2. Product, Safety and Other Technical Information
While STANLEY uses commercially reasonable efforts to provide accurate information, the industry of which STANLEY is a part and the laws and regulations applicable to that industry do change. Therefore information contained on the Sites may not be current, accurate or complete. Because many factors go into the decision-making process of purchasing a given product and everyone’s particular circumstances and needs may differ, the Licensed Content is provided for informational purposes only. STANLEY cannot ensure or guarantee and does not warrant that your product selection will be accurate, meet your (or, if applicable, your customer’s) particular needs or requirements or that the recommendations, regulations or other information provided by STANLEY experts or other Site users is complete, accurate or current. Please read and follow all instructions contained in product manuals. Each claim or statement made by STANLEY about the effectiveness of STANLEY products and/or comparing the effectiveness of STANLEY products to that of others and all use of the Sites is expressly limited to the United States unless otherwise stated on the Sites. If a product offered by STANLEY purchased through the Sites is not as described, your sole remedy is to return it in its original, unused form and receive either a replacement of the product you purchased, a refund of the price you actually paid or other remedy provided pursuant to the manufacturer’s warranty. Please address all product complaints as provided in the manufacturer’s warranty and other materials provided on purchase. Do not make product complaints through the Sites. Product description and pricing is subject to correction and change. STANLEY may refuse or cancel product orders placed at an incorrect price, or based upon erroneous promotion terms, whether or not the order has been confirmed. STANLEY’s obligations, if any, with respect to its products and services are governed solely by the specific agreement through which they were provided. Sales made through the Sites, if any, are governed by STANLEY’s Standard Terms and Conditions of Sale and/or Invoice-Terms and Conditions.
WARNING: Some of the information and advice on the Sites may be provided by third party contributors who are not affiliated with STANLEY. STANLEY makes no representation as to the truth, thoroughness, or accuracy of such information or advice.
In all operations and uses related to the products and other matters discussed on the Sites, you must read, understand, and adhere to the safety warnings and instructions pertaining to such products and accessories as well as other regulations and standards applicable to the nature and environment of ownership, maintenance, or use.
3. Using Secure Portions of the Sites
Account Use: Once STANLEY has validated and set up your Account, you may order and pay for products and services and you may access your Account history using your user name and password. You agree that STANLEY may provide your Account statements and all messages and notifications to you electronically through your Account or via email.
Changing your Account Information/Settings: It is your responsibility to review and update your Account information. You may update your Account profile, settings and information at any time, for example, to add/update/delete credit cards, mobile devices and authorized users to your Account. This is especially important with respect to credit card information because credit cards expire periodically. You acknowledge and agree that STANLEY will have no liability associated with or arising from your failure to maintain accurate Account information or update your authorized users. If STANLEY has reasonable grounds to suspect that the information you have provided is or becomes untrue, inaccurate or incomplete, STANLEY may suspend or terminate your Account and refuse any and all current or future use of STANLEY’s Cloud and/or all or any part of STANLEY’s Cloud Services.
4. Privacy and Data Security
STANLEY values its relationship with visitors and customers and uses commercially available technology to safeguard any personal information collected through the Sites. Nevertheless, the internet is an open medium and no data transmission through the internet is completely secure. You transmit your personal information at your own risk. STANLEY does not guaranty or warranty the security of information you transmit. Once received, your personal information is stored in the United States. STANLEY takes various precautions to safeguard your personal information against loss, theft and misuse as well as unauthorized access, disclosure, alteration and destruction. It is your responsibility to preserve the confidentiality of and not share your Security Credentials. It is also your responsibility to notify STANLEY immediately when you need to terminate an individual’s access. You are responsible for the actions of each individual to whom you have given access.
Information Collected: In general, you may visit the Sites without telling STANLEY who you are or revealing personal information about yourself. However, STANLEY, its business partners and other companies providing services to or on behalf of STANLEY (such as, for example, companies assisting with the operation or features of the Sites, advertising and promotional campaigns, surveys, contests and the like) may use various technologies (such as cookies, clear gifs, web beacons, pixel tags, click-through URL links) to assist us in collecting non-personally identifiable information. This may include, without limitation, your IP address, web pages requested or viewed, date, time and domain type, demographic information and responses to surveys, promotions and advertisements on the Sites, in our HTML-based emails and certain search engine advertisements. These technologies also help us track online movements of visitors to the Sites in the aggregate, know which emails are opened and actions that may have been taken with respect to our emails and advertisements and gather broad demographic information for use in the aggregate. Information gleaned from your browser is automatically received and recorded on server logs. As technology evolves, information may be gathered through other means as well. You may set your browser to activate the ‘do not track’ feature and any tracking software we use will be disabled. You may also set your browser either to notify you when you receive a cookie or to refuse to accept cookies. However, if you do so you may not be able to participate in certain of the Sites’ features. You may also opt out of receiving emails from STANLEY at any time by following the ‘unsubscribe’ instructions in the body of the email message.
Information that personally identifies you, such as your name, address, e-mail address, telephone number as well as demographic data specific to you may also be collected from a variety of sources. You may provide personally identifiable information directly, it may be gleaned through the Sites or collected from other sources. For example, when you register on the Sites, you create a personal profile – providing your name, telephone number, email address and in some cases your mailing address or credit card information – and choose a password for security. The Sites save your information so that the next time you place an order or register a product, you only need to enter your unique ID and password. You cannot communicate with STANLEY through the ‘Contact Us’ or other service or customer support links on the Sites or via e-mail without providing personally identifiable information. If you contact STANLEY or its service providers, a record of that session or correspondence will be maintained. Personally identifiable information is collected and stored when you register product warranties, order parts, check repair status, become a member of the Sites, participate in public forums, blogs, chat rooms, news groups or bulletin boards, request STANLEY information, literature and/or product information. If you use a bulletin board, chat room or other interactive public areas of any of the Sites, any information you share is visible to other users. Personally identifiable information you submit to one of these forums can be read, collected or used by other individuals to send you unsolicited messages. STANLEY is not responsible for personally identifiable information you choose to submit in these forums. If you do choose to make otherwise non-public information available by enabling certain user features, STANLEY will collect that information from your interaction and the information will become publicly available.
