Terms and Conditions for Security Services

Terms and Conditions for Security Services - Minnesota

(Upon acceptance of proposal become binding as part of the contract)

1. ENGAGEMENT. Customer agrees to engage Century Security Solutions, a division of Century Companies, Inc. (“CSS”) to provide one or more of the following services: Service Call, After Hours Service Call, and Sundays and Holidays Service Call services as described in the attached.
2. TERM & TERMINATION: (a) This Agreement will commence upon the Effective Date and continue until terminated by either party. Either party may terminate this Agreement at any time, without cause or penalty, upon 1 day’s prior written notice (24 hours) to the other party. For services cancelled less than 24 hours prior to intended service start time, the Client may be liable to pay service fees including but not limited to a penalty amount equivalent to six (6) billable hours. For services cancelled less than eight( 8 ) hours prior to the intended service start time, Client may be liable to pay a penalty equivalent to eight 8) billable hours, but no less than six (6) billable hours, or the entire forfeiture of any deposits or down payments if applicable and collected, whichever is more. Either party may also terminate this Agreement for good cause upon 30 days’ prior written notice to the other party. “Good cause” for CSS will include, without limitation, the following: (i) any material or persistent minor breach by Client of this Agreement; (ii) cancellation of or material change to any of CSS’s insurance coverage relevant to this Agreement; (iii) a change in applicable laws or regulations that has a material effect on, or causes a material change to, the Services; or (iv) any act or omission of Client which, in CSS’s reasonable opinion, brings or may bring CSS’s business or reputation into disrepute. Client will be responsible for payment for all Services rendered through the termination date. (b) If Services include Remote Guarding, instead of Client’s rights of termination in Section 2(a), Client may only terminate this Agreement upon 60 days’ prior written notice to CSS. CSS’s rights of termination in Section 2(a) remain unchanged. (c) If Client terminates this Agreement for any reason, Client will pay for any unamortized costs related to any equipment used in connection with Services.  
3. SCOPE OF SERVICES; PERSONNEL: (a) CSS will only provide Services specified in this Agreement or the Scope of Work, which is incorporated into this Agreement by reference. CSS will not be obligated to perform, and will bear no responsibility for, any Services or duties performed that are not expressly specified in this Agreement. CSS does not accept overall responsibility for security at the Site.  (b) CSS may use contractors or vendors to provide some or all of the Services. CSS (or a contractor or vendor of CSS) may provide or install equipment in connection with the Services, and Client consents to any installation. All such equipment is for CSS’s use and will always be CSS property. CSS is not selling or leasing any of the equipment to Client, and CSS provides no warranty to Client regarding the equipment. Any implied warranties of merchantability and fitness for a particular purpose that may apply to the equipment are excluded. CSS will be provided with reasonable time and access to remove all its equipment upon termination of this Agreement. (c) CSS is an independent contractor, and nothing in this Agreement creates a partnership or relationship of principal/agent or employer/employee. Personnel providing the Services are employees of CSS or its contractors (CSS may use contractors to provide some or all of the Services). CSS may change such personnel at any time. Client may reasonably request changes in such personnel for lawful reasons. If CSS makes Client’s requested changes, Client will be solely responsible for, and will defend and indemnify CSS against, any Loss arising from such changes.
4. PAYMENT: (a) The terms of payment are defined above in the Quote/Estimate and is payable the net number of days specified on each invoice, without any setoff, to the remittance address on the invoice. Client’s failure to pay any amount when due will be a material breach by Client. A late charge of 1.5% per month will be added to balances not paid within 30 days of the date of the invoice. Client must notify CSS in writing of any dispute regarding the amount of an invoice within 30 days from the invoice date; otherwise all disputes will be deemed waived. Client will bear all costs associated with CSS receiving payments due for Services rendered under this Agreement. If CSS must institute suit or collection services to collect amounts owed to CSS, Client will pay CSS’s attorneys’ fees and other costs of suit or collection. Unless otherwise agreed, Client will deposit 50% of the invoice amount in advance.  (b) In the event of payment delay, CSS may suspend the performance of Services upon 10 days’ prior written notice. Suspension will not release Client from any of its obligations under this Agreement. In case of non-payment based on Client liquidity problems, CSS may condition continued performance on immediate cash payment for Services rendered (invoiced or not) or to be rendered.  (c) CSS may raise the Service Fee upon 30 days’ prior written notice to account for any increases in (i) health care, benefit, or insurance costs, (ii) labor or fuel costs, (iii) costs arising from changes to laws, regulations, or insurance premiums, (iv) SUI or similar taxes, (v) contractor’s rates, or (vi) any other taxes, fees, costs or charges related to the Services.

