement it has with Everon is materially untrue; (b) Customer breaches any warranty contained herein or in any other agreement it has with Everon; (c) Customer denies Everon reasonable access to Everon-owned Products located at any Premises; or (d) Customer becomes insolvent, becomes a debtor in a bankruptcy or other insolvency proceeding, makes an assignment for the benefit of its credits, or has a receiver or trustee appointed for Customer or its assets.
b. Termination by Customer.
- If Everon has materially breached the Agreement, and that breach is not cured within thirty (30) days after Everon receives written notice of the breach, then Customer shall have the right to terminate the Agreement or any Service(s), without penalty.
- Customer may terminate Services provided at any individual Premises, upon thirty (30) days’ prior written notice, if Customer sells or otherwise ceases owning or occupying an individual Premises, other than through merger or change of control transaction.
c. Effect of Termination or Expiration.
- Upon termination of the Agreement, all Services provided under the Agreement shall terminate.
- All Charges due from Customer to Everon shall become immediately due and payable on the date of termination, including (a) all Charges for Services or Products rendered prior to the effective date of termination, (b) the costs for any materials, goods, equipment, or Products purchased or allocated for Customer by Everon prior to notice of termination, and (c) any other costs incurred by Everon in reliance on or on behalf of Customer, prior to the effective date of termination.
- If the termination is for any reason other than those permitted in 6.B, then in addition to all fees due under the Agreement for Products and Services rendered prior to termination, Customer shall pay an early termination charge equal to the sum of monthly charges for Recurring Services for the remaining duration of the term of such Recurring Services.
- Upon the natural expiration of the term of any Recurring Services ordered under this Agreement, such Recurring Services shall automatically renew on a month-to-month basis under the terms of this Agreement until terminated by either party by giving no less than thirty (30) days’ prior written notice.
7. Limitation of Liability
a. Alarm Event Limitation. The amounts Everon charges Customer are not insurance premiums. Everon is not qualified to assess the value of Customer’s property, and Everon's charges are unrelated to the value of Customer's property, any property of others located in or at the Premises, or the risk of loss associated with the Premises. For purposes of this Agreement, an “Alarm Event” shall mean any losses or damages arising from or related to a casualty occurring at Customer’s Premises during which the Products and/or the Services operated, operated improperly, failed to operate, or otherwise did not detect, prevent, terminate, warn of, or mitigate losses or damages resulting from the casualty. Such Alarm Event losses or damages may include, but are not limited to, damage to property, personal injury, or death, and may be caused by casualties such as fire, burglary, unauthorized intrusion, assault, or other event. TO THE FULL EXTENT PERMITTED BY LAW, EVERON, ITS AFFILIATES, AND THEIR RESPECTIVE EMPLOYEES AND AGENTS, SHALL HAVE NO LIABILITY FOR ANY LOSSES OR DAMAGES ARISING FROM OR RELATED TO ANY ALARM EVENT, WHETHER UNDER CONTRACT, WARRANTY, TORT, NEGLIGENCE, OR OTHER LEGAL THEORY OR CLAIM THAT EVERON FAILED TO DETECT, PREVENT, WARN OF, TERMINATE, OR MITIGATE THE CASUALTY UNDERLYING THE ALARM EVENT. EVERON ASSUMES NO RISK OF LOSS OR LIABILITY FOR ANY LOSSES OR DAMAGES ARISING FROM OR RELATING TO ANY ALARM EVENT. THE RISK OF LOSS FOR ALL ALARM EVENTS REMAINS WITH CUSTOMER. Customer releases and waives for itself and its insurer all subrogation and other rights to recover from Everon arising as a result of paying any claim for loss, damage, or injury to Customer or another person arising from or related to an Alarm Event.
b. Consequential Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS) ARISING OUT OF ANY PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT, WHETHER SUCH CLAIM FOR DAMAGES IS BASED ON TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, CONTRACT, OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AT ANY TIME PRIOR TO OR DURING THE CONTRACTUAL RELATIONSHIP BETWEEN THE PARTIES.
c. Liability Cap. WITHOUT LIMITING THE FOREGOING SECTIONS, IN NO EVENT SHALL EVERON'S LIABILITY OR THE DAMAGES RECOVERABLE BY CUSTOMER FROM EVERON, AND/OR EVERON'S EMPLOYEES, AGENTS, OR AFFILIATES, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR PRODUCTS AND SERVICES AT THE PREMISES WHERE THE EVENT FOR WHICH EVERON IS LIABLE OCCURRED, OVER THE TWELVE (12) MONTHS PRECEDING THE EVENT FOR WHICH EVERON IS LIABLE.
a. Indemnification by Everon. Everon shall indemnify and hold Customer and its owners, employees, and officers harmless from any and all third-party claims, demands, liabilities, losses, causes of action, fines, penalties, costs, and expenses, including reasonable attorneys’ fees (collectively, “Losses”) arising from or related to: (i) the negligence or intentional misconduct of Everon, its agents, or employee, but excluding any Losses arising from or related to an Alarm Event; and (ii) any allegation that a Product infringes any third party intellectual property right, to the same extent that Everon is indemnified by the manufacturer or distributor of the applicable Product for the Losses.
b. Indemnification by Customer. Customer shall indemnify and hold Everon and its affiliates, parents, directors, employees, agents, and officers harmless from any and all Losses arising from or related to: (i) the negligence or intentional misconduct by Customer, its agents, employees, contractors, and subcontractors; (ii) an Alarm Event; (iii) any breach of any representation or warranty made by Customer in the Agreement; and (iv) any defect, hazardous condition, or Hazardous Materials present at the Premises.
