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HomeMy WebLinkAboutAnimal Shelter Fire Alarm Monitoring • City of Jeffersonville • Government Contract Coversheet Please note:All information MUST be completely filled out and submitted to Clerk's Office within 48 hrs of execution. Date Submitted to Clerk: 3/14/2024 Depament: Animal Shelter • Vendor rt Name: Midwestern Alarm Sign Date: 3/14/2024 • Ending Date: Amount of Original Contract: $40/month Is this an amendment or change order to original contract? Yes or No r Amended Contract Amount: Purpose: Fire alarm monitoring for the animal shelter For Clerk's Office to fill out Date uploaded to Gateway: MIDWESTERN ALARMS P.O.Box 234{00�8 Louisville„2)589-347B 40223 STANDARD FIRE ALARM AGREEMENT Dated: 2/21t24 Subsaibers Name: J R Ogle Animal SheIler Telephone No. 19121,782-0071 Property Address: 2SIt 1Mfir er I are Jeffersonville IN 47190 Ceti Phone No.: 1111219g3-35611 Billing Address: Erral: kaahayflI ldtyn5eff sal SALE AND INSTALLATION MIDWESTERN ALARMS (hereinafter referred to as"MIDWESTERN"or*ALARM COMPANY-)agrees to sell,Install,and instruct Subscriber in the proper use of the Fire Mann Equipment or System,at Subscribers premises,and Subscriber agrees to buy,such system In accordance with this agreement,consisting of the following equipment: See attached Schedule of Equipment and Services for Included equipment,sale and Installation charges. Passe to software remains the property of MIDWESTERN. Software programmed by MIDWESTERN Is the intellectual property of MIDWESTERN and any unauthorized use of same,Inducting derivative works,is strictly prohibited and may violate Federal Copyright Laws,Titre 17 of the United States Code.and may sub(ect violator to civil and criminal penalties.MIDWESTERN's signs and decals remain the property of MIDWESTERN end must be removed upon termenetion of this agreement. (X)Check If Communication System.consisting of software,radio,cellular or communication connective devices,remains the property of MIDWESTERN. The Agreed Value of the Communication System is S1800.03. ( )Check If Fire Alarm System to Code: Fire alarm system is to be installed pursuant to feed plans and specifications filed by and approved by Authority Having Jurisdiction(AHJ(. ( )Check If system Includes Area of Refuge two-way communication system. If this service Is included MIDWESTERN will install,pursuant to filed and approved plans and specifications with the Building Department.AHJ requirements for a two-way communication system which shall have a timed automatic telephone dial out capability to a monitoring location or 911.The two-way communication system shall include both audible and visible signals unless otherwise directed by the AHJ. Alt references to the fire alarm system In this agreement shall Include the Area of Refuge system. ( )Check if system Includes In-Building Wireless Communications Systems for Emergency Responders,Signal Boosters and Bi-0lreetlonal Amplifiers(BDA),which systems require testing and service. See Schedule of Equipment and Services to determine If this service Includes wireless system design,surveys, radio equipment Installation,testing,coordination and permits with AHJ. Alt references to the fire alarm system In this agreement shall include the in-Building Wireless Communications Systems for Emergency Responders. NOTICF: Unless a Fire Alarm System to Code Is selected to be Installed, MiDWESTERN makes no representation that the fire alarm detection equipment meets local code,foe department or any Authority Having Jurisdiction(AHJ)requirements,and It is not MIDWESTERN',responsibility to apply for any permits or fees In connection with such equipment The law requires and MIDWESTERN recommends that Subscriber Install a Fire Alarm System to code with plans end specifications filed with AHJ,property permitted Inspected and approved by ANJ. Subscriber represents that existing • fire alarm system le approved by AHJ end that any repairs or replacement parts Installed by MIDWESTERN are not additional equipment which would require AHJ approval. MIDWESTERN may In its sole discretion notify AHJ if MIDWESTERN's services are to be terminated or have terminated or that the fire alarm system Is not functioning and MIDWESTERN is unable to provide monitoring or the fire alarm system Is otherwise nontompllant with applicable fire codes. CHECK FOR APPROPRIATE SERVICES:Only services selected are included: SERVICES AND RECURRING CHARGES:All charges are billed In advance and are plus tax,if applicable[select one option): Billing shall be:( )Monthly (X)Quarter Annually ( (Semi-Annually ( Annually () 1. MONITORING CHARGES: Subscriber agrees to pay MiDWESTERN the sum of S 45 00 per month for the monitoring of the FIRE ALARM system for the term of this agreement 2. SERVICE CHARGES:(Select a orb) (X)(a)Subscriber agrees to pay MIDWESTERN on a par call basis. If this agreement provides for service on a per call basis,Subscriber agrees