Many companies within the Stanley Black & Decker family manufacture and sell consumer and commercial products. Unless not permitted by law, all companies within the Stanley Black & Decker family, including its world-wide affiliates, share information collected through the Sites and may contact you directly. STANLEY may also share your information with businesses that offer products that it believes may be of interest to you as well as those providing services to STANLEY. These businesses may then contact you directly with product or sample offers that may be of interest to you, personalized offers and information or to ask for your feedback on products and programs.
To Update your Information/Unsubscribe: You have choices as to how STANLEY will communicate with you. The Sites allow you to choose to receive, or stop receiving communications from STANLEY. You may update your information or stop receiving promotional email or postal communications. Please click here to learn how to complete your request.
Notice to California residents about your California privacy rights: In addition to the other rights described in this policy, if you are a customer residing in California, you have the right to information with respect to our online tracking practices and to request information regarding the third parties with whom STANLEY has shared customer personal information for direct marketing purposes during the past year. You have the right to submit a request to STANLEY at its designated address and receive the following information within 30 days of its receipt of that request: (1) the types of personal information disclosed to third parties during the immediately preceding calendar year, (2) the names and addresses of third parties that received the personal information, and (3) if the nature of a third party’s business cannot be reasonably determined from the third party’s name, examples of its products or services. You are entitled to receive a copy of this information in a standardized format. Information provided will not be specific to you individually. All such requests must be in writing and sent to STANLEY’s designated address set forth in Section 12.
5. User Conduct
In general, STANLEY expects visitors to interact with STANLEY and other users of the Sites in a courteous manner and in compliance with all laws. Vandalism, obscene or abusive language, harassment, threats, or abuse of any nature or form on the Sites, including via e-mail, post or other transmission is strictly prohibited. Impersonation of others or misrepresenting your affiliation with STANLEY or another is prohibited. You may not upload to, distribute or otherwise publish through the Sites any material that you know is false, misleading, contains viruses or malicious code, defamatory, vulgar, obscene, threatening, libelous, hateful, racially or ethnically objectionable, is invasive of another’s privacy or publicity rights, infringes upon another’s proprietary rights or which may constitute or encourage a criminal offense, violate any law or another’s rights or otherwise give rise to liability.
You agree not to forge headers or otherwise manipulate identifiers in order to disguise the origin of anything transmitted through the Sites, disclose proprietary or confidential information or otherwise infringe another’s patent, trademark, trade secret, copyright or other proprietary right (“Rights”). You may not upload chain letters, pyramid schemes, solicitations, or commercial material of any sort to the Sites, use the Sites to solicit others, advertise or promote anything. Framing, in-line linking or other means of associating the Sites, Marks or Licensed Content with another or with any material, link or information not originating with STANLEY is expressly prohibited.
You may not probe, scan or test the vulnerability of the Sites or any networks. You many not use any “deep-link,” “page-scrape,” “robot,” “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process to access, acquire, copy or monitor any portion of the Sites or Licensed Content. You may not reproduce or circumvent the navigational structure or presentation of the Sites or any Licensed Content, circumvent the security features or attempt to access any materials or information through any means not purposely made available by STANLEY through the Sites. Any attempt to interfere with or disrupt the Sites, its servers, networks, Software, equipment or database connected to the Sites, whether via malicious code, files or other means, or attempts to disassemble, reverse engineer or decompile any Software, trace the information of any other user or visitor, circumvent security features such as passwords, or take any action that compromises the privacy or security of the Sites, users or other visitors is strictly prohibited.
6. Social Media/Blogs/User Submissions
Certain more interactive portions of the Sites, such as blogs and other social media forums require special mention. STANLEY insists that all statements made about it and its products be accurate, not misleading and not contain unsubstantiated statements. STANLEY adheres to and requires that its employees, service providers and others endorsing or otherwise acting on behalf of a Stanley family brand on a blog or other public forum all adhere to Federal Trade Commission (FTC) rules and guidelines governing endorsements and testimonials. The FTC requires that endorsers disclose a material connection with an advertiser, his/her affiliation with STANLEY and if incentives, free products or gifts or other compensation was received from STANLEY. Because your opinions may be considered an “endorsement” and you an “endorser” under the FTC’s revised Endorsement and Testimonial Guide, it is important that you fully and completely understand what the FTC requires. You are responsible for complying with FTC requirements. For example, as an endorser, the FTC requires that you (i) let readers know if you received any free products or any other item of value from STANLEY or if another material connection exists, and (ii) ensure that your statements about and reviews of STANLEY products reflect your honest opinions, beliefs and findings. If you wish to learn more, you may access the most recent revisions to the FTC’s Endorsement and Testimonial Guides at http://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf.
Any comments, blogs, discussions, data, images, sounds, text, product ideas, suggestions or enhancements, as well as anything embedded therein, material, information or other communication you transmit, upload or post to the Sites, generally and through the public forums, or email to STANLEY (collectively, “Communications”) are non-confidential and nonproprietary and become the property of STANLEY. STANLEY has no obligation to preserve the confidentiality of or refrain from disclosing any Communications. You recognize and acknowledge that your submission of any suggestions, ideas, images, sounds, enhancements, data or other material is done on a non-confidential, non-proprietary basis, without expectation of compensation or attribution of any sort. STANLEY has no liability for and will be free to copy, disclose, distribute, incorporate and otherwise use all or any part of any Communications for any and all commercial or noncommercial purposes in any medium whatsoever and without additional consent or approval from you. Please exercise caution and discretion in disclosing personal information through, including uploading photos to, any public forums.
You are solely responsible for your Communications and your activities on the Sites. Although STANLEY will not, and has no obligation to, monitor your Communications, it has the right not to post or publish Licensed Content and/or your Communications and to delete, remove or edit any Licensed Content and or Communications at any time in its sole discretion without notice or liability of any notice or sort. Under no circumstances is or will STANLEY or its affiliates be liable in any way for any Communications, your or another’s use of the Sites or any Licensed Content, including but not limited to any errors or omissions in any Licensed Content, or for loss or damage of any kind incurred as a result of the use of any Licensed Content via the Sites. Product performance, capability or other claims made through public, interactive areas provided on the Sites have not undergone review, testing, or research by STANLEY to substantiate such claims. STANLEY cautions you not to use products for any purpose or in any manner other than as expressly set forth in the manufacturer’s warranty and product user manual.