During the term of the Agreement, Everon will maintain the following insurance policies in full force and effect: (a) comprehensive general liability insurance with a limit of two million dollars ($2,000,000) per occurrence and two million dollars ($2,000,000) general aggregate; (b) statutory workers’ compensation and employer’s liability insurance meeting all applicable federal and state workers’ compensation laws; and (c) commercial automobile liability covering bodily injury and property damage, with a combined single limit of two million dollars ($2,000,000) per occurrence. Certificates of insurance naming Customer as an additional insured are available upon request. Neither the existence of such insurance policies nor the terms of this Section shall be deemed to modify any limitation of liability or indemnification obligation under this Agreement.
10. Intellectual Property
a. No Transfer of IP. The parties acknowledge that one or both parties may have certain intellectual property rights that may be revealed or provided to the other party in accordance with the Agreement. Each party acknowledges that the Agreement does not grant any right or title of ownership in their respective intellectual property rights to the other unless specifically provided in the Agreement. Any intellectual property shall remain the originator’s property unless otherwise provided in the Agreement.
b. Third Party Products and Software.
- Everon is a reseller of certain software, licenses, subscriptions, products, services, and equipment (“Third-Party Services”) performed, provided, manufactured, maintained, and/or managed by independent contractors (“Vendor(s)”).
- “EULA” means all product and services documentation provided by Vendor and all end user license agreements Vendor may require Customer to enter into. EULAs are available on Vendors’ websites and upon request. Customer represents that it has read and agrees to any applicable EULA prior to entering into this Agreement. Customer agrees that it is solely responsible for complying with all terms of any applicable EULA.
- Third-Party Services are sold only with the warranties provided in the applicable EULA. EVERON MAKES NO OTHER REPRESENTATION OR WARRANTY REGARDING THE THIRD-PARTY SERVICES. ALL SALES OF SOFTWARE LICENSES ARE FINAL.
- Customer agrees that Everon may pass through any price change in Vendor’s cost of Third-Party Services upon written notice to Customer. Customer shall be responsible for, and shall reimburse if Everon pays, any charges from Vendor resulting from (a) Customer’s use of the Third-Party Services beyond that purchased under the Agreement and the EULA, and (b) Customer’s premature termination of any Third-Party Services that are subject to a term agreement.
- In addition to and without limiting any other indemnification obligations under the Agreement, Customer shall indemnify and hold Everon harmless to the same extent Customer indemnifies Vendor under an applicable EULA and from any Losses arising from or related to: (a) Customer’s breach of any applicable EULA; (b) any actual or alleged compromise, unauthorized access, disclosure, theft, loss, or unauthorized use of Customer information or data in connection with the Third-Party Service; and (c) any failure by Vendor to provide the Third-Party Services, in part or in whole.
c. Data Usage. Everon, Vendors, or their respective designee(s), shall use Customer data, records, and information only: (a) for the specific purpose for which it was submitted; (b) to provide and improve Products and Services; (c) for analytics and research purposes related to Products and Services; (d) to monitor compliance with this Agreement; and (e) for any other purpose permitted in this Agreement or in any other applicable terms and conditions.
11. Force Majeure
Everon shall not be responsible for any delays or costs caused by acts of God (such as fires, earthquakes, floods, hurricanes, tropical storms, tornadoes, lightning, explosions, and other severe acts of nature or weather), war, revolutions, acts of terrorism, epidemics, pandemics, contagions, acts of governmental authorities such as expropriation, condemnation, quarantining, executive orders and changes in laws and regulations, raw material shortages, component shortages, supply chain disruptions, strikes, labor disputes, or for any other cause beyond Everon's reasonable control (“Force Majeure”). Everon shall be entitled to a Change Order and reimbursement for all demonstrable costs incurred due to Force Majeure and an extension of time equivalent to the delay caused by Force Majeure. The parties agree that any delays or costs caused by or related to COVID-19, foreseeable or not, shall be considered a Force Majeure event for purposes of this Agreement.
During the Agreement, each party may disclose to the other confidential information, the disclosure of which to third parties would be damaging. Confidential information shall include any information relating to the identity of the party’s customers, the nature of their relationship with their customers, the nature of the other party’s business, or the rates charged by it to third parties. The parties agree not to make use of this information other than for the performance of the Agreement, to release it only to employees requiring such information and only after ensuring that such employees are aware of the terms of this Section, and not to release or disclose it to any other party other than as required by law. The parties further agree not to use any Services performed under the Agreement for advertising, portfolio, or other promotional purposes without the written consent of the other party. Confidential information shall not include any information that: (a) was, is, or becomes public information through no fault of the receiving party; (b) was in the possession of the receiving Party before the commencement of this Agreement; (c) is developed independently by the receiving Party; or (d) must be disclosed pursuant to or as required by law or by a court or other tribunal of competent jurisdiction. The obligations under this section shall survive the termination or expiration of the Agreement for three (3) years.
a. Nature of Relationship. Everon is an independent contractor and not an employee, agent, joint venturer, or partner of Customer.
b. License Information. Everon state license information is available at https://www.everonsolutions.com/about/licenses-credentials/licenses.
c. Export Control. Customer shall not export or re-export, directly or indirectly, any: (i) Product or Service provided under this Agreement; (ii) technical data; (iii) software; (iv) information; or (v) items acquired under this Agreement to any country for which the United States Government (or any agency thereof) requires an export license or other approval without first obtaining any licenses, consents or permits that may be required under the applicable laws of the U.S. or other foreign jurisdictions and shall incorporate in all export shipping documents the applicable destination control statements. Customer shall, at its own expense, defend, indemnify, and save harmless Everon from and against all Losses assessed against or suffered by Everon as a result of an allegation or claim of noncompliance by Customer with this Section. The obligations contained in this Section shall survive the termination or expiration of this Agreement.