to pay MIDWESTERN for all parts and labor at the time of service, ( ) (b) REPAIR SERVICE PLAN:Subscriber agrees to pay MIDWESTERN the sum of 5 per month,for the term of this agreement ter labor and material to service the fire alarm system for damage caused by ordinary wear and tear.Batteries.electrical surges,lightning damage,water,Insects, vermin, software upgrades and repairs, communication devices no longer supported by communication pathways, obsolete components and components exceeding manufacturer's useful fife are not included In the Repair Service Plan and will be repaired or replaced at Subscriber's expense payable at time of service. ( ) 3. INSPECTIONS:SYSTEMS TO BE INSPECTED: (IFtn Alarm(trine of Refuge(En-8ueding Wireless Communication.Unless otherwise noted In the Schedule of Equipment and Services Inspection will be performed to meet the minimum requirements of the applicable code or AHJ. MIDWESTERN will notify Subscriber 3 days In advance of Inspection date, and It is Subscriber's responsibilfty to reschedule or permit access. Testing at Inspection tests only that accessible components are in proper working order al time of Inspection unless otherwise reported to Subscriber at time of inspection. Inspection does not include repair. If sprinkler elan or other device monitonng water flow is inspected,the inspection does not include inspection or lasting of sufficiency of water supply,for which MIDWESTERN has no responsibility or Rabidly. ( )(a)Subscriber agrees to pay MIDWESTERN the sum of S per month for the term of this agreement for inspection service. If this option is selected,MIDWESTERN will make inspection(s)of the fire alarm system per year. Any additional inspections required by Authority Having Jurisdiction (AFU)for the alarm system or other trade installations will be charged at 5125.00 per hour which Subscriber agrees to pay. ( ) (b) Subscriber agrees to pay MIDWESTERN one per call basis for inspection service at MIDWESTERN'S customary charge at time of inspection. This does not obligate Subscriber to request service or for MIDWESTERN to perform Inspection upon such request. Subscriber to Initial for per call inspection and testing service option: ( ) 4. MONITORING CENTER CERTIFICATE: Subscriber agrees to pay MIDWESTERN the sum of S per month for the term of this agreement for a Factory Mutual(FM),intertek Testing Services(Eft),or UL Solutions(UL)Fire Alan Certificated seMce if this option is selected MIDWESTERN will issue a NRTL(Nationally Recognized Testing Laboratory)Certificate for the fire alarm system. Subscriber acknowledges that the NRTL is a separate AHJ that may want to inspect the fire alarm system. The NRTL or the Local AHJ can require changes to the fire alarm system to keep the Certificate in force. Subscriber agrees to pay MIDWESTERN for any inspections or required changes at MIDWESTERNs then prevailing rates. ( ) 5. RUNNER SERVICE: Subscriber agrees to pay MIDWESTERN the sum of S per month for the term of this agreement,for UL Runner Response Service for up to Runs per year. If this option Is selected MIDWESTERNs Runner upon notification from Monitoring Center of any alarm, supervisory or trouble signals,to the bed of MIDWESTERN's ability will respond to Subscribers location within 1 hour for alarm and supervisory signals and 4 hours for trouble signals. Subscriber agrees to issue MIDWESTERN 2 sets of all keys necessary for MIDWESTERN to enter into all Locked areas of Subscribers location. Subscriber agrees to pay MIDWESTERN far any additional Runs at MIDWESTERN's then prevailing labor rate. Subscriber acknowledges that Runner Service Is for response only and does not cover any work or repairs once MIDWESTERN Is on site. (X) IN LIEU OF SEPARATE RECURRING CHARGES IN PARAGRAPHS 1.6 ABOVE, SUBSCRIBER SHALL PAY $ Jena PER MONTH WHICH INCLUDES ALL THE CHECKED SERVICES IN PARAGRAPHS id. 1 S. MONITORING SERVICES PROVIDED: Upon receipt of a fire alarm signal from Subscribers fire alarm system,MIDWESTERN or its designee Monitoring Center shaft make every reasonable effort to notify Subscrber and the appropriate municipal fire department end comply with AFII dispatch procedures. Only • Subscriber will be notified of fire trouble,fire supervisory or other off normal signals es soon as may be practical. Not all signals or baramisskrs will require notification to the authorities,end Subscriber may obtain a written response policy from MIDWESTERN upon written request. Subscriber adcnowtedges that Page 1 of 4 signals transmitted from Subscribers premises directly to fire departments are not monitored by personnel of MIDWESTERN or its Monitoring Center and MIDWESTERN does riot assume arty responelbllfy for the manner In which such signals ere monitored or the response,If any,to such signets. Subscriber adutowiedges that signals which are transmitted over telephone lines,wire,air waves,Internet Managed Facilities Voice Networks,VOIP,or other modes of communication pass