The Sites may contain links to other internet websites or resources. When you link to those sites, you leave the Sites. STANLEY has no control over such sites, their content and resources or the business practices or policies of operators of such sites. Please use caution and review the privacy policies of any sites that you visit to learn more about their information-gathering practices. STANLEY expressly disclaims all responsibility or liability for the availability or accuracy of such external sites or resources or the content thereon, does not endorse and is not responsible or liable for any advertising, products or other materials on or available from such sites or resources. The inclusion of any link on the Sites does not imply that STANLEY endorses the linked site. Your use of any links is at your own risk. You further acknowledge and agree that STANLEY shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any goods, services or materials available on or through any such link, site or resource.
11. STANLEY’s Proprietary Rights
12. DISCLAIMERS AND LIMITATIONS OF LIABILITY
STANLEY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF THE SITES OR LICENSED CONTENT.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- YOUR USE OF THE SITES AND ANY PARTICULAR FEATURE IS AT YOUR SOLE RISK. THE SITES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. STANLEY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, FREEDOM FROM MALICIOUS CODE, NON-INFRINGEMENT AND NONINTERFERENCE WITH YOUR USE OF ALL OR ANY PART OF THE SITES.
- STANLEY MAKES NO WARRANTY (i) THAT THE SITES WILL MEET YOUR REQUIREMENTS, (ii) THAT ACCESS TO THE SITES WILL BE UNINTERRUPTED OR TIMELY, THAT THEY ARE SECURE, OR THAT LICENSED CONTENT IS ACCURATE OR ERROR-FREE, (iii) THAT PRODUCTS WILL BE AVAILABLE, ACCURATELY DEPICTED OR PRICED, (iv) THAT THE RESULTS OBTAINED FROM USE OF THE SITES WILL BE ACCURATE OR RELIABLE, (v) THAT THE QUALITY OF ANY PRODUCTS, THE SITES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITES WILL MEET YOUR (OR YOUR CUSTOMER’S) EXPECTATIONS, OR (vi) THAT PRODUCTS WILL BE PROPERLY DELIVERED IN PROPER AMOUNTS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY RESULTING DAMAGE.
- STANLEY IS NOT LIABLE FOR ANY PRODUCT WARRANTIES NOT EXPRESSLY SET FORTH ON THE SITES OR PROVIDED WITH THE PRODUCT PACKAGING.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT STANLEY SHALL NOT BE LIABLE FOR ANY DAMAGES WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF STANLEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER ARISING OUT OF OR IN CONNECTION WITH THE USE OR THE INABILITY TO USE, ACCURACY OF THE INFORMATION, PRODUCTS AND MATERIALS SHOWN OR AVAILABLE FROM THE SITES OR ANY OTHER MATTER RELATING TO YOUR ACCESS TO OR USE OF THE SITES. IN ANY CASE, STANLEY’S SOLE LIABILITY, AND THAT OF ITS LICENSORS, SUPPLIERS AND BUSINESS PARTNERS, IS LIMITED TO FIVE DOLLARS ($5. 00). YOUR LEGAL RIGHTS WITH RESPECT TO THESE DISCLAIMERS AND WAIVERS MAY VARY FROM JURISDICTION TO JURISDICTION. WITHOUT INTENDING TO LIMIT THE FOREGOING, YOU MUST BRING ANY CLAIMS YOU MAY HAVE AGAINST STANLEY WITHIN SIX (6) MONTHS OF THE DATE THE CLAIM AROSE OR BE FOREVER BARRED. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Stanley Black & Decker, Inc.
1000 Stanley Drive
New Britain, CT 06053
Attn: STANLEY Webmaster
14. General Information
STANLEY administers and operates the following Sites from its location in New Britain, Connecticut USA:
- www. stanleyworks. com
- www. stanleysecuritysolutions. com
- www. stanleycss. com
- www. stanleyaccess. com
- www. sargentandgreenleaf. com
- www. stanleyhealthcare. com
Terms and Conditions
Effective: October 1, 2012
TERMS AND CONDITIONS OF SALE FOR STANLEY CONVERGENT SECURITY SOLUTIONS, INC. (‘SCSS”) PRODUCTS AND SERVICES
1. GENERAL PROVISIONS. Unless and to the extent that a separate contract executed between the purchaser (“Customer”) and SCSS applies, the purchase of goods and services by Customer (“Order”) will be governed solely by these General Terms and Conditions of Sale, whether or not these General Terms and Conditions of Sale are referenced in the Order. Except as provided in the “Orders” section below, all provisions on the Order and all other documents submitted by Customer are expressly rejected. SCSS will not be deemed to have waived these Terms and Conditions of Sale if it fails to object to provisions submitted by Customer. Customer’s silence or acceptance or use of the goods and services is acceptance of these Terms and Conditions of Sale. Any modification or addition to these Terms and Conditions of Sale must be in writing and signed by an authorized representative of Customer and SCSS.
2. ORDER. Orders should specify: (1) Equipment (if any); (2) price; (3) quantity; (4) location to which equipment is to be shipped and installed; (5) services (if any); (6) length of term for ongoing services (“Initial Term”) (if applicable); (7) monthly service charge; and (8) location to which invoices will be sent for payment. SCSS’s order acknowledgment will not constitute acceptance. Any additional or conflicting terms on an Order will not apply unless specifically agreed to in writing by SCSS
3. Term Renewal and Expiration. In the event the Order specifies ongoing services, after the Initial Term expires, the Order will automatically be renewed as consecutive terms of one year, except where prohibited by applicable law in which case the Order will renew from month to month, unless terminated by either party by the delivery of written notice to the other at least sixty (60) days prior to the anniversary date of the Initial Term.
