MONITORING SERVICES AGREEMENT
Between Cencom.com, Inc., a Washington Corporation doing business as American Digital Monitoring, hereafter called ADM, and Applicant Alarm Dealer hereafter called DEALER.
Both parties agree as follows:
1. Membership. DEALER acknowledges ADM is a Membership wholesale monitoring service and agrees to a monthly membership fee regardless of how many accounts maybe online, active or not.
2. Pricing. DEALER agrees to pay ADM for monitoring services as per ADM’s price structure as well as any optional services provided to DEALER or their accounts, with no pro-rating of said fees.
3. Billing. ADM and DEALER agree that all services will be billed within the first 5 business days of any month in advance, with full payment due by the 15th of that month.
4. Instructions. ADM is contracted only as an agent for the DEALER and will only be responsible to the DEALER to carry out ADM pre-approved written instructions from the DEALER.
5. Information. DEALER warrants that all information provided to ADM to monitor accounts is correct and complete and ADM shall have no obligation or liability to update, correct or verify it, even if information submitted is known or suspect to be incorrect.
6. Recordings. ADM shall maintain to the best of its ability a recording on any inbound or outbound call through its monitoring centers for up to 90 days. Said recordings shall be available to the Dealer upon written request for liability protection only. Any other request must be approved by ADM as they may be protected under privacy laws.
7. Signal Response. DEALER agrees that ADM, unless DEALER ordered optional services, will respond only to valid non-cancelled alarm signals. Any other signals, including trouble signals, supervisory signals, zone restore, power fail signals, low battery signals or any alarm signal with subsequent opening after alarm, cancel or abort signals received will be ignored by ADM and “Auto-Logged” for dealers future review for up to 90 days. However, DEALER may for an additional fee, change the herein agreed ADM response from “Auto-Logged” signals to a DEALER specified response if requested in writing, agreed and signed by both DEALER and ADM. In addition, should it be discovered that the Dealers account was set to have a live operator respond to any signal previously detailed above as “Auto-Logged”, said account may at ADM's option be charged additional fees to provide such services.
8. Signal Hold. DEALER agrees that should ADM be requested to respond to any trouble or supervisory alarm signal, including but not limited to low battery, ac fail, communications fail, circuit fail, troubles or comm fails, low or high temperature signals, water sensor or water detection signals, that they may at their option place said alarm signal on ‘hold’ to allow a signal restore or cancel to be received in order to disregard that alarm condition. If said restore or cancel is received, then the alarm will be closed out with no other action. If restore or cancel is not received, then the signal will be processed only if included in the Dealers optional signal responses ordered in advance.
9. Undefined Signals. DEALER agrees that should ADM receive any undefined or unknown accounts, signals, codes or zones regardless of cause, they will be considered a NON-VALID ALARM CONDITION and be ignored by ADM and “Auto-Logged” for dealers future review.
10. Optional Services. ADM is obligated to only extend alarm monitoring, defined signal decoding, authority dispatching and subscriber notification as directed by the DEALER provided call list, whereas all other services, including but not limited to options, reports, call recordings, signal logs, end user or DEALER system access are considered optional and may be suspended or discontinued at any time.
11. Account Updating. DEALER agrees to be the sole responsible party for locating and updating unknown account, code, zone or file information, and if for any reason ADM does provide any account, code, zone or file information on DEALERS behalf, it will not obligate ADM to continue to provide this service or to be responsible for the content or verification of said information what so ever.
12. Dealer Access. DEALER agrees to makes direct account set-up, deletions or data changes on-line, without ADM review or verification, by using ADM approved Dealer access software. If DEALER elects to have ADM provide any account set-up, deletions or data changes on their behalf, a fee for each data change made by ADM on Dealers behalf may be charged.
13. Auto Payments. DEALER agrees that if elected to have direct billing without a valid payment source held on file with ADM, or if the payment source held on file had been declined for any reason more than two times in a 12 month period, a security deposit equal to one and a half (1-1/2) times the Dealers total monthly charges, minimum $250.00, shall be required to be paid by Dealer and held on account by ADM. Any security deposit held by ADM shall be refunded to Dealer after cancellation of ADM services.