through communication networks wholly beyond the control of MIDWESTERN and are not maintained by MIDWESTERN except MIDWESTERN may own the radio network and MIDWESTERN shall not be responsible for any failure which prevents transmission signals or data from reaching the Monitoring Center or damages arising therefrom,or for date corruption, theft or viruses to Subscribers computers It connected to the communication equipment. The fire alarm system and communication pathway may not function during a power failure or not maintain functionality for a 24 hour period as required by NFPA•72 for fire alarm systems and Subscriber is responsible for verifying operation of the communication pathway with the communications pathway provider. Subscriber agrees to furnish MIDWESTERN with a written Cal Lail of names and telephone mothers of persons Subscriber wishes to receive notification of are alarm signate. Unless otherwise provided in the Cal,List MIDWESTERN veil make a reasonable effort to contact the first person reached or notified on the list either via telephone call text or email message. No more then one call to the fist shalt be required and any form of nottttcstlon provided for herein,including teavimg a message on an answering madhne,shall be deemed reasonable compliance with MIDWESTERN's nochcation obligation. All changes and revisions to the account information shall be supplied to MIDWESTERN In writing. Subscriber authorizes MIDWESTERN to access the contra panel and/or communicator to input or delete data and programming. If Subscriber requests MIDWESTERN to reprogram system functions remotely,Subscriber shall pay MIDWESTERN$120.00 for each such service,and any change in programming requires a full physical nest of all fire alarm components pursuant to NFPA 72 and AHJ requirements which lasting shall be at Subscribers expense at MIDWESTERN's customary charges. MIDWESTERN may,without prior notice,suspend or terminate Its services,to MIDWESTERN's sole discretion,In the event of cavil unrest,rioting or natural disaster which renders monitoring or first responder response Unpractical,or in event of Subscriber's default in performance of this agreement or in event Monitoring Center's fadly or communication network is nonoperattonal or Subscribers system is sending excessive false alarms,without reliving Subscriber's obligation to make payments required In paragraphs 1-5. Upon suspension or termration of services MIDWESTERN will notify Subscriber of such termination and the balance owed by Subscriber for the term of this agreement MIDWESTERN is authorized to notify Subscriber by email.Fast Crass Marl delivered by the US Postal Service or text message to Subscribers cell phone.Monitoring Center is authorized to record and maintain rig data.voice and alarm communications and shall be the exclusive owner of such property. t AHJ requires a technician to be sant to Subscriber's premises after a are alarm is dispatched,or if Runner service exceeds maximum Runs per year.Subscriber agrees to pay$225.00 per call. 7. TERM OF AGREEMENT/RENEWALS: The term of this agreement shall be for a period of ten years. This agreement shall renew month to month thereafter under the earn tame and conditions,unless either party gives written notice to the other of their intention not to renew the agreement at least 30 days prior to the expiration of any temp. Temlrebon shag comply with local taw. Unless otherwise specified herein,all retuning charges for services in paragraphs 1-5 shall commence on the Ibst day of the month ned succeeding the date hereof,all payments being due on the fret day of the month.in the event MIDWESTERN agrees to suspend Its services and Subscribers payments during the suspension period,the term of this agreement shall be deemed extended by the time of the suspension period. 8. INCREASES OF MONTHLY CHARGE: After the expiration of one year from the date hereof MIDWESTERN shall be permitted from time to time to increase the monthly dirges by an amount not to exceed nine percent each year and Subscriber agrees to pay such ttaease as Invoiced. 9. ALARM EQUIPMENT REMAINS PERSONAL PROPERTY:All equipment and materiel installed by MIDWESTERN shall remain Subscriber's personal property and shall not be considered or deemed a fixture,or an addition to.alteration,conversion,improvement,modernization,remodeling,repair or replacement of any part of the realty.and Subsalber shall riot permit the attachment thereto of any apparatus not furnished by MIDWESTERN. 