T
[email protected]
- Jan 1, 1970
- 0
I am new to the home security system and about to use the monitoring
service provided by NextAlarm. However, I am not very encouraged by
their term agreement, in particular on the "18. limitation of
liability" and "19. third party indemnification and subrogation"
parts, which, if I understand correctly, says that NextAlarm will pay
only up to $250 for any damage incurred by their failure or
negligence, and if there is anybody else suing them for their failure
on my system, then I have to pay for them plus the attorney fee. Does
it sound right? Is that a common practice of alarm companies to avoid
liabilities like that in their term agreements? I would appreciate
your expertise on this matter. Thanks in advance. The following is the
text of NextAlarm's term agreement.
TERMS OF SERVICE AGREEMENT
Please read and print out our Terms of Service Agreement. When you
have finished, please click the "I AGREE" button at the bottom of the
page to continue.
This is an agreement between you ("Subscriber") and NextAlarm.com INC,
("Company"), for the purpose of providing monitoring of the security
alarm system you already own at the address supplied by you. "You" and
"yours" refer to "Subscriber" and "we", "us" and "our" refer to
"Company", Subscriber's E-mail refers to the E-mail address supplied
by Subscriber during the sign up process. You understand that
"monitoring service" means only that Company will react to signals
received by us from the security alarm system you already have at your
premises.
1. SYSTEM: Subscriber understands that Company agrees to monitor a
security system owned by Subscriber and not installed by or designed
by Company. No representation is made by Company as to suitability or
condition of Subscriber's system. Due to the many types of alarm
systems and the potential incompatibility of some systems as well as
the un-availability of documentation on some systems, NextAlarm.com
reserves the right to decline service to any applicant at the sole
discretion of NextAlarm.com and to terminate service to any
NextAlarm.com subscriber should subscriber's alarm system generate
excessive false or supervisory alarm signals. NextAlarm.com may take
these actions at its sole discretion. Any NextAlarm.com subscriber
who's service is terminated shall be entitled to a refund of any pre-
paid monitoring fees less the amount for monitoring already used.
2.TERM: Service will commence when test signals from your premises
have been received by Company at its monitoring center and both
Company and Subscriber agree that such signals have been
satisfactorily transmitted and received. After all free months service
granted to you through special promotions (if any) have passed, we
will bill your credit card, or debit your checking account, in the
amount appropriate to your billing plan, as you have indicated in your
application. This agreement shall automatically renew according to
term length of your billing plan until Company or Subscriber indicate
termination via E-mail or in writing. Subscriber may terminate this
agreement at any time by notifying Company via E-mail or from
Company's Web site at the appropriate hyperlink. Subscriber may cancel
and receive a refund for unused whole months (if any), provided that
any equipment supplied by the Company is returned. Refunds are granted
in the amount of the original service plan cost, minus the length of
subscription term so far multiplied by Company's "monthly" service
plan rate as posted at the time of cancellation. Refunds are only
available to customers whose billing plan term length is greater than
one month.
3. PAYMENT: In the event that Subscriber has provided a credit card
number as the method of billing, Company shall, at the end of the
billing plan term length and on the monthly anniversary of the receipt
of satisfactory test signals or the expiration of any free months
monitoring service granted, whichever is the later, charge
Subscriber's credit card as supplied during the sign up process, in
the amount appropriate to the service plan chosen, and provide
monitoring service for the length of the billing plan term. Should the
charge to Subscriber's credit card be declined, Company will notify
Subscriber using Subscriber's E-mail and continue service for 5 days
during which time Company will attempt once each day to re-authorize
the charge to Subscriber's credit card. At the end of this 5 day
period, if Company has been unable to authorize the charge to
Subscriber's credit card, Company shall terminate monitoring service
to Subscriber and will notify Subscriber of termination via
Subscriber's E-mail. In the event that Subscriber has provided a bank
account number, either checking or savings, as method of payment, then
Company shall, at the end of the billing plan term length and on the
monthly anniversary of the receipt of satisfactory test signals or the
expiration of any free months monitoring service granted, whichever is
the later, create a debit instrument to Subscriber's bank account, as
provided during the signup process, in the amount appropriate to the
service plan chosen, and provide monitoring service for the length of
the billing plan term. Should funds not be available from Subscriber's
bank account, then Company will notify Subscriber, as soon as Company
discovers this information, using Subscriber's E-mail and will re-
deposit the debit instrument. Should funds still not be available from
Subscriber's bank account, then Company will notify Subscriber using
Subscriber's E-mail and by telephone that service will be discontinued
at Midnight Central time, 3 days from the time of notification.
Subscriber may arrange payment within these 3 days, to Company's
satisfaction, to avoid discontinuance of service.
4. CONNECTION TO CUSTOMER OWNED EQUIPMENT: Company assumes no
responsibility whatsoever for the maintenance, operation or non
operation, actuation or non-actuation, of your existing equipment.