d. Conflicts of Interest. Everon does not permit the offering or acceptance of gifts or gratuities by Everon employees from parties with whom Everon is contracting for services, products, or other matters, and Customer shall not make any offer to any Everon employee that would violate this policy. Customer further represents and warrants that there is no financial or business relationship or any other conflict of interest that Customer has with or has offered to any employee of Everon. In the event Everon determines any offer of gifts or gratuities has been made by Customer to an Everon employee or a financial or business relationship or other conflict of interest has been offered to or exists between Customer and an Everon employee, Everon may terminate this Agreement, without penalty, upon five (5) days’ prior written notice to Customer.
e. Survival. Sections 3 (Warranty), 5 (Risk of Loss), 7 (Limitation of Liability), 8 (Indemnity), and 12 (Confidentiality) shall survive any termination or expiration of the Agreement.
f. Assignment. Customer may not assign the Agreement or any right thereunder without the prior written consent of Everon, which consent shall not be unreasonably conditioned, withheld, or delayed. Everon may subcontract any portion of the work described in the Agreement.
g. Severability. In the event any one or more of the provisions of this Agreement is held to be unenforceable or invalid under applicable law, such unenforceability or invalidity shall not affect any other provision of this Agreement.
h. Cross-Default. A default by Customer under the Agreement shall be a default of all Agreements between Everon and Customer.
i. Remedies. All remedies under the Agreement are cumulative and in addition to any other rights at law or equity that a party may have.
j. Amendment. The Agreement may be amended or modified only by a writing signed by both parties. Any purported oral amendment or modification is void.
k. Notice. Any and all notices required or permitted to be given under the Agreement shall be in writing and delivered via certified or registered mail, or by overnight courier. Notices to Everon shall be deemed duly given on the date received by Everon at the following address: ADT Commercial LLC d/b/a Everon, Attn: General Counsel, 1501 Yamato Road, Boca Raton, FL 33431. Notices to Customer shall be deemed duly given on the date received by Customer at the address for Customer stated in the Agreement, or if no such address is provided, at any Premises.
l. Waiver. The waiver by either party of any right under the Agreement or any breach of the Agreement shall not operate as, or be construed as, a waiver of any subsequent right under or breach of the Agreement.
m. Governing Law; Dispute Resolution. This Agreement and any dispute or claim arising under it shall be governed by the laws of the state of Florida, without giving effect to its conflicts of law rules. Any and all matters of dispute between the parties to this Agreement, whether regarding performance of the Agreement, interpretation of any term or provision of this Agreement, or other dispute, shall be decided by arbitration conducted under the Commercial Arbitration Rules of the American Arbitration Association in Boca Raton, Florida, with the arbitrator’s costs borne equally by the Parties. The enforceability of this arbitration provision shall be determined by arbitration. The arbitrator(s)’ decision shall be final and binding on the Parties.
n. Entire Agreement. The Agreement contains the entire agreement between the parties with respect to the subject matter of the Agreement, and supersedes any and all prior agreements or understandings, whether written or oral. The parties agree that there are no oral or written agreements, representations, or understandings by or between the parties regarding the subject matter of the Agreement that are not contained in the Agreement.
o. Electronic Signature; Counterparts. The Agreement may be signed and/or delivered by electronic means (such as e-mail), and all such signatures and electronic transmissions of this Agreement are to be treated as originals for all purposes and given the same legal force and effect as a signed paper contract. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such separate counterparts shall together constitute but one and the same agreement.
1. Extended Service Plan
The terms of this section and its subsections apply only to an extended service plan (“ESP”) purchased by Customer. These Product-Specific Terms and Conditions apply in addition to the GTCs and supersede any conflicting term of the GTCs.
- Scope. An ESP is a custom service plan that Customer may purchase for Everon to perform maintenance or repair to Customer’s equipment, at Everon's cost. Customer may elect an ESP to cover costs for parts-only, labor-only, or for both parts and labor costs. Under an ESP, Everon shall perform maintenance or repair on the equipment set forth in the written Agreement (“Covered Equipment”) with labor and/or parts at Everon's cost as set forth in the Agreement, and for the term set forth therein. Everon shall have discretion whether to replace or repair Covered Equipment. All ESP maintenance and repairs shall be performed during Everon's normal business hours, Monday through Friday, excluding Everon holidays. Customer requests for Everon to perform ESP services outside these hours may result in additional charges. Any ESP purchased contemporaneous with an Installation shall commence upon completion of the Installation. Any other ESP shall not commence until Everon has completed inspection and testing of the Covered Equipment and made any necessary repairs or replacements thereto, all of which shall be at Customer’s expense at Everon's then-current time and materials rates.
- Application, Limitations, and Exclusions. An ESP covers normal maintenance and repair to Covered Equipment resulting from normal wear and tear. Except as expressly provided in this Section, an ESP does not cover parts or labor costs related to: (a) the items set forth in the GTCs, Section 3.B (Limitations and Exclusions), other than normal wear and tear; (b) battery replacement, badge printers, locking hardware, locksmith charges, devices installed outdoors, duct detectors, meetings, or inspections; (c) repairs or replacements resulting from any person other than an Everon employee or agent servicing or altering the Covered Equipment; (d) any equipment other than the Covered Equipment; (e) additional charges for lift equipment and spotters necessary to access Covered Equipment; (f) repair of Covered Equipment for which replacement parts or components are no longer available due to obsolescence or end-of-product life; and (g) replacement of Covered Equipment that is at the end-of-product life, obsolete, and/or is no longer supported by the manufacturer. Any repairs and/or replacements that are excluded from the ESP shall be at Customer’s expense at Everon's then-current time and materials rates.