10. EQUIPMENT LIMITED WARRANTY:to the event that any part of the equipment Installed by MIDWESTERN becomes defective,MIDWESTERN agrees to make all repairs and replacement of pats wdthou t costs to the Subscriber fora period of ninety(90)days from the date of Installation. MIDWESTERN reserves the option to either replace or repair the equipment,end reserves the right to substitute materials of equal gw'Jty at time of replacement,or to use reconditioned parts In fulfillment of this werarrty. MIDWESTERN's warranty does not Include damage caused by eledrIc,plumbing or constnudon,nor damage by ItgiWng, electrical surge,or misuse MIDWESTERN Is not the manufacturer of the equipment and other than MIDWESTERN's United warranty Subscriber agrees to took exclusively to the manufacturer of the equipment for repairs under Its warranty coverage S any. EXCEPT AS SET FORTH IN THIS AGREEMENT,MIDWESTERN MAKES NO EXPRESS WARRANTIES AS TO ANY MATTER WHATSOEVER,INCLUDING BUT NOT LIMITED TO, UNLESS PROHIBITED BY LAW,THE CONDITION OF THE EQUIPMENT,ITS MERCHANTABILITY,OR ITS FITNESS FOR ANY PARTICULAR PURPOSE,AND MIDWESTERN SHALL NOT BE LIABLE FOR CONSEQUENTIAL DAMAGES TO THE EXTENT PERMITTED BY LAW. MIDWESTERN does not represent nor warrant that the equipment may not be compromised or circumvented,or that the system will prevent any loss by fire,smoke or water or otherwise; or that the system wig In all cases provide the protection for which It Is Installed. MIDWESTERN expressly disclaims any implied warranties,including Implied warranties of merchantability or fitness for a particular purpose to the extent permitted by law. There are no warranties which extend beyond the description on the face hereof. The warranty does not cover any damage to material or equipment caused by accident misuse,attempted or uutauthon:ad repair service, rr„mlireadon,or improper installation by anyone other than MIDWESTERN. MIDWESTERN shell not be liable for consequential damages to the extent permitted by taw. Subeatber aduowtedges that any al:r m a/on of fad or promise made by MIDWESTERN shag not be deemed to create an express warranty unless • included In this agreement In writing, that Subscriber Is not refytrg on MIDWESTERN's skill or Judgment in selecting or furnishing a system suitable for any ' particular purpose end that there ere no warranties wtldh extend beyond those on the lace of this agreement,end the!MIDWESTERN has offered addtioral and more sophisticated equipment for en additional charge which Subscriber has decfinad. Subscribers exclusive remedy for MIDWESTERN's breach of this agreement or negligence to any degree under this agreement Is to require MIDWESTERN to repair or replace,at MIDWESTERN's option,any equipment which is non-operational.Some states do not allow the exclusion or limitation of consequential(to the extent permitted by law)or Incidental damages,or a lImitation on the durabon of Implied warranties,so the above limitations or excisions may not apply to you. The warranty gives you specific legal rights and you may also have other rights which may vary from state to state. Fire Alarms are required to be approved by AHi and may require;dens and specifications designed.signed and submitted by a licensed architect or professional engineer,which muss be engaged by Subscriber If MIDWESTERN is Metalling a Fire Alarm System to code h installation must be approved by the AHJ. This Limited Warranty is trdependent of and in addition to repair service contracted under paragraph 2b of this agreement. 11. DELAY IN DELNERY I INSTALLATION/RISK OF LOSS OF MATERIAL I AGENCY DISCLOSURE: MIDWESTERN shall not be liable for any damage or loss sustained by Subscriber as a result of delay in delivery and/or Installation of equipment equipment failure,or for Interruption of service due to electric failure,strikes,walk-outs,war,acts of God,or other causes,including MIDWESTERN's negtigenea or failure to perform any obligation. The estimated date work is to be substantially completed is not a deftntte completion data and tore is not of the essence.to the event the work Is delayed through no fault of MIDWESTERN, MIDWESTERN shall have such additional time for performance as may be reasonably necessary under the circumstances. Subscriber agrees to pay MIDWESTERN the sum of S1,000 per dey for each business day the work Is re-sc edued or delayed by Subscriber or others engaged by Subscriber through no fault of MIDWESTERN on less than 24 hour notice to MIDWESTERN. If installation Is delayed for more than one year front date hereof through no fault of MIDWESTERN,Subsaiber agrees to pay an erkitlonat 5%of the contract Purchase Price upon installation. Subscriber assures all risk of loss of material once delivered to the job site. MIDWESTERN is authorized to make preparations such as drilling holes,driving nails,making attachments or doing any other thing necessary In MIDWESTERN's sole discretion for the Installation end service of the equipment.and MIDWESTERN shell not be responsible for any condition created thereby as a result of such Installation,service,or removal of the equipment.and Subscriber represents that the owner of the premises,if other than Subscriber,authorizes the installation of the equipment under the terns of this agreement In the event installation of any equipment requires the shut off of arty utility service or equipment including but not limited to