Company reserves the right to terminate service under this Agreement
in the event your existing equipment is not in good operating
condition and Company will not be liable for any damages or penalties
as a result of termination under those circumstances. If subscriber
agrees to the use of the Company supplied alarm Redirector, subscriber
understands that the line seizure function, if in effect, may be
disabled by the use of the alarm Redirector. Customer agrees that if
the Company supplies an alarm Redirector, customer will activate the
system or return the alarm Redirector to the Company within 2 weeks of
receipt of the alarm Redirector by the subscriber. Customer further
agrees that if the alarm Redirector is not returned to the Company
within 21 days of the Company requesting its return, then the Company
may charge the Subscriber's credit/debit card or debit the
Subscriber's bank account, depending on which billing option the
Subscriber chose, in the amount of $50.00.
5. TELEPHONE LINES: Subscriber understands and acknowledges that the
signals from Subscriber's alarm system are transmitted over
Subscriber's regular telephone lines, Voice over IP service, broadband
Internet connection or GSM cellular phone network to Company's
monitoring center and in the event that the service or Subscriber has
elected to use for the purpose of transmitting alarm signals is out of
order, disconnected, placed on vacation or otherwise interrupted,
signals from your alarm system will not be received in our monitoring
center during such interruption in service and such interruption will
not be known to us. Subscriber is encouraged to use the most reliable
communication system available in Subscriber's area. Subscriber
further acknowledges and agrees that signals that are transmitted over
these services are wholly beyond the control and jurisdiction of
Company and are maintained and serviced by the operating service
company or utility. Subscriber understands that the telephone company
may make changes to area codes or prefixes that could result in the
need to reprogram Subscriber's alarm system. In this event, failure to
perform such reprogramming could result in signals from Subscriber's
alarm system failing to reach Company's monitoring center. Subscriber
agrees to notify Company of any such area code or prefix change.
Company shall be held harmless should Subscriber fail to notify
Company of any such change. Installation and use of an RJ31X or
equivalent telephone jack to give the alarm system priority over other
telephones in Subscriber's premises is recommended, however, when the
alarm system is activated, Subscriber will be unable to use the
telephone service to make other calls (such as calls to the 911
emergency operator), and therefore, Subscriber may wish to have the
System connected to a second telephone line. The use of DSL or other
broadband telephone service may prevent the System from transmitting
alarm signals to the monitoring facility and/or interfere with the
telephone line-seizure feature of the alarm system. Such services
should be installed on a telephone number that is not used for alarm
system signal transmission. Subscriber agrees to notify Company if DSL
has been installed or Subscribers intends to install DSL or other
broadband service. IMMEDIATELY AFTER THE INSTALLATION OF DSL OR OTHER
BROADBAND SERVICE SUBSCRIBER MUST TEST THE SYSTEM' S SIGNAL
TRANSMISSION WITH COMPANY. Subscriber shall pay all charges made by
any telephone company or other utility for installation, leasing, and
service charges of telephone lines or equipment transmitting signals
between Subscriber's protected premises and the Company.
6. CHOICE OF MONITORING SERVICES: Company presently offers three
separate levels of service, as more particularly described on the
Company's website, nextalarm.com. Subscriber acknowledges having read
and understood the descriptions of those three levels of service. The
references set forth below to those three different levels of service
are for identification only. The Subscriber must rely upon the full
descriptions set forth on the Company website, which are subject to
change by the Company from time to time.
A. Traditional Dispatch and Telephonic Notification Plan:
If the Subscriber chooses this traditional plan, the following
shall apply: Company agrees to provide monitoring services to
Subscriber as follows: When Company receives an emergency signal from
Subscriber's alarm system, Company will make every reasonable effort
to dispatch authorities and contact persons on Subscriber's emergency
notification list, as supplied by subscriber during the sign up
process. Company may call Subscriber's premises first to determine if
an actual emergency exists before calling any authorities. If Company
has reason to believe that no actual emergency exists, it may choose
not to place such notification calls. Company may discontinue any part
of this service if required to do so by governmental or insurance
authorities. Subscriber consents to the tape recording of all
telephonic communications between Company and Subscriber's premises.
In order to reduce false alarm police responses, Subscriber agrees
that a period of 10 days following completion of installation of the
alarm system shall be a testing period for the equipment and for the
Subscriber to familiarize themselves with correct operation of the
system. During this time Company will not be required but may report
to the Police or Fire Department, or other authorities. Subscriber's
cooperation is essential and therefore, Subscriber agrees to test the
alarm system at least monthly and notify Company if the system appears
not to function normally. Subscriber further agrees to keep
Subscriber's emergency information updated and current by notifying
Company of any changes Via E-mail, in writing or through Company's web
site by logging in and giving appropriate information at the indicated
prompts.