4. Payment. Payment for equipment and installation is due within thirty (30) days of invoice date.
Payments for services are due monthly, in advance, commencing from the first day of the month following the date the system becomes operative (which shall be the day said item of equipment is installed at Customer’s location and/or is communicating with SCSS’s monitoring facility (the “Center”) as determined by SCSS.) Customer also agrees to pay interim charges in the amount of approximately 1/30th of the monthly charges for each day from and including the date the system becomes operative until the first (1st) of the following month.
Customer agrees that at any time following expiration of the first twelve (12) months of the Order, SCSS may increase the basic monthly charges set forth in the attached schedule, once a year, for the balance of the term and any renewal thereof. Customer agrees to pay the full amount of such increase, which increase shall not exceed nine (9) percent over the previous twelve (12) months’ basic ongoing charges.
SCSS’s pricing excludes all taxes (including, but not limited to, sales, use, excise, value-added or other similar taxes), duties and charges (collectively, “Taxes”). Customer will pay all Taxes resulting from an Order, whether imposed, levied, collected, withheld or assessed now or later. If SCSS is required to impose, levy, collect, withhold or assess any Taxes on any transaction under an Order, then in addition to the price, SCSS will invoice Customer for the Taxes unless, at the time of Order placement, Customer furnishes SCSS with an exemption certificate or other documentation sufficient to verify exemption from the Taxes.
If any Taxes are required to be withheld from amounts paid or payable to SCSS under an Order: (1) such withholding amount will not be deducted from the amounts due SCSS as originally priced; (2) Customer will pay the Taxes on behalf of SCSS to the relevant taxing authority in accordance with applicable law, and (3) Customer will forward to SCSS within 60 days of payment proof of Taxes paid sufficient to establish the withholding amount and the recipient.
In no event will SCSS be liable for Taxes paid or payable by Buyer.
5. Liquidated Damages and SCSS’s Limits of Liability.
A. The parties agree that SCSS is providing a system and/or service designed to reduce the risk of loss only; that the payments provided for herein are based solely on the value of the system and/or services as described herein and are unrelated to the value of any property located on Customer’s premises; that SCSS is not liable for losses which may occur in cases of malfunction or nonfunction of any system provided by SCSS or that SCSS is not liable for losses which may occur in the monitoring, repairing, signal handling or dispatching aspects of the service, even if due to SCSS’s negligence or failure of performance; that SCSS is not liable for losses resulting from failure to warn or inadequate training; that SCSS is not an insurer; and that insurance covering personal injury, property loss, and damage to and on Customer’s premises must be obtained and/or maintained by Customer. Customer understands that it is Customer’s duty to purchase such insurance; that SCSS offers several levels of protection and services and that the system and/or service described in the Schedule has been chosen by Customer after considering and balancing the levels of protection afforded by various systems and the related costs. The Order shall confer no rights on the part of any person or entity that is not a party hereto, whether as a third-party beneficiary or otherwise.
B. IT IS AGREED THAT IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES WHICH MAY ARISE IN SITUATIONS WHERE THERE MAY BE A FAILURE OF THE SYSTEM AND/OR SERVICES PROVIDED, DUE TO THE UNCERTAIN NATURE OF POTENTIAL DAMAGES AND/OR VALUE OF CUSTOMER’S PROPERTY OR THE PROPERTY OF OTHERS KEPT ON THE PROTECTED PREMISES WHICH MAY BE LOST, STOLEN, DESTROYED, DAMAGED OR OTHERWISE AFFECTED BY OCCURRENCES WHICH THE SYSTEM OR SERVICE IS DESIGNED TO DETECT OR AVERT, INCLUDING LOSS, DAMAGE, OR INABILITY TO OR IMPAIRMENT OF ACCESS TO CUSTOMER DATA, INABILITY OF SCSS TO GUARANTEE POLICE, FIRE DEPARTMENT AND MEDICAL ALERT RESPONSE TIME, AND ESTABLISHING A CAUSAL CONNECTION BETWEEN THE SYSTEM OR SERVICE PROBLEMS AND CUSTOMER’S POSSIBLE LOSS OR INJURIES TO THIRD PARTIES. THEREFORE, IF LIABILITY IS IMPOSED ON SCSS, ITS EMPLOYEES, AGENTS OR REPRESENTATIVES, FOR PROPERTY DAMAGE OR PERSONAL INJURY, SUCH LIABILITY SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE ANNUAL SERVICE CHARGE FOR THE PARTICULAR LOCATION INVOLVED OR $10,000 WHICHEVER IS LESS. (IF THERE IS NO ANNUAL SERVICE CHARGE FOR THE PARTICULAR LOCATION INVOLVED, SCSS’s LIABILITY SHALL BE LIMITED TO $500.00). THIS SUM SHALL BE PAID AND RECEIVED EITHER (i) AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, OR (ii) AS A LIMITATION OF LIABILITY APPROVED AND AGREED UPON BY THE PARTIES. THE PAYMENT OF THIS AMOUNT SHALL BE SCSS’s SOLE AND EXCLUSIVE LIABILITY REGARDLESS OF WHETHER LOSS OR DAMAGE IS CAUSED BY THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS UNDER THIS CONTRACT OR BY NEGLIGENCE, ACTIVE OR OTHERWISE, OF SCSS, ITS EMPLOYEES, AGENTS OR REPRESENTATIVES. If Customer wishes SCSS to increase the amount of the liquidated damages OR LIMITATION OF LIABILITY as provided above, Customer may obtain from SCSS an additional amount of liquidated damages OR LIMITATION OF LIABILITY by paying an additional monthly service charge to SCSS, SUBJECT TO WRITTEN APPROVAL BY AN AUTHORIZED SCSS REPRESENTATIVE SETTING FORTH SAID TERMS. This clause will in no way be interpreted to establish SCSS as an insurer.
NO SUIT OR ACTION SHALL BE BROUGHT AGAINST SCSS MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF THE CAUSE OF ACTION ARISES.
