1. SEBASTIAN agrees to sell and install the security alarm system (the “Alarm System”), which includes the equipment described below, (the “Alarm System Equipment”), at the Monitored Location, and to provide other monitoring services as described in this Agreement. Subscribers agree to pay SEBASTIAN the amounts summarized below upon and subject to the terms of this Agreement. “Alarm System Equipment” as used in this Agreement does not include any of the related software or peripheral equipment necessary to the operation of the Alarm System. Such peripheral equipment shall be referred to in this Agreement as “Peripheral Equipment”. Failure to substantially commence work within 20 days for the approximate commencement date specified above (the “Commencement Date”) is a violation of the Alarm Company Act, and shall postpone the due date of Subscriber’s next succeeding payment to be made under this Agreement for the period of time equivalent to the time between the Commencement Date and the date of substantial commencement of work. For purpose of this Agreement, “substantially commence work” and “substantial commencement of work” shall mean: REPORTING TO CENTRAL STATION
MONITORING
2. PERSONAL PROPERTY OF SEBASTIAN: Subscriber understands that SEBASTIAN is not charging Subscriber for the Alarm System Equipment, Peripheral Equipment, or any communication software necessary to the operation of the Alarm System, including, but not limited to, any and all passcodes and computer software programmed or installed by SEBASTIAN or a subcontractor of SEBASTIAN (”Communication Software”), although Subscriber must pay an installation fee as provided in this Agreement. The Alarm System Equipment, Peripheral Equipment, and Communication Software shall remain the property of SEBASTIAN at all times during the Initial Term of the Agreement. After the Initial Term, title to the Alarm System Equipment shall pass to Subscriber. The Peripheral Equipment and Communication Software shall remain the sole property of SEBASTIAN during the Initial Term, Renewal Term, if any, and following the termination of this Agreement. If this Agreement is terminated for any reason prior to the expiration of the Initial Term, SEBASTIAN may remove or abandon the Alarm System Equipment in whole or in part without obligation to repair or redecorate any portion of the Monitored Location. On completion of the installation of the Alarm System, SEBASTIAN Shall (i) instruct Subscriber in the proper use of the Alarm System, and (I) install, program and service at the Monitored Location, the Communication Software. Subscriber shall not permit the attachment thereto of any apparatus not furnished by SEBASTIAN. SEBASTIAN may, at its option, provide Subscriber the passcode to any Communication Software or change any passcode to the manufacturer’s default code at any time.
3. TERM OF AGREEMENT: RENEWAL: The initial term of this Agreement shall be for a period of 3 years commencing on the Commencement Date (the “Initial Term”) and shall automatically renew each month thereafter under the same terms and conditions (the “Renewal Term”), unless either party gives written notice to the other by certified mail, return receipt requested, of their intention not to renew the contract at least 30 days prior to the expiration of any term. After the expiration of one year from the date hereof SEBASTIAN shall be permitted from time to time to increase all fees, charges and other costs of providing the monitoring services described in this section 1 by an amount not to exceed nine percent (9.00%) each year and Subscriber agrees to pay such increase.
4. CENTRAL OFFICE MONITORING: Upon receipt of a signal from the Communication Software, SEBASTIAN or its designee communication center shall make every reasonable effort to notify Subscriber and the appropriate municipal police or fire department. Subscriber acknowledges that signals transmitted from the Monitored Location directly to municipal police or fire departments are not monitored by personnel of SEBASTIAN or SEBASTIAN’s designee communication center and SEBASTIAN does not assume any responsibility for the manner in which such signals are monitored or the response, if any, to such signals. Subscriber acknowledges that signals which are transmitted over telephone lines, wire, air waves or other modes of communication pass through communication networks wholly beyond the control of SEBASTIAN and are not maintained by SEBASTIAN and, therefore, SEBASTIAN shall not be responsible for any failure which prevents such signals from reaching the central office monitoring center or damages arising therefrom. Subscriber agrees to furnish SEBASTIAN with a written list of names and telephone numbers of those persons Subscriber wishes to receive notification of alarm signals, and any changes to such list shall be given to SEBASTIAN in writing. Subscriber authorizes SEBASTIAN to access the control panel to input or delete data and programming. If the Alarm Services Equipment or Communication Software contains listening devices permitting sound monitoring then upon receipt of an alarm signal SEBASTIAN or its designee communication center shall monitor sound for so long as SEBASTIAN or its designee communication center, in its sole discretion, deems appropriate to confirm an alarm condition. If Subscriber requests SEBASTIAN to remotely activate or deactivate the Alarm System, change combinations, openings or closings, or re-program system functions, Subscriber shall pay SEBASTIAN current billable rates for each such service; these rates are available from the SEBASTIAN business office. SEBASTIAN may, without prior notice, suspend or terminate its services, in event of Subscriber’s default in performance of this Agreement or in the event SEBASTIAN or its designee communication center or communication network is nonoperational or the Alarm System is sending excessive false alarms. Subscriber authorizes SEBASTIAN and its designee communication center to record and maintain audio and video transmissions, data and communications, and Subscriber acknowledges that SEBASTIAN shall be the exclusive owner of such property.