- Suspension for Non-Payment. Everon shall have the right to suspend ESP services until any nonpayment of Charges due under the Agreement is cured, in addition to all other rights provided under the Agreement or by law.
2. Inspection and Testing Services
The terms of this section and its subsections apply only to inspection and/or testing services provided by Everon (“Inspection and Testing”). These Product-Specific Terms and Conditions apply in addition to the GTCs and supersede any conflicting term of the GTCs.
- Time and Manner of Performance. Unless agreed otherwise in writing, Inspection and Testing shall be performed during Everon's normal business hours, Monday through Friday, excluding Everon holidays. Inspection and Testing outside of Everon's normal business hours shall be subject to additional Charges. Everon shall use commercially reasonable efforts to perform Inspection and Testing on Premises and equipment described in the Agreement, in accordance with prevailing industry standards. Inspection and Testing shall be performed only for accessible areas and equipment. The Charges are based upon only the device quantities identified in writing in the Agreement, and any additional devices requiring Inspection and Testing may result in additional Charges.
- Defects Identified by Everon. Everon has no obligation to repair any defects identified during Inspection and Testing, unless the defects are on Products Everon has an obligation to repair or replace under a separate warranty, extended service plan, or other Service.
- Warranty Exclusion. IN LIMITATION OF SECTION 3 OF THE GTCS, EVERON MAKES NO WARRANTY, EXPRESS OR IMPLIED, IN CONNECTION WITH ANY INSPECTION AND TESTING SERVICES.
3. Monitoring Services
The terms of this section and its subsections apply only to Recurring Service(s) for which Everon actively or passively monitors (“Monitoring Services”) Customer’s alarm and/or surveillance systems (“System”). These Product-Specific Terms and Conditions apply in addition to the GTCs and supersede any conflicting term of the GTCs.
- Signal Transmission.
- Transmission By Telephone. If the System is connected to the Central station by a traditional telephone connection, then Customer will provide a traditional telephone connection to the Public Switched Telephone Network. This connection will have priority over any other telephone or equipment and shall be within ten (10) feet of the System control panel. Customer acknowledges and agrees that its use of DSL, ADSL, digital phone, cellular radio, private radio, voice over internet protocol (“VOIP”), or other internet-based phone services (“Non-Traditional Phone Services”) may cause interruptions to signal transmissions to the Central Station, and that Everon does not recommend Non-Traditional Phone Services unless supplemented by a backup device. Customer will notify Everon of any change from a traditional telephone connection to a Non-Traditional Phone Service, and Customer will test the System signal transmission to the Central Station immediately upon such change. Customer authorizes Everon to request on Customer’s behalf any services or equipment from a telephone company or other telecommunication provider providing signal transmission or reception services necessary for Everon to perform the Monitoring Services.
- Transmission by Digital Communicator. If the System is connected to the Central Station by a digital communicator, Customer will provide a connection via a registered telephone jack to a telephone channel required for the System. Such connection shall have priority over any other telephone or Customer equipment and shall be within ten (10) feet of the System control panel. At Customer’s request and expense, Everon will provide such connection.
- Transmission by Internet Protocol Based Services. If the System is connected to the Central Station by an internet protocol-based service, then Customer: (a) will maintain a 120V AC power supply for each device; (b) may be required to maintain a static IP address, and any changes to Customer’s IP address may cause interruptions in signal transmission; (c) may be required to open port(s) on Customer’s firewall; and (d) has sole responsibility for configuring any necessary the modems, routers, firewalls, switches, or hubs necessary to transmit the signals.
- Customer Acknowledgment. Customer acknowledges and agrees that the Central Station cannot receive signals from the System if Customer’s transmission mode becomes non-operational for any reason, including being cut, interfered with, or otherwise damaged, and that Everon shall not be responsible for any interruption or failure of Customer’s mode of signal transmission outside of Everon's control. Changes in government laws or regulations may require modification or discontinuation of Customer’s signal transmission mode.
- Video Services. Customer represents and warrants that: (a) the System is installed at Customer’s request for the safety and security of Customer’s Premises, employees, and invitees, and for no other purpose; (b) the cameras and other recording or monitoring devices will be installed only in public areas within the Premises, and will not be installed in or record any area where persons have a reasonable expectation of privacy, including but not limited to bathrooms; (c) Customer will provide 120 AC power supply and adequate illumination under all operational conditions necessary for the proper operation of the System; and (d) Customer will maintain an internet protocol-based service with no less than the Everon-recommended bandwidth and speed necessary for the effective performance of the System. Customer is solely responsible for: (i) the placement, direction, and presence of the cameras; (ii) the transmission of the images captured by the System; and (iii) the use of System or the images captured by the System by any person other than Everon, or Everon's employees or agents.
- For e-Secure Video Service. The camera(s) may provide live streaming video which may be viewed from your account on a computer with adequate internet connectivity, or send video related to specific Alarm Signals which may be forwarded to your e-mail account or mobile device. Customer is responsible for providing the equipment and internet connection necessary to access the e-Secure Video service Everon will not receive or store these video recordings. Customer agrees and understands that e-Secure notifications are an addition to, and not a replacement of, professional monitoring services. Everon is not responsible for any Losses resulting from Customer’s response or lack thereof to any e-Secure notification.
- For Video Verification Service. The System may be configured to send images to an alarm operator for verification of video images directly associated with heat, burglary, panic, or critical condition alarm signals. Customer agrees and understands that Everon will access and view Customer’s images and other data captured by the System. Customer understands and acknowledges the inherent limitations associated with visual verification, including but not limited to (a) inadequate illumination in the viewing area, (b) physical obstructions blocking a camera’s view, and (c) inadequate receipt, clarity, placement, or quality of the images. Everon does not guarantee that viewing the images transmitted by the System will result in effective visual verification of Alarm Signals.