gas,electric,boiler,range,overt.gas fireplaces,gas supplied kitchen or household applances,Subscriber shall be responsible to engage a licensed professional Independent of MIDWESTERN to stet or the uttiy service or equipment. MIDWESTERN has no responsibility or liabgty for shutting down ditty service or equipment. Subscriber agrees to have such service performed within 48 hours upon request by MIDWESTERN. If a petty executing this agreement Is acting as en agent for a principal,8 Is agent's responsibility to disclose to MIDWESTERN the name of the principal and to notify MIDWESTERN in advance In the event agent's principal changes dining the Initial or renewal terms of this agreement A2. REPAIR SERVICE:The panics agree that the equipment once installed,Is In the exclusive possession end control of the Subscriber,and i1 is Subscribers sole responsibility to notify MIDWESTERN if any equipment a to need of repair. MIDWESTERN shag riot be required to unties the equipment uness a has received notice from Subscriber,and upon such notice,MIDWESTERN shall,during the warranty period or if service has been contracted under paragraph 2b of this agreement,service the equipment to to best of its stagy within 38 hours,exclusive of Sauwlay,Sunday and legal holidays.between the business hours of 9 a.m.end 5 pm. If Subscriber hes provided keys to the premises to facilitate repairs when Subscriber is absent from the premises,only repairs canoed by the Repair Service Plan or authorized In wetting sum be perfcererd. 13. SUBSCRIBERS DUTY TO SUPPLY ELECTRIC AND TELEPHONE SERVICE:Subeatber agrees to runtish,at Subscriber's expense,all AC power, electtcal outlet,dr utt breaker and dedicated etecutcal teed,internee connection,high speed broadband cable or OSL and IP Address,telephone hook-ups,RJ31 a Block or equivalent,and maintain areas In the premises where active electronics.such as panel,expansion devices and power supplies.between 32 to 122 degrees Fahrenheit,as deemed necessary by MIDWESTERN. • Page 2 of 4 14. SUBSCRIBER RESPONSIBLE FOR FALSE ALARMS I PERMIT FEES!NON-SOLICITATION!ADDITIONAL COSTS!OTHER LICENSED TRADES I CO AND ECB VIOLATIONS/AND EXPERT WITNESS FEES:Subscriber is responsible for all alarm permits and permit lees,agrees to file for and maintain any permits required by applicable law and AHJ and indemnify or reimburse MIDWESTERN Icr any fees or fines relating to permits.code compliance or false alarms MIDWESTERN shall have no liability for permit fees.false alarms,false alarm fines.fire response,any damage to personal or real property or personal injury caused by fire department response to alarm,whether false alarm or otherwise, the refusal of the fire department to respond or change in plans or specifications or installation required by the AHJ In the event of termination of fire response by the fire department this agreement shall nevertheless remain In full force and Subscriber shall remain liable for all payments provided for herein Should MIDWESTERN be required to perform any service or furnish or replace any equipment or material not specifically covered by the terms of this agreement,because of change in existing or hereafter enacted law,AHJ requirements, change in technology. obsolete or manufacturer's end of life equipment, Subscnber agrees to pay MIDWESTERN for such service or material and MIDWESTERN'S customary charges for such labor and malenal The pricing to be paid by Subscriber in Ihis agreement for specified matter is based on current pricing by MIDWESTERN's suppliers and vendors In view of supply shortage and inflation Subscriber agrees to pay any increase for equipment or services to MIDWESTERN by MIDWESTERN's suppliers and vendors in connection with equipment and services to be provided by MIDWESTERN to Subscnber MIDWESTERN will notify Subscnber of any such increase,and Subscriber shall have the option of paying the increase or selecting alternative equipment and services,if available.for the prices set forth in this agreement Subscriber agrees That it will not solicit for employment for itself,or any other entity,or employ,in any capacity,any employee of MIDWESTERN assigned by MIDWESTERN to perform and who performs any service for or on behalf of Subscriber during the term of this agreement,any renewals thereof and for a period of 2 years thereafter In the event of Subscriber's violation of this provision,in addition to injunctive relief, MIDWESTERN shall recover from Subscriber an amount equal to such employee's salary based on the average three months preceding employee's termination of emplpment with MIDWESTERN,times twelve,together with MIDWESTERN's counsel and expert witness fees Subscriber is responsible for engaging licensed tradespeople to perform any work which MIDWESTERN is not licensed to perform interconnecting the fie alarm to HVAC.elevators, appliances and other electronic and mechanical systems.It is Subscriber's responsibility to obtain a Certificate of Occupancy for the intended use of the premises affected by the fire alarm or obtain a Letter of No Objection from the AHJ if a Certificate of Occupancy is not available.It Is Subscriber's sole responsibility to cure any building or Environmental Control Board violations In the event Subscriber or any third party subpoenas or summons MIDWESTERN requiring any services or appearances. Subscriber agrees to pay MIDWESTERN 5150 per hour for such services and appearances. Subscriber shall reimburse MIDWESTERN for any Monitoring Center charges for excessive signals. 