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5. LIABILITY LIMITATION; INDEMNIFICATION: (a) The Service Fee is based upon the value of Services provided, not the value of the interests or property protected. Accordingly, CSS makes no warranty or representation, express or implied, that the Services will produce a result or prevent any loss or damage. Client agrees that the limitations of liability and Client’s defense/indemnity obligations in Sections 5(c)-5(f) apply regardless of whether the Loss is alleged to arise, directly or indirectly, in whole or in part, from the negligence (active or passive) or misconduct of CSS, its employees or agents, including that related to the hiring, training, supervision or retention of CSS’s employees or agents, and Sections 5(c) – 5(f) apply in favor of CSS’s contractors and vendors.  (b) CSS will defend and indemnify Client against any Loss arising from the Services only to the extent the Loss is caused by the negligence of CSS, its employees or agents while acting within the scope of their duties and authority. Client will defend and indemnify CSS against any Loss in connection with this Agreement only to the extent the Loss is caused by the negligence of Client, its employees or agents. (c) Notwithstanding anything to the contrary in this Agreement, in no event will CSS or its insurers be liable for any (i) environmental damages, (ii) punitive, special, exemplary, liquidated, indirect, or consequential damages (including, without limitation, loss of profits or business), (iii) violent or armed action, or hi-jacking, or (iv) damages arising from or related to any circumstance beyond CSS’s reasonable control (including, without limitation, any act of God or war, or any failure on the part of CSS’s contractors or vendors).  (d) Notwithstanding anything to the contrary in this Agreement, in no event will either party or its insurers be liable to the other party for any Loss arising from or related to an act of terrorism. The parties intend for this waiver to “flow down” to their respective contractors. (e) Notwithstanding anything to the contrary in this Agreement, if CSS employees operate any vehicle other than one supplied by CSS, Client will maintain insurance for the vehicle and the insurance will be primary, and Client will defend and indemnify CSS against any Loss arising out of CSS’s use of the vehicle. (f) Notwithstanding anything to the contrary in this Agreement, in no event will CSS be responsible for any theft or other loss of Client’s property not directly attributable to proven security officer thefts. In the event of allegation of security officer thefts, Client waives all right of recovery unless CSS is notified of the allegations within 10 days, Client fully cooperates with CSS in the investigation of the facts, Client presses formal charges, and a conviction is obtained; however, if all the foregoing conditions are satisfied, all applicable limitations of liability in this Agreement still apply. (g) Written notice of any Loss arising out of or relating to this Agreement must be received by CSS within 14 days following the date of the occurrence giving rise to such Loss. No action to recover any Loss will be instituted or maintained against CSS unless such notice is received by CSS. (h) The Services are solely for the benefit of Client; neither this Agreement nor any Services confer any rights on any other party as a third-party beneficiary.  

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6. INSURANCE: Client will maintain insurance to protect Client against loss or damage to its premises, business and property, and others’ property on Client’s premises. Client (on behalf of itself and its insurers) waives all rights of subrogation against CSS, its contractors and vendors, and their respective employees, agents and insurers. If CSS provides any insurance coverage (additional insured or otherwise) for Client or any others, such insurance coverage will only cover Client and the others for liability specifically assumed by CSS in this Agreement. As security for Client’s defense and indemnity obligations in this Agreement, Client will name CSS as an additional insured under Client’s relevant insurance policies, and Client will provide CSS with a certificate of insurance evidencing such coverage upon request.