- For Remote Tours. An alarm operator will review video images generated by the System, at regular intervals and upon conditions as set forth in the Agreement or otherwise agreed by the Parties in writing.
- Radio/Cellular Service.
- For Cellular Backup Service. If the Agreement includes cellular backup service, Everon will install and connect a radio or cellular transmission device to the System as a backup communication link to the Central Station if Customer’s primary communication link to the Central Station is disrupted.
- For Primary Cellular Service. If the Agreement includes primary cellular service, Everon will install and connect a radio or cellular transmission device to the System as the System’s sole communication link to the Central Station.
- Customer Acknowledgement. Customer acknowledges and agrees that: (a) there may be times when cellular backup and primary cellular services will be unable to acquire, transmit, or maintain an alarm signal; and (b) radio or cellular frequency transmissions may be impaired or interrupted by a variety of conditions beyond Everon's control, including but not limited to weather events and power failures. Customer acknowledges that Everon recommends a backup means of communication to the Central Station.
- FCC Requirements. Changes in rules, regulations, or policies of the FCC and other AHJs may require discontinuation or modification of some or all Monitoring Services. If Customer’s cellular or radio transmitter malfunctions, it could interfere with the proper operation of the entire network communicating with the Central Station and other communications transmissions. FCC regulations require that Everon or its contractors or designees have immediate access to Customer’s transmitter in the event of such a malfunction. Customer agrees to permit immediate access to the malfunctioning equipment in such an event. If Customer fails or refuses to provide such access, then Everon shall be entitled to emergency injunctive relief permitting access to either repair or remove the transmitter, or take such other steps as are appropriate under the circumstances, and Customer agrees to pay Everon's expenses, including reasonable attorneys’ fees, incurred in connection with such proceedings.
- Wireless Devices. Customer acknowledges that wireless devices, including but not limited to wireless local area network (WLAN) or WiFi networks and paths, and wireless motion detectors, smoke detectors, door and window contacts, and other wireless devices (“Wireless Devices”) are not physically connected to the System and require a radio frequency network or path to operate. Wireless Devices will not operate, and the System will not sound an alarm, if the radio frequency network or path becomes impaired or interrupted for any reason. Customer is solely responsible for maintaining, inspecting, and regularly testing all networks and paths necessary for the proper operation of the Wireless Devices.
- Direct Connect Services. If Customer requests direct connect services, Everon will install a direct connection between the System and the applicable police or fire department(s) identified by Customer. Alarm signals transmitted through direct connect services will be monitored by the applicable police or fire department(s), which are not Everon's agents or under Everon's control. Everon will not monitor Systems connected through direct connect services. Customer agrees that Everon shall have no responsibility for, or liability resulting from, the AHJ’s monitoring of such Systems.
- Vault Protection. If any vault is covered by Monitoring Services, then Customer represents and warrants that each such vault has the minimum construction characteristics prescribed by the Underwriters’ Laboratories, Inc. Customer agrees to test any ultrasonic, microwave, capacitance, or other electronic equipment designated in this Agreement prior to setting the equipment for closed periods according to procedures established from time to time by Everon, and to notify Everon promptly if such equipment fails to respond to the test.
- System Maintenance. Monitoring Services do not include testing, operation, or maintenance of the System; however, Customer can purchase an Extended Service Plan for Everon to perform these services. Except to the extent included in an Extended Service Plan Customer purchases from Everon, Customer is solely responsible for testing the System and maintaining, operating, and testing all components of the System in accordance with the manufacturer’s recommendations. Except as expressly provided in this Agreement, Everon has no responsibility for the performance of the System.
- eSuite. Everon may provide Customer with access to eSuite, Everon's online portal for Monitoring Services account management. Everon may modify, temporarily suspend access to, or permanently discontinue eSuite or any of its functionality at any time, in Everon's sole discretion. If Customer is provided access to eSuite, Customer agrees to use eSuite to make Monitoring Services account management changes, including but not limited to editing contact lists, access codes, site schedules, testing systems, confirming system activation, and other administrative functions. Customer may be subject to additional per-activity charges if Customer requests Everon personnel perform Monitoring Services account management activities that are available to be made by Customer in eSuite.
- Underlying Casualty Indemnity. In addition to and without limiting the indemnification obligations set forth in the GTCs, Customer shall indemnify and hold Everon and its affiliates, parents, directors, employees, agents, and officers harmless from any and all Losses incurred from third-party claims arising from or related to any casualty (including but not limited to damage to property, injury to persons, or death, caused by fire, burglary, unauthorized intrusion, assault, or other similar event) occurring at Customer’s Premises, which are based in whole or in part upon the Monitoring Services failing to detect, prevent, warn of, terminate, or mitigate damages resulting from the casualty, including Losses based upon claims of Everon's negligence.
- Limitation and Warranty Exclusion. Insurance reflected on any certificate of insurance does not cover Monitoring Services. IN LIMITATION OF SECTION 3 OF THE GTCS, EVERON MAKES NO WARRANTY, EXPRESS OR IMPLIED, IN CONNECTION WITH ANY MONITORING SERVICES.
4. ATM Products and Services
The terms of this section and its subsections apply only to Products and/or Services related to automated teller machines (“ATM”). These Product-Specific Terms and Conditions apply in addition to the GTCs and supersede any conflicting term of the GTCs.