15. INDEMNITY I WAIVER OF SUBROGATION RIGHTS/ASSIGNMENTS: Subscriber agrees to and shall defend,advance expenses for litigation and arbitration,inducting investigation.legal and expert witness fees,indemnify and hold harmless MIDWESTERN its employees.agents and subcontractors,from and against all claims.lawsuits.including those brought by third parties or Subscnber,including reasonable attorneys'fees and losses asserted against and alleged to be caused by MIDWESTERN's performance,negligent performance,or failure to perform any obligation under or in furtherance of this agreement Parties agree that there are no third-party beneficiaries of this agreement. Subscriber on its behalf and any insurance carrier waives any right of subrogation Subscribers insurance carrier may otherwise have against MIDWESTERN or MIDWESTERN's subcontractors arising out of this agreement or the relation of the parties hereto.Subscriber shall not be permitted to assign this agreement without written consent of MIDWESTERN,which shall not unreasonably be withheld MIDWESTERN shall have the right to assign this agreement to a company licensed to perform the services and shall be relieved of any obligations created herein upon such assignment 16: EXCULPATORY CLAUSE: MIDWESTERN is not an insurer and no insurance coverage is offered herein The fire alarm and MIDWESTERNs services • are designed to detect and reduce certain risks of loss,though MIDWESTERN does not guarantee that no loss or damage will occur. MIDWESTERN is not assuming liability,and,therefore.Subscriber agrees MIDWESTERN.shall not be liable to Subscriber or any other third party,and Subscriber covenants not to sue MIDWESTERN,for any loss,economic or noneconomic,business loss or interruption.consequential damages to the extent permitted by law.in contract or tort. , data corruption or inability 10 retrieve data,personal injury or property damage sustained by Subscriber or others as a result of equipment failure,human error, fire,smoke,water or any other cause whatsoever regardless of whether or not such loss or damage was caused by or contributed to by MIDWESTERN s breach of contract,negligent performance to any degree in furtherance of this agreement,any extra contractual or legal duty,strict products liability,or negligent failure to perform any obligation pursuant to this agreement or any other legal duty,except for gross negligence and williul misconduct.Subscriber releases MIDWESTERN from any claims fir contribution,indemnity or subrogation 17. INSURANCE I ALLOCATION OF RISK Subscriber shall maintain a policy of Comprehensive General Liability and Property Insurance for liability casualty,fire.theft,and property damage under which Subscriber is named as Insured and MIDWESTERN is named as additional insured,proof of which shall be provided to MIDWESTERN, and which shall on a primary and non-contributing basis cover any loss or damage MIDWESTERN's services are intended to detect in an amount deemed sufficient by Subscriber. The parties intend that the Subscriber assume all potential risk and damage that may arise by reason of failure of the equipment or MIDWESTERN's services and that Subscriber will look to its own insurance carer for any loss or assume the risk of loss MIDWESTERN shall not be responsible for any portion of any loss or damage which is recovered or recoverable by Subscriber from insurance covering such loss or damage or for such loss or damage against which Subscriber is indemnified cr insured. Subscriber and all those claiming rights under Subscriber waive all rights against ' MIDWESTERN and its subcontractors for loss or damages caused by peals intended to be detected by MIDWESTERN's services or covered by insurance to be obtained by Subscriber,except such rights as Subscriber or others may have to the proceeds of insurance 18. LIMITATION OF LIABILITY: SUBSCRIBER AGREES THAT EXCEPT FOR MIDWESTERN'S GROSS NEGLIGENCE AND WILLFUL MISCONDUCT, SHOULD THERE ARISE ANY LIABILITY ON THE PART OF MIDWESTERN AS A RESULT OF MIDWESTERN'S BREACH OF CONTRACT, NEGLIGENT ' ' PERFORMANCE TO ANY DEGREE OR NEGLIGENT FAILURE TO PERFORM ANY OF MIDWESTERN'S OBLIGATIONS PURSUANT TO THIS AGREEMENT, EQUIPMENT FAILURE, HUMAN ERROR, STRICT PRODUCTS LIABILITY, OR ANY OTHER LEGAL DUTY,IN CONTRACT, TORT. EQUITY OR LAW,ANY DAMAGES,INCLUDING BUT NOT LIMITED TO,ACTUAL.COMPENSATORY OR NOMINAL,THAT MIDWESTERN'S LIABILITY AND DAMAGES.WHETHER