5. LEGAL ACTION: The parties agree that due to the nature of the services to be provided by SEBASTIAN, the payments to be made by Subscriber for the Initial
Term form an integral part of SEBASTIAN's anticipated profits; that in the event of Subscriber's default it would be difficult if not impossible to fix SEBASTIAN's actual damages. Therefore, in the event Subscriber defaults in the payment of any charges to be paid to SEBASTIAN, the balance of all payments for the Initial Term, shall immediately become due and payable, and Subscriber shall be liable for one hundred ten percent (110%) thereof as liquidated damages and SEBASTIAN shall be permitted to immediately terminate all its services under this Agreement and to remotely re-program or delete any programming without relieving Subscriber of any obligation herein. In the event of Subscriber's breach of this Agreement, SEBASTIAN may at its option either remove the Communications Software or deem same sold to Subscriber for 110% of the amount specified as the value of the equipment in addition to the liquidated damages provided for herein. Any service of process or papers in any action, proceeding or arbitration may be served by first class mail delivered by the U.S. Post Office or overnight carrier to addresses in this agreement.
SERVICE
6. Service includes all parts and labor. SEBASTIAN shall service upon Subscriber's request the alarm system installed at the Monitored Location between the hours of 8 a.m. and 5 p.m. Monday through Friday, within a reasonable time after receiving notice from Subscriber that service is required, exclusive of Saturdays, Sundays and legal holidays. All repairs, replacements or alterations to the Alarm System made by reason of alteration to the Monitored Location, or caused by unauthorized intrusion, lightning or electrical surge, or any means other than normal usage, wear and tear, shall be made at Subscriber’s sole cost. Foil, batteries, contacts, and obsolete components are not included in this Agreement and will be repaired or replaced at Subscriber's expense. No apparatus or device shall be attached to or connected with the alarm System without SEBASTIAN's written consent.
7. Subscriber agrees to pay Sebastian on a per call basis, excluding any service covered under a maintenance plan for which the Subscriber is billed monthly. For services not covered under a maintenance plan, Subscriber agrees to pay SEBASTIAN for all parts and standard service labor and travel rates or part thereof during normal service hours Monday to Friday. Please see Maintenance Plan Document for maintenance terms and conditions.
8. Upon Subscribers termination of this agreement for any reason, except for cancellation at the end of the Initial Term or any renewal term, Subscriber shall be liable for liquidated damages for the breach of the Agreement, calculated at the rate of one hundred ten percent (110%) of the amount due from the date of termination to the end of the term of the Agreement.
9. NOTE ABOUT EXTRA WORK AND CHANGE ORDERS: Extra Work and Change Orders become part of this Agreement once the order is prepared in writing and signed by the parties. The order must describe the scope of the extra work or change, the cost to be added or subtracted from payments to be made under this Agreement, and the effect such order will have on the schedule of payments hereunder.