C. Since the parties agree that Customer retains the sole responsibility for the life and safety of all persons in its premises, and for protecting against losses to his/her own property or the property of others in its premises, CUSTOMER AGREES TO INDEMNIFY AND SAVE HARMLESS SCSS, ITS EMPLOYEES, AGENTS, OR REPRESENTATIVES FROM AND AGAINST ALL CLAIMS, LAWSUITS AND LOSSES BY PERSONS NOT A PARTY TO THIS ORDER, ALLEGED TO BE CAUSED BY THE IMPROPER OPERATION OF THE SYSTEM, WHETHER DUE TO MALFUNCTIONING OR NONFUNCTIONING OF THE SYSTEM OR THE NEGLIGENT PERFORMANCE OR NONPERFORMANCE BY SCSS FOR ANY SERVICE PROVIDED BY SCSS, INCLUDING BUT NOT LIMITED TO, THE INSTALLATION, REPAIR, MONITORING, SIGNAL HANDLING, OR DISPATCHING ASPECTS OF THE SERVICE.
D. With respect to SCSS owned systems, CUSTOMER EXPRESSLY WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A CUSTOMER UNDER ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE AND ANY RIGHTS NOW OR HEREAFTER CONFERRED UPON A CUSTOMER BY STATUTE OR OTHERWISE THAT MAY LIMIT OR MODIFY SCSS’S RIGHTS AS DESCRIBED IN THIS SECTION OR OTHER SECTIONS OF THIS ORDER OR APPLICABLE SCHEDULE.
E. Paragraphs A through D of this Article 5 shall apply to any other company or entity which, in addition to SCSS, furnishes, as a subcontractor, or otherwise, any installation, monitoring or other services provided hereunder.
F. Limited Equipment Warranty. Where Customer purchases a security system under an Order, SCSS warrants that the equipment will be free from defects in material and workmanship for a period of ninety (90) days from the date the security system is placed into operation. If, during this warranty period, any of the equipment or parts are defective or malfunction, they will be repaired or replaced, at SCSS’s sole option, free of charge. Warranty repair is done 8am – 4 pm Monday through Friday, excluding holidays. This warranty will not apply if the damage or malfunction occurs because the system has been adjusted, added to, altered, abused, misused or tampered with by the Customer, operated or used contrary to the operating instructions, software is used with an operating system other than that specified by SCSS or its original equipment manufacturer (“OEM”), performance issues relating to the use of Customer’s data network(s), power fluctuations, or any other cause not within the cause or control of SCSS. If inspection by SCSS fails to disclose any defect covered by this limited equipment warranty, the equipment will be repaired or replaced at Customer’s expense and SCSS’s regular service charges will apply.
DISCLAIMER OF ALL OTHER WARRANTIES: WITH THE EXCEPTION OF THE FOREGOING LIMITED EQUIPMENT WARRANTY, SCSS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE SYSTEM OR SERVICE SUPPLIED MAY NOT BE COMPROMISED, OR THAT THE SYSTEM OR SERVICE WILL IN ALL CASES PROVIDE THE PROTECTION FOR WHICH IT IS INTENDED. IN NO EVENT WILL SCSS, ITS EMPLOYEES, AGENTS OR REPRESENTATIVES BE RESPONSIBLE FOR CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES OF ANY NATURE WHATSOEVER. SCSS MAKES NO WARRANTIES CONCERNING ANY EQUIPMENT OR DEVICES ATTACHED TO CUSTOMER’S SYSTEM UNLESS SUCH EQUIPMENT OR DEVICES WERE ORIGINALLY PURCHASED AND INSTALLED UNDER THE ORDER.
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. THE WARRANTY PROVIDES SPECIFIC LEGAL RIGHTS AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE.
6. Indemnification by SCSS
A. SCSS shall defend, indemnify and hold Customer harmless from and against (a) all direct damages proximately caused by an employee, agent or representative of SCSS where said damage or injury occurred during the performance of installation or service while on Customer’s premises; and (b) all direct damages solely and proximately caused by the equipment installed hereunder (as opposed to cases where failure or malfunction of such equipment merely contributes to a loss or injury initiated by another source.) This indemnification shall not apply where and to the extent the damages are caused by other sources, including fire not caused by the system itself, burglary, trespass or other occurrence which the system is designed to detect or avert, or where damages are alleged to be caused by any action or nonaction of an employee of SCSS while furnishing central station monitoring services. IN NO EVENT WILL SCSS BE RESPONSIBLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY NATURE WHATSOEVER.
B. Infringement Indemnity. SCSS shall defend, hold harmless and indemnify Customer from and against claims, suits, losses, liabilities, damages, costs, fees and expenses (including reasonable attorneys’ fees) sustained by it as a result of a third party claim or allegation that the equipment, hardware or software, in the form in which it is originally provided by SCSS, alone (and not in combination with other software and/or hardware), infringes any third party United States or foreign patents, trademarks or copyrights; provided, however, that Customer (i) gives SCSS prompt notice of any actual or threatened claims, (ii) gives sole control of the defense or settlement of such claims to SCSS, and (iii) cooperates fully with SCSS and its counsel in the defense or settlement thereof. SCSS shall have no liability for any settlements entered into by Customer without SCSS’s prior written consent. In the event that any equipment, hardware or software is held or believed by SCSS to violate a third party’s intellectual property rights, SCSS may at its option and expense (i) modify the affected equipment, hardware or software to be non-violating, or (ii) obtain for Customer a license to continue using such equipment, hardware or software. THIS STATES SCSS’S TOTAL LIABILITY AND CUSTOMER’S SOLE REMEDY FOR ANY ACTUAL OR ALLEGED CLAIM FOR ROYALTIES, LICENSE FEES OR INFRINGEMENT OF ANY PATENT OR COPYRIGHT ON SUCH EQUIPMENT, HARDWARE OR SOFTWARE PROVIDED BY SCSS.
7. Miscellaneous Charges and Increase in Charges.
A. Customer shall pay any City, State or Federal taxes, fees or charges which are imposed upon the equipment, the installation thereof or performance of the services provided for herein, including any increase in charges to SCSS for facilities required for transmission of signals under the Order.
B. At SCSS’s option, a fee may be charged for any unnecessary service run or false alarm. If Customer or SCSS is assessed any fine or penalty by any municipality, fire, or police department as a result of any false alarm, Customer shall pay the full amount of such fine or penalty. If, following an investigation at Customer’s request, it is mutually agreed that a false alarm was caused by SCSS, the amount of the fine or penalty paid by Customer shall be credited to Customer’s account.
