You acknowledge that PointCentral, LLC ("PointCentral") is not willing to enter any agreement, express or implied, to sell or provide you equipment or services except pursuant to all of the terms and conditions set forth in the following PointCentral Subscription Agreement. PointCentral disclaims all representations, warranties, and liability, express or implied, in connection with the provision of its equipment and services other than in accordance with all of the terms and conditions set forth in this PointCentral Subscription Agreement (the "Agreement"), which follows:
Customer (sometimes referred to as "you") agrees to purchase the PointCentral System (the "System") and subscribe to the services ("Services") provided by PointCentral (sometimes referred to as "us" or "we"). This Agreement consists of this page, the following pages, the list of billing, contact and user information provided on the PointCentral customer website ("Customer Website") and in your PointCentral subscriber account (collectively, "Information Form"). YOU ARE RESPONSIBLE FOR INSTALLING AND ACTIVATING THE SYSTEM IN ACCORDANCE WITH THE INSTRUCTIONS THAT WILL BE INCLUDED IN THE USER GUIDE THAT COMES WITH THE SYSTEM. You understand and agree that our duties and obligations to provide the System and Services arise solely and exclusively out of this Agreement and not otherwise. If anyone other than Customer is the user of the System (a "User"), such User is a third party beneficiary to this Agreement and is bound by all of the terms herein, including, without limitation, our disclaimer of warranties and limitation of liability.
The Services shall include the services that PointCentral uses commercially reasonable efforts to provide to you while your subscription with PointCentral remains in effect, pursuant to the terms and conditions of this Agreement, as we may modify this Agreement as provided in Section 18. Depending on the then-current service offerings and the subscription purchased, and subject to availability, such services may include one or more of the following: (i) the enabling of wireless transmission of data from a security, access, or lock system to a hosted network operations center; (ii) providing the User with remote access to such data via a web dashboard or mobile device; and (iii) providing the User with event driven e-mail notifications managed by the User. PointCentral does not provide monitoring and the Services do not include notification of an emergency event to fire, police or other emergency personnel. Notwithstanding anything to the contrary in this Agreement, PointCentral shall have the right to add, delete, change, or terminate service at any time without prior notice.
During the term of this Agreement we will provide Services for the System in accordance with the provisions set forth herein, and the instructions provided on your Information Form. SERVICES WILL NOT BEGIN AND WE WILL HAVE NO OBLIGATION TO PROCESS NOTIFICATIONS RECEIVED FROM THE SYSTEM UNTIL WE HAVE RECEIVED AND PROCESSED (1) A COPY OF THIS AGREEMENT ELECTRONICALLY SIGNED BY YOU; AND (2) YOUR COMPLETED INFORMATION FORM. YOU UNDERSTAND AND AGREE THAT: (i) YOU HAVE CHOSEN THIS SYSTEM; AND (ii) THIS SYSTEM DOES NOT PROVIDE INTRUSION OR FIRE PROTECTION. MONITORING SERVICE IS NOT PROVIDED BY THIS AGREEMENT AND NOTIFICATIONS WILL NOT BE RECEIVED OR PROCESSED BY ANY MONITORING FACILITY.
2. PRICE, MONTHLY SERVICE FEE AND TERMS.
2.1 Services Fee. For Services, you agree to initially pay a full month of the Services Fee upon the date of subscription. After the original term, this Agreement shall renew monthly starting from the subscription date at the then prevailing rates for the Services unless terminated as set forth below. We may terminate this Agreement at the end of the original term or any renewal term by giving you not less than 30 days advanced written notice. Subject to the 30-day return right set forth in Section 5, you may terminate this Agreement at anytime by giving us written notice, but any prepaid amount shall be non-refundable.
2.2 Automatic Payment. You authorize and agree that all amounts due to PointCentral under this Agreement, including the Service Fees, are to be paid by automatic credit card debit pursuant to the credit card information you provided on the Customer Website. You will be required to enter your credit card information when you first log-in to your PointCentral customer account. If your credit card payment is not honored, we may: (i) demand payment and you agree to pay the amount due; and/or (ii) elect to terminate this Agreement by giving you notice. Such termination does not relieve you of your obligation to pay for Services provided prior to such termination.