10. EXTRA ORDERS OR CHANGE OF ORDERS: Subscriber may not require a contract to perform extra or change-order work without providing written authorization prior to the commencement of any work covered by the new change order. The extra work order or change of order is not enforceable against Subscriber unless this written extra work or change order includes: (i) The scope of work encompassed by the order; (ii) The amount to be added or subtracted from the contract; (iii) The effect the order will make in the progress payments or the completion date. Subscriber’s failure to comply with the requirements of this Section 9 does not preclude the recovery of compensation for work performed based upon legal or equitable remedies designed to prevent unjust enrichment.
LIMITED WARRANTY OF SALE
11. For a period of ninety (90) days from the date of installation (the “Limited Warranty Period”), if any part of the Alarm System becomes defective, or any repairs are required, SEBASTIAN agrees to make all repairs and replace any such parts without costs to Subscriber. SEBASTIAN reserves the option to either replace or repair the Alarm Equipment, and reserves the right to substitute materials of equal quality at time of replacement, or to use reconditioned parts in fulfillment of this warranty. This warranty does not include batteries, reprogramming, or damage by lightning, electrical surge, wire or foil breaks. SEBASTIAN is not the manufacturer of the Alarm System Equipment. Following the expiration of the Limited Warranty Period, Subscriber agrees to look exclusively to the manufacturer of the Alarm Equipment for repairs under the manufacturer’s warranty coverage, if any. Except as set forth in this agreement, SEBASTIAN makes no express warranties as to any matter whatsoever, including, without limitation, the condition of the Alarm System Equipment, its merchantability, or its fitness for any particular purpose. SEBASTIAN does not represent nor warrant that the Alarm System may not be compromised or circumvented, or that the Alarm System will prevent any loss by burglary, holdup, fire or otherwise; or that the Alarm System will in all cases provide the protection for which it is installed. SEBASTIAN expressly disclaims any implied warranties, including implied warranties of merchantability or fitness for a particular purpose. The warranty does not cover any damage to the Alarm System or Alarm System Equipment caused by accident, misuse, attempted or unauthorized repair service, modification, or improper installation by anyone other than SEBASTIAN. SEBASTIAN shall not be liable for consequential damages. Subscriber acknowledges that any affirmation of fact or promise made by SEBASTIAN shall not be deemed to create an express warranty unless included in this contract in writing; that Subscriber is not relying on SEBASTIAN's skill or judgment in selecting or furnishing an alarm system suitable for any particular purpose and that there are no warranties which extend beyond those on the face of this agreement, and that SEBASTIAN has offered additional and more sophisticated
equipment for an additional charge which Subscriber has declined. Subscriber's exclusive remedy for SEBASTIAN's breach of this contract or negligence to any degree under this contract is to require SEBASTIAN to repair or replace, at SEBASTIAN's option, any Alarm Equipment which is non-operational.
GENERAL PROVISIONS
12. DELAY IN INSTALLATION: SEBASTIAN shall not be liable for any damage or loss sustained by Subscriber as a result of delay in installation of the Alarm System, equipment failure, or for interruption of service due to electric failure, strikes, walk-outs, war, acts of God, or other causes, including SEBASTIAN's negligence in the performance of this contract. The estimated date work is to be substantially completed is not a definite completion date and time is not of the essence.
13, TESTING OF SECURITY SYSTEM: TESTING AND SERVICE OF COMMUNICATION SOFTWARE: Communication Software, once installed, is in the exclusive possession and control of Subscriber, and it is Subscriber's sole responsibility to test the operation of the communication software and to notify SEBASTIAN if it is in need of repair. SEBASTIAN shall not be required to service the Communication Software unless it has received notice from Subscriber, and upon such notice, SEBASTIAN shall service the Communication Software to the best of its ability within 36 hours, exclusive of Saturday, Sunday and legal holidays, during the business hours of 8 a.m. and 5 p.m. Any repair or other services provided by SEBASTIAN to Subscriber's alarm or security equipment shall be at SEBASTIAN's option on a per call request by Subscriber, and Subscriber shall pay for such labor and material at time such repair or other service is performed. All such repair or other service shall be governed by the terms of this contract. In the event Subscriber complies with the terms of this agreement and SEBASTIAN fails to repair the communication software, Subscriber agrees to send notice in writing by certified or registered mail, return receipt requested and Subscriber shall not be responsible for payments due while the communication software remains inoperable. In any lawsuit between the parties in which the condition or operation of the communication software is in issue, the Subscriber shall be precluded from raising the issue that the communication software was not operating unless Subscriber can produce a post office certified or registered receipt, signed by SEBASTIAN, evidencing that service was requested by Subscriber. Only Communication Software shall be serviced by SEBASTIAN under this Agreement. Except as provided in Section 10 of this Agreement, It shall be Subscriber's sole responsibility to maintain the Alarm System, and the Alarm System Equipment in working order.