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7. FORCE MAJEURE: The following circumstances will be considered as grounds for relief if they delay or impede the performance of this Agreement: any circumstance beyond the reasonable control of a party such as fire, war, mobilization or military call up of a comparable scope, requisition, seizure, currency restrictions, insurrection and civil commotion, hi-jacking or an act of terrorism, shortage of transport, general shortage of materials or personnel, industrial disputes and defects or delays in deliveries by contractors caused by any such circumstance as referred to in this Section. The party desiring relief under this Section will inform the other party by written notice without delay on the occurrence and on the cessation of such circumstance. If grounds for relief prevent Client from fulfilling its obligations, Client will reimburse CSS for costs incurred in securing and protecting the Site. Client will also reimburse CSS for costs incurred for personnel, contractors and equipment which, with the consent of Client, are held in readiness to resume the Services.

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8. CLIENT’S COMMITMENT: Client will at all times cooperate with CSS to allow CSS to provide the Services under the best possible conditions, and failure to provide such cooperation will be a material breach by Client. Such cooperation includes, without limitation, Client providing (i) a safe, healthy working environment for CSS personnel in accordance with applicable laws and regulations, (ii) all relevant information, access and assistance that CSS reasonably requires to perform the Services without interruption, including, without limitation, suitable office space and utilities, and (iii) prompt notice of anything that may affect CSS’s safety, risk or obligations under this Agreement or which may lead to an increase in CSS’s costs of providing the Services.

9. TRADEMARK & OTHER INTELLECTUAL PROPERTY MATTERS: Customer shall not remove from the Products (or their packaging or documentation), or alter, any of ICone’s Trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Products (or their packaging or documentation), without the prior express written consent of CSS. Customer shall not otherwise use or publish any ICone Trademarks except with the express prior written permission of CSS, and then only such use or publication shall be in conformance with standards established by ICone (which ICone may modify from time to time), and shall be discontinued upon termination of this Agreement.  Any consent to use the ICone Trademarks will be conditioned upon compliance with ICone written guidelines for use of Trademarks as well as Customer’s understanding that Customer shall not acquire any rights in such Trademarks.  Customer may not use ICone’s Trademarks as part of its business or corporate name.  Any unauthorized use of or modification to Trademarks is expressly prohibited.  Customer shall not impair or otherwise compromise the rights of ICone in and to such Trademarks.  Customer shall not contest or otherwise challenge the right, title and interest of ICone in its Trademarks or the registration thereof.   

10. SOFTWARE.

1. Software Licenses:  Customer is granted a worldwide, non-exclusive royalty-free license to use, but not own or copy, during the term of this Agreement, the software incorporated into the Product.  Customer’s customer is granted a worldwide, non-exclusive, royalty-free license to use, but not own or copy, the software incorporated into the Product as long as the Product is used solely in the normal course of the customer’s business.

2. Software Tools and Other Software Licenses:  ICone currently offers several software tools currently marketed with the Products.  Customer is granted licenses in accordance with the terms and conditions applicable to the specific software product(s) used by Customer in connection with the Products.

               3. Other Product Software Licenses:  ICone may offer third party software products.  ICone provides no licenses with regard to third party software and provides these products in accordance with the terms and conditions applicable to the specific software product(s) used in connection with the Products by Customer.  Customer shall pass such third party licenses to its customers.

            4. The parties acknowledge that (as between CSS, ICone and Customer) ICone owns all rights (including without limitation all copyrights) in any software provided by ICone at any time (whether contained in a Product, provided on a diskette or other media, downloaded remotely or otherwise transferred) and in any documentation provided by ICone at any time.  The terms “sell” and “buy,” and similar terms, as used in this Agreement with respect to any such software and/or documentation shall mean the grant to Customer of a non-exclusive, non-transferable limited license: (1) to use such software (in object code form only) and/or documentation together with Products provided by ICone in the United States, for the sole purpose of using such Products, subject to the provisions in any separate license agreement or other document (relating to such software and/or documentation) supplied by ICone to Customer, and (2) in connection with any resale of Products provided by ICone, to grant to the purchaser thereof a sublicense to use such software (in object code form only) and/or documentation solely as provided in the foregoing clause “(1)” (subject to the restrictions imposed by this Agreement and any end user license agreement).  Customer shall have no right to market, distribute or otherwise transfer such software and/or documentation except as expressly provided in this Subsection.  