14. Invoice Review. DEALER agrees to review each monthly invoice for service and to immediately report in writing to ADM any errors or discrepancies within 10 days of invoice date. Should any error or discrepancy be reported, Dealer shall still make payment for the undisputed billing amount by the 15th of any given month or this agreement may be determined in default by ADM. Any error or discrepancy shall be reviewed and responded to within 30 days by ADM without any penalty to Dealer. If a decision is rendered by ADM in Dealers favor, said decision shall require issuance of a credit or refund to Dealer within 10 days. Should the decision be rendered by ADM in ADM’s favor, said decision shall require issuance of payment to ADM from Dealer within 10 days.
15. Certificate of Insurance. ADM will provide DEALER with current certificates of insurance upon written request and DEALER will provide ADM with any certificates of insurance upon written request as well.
16. Not an Insurer. ADM is not an insurer and that the rates and charges herein are based solely on the monitoring services rendered.
17. No Subjugation Rights. DEALER does hereby for itself and all parties claiming under it, release and discharge ADM From all hazards covered by insurance, it being expressly understood and agreed that no insurance company or insurer shall have any rights of subjugation against ADM If there shall, notwithstanding the above provisions, at any time be or arise any liability on the part of ADM, by virtue of this agreement, such liability shall be limited to a liquidated damage sum equal to the DEALER'S fees charged by ADM for the entire month that the liability in question occurred in or $250.00, whichever is greater.
18. Hold Harmless. DEALER shall indemnify and save ADM harmless from any and all liability, loss, damage, expense, causes of action, suits, claims or judgments arising from loss to person or property resulting from or based upon any monitoring services provided, or failure to be provided by ADM under the terms of this contract, and shall at its own cost and expense, defend any and all suits which may be brought against ADM, either alone or in conjunction with others, upon any such liability or claim or claims and shall satisfy, pay and discharge any and all judgments and fines that may be recovered against ADM in any such action or actions, provided, however, that ADM Shall give the DEALER written notice of any such claim. However, notwithstanding the above provisions, if at any time there shall be the determination any liability on the part of ADM, by virtue of this agreement, such liability shall be limited to a liquidated damage sum equal to the DEALER'S fees charged by ADM for the entire month that the liability in question occurred in or $250.00, whichever is greater.
19. Continental U.S. DEALER agrees to any accounts located outside the continental United States having additional fees on a per account basis.
20. Force Majeure. ADM is not responsible for service interruptions due to strikes, walkouts, power failures, insurrection, phone or communication failures, third party services, acts of God, or any other causes beyond its direct and immediate control, including any governmental restrictions, requirements or actions.
21. Governmental Action. DEALER agrees to have all services suspended or canceled at the option of ADM is unable or unwilling to render service as a result of any governmental action or requirements.
22. Attorney Fees. DEALER agrees that should their account be placed in the hands of an attorney or collection agent or should suit be brought to enforce this agreement with or without the assistance of and attorney or collection agent, DEALER shall pay all fees, costs, realized or not, required for ADM to bring such collection or legal actions.
23. Exclusive Venue. DEALER agrees that the exclusive venue for resolution of any disputes or claims arising out or relating to in any way, to the agreement shall be the county, state or federal courts of King County, Washington and the Dealer unconditionally consents to the laws of the State of Washington and that they alone exclusively control the terms of this agreement or any other agreement, written or oral, signed or not, between the Dealer and ADM or any third party as a result of any disputes or claims brought in through the relationship or association between Dealer and ADM. Additionally, it is agreed that that only ADM has the right to waiving of any trial by Jury should suit be instituted.
24. Subscriber Notification. DEALER agrees that should they not provide payments as agreed within the terms of this agreement, ADM shall have the right but not the obligation to notify DEALERS subscribers of said service termination and may offer them direct monitoring services.