14. ALTERATION OF PREMISES FOR INSTALLATION: Subscriber authorizes SEBASTIAN to make preparations such as drilling holes, driving nails, making attachments or doing any other thing necessary in SEBASTIAN's sole discretion for the installation and service of the Alarm System, and SEBASTIAN shall not be responsible for any condition created thereby as a result of such installation, service, or removal of the alarm system, and Subscriber represents that the owner of the Monitored Location,, if someone other than Subscriber, authorizes the installation of the Alarm System under the terms of this agreement.
15. SUBSCRIBER’S DUTY TO SUPPLY ELECTRIC AND TELEPHONE SERVICE: Subscriber agrees to furnish, at Subscriber’s expense, all 110 Volt AC power and electrical outlets and receptacles, internet connection, high speed broadband cable or DSL and IP Address, telephone hook-ups, RJ13x Block or equivalent, as deemed necessary by SEBASTIAN.
16. INDEMNITY/WAIVER OF SUBROGATION RIGHTS: Subscriber shall indemnify, defend, and hold harmless SEBASTIAN, and SEBASTIAN’s officers, employees, agents, owners, partners, and subcontractors (“SEBASTIAN’s Agents”), from and against all losses, damages, claims, causes of action and suits brought by third-parties asserted against SEBASTIAN or alleged to have arisen from SEBASTIAN’s conduct, negligence, or failure to perform any obligation under this Agreement. The parties agree that there are no third party beneficiaries of this Agreement. Subscriber waives any right of subrogation it may have, or Subscriber’s insurance carrier(s) may have against SEBASTIAN or SEBASTIAN's Agents arising out, or relating to the parties’ performance, of this Agreement.
17. ASSIGNMENT: Subscriber shall not be permitted to assign this Agreement without the prior written consent of SEBASTIAN. SEBASTIAN shall be permitted to assign this Agreement as deemed necessary or convenient in its sole discretion, and shall be relieved of any obligations herein upon such assignment.
18. EXCULPATORY CLAUSE: SEBASTIAN and Subscriber agree that SEBASTIAN is not an insurer and no insurance coverage is offered by SEBASTIAN. The Alarm System is designed to reduce certain risks of loss, though SEBASTIAN does not guarantee that no loss will occur. SEBASTIAN is not assuming liability, and, therefore shall not be liable to Subscriber for any loss, personal injury or property damage sustained by Subscriber as a result of burglary, theft, hold-up, fire, and equipment failure, smoke, or any other cause, whatsoever, regardless of whether or not such loss or damage was caused by or contributed to by SEBASTIAN’s negligent performance, failure to perform any obligation or strict products liability. Subscriber releases SEBASTIAN from any claims for contribution, indemnity or subrogation.
19. INSURANCE: Subscriber shall maintain a policy of public liability, property damage, burglary and theft insurance under which SEBASTIAN and Subscriber are named as insureds, and under which the insurer agrees to indemnify and hold SEBASTIAN harmless from and against all loss, costs, expenses including attorneys' fees and liability arising out of or based upon any and all claims, injuries and damages arising under this agreement, including, but not limited to, those claims, injuries and damages contributed to by SEBASTIAN's negligent performance to any degree or its failure to perform any obligation. The minimum limits of liability of such insurance shall be one million dollars for any injury or death, and property damage, burglary and theft coverage in an amount necessary to indemnify Subscriber for property on its premises. SEBASTIAN shall not be responsible for any portion of any loss or damage which is recovered or recoverable by the Subscriber from insurance covering such loss or damage or for such loss or damage against which the Subscriber is indemnified or insured.