2.3 Payment Terms. You agree to pay all sales, service, property, use and local taxes; and any permit fees, telephone charges, return check charges, or late charges, if applicable, whether imposed on you or us. We shall have the right, at any time, to increase the Services fee for any renewal term by giving you sixty (60) days advanced notice. If you don't wish to accept the increased Services fee, you may cancel this Agreement as provided in Section 2.1.
3. THE SYSTEM AND SERVICES HAVE CERTAIN LIMITATIONS. IN CONSIDERATION FOR THE PROVISION OF THE SYSTEM AND SERVICES, YOU ACKNOWLEDGE THAT WE DO NOT REPRESENT OR WARRANT THAT THE SYSTEM OR SERVICES WILL PREVENT PROPERTY DAMAGE, THEFT, DEATH, BODILY OR PERSONAL INJURY, OR ANY OTHER INJURY OR DAMAGE TO YOU OR OTHERS WHO USE THE SYSTEM. WE HAVE NO CONTROL OVER THE RESPONSE TIME OR CAPABILITY OF ANY AGENCY OR PERSON WHO MAY BE NOTIFIED AS A RESULT OF THE SYSTEM BEING USED. YOU FURTHER UNDERSTAND THAT THE SYSTEM MAY FAIL TO FUNCTION PROPERLY. YOU AGREE THAT IF WE WERE TO HAVE ANY LIABILITY GREATER THAN THAT AGREED TO BY YOU PURSUANT TO SECTION 14 OF THIS AGREEMENT, WE COULD NOT AND WOULD NOT PROVIDE THE SYSTEM OR SERVICES. YOU ACKNOWLEDGE THAT YOU SHOULD OBTAIN ANY PROPERTY, LIFE, MEDICAL OR DISABILITY INSURANCE FOR THE PROTECTION OF YOURSELF, YOUR PROPERTY AND OTHERS WHO MAY USE THE SYSTEM. YOU UNDERSTAND THAT THERE MAY BE ALTERNATIVES AVAILABLE TO YOU SUCH AS 911 EMERGENCY TELEPHONE SERVICE AND YOU HAVE SELECTED THE SERVICES WITH A FULL UNDERSTANDING OF THEIR LIMITATIONS, AND THE LIMITATION OF OUR LIABILITY SET FORTH IN SECTIONS 14 AND 15.
4. RECEIPT OF COPY: YOU STATE THAT A COMPLETE COPY OF THIS AGREEMENT WAS MADE AVAILABLE TO YOU ON THE POINTCENTRAL WEBSITE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT WAS NEGOTIATED AND ENTERED INTO SOLELY BY YOUR USE OF OUR WEBSITE.
5. 30-DAY RIGHT OF CANCELLATION: YOU MAY CANCEL THIS AGREEMENT AT ANY TIME PRIOR TO MIDNIGHT OF THE 30TH DAY FROM THE DATE OF THIS AGREEMENT, BY GIVING US WRITTEN NOTICE.
6. LIMITED WARRANTY.
A. WHAT IS COVERED: FOR ONE YEAR AFTER WE DELIVER THE SYSTEM TO YOU, WE WILL REPAIR OR REPLACE ANY DEFECTIVE PART OF THE SYSTEM WITHOUT CHARGE TO YOU. WE MAY USE NEW OR USED PARTS OF THE SIMILAR QUALITY AND FUNCTIONALITY AND KEEP ALL REPLACED PARTS.