25. Waive Jury. DEALER agrees to allow ADM the exclusive right to waive a trial by Jury should suit actually be instituted by either party.
26. Assignment. ADM shall have the right to assign this agreement to any other person, firm, or corporation without notice and shall have further rights to subcontract monitoring or other services it may perform and DEALER acknowledges that such transfer shall bind the DEALER with the same force and effect that they bind the DEALER to ADM.
27. Data Deletion Fees. DEALER agrees that prior to termination of services, DEALER shall delete all accounts from their DEALER group using approved dealer access software or ADM shall do so at an additional charge per account.
28. Agreement Term. DEALER and ADM agree that the standard term for herein provided services is on a month by month basis which can be cancelled at any time using the ADM on line cancellation form at http://adm.cancelmyalarm.com with no other forms of cancellation shall be accepted, including cancellation by phone, email or fax. ADM shall process cancellation requests during regular business hours. There shall be no pro-rating of monthly fees on cancelled accounts. DEALER also agrees that should they accept any promotional offers or rate reduction offers including but not limited to any free, discounted or credited services, monitoring, free data loading, or any free or discounted or credited benefits including but not limited to answering services, call routing, internet listing, or other technical service offers, that this agreement shall upon the date any of these offers be accepted shall convert form a month to month agreement to a 24 month minimum term agreement and that DEALER will maintain their account in good standing from that point on, with no fewer paid active accounts than the highest number of accounts in total for that DEALER during the 24 month period or DEALER agrees to a liquidated damage fee equal the remainder of the twenty four months for each of those accounts or $250.00, whichever is greater, as well as any promotional values, credits, discounts or free services received by the DEALER shall be reversed and become immediately due and payable.
29. Replacement Agreement. DEALER agrees that upon acceptance online or by signing or resigning of a hard copy of this or any replacement agreement, any and all provisions of this agreement shall renew itself from that day forward, including any new or revised agreement terms, conditions, restrictions, obligations or commitment, but at ADM’S sole discretion, will not exclude any previously entered into agreement terms, conditions, restrictions, obligations or commitments, regardless if they were omitted from the newer signed agreement. Dealer also agrees that any updates to this agreement shall become in full effect 30 days after it is posted online.
30. Invalid Provisions. ADM and DEALER agree that in the event that any of these terms or provisions of this agreement shall be declared invalid or inoperative by a court of law, that all of the remaining terms and provisions shall remain in full force and effect.
31. Other Offers. DEALER agrees that no other offers, specials or programs can be incorporated or used with this agreement unless specifically agreed to in writing and signed by both DEALER and ADM.
32. Multiple Dealer Accounts. DEALER agrees that should they open any separate DEALER programs with ADM, DEALER will notify ADM in writing prior to application and they shall bear the same rate or higher as any existing Dealer program, or ADM has the right to charge the difference retroactively.
33. Multiple Agreements. DEALER agrees that should they have any additional agreements with ADM, they shall be bound to this agreement as if they were one agreement, except for the monthly fee structure as they may be independently set by ADM.
34. Excess Signals. DEALER agrees that ADM basic listed pricing is based on a maximum of ten (10) individual non-operator signals and one (1) individual operator handled event per month, regardless of their cause, including runaways or testing. ADM retains the right to charge for excess signals on an individual account basis or to raise Dealer rates on a global basis. Runaways in or out of TEST mode, weather the Dealer was notified by ADM or not, unknown signals, unknown calls or signals of any sort shall not be excused from the signal counts.
35. Incoming Lines. DEALER agrees that should they elect to have ADM provide an incoming toll free or local phone line for DEALER, that ADM shall retain the rights to said phone lines unless Dealer purchases the rights to them from ADM.
36. Signal Line Interruption. DEALER agrees that regardless of who actually provides inbound phone lines or communication technology to receive or transmit any alarm signals, should said services be interrupted, suspended or cancelled, ADM shall not be responsible for said action and shall not be held liable for any damages or liability that it may therein cause.
37. Introductory Pricing. ADM pricing is to be considered introductory pricing and is subject to change at any time with a 30 day notice to DEALER.