20. LIMITATION OF LIABILITY: Subscriber agrees that should there arise any liability on the part of SEBASTIAN as a result of SEBASTIAN's negligent performance to any degree of failure or perform any of SEBASTIAN's obligations or equipment failure, or strict products liability, that SEBASTIAN's liability shall be limited to the sum of $250.00 or 5% of the sales price, whichever is greater. If Subscriber wishes to increase SEBASTIAN's amount of limitation of liability, Subscriber may, as a matter of right, at any time, by entering into a supplemental contract, obtain a higher limit by paying an annual payment consonant with SEBASTIAN's increased liability. This shall not be construed as insurance coverage.
21. RIGHT TO FILLED CONTRACT BEFORE COMMENCEMENT OF WORK: You, the Subscriber, are entitled to a completely filled in copy of this agreement, signed by both you and the contractor, before any work may be started.
22. MECHANIC’S LIEN WARNING: Anyone who helps improve your property, but who is not paid, may record what is called a mechanic’s lien on your property. A mechanics lien is a claim like a mortgage or home equity loan, made against your property and recorded with the county recorder. Even if you pay your contractor in full, unpaid subcontractors, suppliers, and laborers who helped to improve your property may record mechanic liens and sue you in court to foreclose the lien. If a court finds the lie is valid, you could be forced to pay twice or have a court officer sell your home to pay the lien. Liens can also affect your credit. To preserve their right to record a lien, each subcontractor and material supplier must provide you with a document called a 20-day Preliminary Notice. This notice is not a lien. The purpose of the notice is to let you know that the person who sends you the notice has the right to record a lien on your property if he or she is not paid. BE CAREFUL. The preliminary Notice can be sent up to 20 days after the subcontractor starts work or the supplier provides material. This can be a big problem is you pay your contractor before you have received the Preliminary Notices. You will not get Preliminary Notices from your prime contractor or from laborers who work on your project. The law assumes that you already know they are improving your property. PROTECT YOURSELF FROM LIENS. You can protect yourself from liens by getting a list from your contractor of all subcontractors and material suppliers that work on your project. Find out from your contractor when these subcontractors started work and when these suppliers delivered goods or materials. Then wait 20 days, paying attention to the Preliminary Notices you receive. PAY WITH JOINT CHECKS. One way to protect yourself is to pay with a joint check. When your contractor tells you it is time to pay for the work of a subcontractor or supplier who has provided you with a Preliminary Notice, write a joint check payable to both the contractor and subcontractor or material supplier. For other ways to prevent liens, visit CSLB’s Web site at www.cslb.ca.go or call CSLB at 800-321-CSLB (2752). REMEMBER, IF YOU DO NOTHING, YOU RISK HAVING A LIEN PLACED ON YOUR HOME. This can mean that you have to pay twice, or face the forced sale of your home to pay what you owe.
23. DEFINING START DATE: Installation under this contract will be deemed to commence upon SEBASTIAN entering the Monitored Location and: (a) removing part or parts of the wall, ceiling or floor to either access wiring or perform other necessary tasks in regards to making the Alarm System operational; (b) affixing an Alarm System on the wall, roof or ceiling; (c) placing an operational Alarm System that is not affixed to the wall, ceiling or floor.
24. LEGAL ACTION: In the event SEBASTIAN refers this Agreement to an attorney to recover any amounts owed by Subscriber to SEBASTIAN hereunder, the parties agree that the amount to be recovered, and any judgment to be entered, shall include interest at the rate of 1.5% per month from the date payment is due and Subscriber shall pay SEBASTIAN's legal fees. In any action commenced by SEBASTIAN against Subscriber, Subscriber shall not be permitted to interpose any counterclaim. This agreement shall be governed by the laws of the State of California. The parties agree that the courts of the State of California shall have exclusive jurisdiction over the parties hereto regarding any dispute between them and SEBASTIAN and Subscriber submits to the jurisdiction of the State of California. The parties waive trial by jury in any action between them. Any action by Subscriber against SEBASTIAN must be commenced within one year of the accrual of the cause of action or shall be barred. All actions or proceedings against SEBASTIAN must be based on the provisions of this Agreement. Any other action that Subscriber may have or bring against SEBASTIAN in 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. Any service of process or papers in any action, proceeding or arbitration may be served by first class mail delivered by the U.S. Post Office or overnight carrier to addresses in this Agreement.