5. Customer shall not do any of the following, and shall not cause or knowingly allow others, including without limitation its customers and their customers and end users, to do any of the following: use the Products (or their packaging or documentation), ICone, Trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or any other ICone intellectual property unlawfully; place harmful software on the Products or use it in connection with any ICone Trademarks, including but not limited to, the generation or dissemination of computer viruses, Trojan horses, time bombs, denial of service attacks, key-logging and other monitoring software, worms, logic bombs, or other harmful code or programs; or use the Products or any Proprietary Materials, by themselves or in conjunction with harmful software, to: (i)   negatively impact the operation or performance of the Products or Proprietary Materials or allow harmful software to be placed on or used with the Products;  (ii)  negatively impact the safety, security, or privacy of users or owners of the Products or Proprietary Materials; (iii) negatively impact the operation or performance of the networks with which the Products or Proprietary Materials may interact (“Networks”); (iv) attempt unauthorized use of or access to such Networks, or to any service, data or account; or (v) cause harm to the Products or Proprietary Materials with which they are used, or the Networks, or impair their use by others

11.       SAFEGUARDING INFORMATION: Under the performance of the Agreement, the Customer may be entrusted with information which is of great financial value to Icone or CSS such as trade secrets and proprietary data.  The Customer hereby agrees and shall ensure that its employees and agents shall not divulge or communicate to any third party any data or information relating to this Agreement, the other party’s manufacturing techniques, corporate strategy, pricing, technology, inventions, business terms, plans, trade secrets of ICone or Customer or other confidential or proprietary information,  or use such data and information for any purpose whatsoever, including without limitation to manufacture or to have others manufacture any products related hereto, without the express written consent of the other party.  This obligation related to non-disclosure shall survive the term of this Agreement including any extensions hereof, for a period of five (5) years from Agreement termination.  Except as applies to pricing, confidential or proprietary information shall not include information that (a) Customer, CSS, or ICone rightfully knew before it was disclosed, (b) has become publicly known through no wrongful act of Customer, or (c) was independently developed by Customer, CSS, or ICone, as evidenced by appropriate documentation.  Upon termination or cancellation of this Agreement, Customer, CSS, or ICone shall return all data and information provided by the other party, or, at the other party’s option, destroy all such data and information and certify to such destruction.

   12. PUBLICITY:  Customer shall not publicly announce or discuss, or cause any third party to announce or discuss, Products of ICone without having received, in advance, CSS’s express written consent.  Customer shall also contractually obligate its reseller purchasers to refrain from publicly announcing or discussing, or causing any third party to publicly announce or discuss, Products of ICone without having received, in advance, CSS’s express written consent.  

13.                   SOFTWARE, LICENSE FOR SOFTWARE AND DOCUMENTATION: (i) Certain Products may include software to collect information about how, where, when and under what conditions, the Product is used and functions, including without limitation information describing its location, time of day, status of i/o ports, on/off (“Data”).  Customer agrees that this Data is owned by iCone and is licensed to CSS as the end user.  Customer and any end user may only use the Data for its internal purposes and has no right to resell, redistribute or license the Data.  ICone may license or resell Data in its sole discretion except that it will anonymize the Data. 

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A. PROPRIETARY MATERIALS.  Without limiting the generality of Section 13 above, the Parties acknowledge that (as between ICone, CSS, and Customer) ICone owns all rights (including without limitation all copyrights) in any Proprietary Materials obtained by Customer at any time (whether software, documentation or other such Proprietary Materials are contained in a Product, provided on a USB drive or other media, downloaded remotely or otherwise transferred).  The terms “sell” and “buy,” and similar terms, as used in this Agreement with respect to any software and/or documentation shall mean the grant to Customer of a non-exclusive, non-transferable limited license (1) to use such software (in object code form only) and/or documentation together with Products provided by ICone in the United States, for the sole purpose of using such Products, subject to the provisions in any separate license agreement or other document (relating to such software and/or documentation) supplied by ICone to Customer, and (2) in connection with any resale of Products provided by ICone, to grant to the purchaser thereof a sublicense to use such software (in object code form only) and/or documentation solely as provided in the foregoing clause “(1)” (subject to the restrictions imposed in Section 5(D) below).  Customer agrees that all such sublicenses shall be for the benefit of ICone and shall be enforceable directly by ICone (in ICone’s name or on behalf of Customer).  Customer shall have no right to market, distribute or otherwise transfer such software and/or documentation except as expressly provided in this Section 5(C). 