Subscriber selects the Traditional NextAlarm Plan. YOUR
INITIALS:
B. $5 NetAlarm Plan. As more particularly described on Company's
website at https://nextalarm.com/help/Wiki.jsp?page=NetAlarm, this
plan offers notification via e-mail or SMS if your alarm is triggered,
including information about the specific zone that was broken.
However, there is no live operator response, and neither the police,
fire department nor paramedics will be dispatched if there is an
alarm.
Subscriber selects the $5 NetAlarm Plan. YOUR INITIALS:
C. Free NetAlarm Lite. As more particularly described on
Company's website at https://nextalarm.com/help/Wiki.jsp?page=NetAlarm,
this plan also offers notification via e-mail or SMS if your alarm is
triggered, including information about the specific zone that was
broken. As is the case with the $5 NetAlarm Plan, there is no live
operator response, and neither the police, fire department nor
paramedics will be dispatched if there is an alarm. However, unlike
the $5 NetAlarm Plan, under Free NetAlarm Lite, emails will be sent to
one address only, online programming of your alarm system is not
available, the signal log may be delayed and the Subscriber is limited
to three full notifications per day.
Subscriber selects the Free NetAlarm Lite Plan. YOUR INITIALS:
7. TAXES and FEES: Any applicable taxes, sales taxes, permit fees,
false alarm fees or assessments with regard to Subscriber's alarm
system or the monitoring thereof, are the responsibility of
Subscriber. Should Company be assessed any such charges specifically
regarding Subscriber's alarm system or the monitoring thereof Company
shall bill such charges to Subscriber's credit card.
8. THIRD PARTY INDEMNIFICATION: In the event any person not a party to
this agreement, shall make a claim or file a lawsuit against the
Company, for any reason relating to our duties and obligations
pursuant to this agreement, you agree to indemnify defend and hold
harmless Company, its agents, successors, assigns and employees.
9. ASSIGNABILITY: Company shall have the right to assign this
agreement to any other person, firm or corporation without notice to
Subscriber and shall have the further right to subcontract any
monitoring, which it may perform. Subscriber acknowledges that this
agreement, and particularly those paragraphs relating to Company's
maximum liability, liquidated damages, and the third party
indemnification, inure to the benefit of and are applicable to any
assignees, subcontractors of Company, and the work they perform, and
that they bind Subscriber with respect to said assignees,
subcontractors, with the same force and effect as they bind Subscriber
to Company.
10. SEVERABILITY: Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Agreement.
11. CHOICE OF LAW: This agreement shall be governed by and construed
under the laws of the State of California. Subscriber hereby
represents that he or she is not a party to nor obligated, contracted
to or otherwise engaged in a current and in force alarm system
monitoring contract with any person, organization or entity and
further represents and certifies that the alarm system Subscriber
Contract hereby entered into will in no manner constitute a breach of
any other agreement with any third party.
12. PERMITS AND LOCAL ORDINANCES: Subscriber is also solely
responsible for compliance with local ordinances regarding
Subscriber's alarm system. Subscriber will be responsible for
obtaining and maintaining in full force in effect, at Subscriber's
expense, any individual alarm permits or licenses required by
governmental authorities. The city or county in which Subscriber's
home or business is located may require that Subscriber obtain a
permit for the use and monitoring of the system. Local authorities may
not respond to alarm notifications until all permits or licenses for
use of the system have been obtained, and therefore Company may not
begin monitoring until Subscriber has obtained at Subscriber's expense
all necessary permits or licenses, and provided Company with the
license or permit number.
13. FALSE ALARMS: Subscriber agrees that Subscriber and others using
the System, will use it carefully so as to avoid causing false alarms.
False alarms can be caused by Subscriber error, severe weather or
other forces beyond our control. If Company receives too many false
alarms, that will constitute a breach of contract by Subscriber, and
Company may cancel monitoring service and seek to recover damages.
Subscriber will pay any false alarm fee or penalty assessed against
the System by any governmental agency, whether charged to Subscriber
or Company.
14. INTERRUPTION OF SERVICE: Company assume no liability for
interruption of monitoring service due to strikes, riots, floods,
storms, earthquakes, fires, power failures, insurrection, interruption
or unavailability of telephone service, acts of God, or for any other
cause beyond the control of Company, and Company will not be required
to supply monitoring service to Subscriber while interruption of
service due to any such cause may continue.
15. SUSPENSION OR CANCELLATION OF THIS SERVICE: This agreement shall
be suspended without notice if Company's monitoring facility or
Subscriber's premises are destroyed by fire or other catastrophe, or
so substantially damaged that it is impractical to continue service,
or in the event Company is unable to render service as a result of any
action by any government authority.
16. SUBSCRIBER'S DUTIES AS TO USE OF SYSTEM: Subscriber will instruct
all other persons who may use the System on its proper use. Subscriber
should test the System's protective devices and send test signals to
our monitoring central station weekly during the term of Agreement. If
the System includes any wireless devices, Subscriber will replace the
batteries as needed and at least once each year.