25. SEBASTIAN'S RIGHT TO SUBCONTRACT SPECIAL SERVICES: Subscriber authorizes SEBASTIAN to subcontract any services to be provided by SEBASTIAN to third parties who may be independent of SEBASTIAN, and that SEBASTIAN shall not be liable for any loss or damage sustained by Subscriber by reason of fire, theft, burglary or any other cause whatsoever caused by the negligence of such third parties, except that SEBASTIAN shall not obligate Subscriber to make any payments to such third parties. Subscriber appoints SEBASTIAN to act as Subscriber’s agent with respect to such third parties, except that SEBASTIAN shall not obligate Subscriber to make any payment to such third parties. Subscriber acknowledges, that this Agreement, and particularly those paragraphs relating to SEBASTIAN's disclaimer of warranties, exemption from liability, even for its negligence, limitation of liability and third party indemnification, inure to the benefit of and are applicable to any assignee, subcontractors and communication centers of SEBASTIAN.
26. FALSE ALARMS/PERMIT FEES: SEBASTIAN shall have no liability for permit fees, false alarms, false alarm fines, police response, or the refusal of the police to respond. In the event of termination of police response by the municipal police this contract shall nevertheless remain in full force and Subscriber shall remain liable for all payments provided for herein. Should SEBASTIAN be required by existing or hereinafter enacted law to perform any service or furnish any material not specifically covered by the terms of this agreement Subscriber agrees to pay SEBASTIAN for such service or material. Local jurisdictions may require permit fees which are solely Subscriber’s obligation.
27. SECURITY INTEREST/COLLATERAL: To secure Subscriber’s obligations under this agreement Subscriber grants SEBASTIAN a security interest in the Alarm System and Alarm System Equipment installed by SEBASTIAN and SEBASTIAN is authorized to file a financing statement.
28. FIRE ALARMS: Unless the schedule of protection provides for a fire alarm system to code SEBASTIAN makes no representation that the fire alarm equipment, if any, meets local code requirements or constitutes a fire alarm system as that term is defined by the Authority Having Jurisdiction (the “AHJ”) over fire alarm systems located at the Monitored Location. If a fire alarm system to code is specified in the schedule of installation then SEBASTIAN will install fire alarm equipment pursuant plans and specifications of architect or professional engineer engaged by Subscriber, filed and approved by the AHJ over fire alarm systems. Subscriber agrees that any equipment required by the AHJ not specified in the schedule of installation shall be an extra to this contract to be paid for by Subscriber at time said additional equipment is requested.
29. FULL AGREEMENT/SEVERABILITY/ CONFLICTING DOCUMENTS: This Agreement constitutes the full understanding of the parties with respect to the installation of the Alarm System and the monitoring and maintenance of the Alarm System by SEBASTIAN and may not be amended or modified or canceled except by written instrument executed by SEBASTIAN and Subscriber. Should there arise any conflict between this Agreement and Subscriber's purchase order
or other document, this Agreement will govern, whether such purchase order or document is prior to or subsequent to this Agreement. Should any provision of this Agreement be deemed void, all other provisions will remain in effect.
30. The undersigned acknowledges that Sebastian shall have no liability for false alarms, false alarm fines, police/fire response or the refusal of the police/fire to respond. The undersigned acknowledges that there is a 15-30 second delay from the time the system emits an alarm to when the system transmits a signal to Sebastian Central Office. The undersigned acknowledges the subscriber is responsible for replacing the battery at their expense. The subscriber may purchase a replacement battery from Sebastian or a third-party vendor. The alarm panel will emit an alert when the battery is low and needs to be replaced. The undersigned acknowledges the subscriber is responsible for periodically testing the system to determine it is in working order. The subscriber is also responsible for notifying Sebastian if the subscriber makes any changes that will impact the system.
By signing below, you are agreeing to all the terms and conditions of this contract as well as the applicable charges of the monthly fees for the full term of the 36 months.