B. HOW TO GET SERVICE: FIRST, CALL OUR SERVICE DEPARTMENT AT 1-888-532-4073. OFTEN SERVICE PROBLEMS CAN BE SOLVED BY TELEPHONE. IF THE PROBLEM CANNOT BE RESOLVED WE WILL ISSUE YOU AN RMA NUMBER AND SEND YOU A REPLACEMENT PART AND INSTRUCTIONS ON HOW TO RETURN THE NON-WORKING PART TO US. UPON YOUR RECEIPT OF THE REPLACEMENT PART YOU ARE OBLIGATED TO RETURN THE NON-WORKING PART TO US WITHIN 10 DAYS. IF YOU FAIL TO DO SO, WE MAY CHARGE YOU OUR PREVAILING PRICE FOR THE REPLACEMENT PART BY DEBITING YOUR CREDIT CARD.
C. WHAT IS NOT INCLUDED: REPLACEMENT OF A DEFECTIVE SYSTEM OR ANY DEFECTIVE COMPONENT IS OUR ONLY DUTY UNDER THIS WARRANTY. THIS WARRANTY DOES NOT INCLUDE BATTERIES AND ANY OTHER PART THAT NEED TO BE REPLACED DUE TO ACCIDENT, ABUSE, MISUSE, ACTS OF GOD, VANDALISM, ATTEMPTED UNAUTHORIZED REPAIRS, FAULTY ELECTRICAL OR TELEPHONE CONNECTIONS, OR OTHER CAUSES OTHER THAN BY NORMAL WEAR AND TEAR. POINTCENTRAL MAKES NO OTHER EXPRESS WARRANTY INCLUDING ANY WARRANTY OF MERCHANTABILITY OF THE SYSTEM OR ITS FITNESS FOR ANY SPECIAL PURPOSE. WE DO NOT PAY FOR SHIPPING OR HANDLING COSTS ASSOCIATED WITH RETURNING THE DEFECTIVE SYSTEM OR ANY DEFECTIVE COMPONENT TO OUR FACILITIES. THE SERVICES ARE PROVIDED "AS IS," WITH ALL FAULTS, AND WE MAKE NO REPRESENTATION OR WARRANTY THAT THE SYSTEM OR SERVICES WILL BE FREE FROM DEFECTS, THAT THEY WILL MEET YOUR NEEDS, OR THAT ANY SERVICE WILL BE INTERRUPTED. WE AND OUR AFFILIATES ARE NOT LIABLE FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS DEEMED UNCONSCIONABLE. YOU AGREE THAT THIS IS OUR ONLY WARRANTY AND WE HAVE GIVEN YOU NO OTHER WARRANTY FOR THE SYSTEM. ALL IMPLIED WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OF THE SYSTEM OR ITS FITNESS FOR ANY SPECIAL PURPOSE ARE LIMITED IN DURATION TO THE TERM OF THIS EXPRESSED LIMITED WARRANTY.
D. STATE LAW: SOME STATES DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR A LIMITATION ON THE DURATION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THE WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE.
7. COMMUNICATIONS SERVICES. Once you have installed the System and its components, you are required to activate your account in our communications network (the "Network"). You are responsible for maintaining the confidentiality of your user login, password and user PIN codes, and you are responsible for all uses of your login, password and user PIN codes, and any related changes, whether or not authorized by you. You are also responsible for keeping all contact information (including email addresses and telephone numbers) current and accurate. You agree that, whenever this Agreement or our rules or regulations impose any requirement or prohibition on the User, you will cause all other members of your household or business and any other person having access directly or indirectly through you to the System and Services to comply with such requirement or prohibition and will be responsible for any noncompliance by such member of your household or other person. We do not monitor or respond to the transmission of events. We reserve the right to store all events.
8. COMMUNICATIONS FACILITIES. The System may include a device that sends event notifications to the Network over a private cellular telephone or broadband service provided by an independent carrier. The cellular or broadband network provided by the independent carrier may go off-line from time to time, and during any such outage notifications cannot be transmitted and we may not know of the communications outage. We are not obligated to provide Services during any such outages. Cellular and broadband networks are regulated by federal and state agencies, and changes in rules and regulations may require us to modify or terminate transmission services.