17. NOT UNDER CONTRACT WITH OTHER ALARM COMPANY: Subscriber further
represents and warrants that Subscriber is not presently under
contract with any other alarm company for the provisioning of alarm
services at the premises described above. Subscriber agrees to
indemnify and hold harmless Company against all claims, suits,
expenses and damages by judgment or otherwise (including attorney's
fees necessary to enforce this indemnity provision) which may now or
hereinafter be incurred by Company as a result of, or arising out of,
any agreement that the Subscriber may have entered into with any other
party concerning alarms systems at the premises described above.
18. COMPANY IS NOT AN INSURER; LIQUIDATED DAMAGES; LIMITATION OF
LIABILITY: Subscriber understands and agrees that (a) Company is not
an insurers of Subscriber's property or the personal safety of persons
in Subscriber's premises; (b) Subscriber will provide and maintain any
insurance on Subscriber's premises and its contents; (c) the amount
Subscriber pays to Company is based only on the value of the services
Company provide and not on the value of Subscriber's premises or its
contents; (d) alarm systems and the monitoring service may not always
operate properly for various reasons; (e) it is difficult to determine
in advance the value of the property that might be lost; stolen or
destroyed if the System or service fails to operate properly; (f) it
is difficult to determine how fast the police or fire department or
others would respond to notice of an alarm signal; (g) it is difficult
to determine what portion, if any, of any property loss, personal
injury or death would be proximately caused by Company's failure to
perform, their negligence, or a failure of the System or service.
THEREFORE SUBSCRIBER AGREES: Even if a court decides that a failure of
the system or monitoring service, or Company's negligence, or a
failure of monitoring or repair service caused or allowed any harm or
damage (whether property damage, personal injury or death) to
Subscriber or anyone on Subscriber's premises, Subscriber agrees that
Company's maximum aggregate liability shall be limited to $250.00, as
liquidated damages and not as a penalty, and this shall be
Subscriber's only remedy regardless of what legal theory is used to
determine that Company was liable for the injury, loss or death.
SUSBSCRIBER MAY OBTAIN A LIMITATION OF LIABILITY: If Subscriber
wishes, Subscriber may obtain from Company a limitation of liability
instead of the liquidated damages for an additional periodic charge.
If Subscriber elects this option, Company 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 Company is an insurer.
19. THIRD PARTY INDEMNIFICATION AND SUBROGATION: If anyone other than
Subscriber, asks Company to pay for any harm or damages (including
property damage, personal injury or death) connected with or resulting
from: (i) a failure of the System or services, (ii) Company's
negligence, (iii) any other improper or careless activity of Company
in providing the System or services or (iv) a claim for
indemnification or contribution, Subscriber will repay to Company, as
the case may be; (a) any amount which a court orders Company to pay or
which Company reasonably agrees to pay, and (b) the amount of
Company's reasonable attorney's fees and any other losses and costs
that Company may pay in connection with the harm or damages.
Subscriber agrees to release Company from any claims of any parties
suing through Subscriber's authority or in Subscriber's name, such as
Subscriber's name, such as Subscriber's insurance company and
Subscriber agrees to defend Company against any such claim. Subscriber
will notify Subscriber's insurance company of this release.
20. LIMITATION ON LAWSUITS; ARBITRATION: Both Company and Subscriber
agree that no lawsuit or any other legal proceeding connected with
this Agreement shall be brought or filed more than one (1) year after
the incident giving rise to the claim occurred. Any controversy,
dispute, or claim between the parties arising out of or relating to
this Agreement, (other than actions brought by Company in small claims
court to collect amounts due under this Agreement) shall be determined
and settled by arbitration under the rules and procedures, then in
effect, of the American Arbitration Association at its office in or
nearest to Santa Barbara, California, and the loser in such
arbitration shall bear all costs thereof. The decision in arbitration
shall be final as to the resolution of such differences and as to the
proper mode of carrying the same into effect.
21. ENTIRE AGREEMENT: The entire and only agreement between you and
Company is written in this Agreement. It replaces any earlier oral or
written understandings or agreements. It may only be changed by a
written agreement signed by Subscriber (and if married, Subscriber's
spouse) and Company. If you have given or ever give Company a purchase
order for the System or service which provides different terms than
this Agreement, this Agreement will govern and be controlling. If any
provision of this Agreement is found to be invalid or illegal by a
court, the balance of the Agreement shall remain in force. You agree
that this Agreement is performed in the State of California and shall
be governed by the laws of California. In the event any of the terms
or provisions of this agreement shall be declared to be invalid or
inoperative, all of the remaining terms and provisions shall remain in
full force and effect.
I have read and understand the Terms of Service Agreement.