38. Commercial UL Fire Monitoring. DEALER agrees that basic alarm response provided by ADM is non U.L. or NFPA rated and any optional U.L. Fire monitoring response is available at separate rates. Should DEALER place any commercial alarm with fire detection with ADM, said service is required to be set-up as a UL NFPA fire service at an additional cost and if discovered, shall be moved to such optional services by ADM with a fine being accessed against the Dealer for failing to notify ADM of the commercial fire account.
39. Licensing Extension. DEALER agrees that in the event of local State, County or City Licensing, (End User Permits Excluded.) Dealer agrees to assist ADM if so requested, in obtaining said licenses, including becoming a qualified local manager or responsible party if required, or to extend their existing or future licensing to ADM. Dealer shall reimburse 50% of any fees paid out by ADM in excess of $50.00 per year for said licensing, unless 100 or more active Dealer accounts are within the required licensing jurisdiction.
40. Sale of Dealer Accounts. DEALER agrees that during the term of this agreement and for a period of 6 months beyond the termination of this agreement, that before Dealer can sell or gift any of their accounts monitored by ADM to a 3rd party, that ADM shall have the right of first refusal to the purchase or monitoring rights to said accounts. Dealer shall be required to offer ADM the same terms and conditions as being offered to said 3rd party and ADM shall have 30 days to accept said offer. If ADM does not accept said offer within this time period, Dealer is free to accept and close on said 3rd party offer under the condition that the Dealer has provided ADM with a complete and true copy of any offers or agreements and any closing documents for the sale of the accounts For liquidated damages, valuation purposes of each account sold or transferred in violation of this provision, shall be valued at $250.00 each due to ADM's future revenue losses.
41. Transfer of Dealer Accounts. DEALER agrees that during the term of this agreement that before Dealer can transfer any of the accounts being monitored with ADM to any monitoring center or competitor of ADM's, that ADM shall have the right of first refusal to provide continued monitoring services said accounts. Dealer shall be required to offer the ADM the same terms and conditions as being offered by the competitor and ADM shall have 30 days to accept said offer. If ADM does not accept said offer within this time period, Dealer is free to accept and move accounts offer under the condition that the Dealer has provided ADM with a complete and true copy of any agreements and documents for the monitoring of the accounts by the competitor. For liquidated damages, valuation purposes of each account sold or transferred in violation of this provision, shall be valued at $250.00 each due to ADM's future revenue losses.
42. No Oral Agreements. DEALER agrees that by entering into this agreement that they are bound to its terms and conditions and that no other agreements oral or in writing are in effect other than what is set forth in this agreement itself unless written and signed by both DEALER or his agent, and a Corporate officer of ADM.
43. Agreement Default. DEALER agrees that should any of the provisions set forth within this agreement be violated, that ADM has the exclusive right to declare this agreement in default and thereby suspend or cancel any and all services to both the Dealer and of its Subscribers.
44. Notification Authorization: DEALER agrees that by clicking on the acknowledgement button of the order form page, they agree to allowing ADM to contact them using their phone information, email information and fax information provided to ADM. ADM may use any form to communicate, including manual communications or by automated communications including auto text, sms and emails.
45. Online Agreement. DEALER agrees that by clicking on the acknowledgement button of the order form page, they effectively state that they "agree" to this being a binding contract for services, in accordance to the “Electronic Signatures in Global and National Commerce Act”, Title 15, Chapter 96 as well as including choice of exclusive venue terms as set forth in UCC section 2-204, adopted under Washington RCW 62A.2-204, stating that 'A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract”.
46. Hard Copy Contract Signature. DEALER will return a signed hard copy of this agreement within 30 days of online application acceptance by ADM or be subject to an additional per account fee for not executing the required signed contract. DEALER also agrees to replace the signed agreement to the most recent or current agreement every 24 months from that point forward. Failure for ADM to charge the herein stated additional per account fees, does not waive ADMS’ right to collect this fee in arrears at a future date.