- Installation. Everon will use commercially reasonable efforts to install the ATM Products described in the Agreement (“ATM Installation”) within the timeframe set forth in the Agreement, or if no timeframe is set forth, within a reasonable timeframe. Unless agreed to in writing, ATM Installation shall be during Everon's normal working hours. Any ATM Installation requested to be performed outside Everon's normal business hours shall be at Everon's absolute discretion and subject to additional charges.
- Compliance. Customer is responsible for providing the necessary specifications, drawings, designs, or instructions for the ATM Installation and for ensuring they comply with all applicable codes and ordinances. Unless agreed in writing otherwise, Customer shall secure and pay for any required building permits and governmental fees, licenses, and inspection necessary for the ATM Installation. Customer shall give all notices and comply with all laws, ordinances, rules, and regulations and lawful orders of any public authority relating to the ATM Installation.
- Title. Title to ATM Products shall transfer to Customer upon Customer’s payment of the ATM Installation or Product Charges. Prior to passing of title to Customer, title to the ATM Products shall remain with Everon, and the Everon products shall remain Everon's personal property and not a fixture. Once title has passed to Customer, Customer shall pay to Everon storage fees for any equipment and/or goods remaining at Everon's site, through no fault of Everon, in excess of sixty (60) days from date of delivery.
- Security. Customer shall provide Everon with the number of key sets and combination required for their area and contract type necessary to access each ATM and its contents. Everon shall maintain these keys and combinations in strict confidentiality. Customer shall remain responsible for security of the Premises and ATMs during Everon's performance of ATM Services. Without limiting the foregoing, upon Everon's request, Customer shall provide all supplemental security measures during installation or maintenance of ATMs, including but not limited to the provision of armed security. Everon shall have no obligation to perform any ATM Installation or maintenance unless and until the ATM’s site is properly secured for safety, in Everon and its on-site technicians’ sole and absolute discretion. If Customer allows a third party other than Everon to access the ATM other than in the normal course of an ATM user, then Customer shall require such third party to sign a shared liability agreement between itself, Everon, and Customer.
- Starting Balance Certification. At the start of ATM Services, Customer shall have authorized personnel accompany Everon to balance and certify the amount of currency in each ATM. These certified amounts will be written and signed, and will provide the benchmark for measuring any future variances with regard to Everon.
- Special Limitations of Liability and Releases. In addition to and without limiting any limitations of liability elsewhere in the Agreement, the parties agree to the following additional limitations for ATM Services.
- EVERON SHALL NOT BE LIABLE FOR, AND CUSTOMER WILL RELEASE, INDEMNIFY, AND HOLD EVERON HARMLESS FROM ANY LOSSES (AS DEFINED IN THE GTCS) ARISING FROM OR RELATED TO: (A) ATM MALFUNCTIONS OR LOSS OR DAMAGE TO CURRENCY CASSETTES OR CONTAINERS, INCLUDING THE CONTENTS WITHIN, EXCEPT TO THE EXTENT SUCH LOSSES ARISE SOLELY FROM EVERON'S INTENTIONAL MISCONDUCT; (B) THIRD-PARTY CLAIMS ALLEGING PRIVACY LAW VIOLATIONS OR IDENTITY THEFT RELATED TO THE ATMS OR ATM SERVICES; AND (C) ANY THEFT, INJURY (INCLUDING DEATH), OR DAMAGE TO ANY PERSON OR PROPERTY CAUSED BY THIRD PERSONS DURING ANY ATM SERVICES OR RELATED TO THE ATM(S) OR ANY ATM SERVICES.
- Customer will provide notice to Everon within five (5) days of discovering any ATM cash loss or variance where Everon may be liable under this Section. The notice shall include detailed proof of loss in the form of accounting statements, ledgers, and any other substantiated records. Failure to provide timely notice to Everon as required by this Section shall absolve Everon of any liability for such cash loss or variance. Everon's liability for ATM cash variances is limited as follows: (i) When Everon has sole access to an ATM, Everon will promptly investigate any known or alleged cash variance, and Customer will assist in such investigation. If the investigation results in proof that Everon's negligence or intentional misconduct solely caused the cash variance, Everon will repay the variance to Customer as quickly as reasonably possible, but in no event later than forty-five (45) calendar days from the date of the end of the investigation; and (ii) When access to an ATM is shared by Everon with the Customer or other party(s), Everon, Customer, and the third party shall enter into a Shared Liability Agreement.
- Customer agrees that Everon removing any cash or cassette(s) from ATMs while performing ATM Products and Services does not render Everon responsible for the cassette(s)’ security, does not make Everon a bailee of the cassette(s), and does not transfer possession of the cassette(s) to Everon. Customer acknowledges that anti-skimming devices are intended to prevent, but may not prevent, any theft or fraud.
5. Sprinkler and Suppression Services
The terms of this section and its subsections apply only to the sale, installation, testing, inspection, repair, and/or maintenance Services related to fire mitigation sprinkler and other suppression systems (“Sprinkler and Suppression Services”). These Product-Specific Terms and Conditions apply in addition to the GTCs and supersede any conflicting term of the GTCs.
- Warranty Disclaimer. Section 3 (Warranty) of the GTCs does not apply to Sprinkler and Suppression Services. EVERON WARRANTS SPRINKLER AND SUPPRESSION SERVICES ONLY TO THE EXTENT REQUIRED BY APPLICABLE LAW. Except to the extent as may be required by applicable law, Everon does not warrant any Sprinkler Services against defects in the materials or workmanship provided. Everon will pass-through to Customer the benefits of any warranty(ies) Everon receives from the manufacturer of sprinkler Products. Services for repair or installation of any Product(s) covered under such warranty(ies) shall be at Customer’s expense at Everon's then-current rates, using new equipment. EXCEPT AS PROVIDED IN THIS SUBSECTION, THERE ARE NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, PROVIDED BY EVERON IN CONNECTION WITH SPRINKLER AND SUPPRESSION SERVICES.