Please initial exactly one of the service plan types (in the yellow
boxes), then click I AGREE.
service provided by NextAlarm. However, I am not very encouraged by
their term agreement, in particular on the "18. limitation of
liability" and "19. third party indemnification and subrogation"
parts, which, if I understand correctly, says that NextAlarm will pay
only up to $250 for any damage incurred by their failure or
negligence, and if there is anybody else suing them for their failure
on my system, then I have to pay for them plus the attorney fee. Does
it sound right? Is that a common practice of alarm companies to avoid
liabilities like that in their term agreements? I would appreciate
your expertise on this matter. Thanks in advance. The following is the
text of NextAlarm's term agreement.
TERMS OF SERVICE AGREEMENT
Please read and print out our Terms of Service Agreement. When you
have finished, please click the "I AGREE" button at the bottom of the
page to continue.
This is an agreement between you ("Subscriber") and NextAlarm.com INC,
("Company"), for the purpose of providing monitoring of the security
alarm system you already own at the address supplied by you. "You" and
"yours" refer to "Subscriber" and "we", "us" and "our" refer to
"Company", Subscriber's E-mail refers to the E-mail address supplied
by Subscriber during the sign up process. You understand that
"monitoring service" means only that Company will react to signals
received by us from the security alarm system you already have at your
premises.
1. SYSTEM: Subscriber understands that Company agrees to monitor a
security system owned by Subscriber and not installed by or designed
by Company. No representation is made by Company as to suitability or
condition of Subscriber's system. Due to the many types of alarm
systems and the potential incompatibility of some systems as well as
the un-availability of documentation on some systems, NextAlarm.com
reserves the right to decline service to any applicant at the sole
discretion of NextAlarm.com and to terminate service to any
NextAlarm.com subscriber should subscriber's alarm system generate
excessive false or supervisory alarm signals. NextAlarm.com may take
these actions at its sole discretion. Any NextAlarm.com subscriber
who's service is terminated shall be entitled to a refund of any pre-
paid monitoring fees less the amount for monitoring already used.
2.TERM: Service will commence when test signals from your premises
have been received by Company at its monitoring center and both
Company and Subscriber agree that such signals have been
satisfactorily transmitted and received. After all free months service
granted to you through special promotions (if any) have passed, we
will bill your credit card, or debit your checking account, in the
amount appropriate to your billing plan, as you have indicated in your
application. This agreement shall automatically renew according to
term length of your billing plan until Company or Subscriber indicate
termination via E-mail or in writing. Subscriber may terminate this
agreement at any time by notifying Company via E-mail or from
Company's Web site at the appropriate hyperlink. Subscriber may cancel
and receive a refund for unused whole months (if any), provided that
any equipment supplied by the Company is returned. Refunds are granted
in the amount of the original service plan cost, minus the length of
subscription term so far multiplied by Company's "monthly" service
plan rate as posted at the time of cancellation. Refunds are only
available to customers whose billing plan term length is greater than
one month.
3. PAYMENT: In the event that Subscriber has provided a credit card
number as the method of billing, Company shall, at the end of the
billing plan term length and on the monthly anniversary of the receipt
of satisfactory test signals or the expiration of any free months
monitoring service granted, whichever is the later, charge
Subscriber's credit card as supplied during the sign up process, in
the amount appropriate to the service plan chosen, and provide
monitoring service for the length of the billing plan term. Should the
charge to Subscriber's credit card be declined, Company will notify
Subscriber using Subscriber's E-mail and continue service for 5 days
during which time Company will attempt once each day to re-authorize
the charge to Subscriber's credit card. At the end of this 5 day
period, if Company has been unable to authorize the charge to
Subscriber's credit card, Company shall terminate monitoring service
to Subscriber and will notify Subscriber of termination via
Subscriber's E-mail. In the event that Subscriber has provided a bank
account number, either checking or savings, as method of payment, then
Company shall, at the end of the billing plan term length and on the
monthly anniversary of the receipt of satisfactory test signals or the
expiration of any free months monitoring service granted, whichever is
the later, create a debit instrument to Subscriber's bank account, as
provided during the signup process, in the amount appropriate to the
service plan chosen, and provide monitoring service for the length of
the billing plan term. Should funds not be available from Subscriber's
bank account, then Company will notify Subscriber, as soon as Company
discovers this information, using Subscriber's E-mail and will re-
deposit the debit instrument. Should funds still not be available from
Subscriber's bank account, then Company will notify Subscriber using
Subscriber's E-mail and by telephone that service will be discontinued
at Midnight Central time, 3 days from the time of notification.
Subscriber may arrange payment within these 3 days, to Company's
satisfaction, to avoid discontinuance of service.
4. CONNECTION TO CUSTOMER OWNED EQUIPMENT: Company assumes no
responsibility whatsoever for the maintenance, operation or non
operation, actuation or non-actuation, of your existing equipment.