C. Installation charges set forth in the Order assume installation will be performed during SCSS’s normal working hours and using its own personnel. If Customer requests the installation or any part thereof to be performed outside ordinary business hours, or if the installation must be performed by outside contractors, or if SCSS’s wage rates do not apply as a result of prevailing wage conditions, or otherwise, then the installation charge will be adjusted accordingly.
D. If any Governmental agency requires any changes in the system originally installed, Customer agrees to pay for such changes. It is Customer’s responsibility to obtain alarm use permits, required by the local jurisdiction.
E. Failure to pay amounts when due shall give SCSS the right to charge interest at the rate of 1½% per month, or other maximum permitted by law, on any delinquent balance. A balance becomes delinquent thirty (30) days after payment is due under Article 4.
8. Further Obligations of Customer.
A. Customer shall not tamper with, alter, adjust, add to, disturb, injure, move, remove or otherwise interfere with equipment installed by SCSS, nor shall Customer permit the same to be done by others. It is further agreed that if any work is required to be performed by SCSS due to Customer’s breach of the foregoing obligations, Customer will pay SCSS for such work in accordance with SCSS’s then current prevailing charges. CUSTOMER SHALL INDEMNIFY AND HOLD SCSS HARMLESS FROM AND AGAINST ANY CLAIM ARISING OUT OF SUCH TAMPERING, ALTERATION, ADJUSTMENT, ADDITION TO, DISTURBANCE, INJURY, MOVEMENT, REMOVAL OR INTERFERENCE WITH SUCH EQUIPMENT AND FOR THE INTERCONNECTION BY ANYONE OTHER THAN SCSS OF ANY EQUIPMENT OR DEVICE TO ANY SCSS EQUIPMENT.
B. For those premises where SCSS is to provide monitoring, Customer shall furnish SCSS a list of the names, titles, telephone numbers and signatures of all persons authorized to enter the premises of Customer during scheduled closed periods and shall be responsible for updating such lists. In cases of supervised service, Customer shall also furnish SCSS with an authorized daily and holiday opening and closing schedule.
C. Customer shall set the alarm system at such times as Customer shall close its premises. Customer shall test the alarm system prior to each closed period and shall immediately report to SCSS any claimed inadequacy in, or failure of, the system. Customer shall perform a periodic walk test of any motion detection equipment used on the premises.
D. Customer shall permit SCSS access to the premises for any reason arising out of, or in connection with, SCSS’s rights or obligations under this Order.
E. Should any part of the system be damaged by fire, water, lightning, acts of God, third-parties or any cause beyond the control of SCSS, any repairs or replacement shall be paid for by Customer (ordinary wear and tear excepted in the case of an SCSS owned system).
F. Any claim by Customer of improper installation or failure to comply with Customer’s specifications shall be made in writing to SCSS within ninety (90) days of installation completion. Such obligation shall not waive Customer’s warranty rights under Article 5.F., Limited Equipment Warranty.
G. Customer represents and warrants that Customer is the owner of the premises or, if not, that the owner agrees and consents to the installation of the system on the premises. Customer shall indemnify and hold SCSS harmless from any losses or damages, including attorney fees, resulting from breach of such representation and warranty, or from SCSS’s inability to recover SCSS owned system components when Customer moves out of the premises.
H. For those premises where SCSS is to provide central station sprinkler supervisory and water flow alarm or automatic fire alarm service, Customer warrants and agrees that all alarm valves, gate valves, tanks, pumps, compressors, inspector test connections, or other elements of the sprinkler system as now installed or to be installed, are, or will be, corrected at Customer’s expense so as to be acceptable to the insurance and other authorities having jurisdiction when equipped with SCSS’s signaling devices. Customer further agrees to furnish any necessary water through Customer’s meter and at Customer’s expense, to place hoods over any open forges or fires, and to pipe all boiler blow-offs and steam exhaust outside the premises to be protected.
I. It is mutually agreed that the Customer assumes full responsibility for the operation of any and all bypass or switch units provided for disconnecting or reconnecting the alarm sounding and/or transmitting equipment at Customer’s premises.
J. Customer represents that, except to the extent it has given SCSS written notice prior to the Order, (i) the work and/or services to be performed hereunder are not subject to any Federal, State or local prevailing wage statute or regulation, and (ii) to the best of its knowledge there is no asbestos or presumed asbestos-containing material, formaldehyde or other potentially toxic or hazardous material contained within, or in, on or under any portion of any area where work will be performed under the Order. If such materials (whether or not disclosed by Customer) are discovered and such materials provide an unsafe or unlawful condition, such discovery shall constitute a cause beyond SCSS’s reasonable control and SCSS shall not start, or continue, to perform its work under the Order until Customer has remedied the unsafe or unlawful condition at Customer’s sole expense. CUSTOMER SHALL INDEMNIFY AND HOLD SCSS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, COSTS AND EXPENSES OF ANY KIND (INCLUDING ATTORNEYS’ FEES) FOR FINES, PENALTIES, BACK WAGES, BODILY INJURY, PROPERTY DAMAGE, DELAY OR WORK STOPPAGE THAT ARISES UNDER OR RESULTS FROM A BREACH OF THE FOREGOING REPRSENTATIONS (REGARDLESS OF WHETHER OR NOT CUSTOMER DISCLOSED SUCH MATERIALS TO SCSS).
K. Customer agrees that SCSS may conduct a credit investigation and review. In such event, Customer shall provide, in a timely manner, such financial information as SCSS may request. Customer represents and warrants that all such financial information accurately and completely presents Customer’s financial condition as of the date of execution of the Order.
L. Customer hereby authorizes SCSS to execute and file financing statements and/or continuation statements under the Uniform Commercial Code on Customer’s behalf and to file such documents in all places where necessary to perfect SCSS’s interest in the equipment. Customer agrees to execute any such instruments as SCSS may request from time to time.