ACTUAL.COMPENSATORY,NOMINAL.CONSEQUENTIAL(TO THE EXTENT PERMITTED BY LAW),PUNITIVE,EXEMPLARY.STATUTORY.OR ANY OTHER DAMAGE SHALL BE LIMITED TO THE SUM OF 5250.00 OR 6 TIMES THE MONTHLY PAYMENT FOR SERVICES BEING PROVIDED AT TIME OF LOSS WHICHEVER IS GREATER IF SUBSCRIBER WISHES TO INCREASE MIDWESTERN'S AMOUNT OF LIMITATION OF LIABILITY AND DAMAGES. SUBSCRIBER MAY,AS A MATTER OF RIGHT,AT ANY TIME,BY ENTERING INTO A SUPPLEMENTAL AGREEMENT,OBTAIN A HIGHER LIMIT BY PAYING AN ANNUAL PAYMENT CONSONANT WITH MIDWESTERN'S INCREASED LIABILITY AND DAMAGES THIS SHALL NOT BE CONSTRUED AS INSURANCE COVERAGE MIDWESTERN'S LIABILITY AND DAMAGES FOR GROSS NEGLIGENCE AND WILLFUL MISCONDUCT SHALL NOT EXCEED ITS AVAILABLE INSURANCE COVERAGE SUBSCRIBER ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS EXCULPATORY CLAUSE. INDEMNITY. INSURANCE,AND ALLOCATION OF RISK AND LIMITATION OF LIABILITY PROVISIONS. 19. LEGAL ACTION!ARBITRATION/SECURITY INTEREST I BREACH I LIQUIDATED DAMAGES I AGREEMENT TO BINDING ARBITRATION:The parties agree that due to the nature of the services to be provided by MIDWESTERN.the payments to be made by the Subscriber for the term of this agreement form an integral part of MIDWESTERN's anticipated profits.that in the event of Subscnbers default it would be difficult if not impossible to fix MIDWESTERN's actual damages Therefore,in the event Subscriber defaults in any payment or charges to be paid to MIDWESTERN,Subscriber shall be immediately liable for any unpaid installation and invoiced charges plus 80%of the balance of all payments for the entire term of this agreement as LIQUIDATED DAMAGES. Upon suspension or termination of services MIDWESTERN will notify Subscriber of such termination. MIDWESTERN is authorized to notify Subscriber by email,First ' Class Mail delivered by the US Postal Service or text message to Subscriber's cell phone SUBSCRIBER ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS A LIQUIDATED DAMAGE CLAUSE Additionally,in the event MIDWESTERN retained ownership of the communication system and Subscriber breaches this agreement or this agreement expires for any reason.MIDWESTERN may.at its option,either remove its Communication System or deem same sold to Subscriber for 80%the amount specified as the Agreed Value of the Communication System MIDWESTERN may,without poor notice,suspend or terminate its services in event of Subscriber's default in fp performance of this agreement and shall be permitted to terminate as its services under this agreement and deactivate the System without relieving Subscriber of any obligation herein and may notify AHJ of termination In order to secure all indebtedness or liability of Subscriber to MIDWESTERN.Subscriber hereby grants '• MIDWESTERN a security interest in all of Subscriber's equipment,inventory and proceeds thereof,accounts receivables and cash on hand and MIDWESTERN may execute and file a UCC-1 statement SUBSCRIBER MAY BRING CLAIMS AGAINST MIDWESTERN ONLY IN SUBSCRIBER'S INDIVIDUAL CAPACITY, AND NOT AS A CLASS ACTION PLAINTIFF OR CLASS ACTION MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING ANY DISPUTE BETWEEN THE PARTIES OR ARISING OUT OF THIS AGREEMENT,INCLUDING ISSUES OF ARBITRABILITY,SHALL,AT THE OPTION OF ANY PARTY,BE DETERMINED BY BINDING AND FINAL ARBITRATION BEFORE A SINGLE ARBITRATOR ADMINISTERED BY ARBITRATION SERVICES INC,ITS SUCCESSORS OR ASSIGNS,PURSUANT TO ITS ARBITRATION RULES AT WWA ARRITRATIONCFeVECFSIN('Tryst AND THE FEDERAL ARBITRATION ACT IFAAI,EXCEPT THAT NO PUNITIVE OR CONSEQUENTIAL DAMAGES(TO THE EXTENT PERMITTED BY LAW)MAY BE AWARDED The arbitrator shall be bound by the tents of this agreement,and shall on request of a party,conduct proceedings by telephone.video or submission of papers A party requesting in.person discovery.imperson hearing or a transcript of the discovery proceeding or hearing,shall pay for the cost of such transcript and arbitrator fees charged in connection with the discovery request and in-person hearing,which may be allocated among the parties by the arbitrator in the final award By arbitrating,the parties waive their right to a trial before a judge or fury,waive their right to appeal the arbitration award and waive their right to participate in a class action In the event of any litigation between the parties they waive the right to a jury trial unless prohibited by law. Service of process or papers in any legal proceeding or arbitration between the parties may be made by First-Class Mail delivered by the U S Postal Service addressed to the party's address designated in this agreement,on file with an agency of the slate,or any other address provided by the party in writing to the party making service The parties submit to the junsdiction and laws of Kentucky,except for arbitration which Is governed by the FAA and the arbitration rules The parties are engaged in interstate commerce and the FAA and arbitration rules shall govern,notwithstanding any state law to the contrary