B. FURTHER RESTRICTIONS.  Customer shall abide by the terms of any license accompanying the Products or any  Proprietary Materials such as software, and shall not reverse engineer, “reverse compile,” decompile, disassemble, translate, copy, modify, alter, create derivatives of , or otherwise change any Product, or part thereof (including without limitation any software or other Proprietary Materials, or any software or documentation provided by ICone), without the prior express written consent of CSS.  Customer shall have no right to obtain source code for any software provided by ICone by any means and shall not use, print, copy, or display the software in whole or in part without the prior express written consent of CSS.  Customer shall not defeat any "keys" or codes controlling authorized access or functionality, nor will Customer allow others to do the same.  Customer will not cause or knowingly allow harmful software to be placed on or used with the Products, including but not limited to, the generation or dissemination of computer viruses,  Trojan horses, time bombs, denial of service attacks, key-logging and other monitoring software, worms, logic bombs, or other code or programs whose effect is to negatively impact the operation or performance of the Products or the safety, security, or privacy of users or owners of the Products, or to negatively impact the operation or performance of the wireless networks with which the Products may interact (“Networks”) or to permit unauthorized use of or access to such Networks.  Customer shall not knowingly use Products or software in any way that could cause harm to such Products, the software, or the Networks or impair their use by others.  Customer shall not use the Products, or any software provided by ICone, to attempt unauthorized access to any service, data, account, or Network.

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C. TRADEMARKS.  Customer shall not remove from the Products (or their packaging or documentation), or alter, any of ICone’s trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Products (or their packaging or documentation), without the prior express written consent of ICone.  ICone hereby grants to Customer a non-exclusive, non-transferable limited license to use ICone’s trademarks relating to the Products during the term of this Agreement; provided, however, that (1) Customer shall use such marks only in connection with advertising or promotion of the Products to denote their origin, (2) Customer shall clearly designate that such marks are owned by ICone, and (3) Customer shall otherwise comply with ICone’s then current policies for use of its marks.  Any use of ICone’s trademarks by Customer (i) shall be in capital letters, (ii) if they are registered in the United States Patent and Trademark Office, shall be accompanied by the “®” symbol, (iii) if they are not registered in the United States Patent and Trademark Office, shall be accompanied by the “™” symbol, and (iv) shall be followed by a common descriptive name for the Products.  Customer shall not, by virtue of the foregoing license, acquire any right, title or interest in ICone’ s trademarks; and Customer shall not contest or otherwise challenge the right, title and interest of ICone in its trademarks or the registration thereof.  Customer’s use of ICone’s trademarks shall accrue to the benefit of ICone.

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14.  PATENT, COPYRIGHT AND TRADEMARK INDEMNITY

A. INDEMNITY.  If any Product (excluding any software or software component provided by ICone) becomes, or in ICone’s opinion is likely to become, the subject of a claim of infringement, then Customer shall permit ICone, at ICone’s option and expense, either to (1) procure the right to continue using such Product, (2) replace or modify such Product so that it becomes non-infringing, or (3) accept return of such Product or terminate Customer’s license to use the infringing Product and give Customer a credit therefore, less reasonable depreciation for use, damage and obsolescence thereof (such depreciation to be calculated as an equal amount per year over the life of such Product, which is agreed for purposes of this clause to be five (5) years from the date of original delivery of such Product). Customer shall not incur any costs or expenses for the account of ICone under or pursuant to this Section 6 without ICone’s express prior written consent.  THE FOREGOING STATES THE ENTIRE LIABILITY OF ICONE FOR INFRINGEMENT CLAIMS AND ACTIONS.