9. Further Obligations of SCSS; Limitations.
A. Neither party shall be held responsible or liable for delay in installation of the system or interruption of service, due to strikes, lockouts, riots, floods, fires, lightning, acts of God, or any cause beyond the control of such party, including interruptions in telephone service. SCSS will not be required to perform installation or supply service to Customer while any such cause shall continue.
B. If Customer has subscribed to monitoring service, the system will be connected to SCSS’s Center. Unless specifically requested otherwise by the Customer and approved by SCSS’s Center, when a burglar alarm signal from the alarm system is received, the Center will first try to telephone Customer’s premises, and if there is no answer then will try to telephone the first available person on Customer’s emergency call list, to verify whether or not an emergency condition requiring police response exists. If there is no answer to both of these calls or the person contacted indicates that an emergency exists, the Center will attempt to notify the police department. The Center will also attempt to contact someone on the emergency call list to advise them that the police have been notified. When a fire alarm, hold-up alarm or duress alarm signal is received, the Center will attempt to notify the police or fire department or other emergency personnel and the first available person on the emergency call list. When a non-emergency signal is received, the Center will attempt to contact the premises or the first available person on the emergency call list but will not notify emergency authorities. The Center reserves the right to use automated notification procedures in lieu of phone call notifications for non-emergency signals unless expressly prohibited by local authorities. If Customer requires phone notification for non-emergency signals, Customer agrees to subscribe to such service and an additional fee may apply. Phone notification for non-emergency signals will be made during normal day-time hours unless expressly requested otherwise by Customer.
The Center may choose not to notify emergency personnel if it has reason to believe that an emergency condition does not exist. SCSS and Customer are obligated to comply with all notification and response requirements imposed by governmental agencies having jurisdiction over the system. SCSS reserves the right todiscontinue or change any particular response service due to such governmental or insurance requirements without notice. Customer consents to the tape and video recording of telephonic and video communications between Customer’s premises and SCSS, and will inform its employees and third parties that such recordings are authorized. If Customer’s police or fire department now or in the future requires physical or visual verification of an emergency condition before responding to a request for assistance, Customer agrees to subscribe to such service if provided by SCSS, or otherwise comply with such requirements, and an additional fee may apply for such services.
C. If video equipment is installed, it may be integrated into the system in which case, when the video equipment is activated, it will send a video transmission to the Center. The Center will first attempt to verify the nature of the emergency by viewing the video. If the Center determines that an emergency condition exists, it will try to first telephone the premises, if available, and report the emergency condition. If there is no answer or the person answering confirms the emergency condition, then, based upon the nature of the emergency condition, the Center will notify the proper police or fire department or other emergency personnel, and the next available person on the emergency call list. If the Center determines that an emergency condition does not exist or the video is inconclusive, the Center will use the notification procedures set forth in paragraph 9B above.
D. Customer understands that, if the system installed is monitored, due to the nature of the method used for communicating alarm signals to the SCSS’s monitoring center, there may be times when that communication method is not able to transmit signals and SCSS will not receive alarm signals. Digital communicators use standard telephone lines and SCSS does not receive signals when the telephone system becomes non-operational or the telephone line is placed on vacation status, cut, interfered with or otherwise damaged. There will be times when any radio frequency method, such as cellular, public or private radio systems or Internet based service, cannot transmit an alarm signal due to lack of signal strength, network congestion, or availability of a communications channel. Similarly, any other type of communication method installed under this Order also can experience an inability to communicate alarm signals. Customer understands that SCSS offers several levels of communication methods of alarm signals to the monitoring center and that the Services described on the Schedule have been chosen by Customer after considering and balancing the levels of protection afforded by various communication methods and the related costs. Customer acknowledges and agrees that Customer is solely responsible for the selection of the type of communication method and whether the utilization of more than one communication method is required. Communications networks provided by independent carriers or providers are wholly beyond SCSS’s control and are maintained and serviced, solely by the applicable carrier or provider. Customer agrees to reimburse SCSS for any costs incurred to reprogram the communicator because of area code changes or other dialing pattern changes. If telephone service is used, the use of DSL or other broadband telephone service may prevent the system from transmitting alarm signals to the monitoring center and/or interfere with the telephone line-seizure feature of the system. Such services should be installed on a telephone number that is not used for alarm signal transmission. Customer agrees to notify SCSS if Customer has installed or intends to install DSL or other broadband service. IMMEDIATELY AFTER THE INSTALLATION OF DSL OR OTHER BROADBAND SERVICE, THE SYSTEM’S SIGNAL TRANSMISSION MUST BE TESTED WITH THE MONITORING CENTER.
E. For those premises with a direct connection to the police, fire department, or other agency, it is mutually understood and agreed that signals transmitted hereunder will be monitored in police and/or fire departments or other locations, and that the personnel of such police and/or fire departments or other agencies are not SCSS’s agents, nor does SCSS assume any responsibility for the manner in which such signals are monitored or the response, if any, to such signals.
F. SCSS shall not be responsible for the replacement of equipment or parts no longer commercially available to SCSS.
G. If a service plan or software support option is selected by Customer, SCSS will provide and install software upgrades as they become commercially available, during normal SCSS working hours. Software upgrades that do not affect the Customer’s current operations, as solely determined by SCSS and the OEM will not be installed by SCSS. In the event the Customer elects to have someone other than SCSS install the software upgrade, the Customer shall assume any and all liability for any damage caused pursuant to the installation. Service and upgrades for third party software not supplied by SCSS are excluded from this Order.
10. Title to Equipment and Use of SCSS-owned Equipment; Proprietary Protection.
A. Any SCSS owned equipment installed on the Customer’s premises shall at all times remain solely the property of SCSS and Customer agrees not to permit the attachment thereto of any equipment not furnished by SCSS. For any equipment identified as “TKO” on the Order, Customer acknowledges that the purchase price for the equipment is incorporated into the monthly service charge set forth on the Order and will be paid over the Initial Term of the Order. Customer therefore agrees that SCSS retains title to the equipment until the full purchase price is paid, which shall be at the expiration of the Initial Term of the Order. SCSS agrees that upon expiration of the Initial Term, the parties may renegotiate the Total Monthly Fee to reflect payment of the purchase price for the equipment.