Any action or arbitration between the parties must be commenced within one year of the accrual of the cause of action or shall be barred The prevailing party in any litigation or arbitration is entitled to recover its legal fees costs and disbursements so that the party is made whole from the other party. In the event a party commences a proceeding to confirm an arbitration award,the Prevailing party shall be entitled to attorney fees.costs and disbursements for such proceeding All actions,arbitration or proceedings by either party must be basedppn the provisions of this agreement and any other action that Subscriber may have or bring against MIDWESTERN with respect to other services rendered in connection with this agreement shall be deemed to have merged in and be restricted to the terms and conditions of this agreement. SUBSCRIBER ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE DISPUTES AND THAT ARBITRATION IS ' BINDING AND FINAL AND THAT SUBSCRIBER IS WAIVING SUBSCRIBER'S RIGHT TO TRIAL IN A COURT OF LAW AND OTHER RIGHTS 20. MIDWESTERN'S RIGHT TO SUBCONTRACT SPECIAL SERVICES: Subscriber agrees that MIDWESTERN is authorized and permitted to subcontract any services to be provided by MIDWESTERN to Third parties who may be independent of MIDWESTERN.and that MIDWESTERN shall not be liable for any loss or damage sustained by Subscriber by reason of fire or any other cause whatsoever caused by the negligence of third parties and that Subscriber appoints MIDWESTERN to act as Subscriber's agent with respect to such third parties,except that MIDWESTERN shall nob obligate Subscriber to make any payments to such third parties. Subscriber acJcnowledges that this agreement. and particularly those paragraphs relating to MIDWESTERN's disdain-er of warranties. exemplien from liability, even for es negligence, limitation of liability and indemnification. inure to Ilene benefit of and are applicable to any assignees. Page 3 of 4 x • • subcgatractors,manufacturers,vendors and Monitoring Center of MIDWESTERN. 21. MOLD,OBSTACLES AND HAZARDOUS CONDITIONS I FIRE STOP BREACH: Subscriber shall notify MIDWESTERN in writing of any undisclosed. concealed or hidden conditions in arty area where installation is planned, and Subscnber shall be responsible for removal of such conditions In the event MIDWESTERN discovers the presence of suspected asbestos or other hazardous material MIDWESTERN shall stop all work immediately and notify Subscriber • It shall be Subscribers sole obligation to remove such conditions from the premises,and if the work is delayed due to the discovery of suspected asbestos or other hazardous material or conditions then an extension of lime to perform the work shall be allowed and Subscriber agrees to compensate MIDWESTERN for any additional expenses caused by the delay but not less than S1000.00 per day until work cart resume. If MIDWESTERN,in its sole discretion,determines that continuing the work poses a risk to MIDWESTERN or its employees or agents. MIDWESTERN may elect to terminate this agreement on 3-day notice to Subscriber and Subscriber shall compensate MIDWESTERN for all services rendered and material provided to date of termination. MIDWESTERN shall be entitled to remove all its equipment and uninstalled equipment and material horn the job site Under no circumstances shall MIDWESTERN be Sable to Subscriber for any damage caused by mold or hazardous conditions or remediation thereof. MIDWESTERN shall have no liability for any breach of fire stops or for inspection or certification of integrily of fire stops in the premises 22. FULL AGREEMENT!SEVERABIL.tTY:This agreement along with the Schedule of Equipment and Services constitutes the full understanding of the parties and may not be amended,modified or canceled,except in witting signed by both parties Subscriber acknowledges and represents that Subscriber has not • 'relied on any representation,assertion,guarantee,warranty,collateral agreement or other assurance,except those set forth in this Agreement. Subscriber hereby waives all rights and remedies,at law or in equity,arising,or which may arise.as the result of Subscriber's reliance on such representation,assertion,guarantee. warranty,collateral agreement or other assurance. To the extent this agreement is inconsistent with any other document or agreement.whether executed prior to, concurrently with or subsequent to this agreement the terms of this agreement shall govern Should any provision of this agreement be deemed unenforceable, the provision shall be deemed modified and enforceable to the extent deemed enforceable and in any event shall not render any other provision in this agreement unenforceable SUBSCRIBER ACKNOWLEDGES RECEIVING A FULLY EXECUTED COPY OFGREEMENT AND SCHEDULE OF EQUIPMENT AND SERVICES AT TIME OF EXECUTION. READ THEM BEF E OU SIG THIS AGREEMENT. • MIDWyTERN..ArMir SUBSCRIBER 114 0 J 7"Sa.scrber sr.te t~wx,alr., oMIA I ..�aer A.:,_. • • • • • Patio 4 of 4