9. AFTER WARRANTY REPAIR OF SYSTEM. At the end of our limited warranty, and so long as you are paying for Services, we shall continue to repair or replace a defective part of the System pursuant to the process set forth in Section 6 of our limited warranty, and you agree to pay for such repair service at our then prevailing rates and you authorize us to debit your credit card for such services. If you fail to pay for chargeable repair service we may terminate this Agreement by giving you notice and seek to collect any unpaid charges.
10. CUSTOMER'S DUTIES. You will instruct all other persons who may use the System on its proper use, including any User if different than you. You or the User will test the System and each device on an annual basis in accordance with the testing instructions in your user manual. You and the User will obtain and keep in effect all permits or licenses that may be required for the installation and operation of the System. You will complete and give us the Information Form. You will notify us in writing of any changes in the persons or telephone numbers on your Information Form. You agree that we may disclose the information on the Information Form to any governmental agency having jurisdiction over the use and operation of the System.
11. TERMINATION, DEFAULT. If you fail to make any payment when due or otherwise default under the terms of this Agreement, we may discontinue Services and terminate or suspend this Agreement. If service is suspended because you have failed to pay the Services fees set forth herein, and you ask us to reactivate the System, you will pay, in advance, our then prevailing reconnection fee. YOU UNDERSTAND THAT THE DEVICES MAY NOT WORK WITH EQUIPMENT AND NETWORKS USED BY OTHER PROVIDERS.
12. SUSPENSION OR CANCELLATION OF THIS AGREEMENT. You understand that we may stop or suspend Services for any of the following reasons: (a) strikes, severe weather, earthquakes or other such events beyond our control affect the operation of the Network or so severely damage your premises that continuing Services would be impractical; (b) there is an interruption or unavailability of the communications facilities connecting the System and the Network; (c) you do not pay the service charge due to us, after we have given you ten (10) days' notice that we are canceling service because of non-payment; (d) we are unable to provide service because of some action or ruling by any governmental authority; and (e) for any other reason as determined in good faith by us. In no event will we be liable for any damages or subject to any penalty as a result of any termination of this Agreement. Your subscription shall not survive the expiration or termination of this Agreement, but all disclaimers of warranties, limitations of responsibility and liability, exclusions of damages and other remedies, and indemnification rights set forth in this Agreement shall survive its expiration or termination.
13. ASSIGNEES AND SUBCONTRACTORS. We have the right to assign this Agreement or to subcontract any of our obligations hereunder without notifying you and without obtaining your consent. You may not transfer this Agreement to someone else (including someone who purchases or rents your premises) unless we approve the transfer in writing. We may use subcontractors to provide repair and Services, and this Agreement, and particularly Sections 14 and 15, shall apply to them and the work they perform, and protect them in the same manner as it applies to and protects us.
14. LIMITATION OF LIABILITY. You understand that:
(a) we are not an insurer of your property, health, or personal safety or the property, health, or personal safety of persons who may use the Services;
(b) you are solely responsible for providing any property, life, health or disability insurance for yourself and persons who use the System, and insurance on your premises and its contents;
(c) the amount you pay to us is based only on the value of the System and Services we provide;
(d) notification systems may not always operate properly for various reasons;
(e) it is difficult to determine in advance how fast your designated responders would respond to a notification of an event;
(f) it is difficult to determine in advance what portion, if any, of any personal injury or death or property loss would be proximately caused by our failure to perform, our negligence, or a failure of the System or Services.
Therefore, you agree that even if a court decides that our breach of this Agreement, a failure of the System or Services or repair services, or our negligence caused or allowed any harm or damage (whether personal injury, death or property loss) to you, User or anyone in or about the premises where the System is installed, you agree that our liability shall be limited to $1,000, and this shall be the only remedy regardless of what legal theory (including without limitation, negligence, breach of contract, breach of warranty or product liability) is used to determine that we were liable for the injury or loss. YOU MAY OBTAIN A HIGHER LIMITATION OF LIABILITY. If you wish, you may obtain from us a higher limitation of liability for an additional periodic charge. If you elect this option, we will attach a rider to this Agreement which will set forth the amount of the limitation of liability and the amount of the additional charge. Agreeing to the limitation of liability does not mean that we are an insurer.