B. If Customer purchases equipment, Customer agrees that SCSS retains a security interest in the equipment until the full purchase price is paid. It is further understood and agreed that SCSS may remove or abandon all SCSS owned equipment, including all wiring installed by SCSS, in whole or in part, upon termination of the Order by lapse of time, default of any moneys due hereunder, or otherwise without any obligation to repair or redecorate any portion of the protected premises, provided that such removal or abandonment shall not be held to constitute a waiver of the right of SCSS to collect any charges which have accrued.
C. Customer shall keep all SCSS owned equipment at all times free and clear from all liens, claims, levies, encumbrances, security interests and processes, of any nature whatsoever. Customer shall give SCSS immediate notice of any such attachment or other judicial process affecting any of the equipment. Without SCSS’s written permission, Customer shall not attempt to or actually: (i) pledge, lend, create a security interest in, sublet, exchange, trade, assign, swap, use for an allowance or credit or otherwise; (ii) allow another to use; (iii) part with possession; (iv) dispose of; or (v) remove from the location of installation, any item of equipment. If any item of equipment is exchanged, assigned, traded, swapped, used for an allowance or credit or otherwise to acquire new or different equipment (the “new equipment”) without SCSS’s prior written consent, then all of the new equipment shall become equipment owned by SCSS subject to the Order.
D. Any computer application program and/or documentation, collectively referred to as “Software”, that is provided by SCSS under the Order, is owned by SCSS, its affiliates or one of its OEM’s and is protected by United States and international copyright laws and international treaty provisions. Any breach of this Order will automatically terminate the Customer’s right to use this Software, and the Customer is obligated to immediately return such Software to SCSS. Customer may not copy the Software for any reason other than per the dictates of any end user software license Order. Customer may not reverse-engineer, disassemble, decompile or attempt to discover the source code of any Software. Customer acknowledges that any breach of this section shall result in irreparable injury to SCSS for which the amount of damages would be unascertainable. Therefore, SCSS may, in addition to pursuing any and all remedies provided by law, obtain an injunction against Customer from any court having jurisdiction, restraining any violation of this section.
A. SCSS may terminate the Order as follows:
i) In the event Customer defaults in the performance of any of the terms and conditions of the Order, including the failure to make any payment, Customer shall have thirty (30) calendar days from receipt date of written confirmation by SCSS of such default to cure or remedy the default. Notification by facsimile, U.S. mail or by courier shall be acceptable. If, after the thirty (30) calendar day period, Customer does not remedy or cure such default, SCSS may terminate the Order immediately and the balance of all moneys due and for the unexpired term of this Order shall become immediately due and payable, together with interest at the maximum legally allowable rate; or
ii) Immediately, in the event SCSS’s monitoring center, the telephone lines, wires, or SCSS’s equipment within Customer premises are destroyed or so substantially damaged that it is commercially impractical to continue service to Customer’s premises; or
iii) As provided in Article 3 relating to expiration.
B. Customer may terminate the Order:
i) Immediately, upon written notice for any individual location in the event any Customer location is, by any cause beyond the control of Customer, destroyed or so substantially damaged that it is commercially impractical for Customer to continue any operations at such location, provided that if the Customer is using SCSS owned or TKO equipment, the Customer must pay SCSS all payments remaining to be made through its scheduled expiration; or
ii) As provided in Article 3 relating to expiration.
C. Upon termination of the Order, Customer shall permit SCSS access to Customer’s premises in order to deactivate the telephone line signaling device and/or to remove the equipment pursuant to Article 10.
12. Assignment. The Order is not assignable by the Customer, except upon written consent of SCSS first being obtained. SCSS shall have the right to assign the Order, or to subcontract any of the obligations under the Order, without the consent of, but with notification to, the Customer.
13. Insurance and Waiver of Subrogation. Customer shall obtain, and maintain, insurance coverage to cover all losses, damage, or injury, related to or sustained by Customer in connection with the services provided by SCSS. For all losses, damage or injury above the limits set forth in Paragraph 5B, Customer shall look solely to its insurer for recovery of its loss and hereby waives any and all claims for such loss against SCSS. Customer agrees to obtain insurance permitting said waiver without invalidating coverage. Both parties do hereby for themselves and for other parties claiming under them, release and discharge each other from and against all claims arising from hazards covered by insurance, it being expressly agreed and understood that no insurance company or insurer will have any right of subrogation against either party.
14. Severability and Savings In the event any one or more of the provisions of the Order shall for any reason be held to be invalid, void, illegal, or unenforceable by any court, arbitrator, or governmental agency, the remaining provisions of the Order shall remain in full force and effect, and the invalid, void, illegal, and/or unenforceable provision(s) shall survive to the extent not so held.
15. Non-solicitation During the term of the Order and for a period of not less than one (1) year following its expiration or termination, both parties agree not to solicit as an employee, consultant, agent, subcontractor and/or representative (hereinafter “Employee”) any person who is an Employee of the other party at the time of such solicitation. If this covenant is breached, the non-breaching party will be entitled to injunctive relief to be issued by any court of equity having jurisdiction to enjoin and restrain the breaching party and the subject Employee, and each and every other person concerned therein from further violation thereof, and in addition thereto, if a court finds a violation of this clause, the non-breaching party will be entitled to liquidated damages, due to the difficulty of proof of actual damages, against the breaching party in the amount of the hired employee’s fully loaded salary, including benefits, bonuses, commissions, stock grants, the cost of training and other similar fully loaded elements. Both parties acknowledge that such amount is reasonable, not a penalty and not disproportionate to the presumed investment in the training of such Employee and the damages suffered by the non-breaching party. Solicitation through advertisements directed at the general public or through “head hunters” who contact a party’s employees without the party’s knowledge will not be considered solicitations for purposes of this paragraph.
16. Trial by Jury Both parties to this Order, knowingly, voluntarily and intentionally waive any right they may have to a trial by jury in respect of any litigation arising out of, under, in connection with, or relating to the Order.
17. Choice of Law These Terms and Conditions of Sale shall be interpreted, enforced and governed under the laws of the State of New York without regard to application of conflicts of laws principals that would require the application of any other law.