Company reserves the right to terminate service under this Agreement
in the event your existing equipment is not in good operating
condition and Company will not be liable for any damages or penalties
as a result of termination under those circumstances. If subscriber
agrees to the use of the Company supplied alarm Redirector, subscriber
understands that the line seizure function, if in effect, may be
disabled by the use of the alarm Redirector. Customer agrees that if
the Company supplies an alarm Redirector, customer will activate the
system or return the alarm Redirector to the Company within 2 weeks of
receipt of the alarm Redirector by the subscriber. Customer further
agrees that if the alarm Redirector is not returned to the Company
within 21 days of the Company requesting its return, then the Company
may charge the Subscriber's credit/debit card or debit the
Subscriber's bank account, depending on which billing option the
Subscriber chose, in the amount of $50.00.
5. TELEPHONE LINES: Subscriber understands and acknowledges that the
signals from Subscriber's alarm system are transmitted over
Subscriber's regular telephone lines, Voice over IP service, broadband
Internet connection or GSM cellular phone network to Company's
monitoring center and in the event that the service or Subscriber has
elected to use for the purpose of transmitting alarm signals is out of
order, disconnected, placed on vacation or otherwise interrupted,
signals from your alarm system will not be received in our monitoring
center during such interruption in service and such interruption will
not be known to us. Subscriber is encouraged to use the most reliable
communication system available in Subscriber's area. Subscriber
further acknowledges and agrees that signals that are transmitted over
these services are wholly beyond the control and jurisdiction of
Company and are maintained and serviced by the operating service
company or utility. Subscriber understands that the telephone company
may make changes to area codes or prefixes that could result in the
need to reprogram Subscriber's alarm system. In this event, failure to
perform such reprogramming could result in signals from Subscriber's
alarm system failing to reach Company's monitoring center. Subscriber
agrees to notify Company of any such area code or prefix change.
Company shall be held harmless should Subscriber fail to notify
Company of any such change. Installation and use of an RJ31X or
equivalent telephone jack to give the alarm system priority over other
telephones in Subscriber's premises is recommended, however, when the
alarm system is activated, Subscriber will be unable to use the
telephone service to make other calls (such as calls to the 911
emergency operator), and therefore, Subscriber may wish to have the
System connected to a second telephone line. The use of DSL or other
broadband telephone service may prevent the System from transmitting
alarm signals to the monitoring facility and/or interfere with the
telephone line-seizure feature of the alarm system. Such services
should be installed on a telephone number that is not used for alarm
system signal transmission. Subscriber agrees to notify Company if DSL
has been installed or Subscribers intends to install DSL or other
broadband service. IMMEDIATELY AFTER THE INSTALLATION OF DSL OR OTHER
BROADBAND SERVICE SUBSCRIBER MUST TEST THE SYSTEM' S SIGNAL
TRANSMISSION WITH COMPANY. Subscriber shall pay all charges made by
any telephone company or other utility for installation, leasing, and
service charges of telephone lines or equipment transmitting signals
between Subscriber's protected premises and the Company.
6. CHOICE OF MONITORING SERVICES: Company presently offers three
separate levels of service, as more particularly described on the
Company's website, nextalarm.com. Subscriber acknowledges having read
and understood the descriptions of those three levels of service. The
references set forth below to those three different levels of service
are for identification only. The Subscriber must rely upon the full
descriptions set forth on the Company website, which are subject to
change by the Company from time to time.
A. Traditional Dispatch and Telephonic Notification Plan:
If the Subscriber chooses this traditional plan, the following
shall apply: Company agrees to provide monitoring services to
Subscriber as follows: When Company receives an emergency signal from
Subscriber's alarm system, Company will make every reasonable effort
to dispatch authorities and contact persons on Subscriber's emergency
notification list, as supplied by subscriber during the sign up
process. Company may call Subscriber's premises first to determine if
an actual emergency exists before calling any authorities. If Company
has reason to believe that no actual emergency exists, it may choose
not to place such notification calls. Company may discontinue any part
of this service if required to do so by governmental or insurance
authorities. Subscriber consents to the tape recording of all
telephonic communications between Company and Subscriber's premises.
In order to reduce false alarm police responses, Subscriber agrees
that a period of 10 days following completion of installation of the
alarm system shall be a testing period for the equipment and for the
Subscriber to familiarize themselves with correct operation of the
system. During this time Company will not be required but may report
to the Police or Fire Department, or other authorities. Subscriber's
cooperation is essential and therefore, Subscriber agrees to test the
alarm system at least monthly and notify Company if the system appears
not to function normally. Subscriber further agrees to keep
Subscriber's emergency information updated and current by notifying
Company of any changes Via E-mail, in writing or through Company's web
site by logging in and giving appropriate information at the indicated
prompts.