- Standards. Sprinkler and Suppression Services shall be performed in accordance with the version of National Fire Protection Association Standard 25 – Standard for the Inspection, Testing, and Maintenance of Water-Based Fire Protection Systems (“NFPA 25”) or other standard(s) as then adopted by the AHJ. Sprinkler and Suppression Services to be performed by Everon are as set forth in the written Agreement. Customer may be required under NFPA 25 or AHJ rules to have certain maintenance or other activities performed at various intervals, which shall be performed by Everon only if set out in writing in the Agreement. Unless otherwise stated in the Agreement, Everon is not responsible for identifying to Customer additional Sprinkler and Suppression Services required or recommended by the AHJ or NFPA 25. It is Customer’s responsibility to maintain compliance with all applicable AHJ and NFPA 25 requirements.
- Sprinkler Inspection and Testing. In addition to the Inspection and Testing terms above, the following terms apply to Inspection and Testing of Sprinkler and Suppression Systems.
- All AHJ fees and costs shall be borne by Customer. Everon shall provide required reports to the AHJ as required by law.
- Inspection and Testing shall be performed by one (1) Everon technician.
- Customer shall be responsible for: (a) making system drawings and at least one Customer representative available to the Everon technician to assist with performing non-technical duties, including but not limited to providing access, silencing, acknowledging alarms as they are received at the fire alarm panel; (b) posting all required signs and notices prior to testing, in compliance with the timing requirements of the applicable AHJ; (c) providing timely and unrestricted access to all areas of the Premises; (d) implementing and maintaining AHJ-compliant Sprinkler and Suppression systems; (e) providing any required fire watch for any systems that fail Inspection and Testing; (f) complying with all test water drainage requirements; and (g) resolving any impairments identified, to the applicable AHJ or other standard that may apply.
- Inspection and Testing of Sprinkler Systems excludes inspection of (a) any equipment not specifically identified in a scope of work, (b) full flow test of pressure regulating valves, (c) valve pits or equipment on a municipality’s right of way, (d) public hydrants, (e) confined spaces as defined by the Occupational Safety and Health Administration (“OSHA”), (e) any concealed spaces or areas otherwise not made accessible to Everon, (f) backup power systems, and (g) any inspection or testing beyond that agreed to by Everon in writing.
- Everon shall perform Inspection and Testing of Sprinkler Systems only as expressly agreed to in writing. VISUAL INSPECTION OF SPRINKLERS FROM GROUND LEVEL CANNOT SUFFICIENTLY DETERMINE A SPRINKLER’S OPERATIONAL EFFECTIVENESS. System drawings may be necessary to perform certain Sprinkler Inspection and Testing services. Additional AHJ and/or NFPA 25 inspection or testing requirements may be applicable to Customer’s Premises. Everon is not obligated to identify any such additional inspection or testing requirements or to perform such additional inspection and testing, unless agreed to in writing. Everon is not obligated to perform any maintenance, repairs, or troubleshooting as part of Sprinkler Inspection and Testing Services; any such Services shall be provided only if and as set forth in a separate Agreement governing such Services.
- Any backflow preventer Inspection and Testing included in a scope of work shall be performed in accordance with AHJ requirements. Customer acknowledges and agrees that incoming water supply may be interrupted during backflow testing.
- Any dry sprinkler system Inspection and Testing included in a scope of work shall be performed annually, with the following components tested quarterly: high/low air switches; priming water; and testing of quick opening devices (accelerators).
- Any fire pump Inspection and Testing included in a scope of work shall include one (1) flow test on an annual basis unless more frequent testing is stated in a scope of work. Customer is responsible to clear the test area of valuables and pedestrians, and to protect surfaces where the testing will be conducted. Fire pump voltage and amp readings are not performed by Everon.
- Any fire hydrant Inspection and Testing included in a scope of work includes (a) fully opening hydrants, (b) checking dry barrels for proper drainage, (c) inspecting all stems, caps, plugs, and threads, and (4) confirming that hydrant is accessible and free of leaks or damage. Five-year static and residual readings are excluded unless specifically stated in a scope of work.
- CPVC Piping Exclusions and Indemnity. Chlorinated polyvinyl chloride piping (“CPVC Piping”) is known to develop leaks and/or cause structural weakness if exposed to incompatible material, improper storage, or installation not compliant with manufacturer’s published instructions. EVERON SHALL HAVE NO LIABILITY TO CUSTOMER FOR ANY DAMAGES RESULTING FROM LEAKS OR STRUCTURAL WEAKNESSES IN CPVC PIPING. IN ADDITION TO AND WITHOUT LIMITING THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THE GTCS, CUSTOMER SHALL INDEMNIFY AND HOLD EVERON AND ITS AFFILIATES, PARENTS, DIRECTORS, EMPLOYEES, AGENTS, AND OFFICERS HARMLESS FROM ANY AND ALL LOSSES INCURRED FROM THIRD-PARTY CLAIMS ARISING FROM OR RELATED TO ANY LEAKS OR STRUCTURAL WEAKNESS IN CPVC PIPING, INCLUDING LOSSES BASED UPON CLAIMS OF EVERON'S NEGLIGENCE.
- Sprinkler and Suppression Services Hold Harmless and Indemnity. In addition to and without limiting the indemnification obligations set forth in the GTCs, Customer shall indemnify and hold Everon harmless from any and all Losses arising from or related to any fire or Sprinkler and Suppression system discharge occurring at Customer’s Premises, and which are based in whole or in part upon the Sprinkler and Suppression Services or the sprinkler or suppression system functioning, failing to function, or malfunctioning for any reason.