15. THIRD PARTY INDEMNIFICATION AND NO SUBROGATION. If anyone other than you (including any User), asks us to pay for any harm or damages (including personal injury, death or property loss) connected with or resulting from (i) our breach of this Agreement or a failure of the System or Services, (ii) our negligence, (iii) any other improper or careless activity of ours in providing the System or Services or (iv) a claim for indemnification or contribution, you will pay us (a) any amount which a court orders us to pay or which we reasonably agree to pay, and (b) the amount of our reasonable attorneys' fees and any other losses or costs that we may pay in connection with the harm or damages. Unless prohibited by your insurance, you agree to release us from any claims of any parties suing through your authority or in your name, such as your insurance carriers, and you agree to defend us against any such claim. You will notify your insurance carrier(s) of this release.
16. LIMITATION ON LAWSUITS; WAIVER OF JURY TRIAL. This Agreement shall be governed by the laws of the State of Delaware, exclusive of its choice-of-law rules. Where permitted by law, both parties agree that no lawsuit or any other legal proceeding connected with this Agreement shall be brought or filed more than one year after the incident giving rise to the claim occurred. In addition, where permitted by law, any such legal proceeding shall not be heard before a jury, and EACH PARTY GIVES UP ANY RIGHT TO A JURY TRIAL. All proceedings arising under this section shall take place in the state or Federal courts located in the State of Delaware.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between you and PointCentral. By entering into this Agreement, you affirm that you are not relying on our advice, advertisements, or any other representation, promise, condition, inducement, or warranty, express or implied, from any person that is not expressly and specifically set forth in writing in this Agreement. The terms and conditions of this Agreement apply as presented online without alteration or qualification, unless a change is approved in writing by an authorized officer of PointCentral, and shall govern even if you submitted a purchase order or other document with inconsistent or additional terms and conditions. We may amend this Agreement at any time in our sole discretion by notifying you on or in connection with the Services, including by email or by a screen notice visible at login, of such amendment. You hereby agree to be bound by such amendment. No other amendment shall be enforceable against us unless set forth in a writing signed by an authorized officer of PointCentral. As used in this Agreement, the word "including" and its variants mean "including but not limited to" and its respective variants. If any provision of this Agreement or the application of any such provision to any person or circumstances shall be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and all other parts of this Agreement shall be enforced to the maximum extent permitted by law. You and PointCentral intend that all restrictions on use, disclaimers of warranties, limitations of responsibility and liability, exclusions of damages or other remedies, and indemnification rights of PointCentral in this Agreement shall be upheld and applied to the maximum extent permitted by law.
ELECTRONIC SIGNATURE REQUIRED
BY CLICKING "I AGREE" BELOW, YOU (ALSO REFERRED TO AS "CUSTOMER" OR "USER") ENTER INTO THIS SUBSCRIPTION AGREEMENT BETWEEN YOU AND POINTCENTRAL, LLC ("POINTCENTRAL"), AND YOU ACKNOWLEDGE AND AGREE THAT CLICKING "I AGREE" WILL CONSTITUTE YOUR ELECTRONIC SIGNATURE TO THIS AGREEMENT. YOU ACKNOWLEDGE THAT PRIOR TO ACCEPTING AND SIGNING THIS AGREEMENT ELECTRONICALLY, YOU RECEIVED, READ AND UNDERSTOOD A LEGIBLE, EXACT AND COMPLETELY FILLED IN COPY OF THIS AGREEMENT. READ THEM BEFORE YOU ACCEPT BELOW. IN ADDITION, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE, ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, AND AFFIRM THAT YOU INTEND TO BE LEGALLY BOUND BY IT. IF YOU DO NOT AGREE, YOU MAY CLICK "I DO NOT AGREE" TO EXIT THE ELECTRONIC SIGNATURE ACCEPTANCE PROCESS.