Subscriber selects the Traditional NextAlarm Plan. YOUR
INITIALS:
B. $5 NetAlarm Plan. As more particularly described on Company's
website at https://nextalarm.com/help/Wiki.jsp?page=NetAlarm, this
plan offers notification via e-mail or SMS if your alarm is triggered,
including information about the specific zone that was broken.
However, there is no live operator response, and neither the police,
fire department nor paramedics will be dispatched if there is an
alarm.
Subscriber selects the $5 NetAlarm Plan. YOUR INITIALS:
C. Free NetAlarm Lite. As more particularly described on
Company's website at https://nextalarm.com/help/Wiki.jsp?page=NetAlarm,
this plan also offers notification via e-mail or SMS if your alarm is
triggered, including information about the specific zone that was
broken. As is the case with the $5 NetAlarm Plan, there is no live
operator response, and neither the police, fire department nor
paramedics will be dispatched if there is an alarm. However, unlike
the $5 NetAlarm Plan, under Free NetAlarm Lite, emails will be sent to
one address only, online programming of your alarm system is not
available, the signal log may be delayed and the Subscriber is limited
to three full notifications per day.
Subscriber selects the Free NetAlarm Lite Plan. YOUR INITIALS:
7. TAXES and FEES: Any applicable taxes, sales taxes, permit fees,
false alarm fees or assessments with regard to Subscriber's alarm
system or the monitoring thereof, are the responsibility of
Subscriber. Should Company be assessed any such charges specifically
regarding Subscriber's alarm system or the monitoring thereof Company
shall bill such charges to Subscriber's credit card.
8. THIRD PARTY INDEMNIFICATION: In the event any person not a party to
this agreement, shall make a claim or file a lawsuit against the
Company, for any reason relating to our duties and obligations
pursuant to this agreement, you agree to indemnify defend and hold
harmless Company, its agents, successors, assigns and employees.
9. ASSIGNABILITY: Company shall have the right to assign this
agreement to any other person, firm or corporation without notice to
Subscriber and shall have the further right to subcontract any
monitoring, which it may perform. Subscriber acknowledges that this
agreement, and particularly those paragraphs relating to Company's
maximum liability, liquidated damages, and the third party
indemnification, inure to the benefit of and are applicable to any
assignees, subcontractors of Company, and the work they perform, and
that they bind Subscriber with respect to said assignees,
subcontractors, with the same force and effect as they bind Subscriber
to Company.
10. SEVERABILITY: Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Agreement.
11. CHOICE OF LAW: This agreement shall be governed by and construed
under the laws of the State of California. Subscriber hereby
represents that he or she is not a party to nor obligated, contracted
to or otherwise engaged in a current and in force alarm system
monitoring contract with any person, organization or entity and
further represents and certifies that the alarm system Subscriber
Contract hereby entered into will in no manner constitute a breach of
any other agreement with any third party.
12. PERMITS AND LOCAL ORDINANCES: Subscriber is also solely
responsible for compliance with local ordinances regarding
Subscriber's alarm system. Subscriber will be responsible for
obtaining and maintaining in full force in effect, at Subscriber's
expense, any individual alarm permits or licenses required by
governmental authorities. The city or county in which Subscriber's
home or business is located may require that Subscriber obtain a
permit for the use and monitoring of the system. Local authorities may
not respond to alarm notifications until all permits or licenses for
use of the system have been obtained, and therefore Company may not
begin monitoring until Subscriber has obtained at Subscriber's expense
all necessary permits or licenses, and provided Company with the
license or permit number.
13. FALSE ALARMS: Subscriber agrees that Subscriber and others using
the System, will use it carefully so as to avoid causing false alarms.
False alarms can be caused by Subscriber error, severe weather or
other forces beyond our control. If Company receives too many false
alarms, that will constitute a breach of contract by Subscriber, and
Company may cancel monitoring service and seek to recover damages.
Subscriber will pay any false alarm fee or penalty assessed against
the System by any governmental agency, whether charged to Subscriber
or Company.
14. INTERRUPTION OF SERVICE: Company assume no liability for
interruption of monitoring service due to strikes, riots, floods,
storms, earthquakes, fires, power failures, insurrection, interruption
or unavailability of telephone service, acts of God, or for any other
cause beyond the control of Company, and Company will not be required
to supply monitoring service to Subscriber while interruption of
service due to any such cause may continue.
15. SUSPENSION OR CANCELLATION OF THIS SERVICE: This agreement shall
be suspended without notice if Company's monitoring facility or
Subscriber's premises are destroyed by fire or other catastrophe, or
so substantially damaged that it is impractical to continue service,
or in the event Company is unable to render service as a result of any
action by any government authority.
16. SUBSCRIBER'S DUTIES AS TO USE OF SYSTEM: Subscriber will instruct
all other persons who may use the System on its proper use. Subscriber
should test the System's protective devices and send test signals to
our monitoring central station weekly during the term of Agreement. If
the System includes any wireless devices, Subscriber will replace the
batteries as needed and at least once each year.