6. Electronic Article Surveillance and Security Gates
The terms of this section and its subsections apply only to the sale and installation of electronic article surveillance (“EAS”) and/or security gate equipment. These Product-Specific Terms and Conditions apply in addition to the GTCs and supersede any conflicting term of the GTCs.
- Restoration Costs. Customer acknowledges that installation and service of EAS or security gate equipment may require cutting into or adhering Products to its Premises’ floors, walls and/or ceilings. Customer agrees that Everon shall not be liable for any cost incurred by Customer to repair or refinish Customer’s floor, floor coverings, walls, wall coverings, ceilings, ceiling patching, painting, matching of finishes, restoration or replacement, or for related expenses, but excluding any costs caused by Everon's gross negligence or intentional misconduct (“Restoration Costs”).
- Warranty Limitation. Everon does not warrant, and excludes from its general warranty provided under Section 3 of the GTCs, any Restoration Costs incurred by Customer. During the warranty period, and if applicable the ESP period, services covered under warranty or ESP for EAS and/or security gate equipment will include Everon reimbursing Customer the reasonable cost of necessary expenses for floor excavation, cutting, and standard refinishing resulting from required repairs, but in no event shall Everon be responsible for other Restoration Costs.
7. Third-Party Services
The terms of this section and its subsections apply only to Third-Party Services provided by Vendors identified in this section. These Product-Specific Terms and Conditions apply in addition to the GTCs and supersede any conflicting term of the GTCs.
- Applicable Vendors. The following Vendors provide Third-Party Services subject to this section: Brivo, Inc. (“Brivo”); Avigilon Corporation (“Avigilon”); LiveView Technologies, Inc. (“LVT”); Rekor Recognition Systems, Inc. (“Rekor”); Alarm.com (“Alarm.com”); and NCR Corporation (“NCR”).
- Vendor EULA. Vendor’s EULA may include limitations as to warranty, use, Vendor’s liability for data breach or other events, data security standards, performance metrics, continuity of Third-Party Services, and other terms or and conditions. Customer represents that it has read and agrees to any applicable EULA prior to entering into this Agreement. Customer agrees that it is solely responsible for complying with all terms of any applicable EULA.
- Brivo’s EULA is available at https://www.brivo.com/terms-of-use-brivo-services.
- Avigilon’s EULAs are available at www.avigilon.com.
- LVT’s EULA is available at www.lvt.com/legal.
- Rekor’s EULA is available at Rekor’s affiliate, OpenALPR Software Solutions, Inc.’s website, at www.openalpr.com/license.
- Alarm.com’s EULAs are available at https://www.alarm.com/legal.
- NCR’s EULAs are available at https://www.ncr.com/terms-and-conditions
- Honeywell International Inc.’s EULAs are available at https://buildings.honeywell.com/us/en/legal/eula
- Warranty Exclusion and Disclaimer. Third-Party Services are sold only with the warranties provided in the applicable EULA. Everon represents and warrants that it has authority to sell Customer the Third-Party Services, subject to the conditions of the EULA. EVERON MAKES NO OTHER REPRESENTATION OR WARRANTY, AND DISCLAIMS ANY OTHER REPRESENTATION AND WARRANTY, REGARDING THE THIRD-PARTY SERVICES.
- Intellectual Property Rights. Except as provided by a EULA, Vendors reserve all rights, title, and interest in and to the Third-Party Services and all portions thereof, including all related intellectual property rights. No rights are provided to Customer except those explicitly set forth in the EULA. Customer agrees that it shall not: (a) modify, copy, or create derivative works based upon the Third-Party Services or any portion thereof; (b) frame or mirror any content forming part of the Third-Party Services; (c) reverse engineer the Third-Party Services or any portion thereof; or (d) access the Third-Party Services in order to build a competitive product or service, or copy any ideas, features functions, or graphics of the Third-Party Services.
8. Rented or Financed Products
The terms of this section and its subsections apply only to products rented by Customer from Everon or leased or financed by a third-party. These Product-Specific Terms and Conditions apply in addition to the GTCs and supersede any conflicting term of the GTCs.
- For Rental Products. Everon retains title to Everon-owned Products rented to Customer (“Rented Products”). Within five (5) business days after termination of the Agreement (or portion of the Agreement pertaining to the equipment), Customer must either (a) package and return the Rented Products to the nearest Everon commercial branch office in good working order, (b) pay Everon's then-current charges for an Everon technician to remove the Rented Products, or (c) pay Everon's then-current charges for the Rented Products. If Customer fails to satisfy its obligations under this Section, then Everon shall have the right to enter the Premises to remove or disable the Rented Products. Everon shall use reasonable care in removing any such Rented Products and shall not have any obligation to repair or remediate the Premises after such removal or disabling.
- Third-Party Leased or Financed Products. Title to Products leased or financed by a third-party lender or leasing company may be held by the lender or lessor as security for the loan or lease obligations. The terms of Customer’s agreement with any such lender or lessor may require Customer to maintain insurance, to pay fees or costs, and/or may obligate Customer to the lender or lessor independently of Customer’s relationship with Everon. Customer agrees and acknowledges that Everon is not responsible for Customer’s selection of any third-party lender or lessor, is not a party to any agreement between Customer and such lender or lessor, and is not a broker or agent for the transaction between Customer and the lender or lessor. Customer acknowledges and agrees that any financing or leasing arrangement between Customer and a third-party company are independent of Everon, and Everon is not a party to any such transaction. As such, Everon expressly disclaims any and all liability, and Customer waives as against Everon, any and all liability regarding such financing or leasing arrangement. Customer agrees that Everon shall have no liability related to Customer’s contract or arrangement with the third-party lender or lessor.