17. NOT UNDER CONTRACT WITH OTHER ALARM COMPANY: Subscriber further
represents and warrants that Subscriber is not presently under
contract with any other alarm company for the provisioning of alarm
services at the premises described above. Subscriber agrees to
indemnify and hold harmless Company against all claims, suits,
expenses and damages by judgment or otherwise (including attorney's
fees necessary to enforce this indemnity provision) which may now or
hereinafter be incurred by Company as a result of, or arising out of,
any agreement that the Subscriber may have entered into with any other
party concerning alarms systems at the premises described above.
18. COMPANY IS NOT AN INSURER; LIQUIDATED DAMAGES; LIMITATION OF
LIABILITY: Subscriber understands and agrees that (a) Company is not
an insurers of Subscriber's property or the personal safety of persons
in Subscriber's premises; (b) Subscriber will provide and maintain any
insurance on Subscriber's premises and its contents; (c) the amount
Subscriber pays to Company is based only on the value of the services
Company provide and not on the value of Subscriber's premises or its
contents; (d) alarm systems and the monitoring service may not always
operate properly for various reasons; (e) it is difficult to determine
in advance the value of the property that might be lost; stolen or
destroyed if the System or service fails to operate properly; (f) it
is difficult to determine how fast the police or fire department or
others would respond to notice of an alarm signal; (g) it is difficult
to determine what portion, if any, of any property loss, personal
injury or death would be proximately caused by Company's failure to
perform, their negligence, or a failure of the System or service.
THEREFORE SUBSCRIBER AGREES: Even if a court decides that a failure of
the system or monitoring service, or Company's negligence, or a
failure of monitoring or repair service caused or allowed any harm or
damage (whether property damage, personal injury or death) to
Subscriber or anyone on Subscriber's premises, Subscriber agrees that
Company's maximum aggregate liability shall be limited to $250.00, as
liquidated damages and not as a penalty, and this shall be
Subscriber's only remedy regardless of what legal theory is used to
determine that Company was liable for the injury, loss or death.
SUSBSCRIBER MAY OBTAIN A LIMITATION OF LIABILITY: If Subscriber
wishes, Subscriber may obtain from Company a limitation of liability
instead of the liquidated damages for an additional periodic charge.
If Subscriber elects this option, Company 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 Company is an insurer.
19. THIRD PARTY INDEMNIFICATION AND SUBROGATION: If anyone other than
Subscriber, asks Company to pay for any harm or damages (including
property damage, personal injury or death) connected with or resulting
from: (i) a failure of the System or services, (ii) Company's
negligence, (iii) any other improper or careless activity of Company
in providing the System or services or (iv) a claim for
indemnification or contribution, Subscriber will repay to Company, as
the case may be; (a) any amount which a court orders Company to pay or
which Company reasonably agrees to pay, and (b) the amount of
Company's reasonable attorney's fees and any other losses and costs
that Company may pay in connection with the harm or damages.
Subscriber agrees to release Company from any claims of any parties
suing through Subscriber's authority or in Subscriber's name, such as
Subscriber's name, such as Subscriber's insurance company and
Subscriber agrees to defend Company against any such claim. Subscriber
will notify Subscriber's insurance company of this release.
20. LIMITATION ON LAWSUITS; ARBITRATION: Both Company and Subscriber
agree that no lawsuit or any other legal proceeding connected with
this Agreement shall be brought or filed more than one (1) year after
the incident giving rise to the claim occurred. Any controversy,
dispute, or claim between the parties arising out of or relating to
this Agreement, (other than actions brought by Company in small claims
court to collect amounts due under this Agreement) shall be determined
and settled by arbitration under the rules and procedures, then in
effect, of the American Arbitration Association at its office in or
nearest to Santa Barbara, California, and the loser in such
arbitration shall bear all costs thereof. The decision in arbitration
shall be final as to the resolution of such differences and as to the
proper mode of carrying the same into effect.
21. ENTIRE AGREEMENT: The entire and only agreement between you and
Company is written in this Agreement. It replaces any earlier oral or
written understandings or agreements. It may only be changed by a
written agreement signed by Subscriber (and if married, Subscriber's
spouse) and Company. If you have given or ever give Company a purchase
order for the System or service which provides different terms than
this Agreement, this Agreement will govern and be controlling. If any
provision of this Agreement is found to be invalid or illegal by a
court, the balance of the Agreement shall remain in force. You agree
that this Agreement is performed in the State of California and shall
be governed by the laws of California. In the event any of the terms
or provisions of this agreement shall be declared to be invalid or
inoperative, all of the remaining terms and provisions shall remain in
full force and effect.
I have read and understand the Terms of Service Agreement.
Please initial exactly one of the service plan types (in the yellow
boxes), then click I AGREE.