B. CERTAIN EXCEPTIONS.  ICone and CSS shall have no liability to Customer under this Section 14 or otherwise for any action or claim alleging infringement based upon any conduct involving (1) the use of any Product in a manner other than as specified by ICone, (2) the use of any Product in combination with other products, equipment, devices or software not supplied by ICone (including without limitation any application software produced by Customer for use with such Product), (3) the use of any Product other than for its ordinary purpose, or (4) the alteration, modification or customization of any Product by any person other than ICone, or by ICone based on Customer’s specifications or otherwise at Customer’s direction (regardless of whether such alteration, modification or customization occurs before or after the Product is originally shipped by ICone to Customer).  In the event of an infringement action or claim against ICone which is based on any conduct described in the preceding sentence, Customer shall at its own expense defend such action or claim, and Customer shall pay any and all damages and costs finally awarded against ICone in connection with such action or claim, provided that ICone notifies Customer promptly in writing of such action or claim, ICone gives Customer sole control of the defense thereof (and any negotiations for settlement or compromise thereof), and ICone cooperates in the defense thereof at Customer’s expense.  Notwithstanding the absence of any such obligation(s), ICone and CSS reserves the option, in its sole discretion and at its expense, to assume at any time defense of any such claim.

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15.  LIMITED PRODUCT WARRANTY

A. WARRANTY TERMS.  Subject to the provisions of this Section 15 and Section 16 below, with respect to each Product sold by ICone hereunder (excluding batteries, software or software components), ICone warrants that, for 12 months or such other term as set forth in an extended warranty for the Product purchased after the date such Product is shipped from ICone’s facility or the date title to such Product passes to Customer, whichever date is earlier (such period referred to herein as the “Warranty Period”) all components of such Product, except batteries, software and software components, shall be free from faulty workmanship and defective materials. The batteries, software and software components, including any documentation designated by ICone  or CSS for use with such software or software components, is provided “AS IS” and with all faults.  The entire risk as to satisfactory quality, performance, accuracy and effort is with the Customer.  ICone and CSS each make no warranties implied or expressed regarding any of its software or software components or any of its accompanying documentation.  The warranties provided by ICone in this Section 15(A) are the only warranties provided by ICone and CSS with respect to the Products sold hereunder, and may be modified or amended only by a written instrument signed by CSS and accepted by Customer.  The warranties do not apply if, in the sole opinion of ICone, the product has been damaged by accident, misuse, neglect, improper shipping and handling, improper use or installation.  Since the products are sensitive to static, the responsibility to protect them from static damage is solely that of Customer and user.  This warranty is valid only if the product has not been tampered with or serviced by any party not authorized by ICone as a repair facility. Customer’s remedies and ICone’ aggregate liability with respect to the warranties provided by ICone in this Section 15(A) are set forth in and are limited by this Section 15 and Section 16 below. 

B. PRODUCT WARRANTY CLAIMS.  If, during the applicable Warranty Period for a Product sold by ICone hereunder, it is determined that any component of such Product, except software components, is defective due to faulty workmanship or defective materials, or it is determined that any software component of such Product fails to substantially conform to the written documentation designated by ICone for use with such software component, then such Product shall be returned to ICone, it being agreed that ICone shall not bear the expense of shipping such Product to ICone except as otherwise agreed by ICone.  Upon receipt of any such Product during the applicable Warranty Period, ICone shall, at its expense, (1) in ICone’s sole discretion, repair or replace such Product (using new or refurbished parts in its sole discretion), and (2) ship such Product to return it to its original location.  ICone’ s obligations hereunder shall arise only if ICone’s examination of the Product in question discloses to ICone’s satisfaction that the claimed defect or nonconformity actually exists and was not caused by any improper installation, testing or use, any misuse or neglect, any failure of electrical power, air conditioning or humidity control, or any act of God, accident, fire or other hazard.  Repair or replacement of a Product (or any part thereof) does not extend the Warranty Period for such Product.

C. OTHER LIMITATIONS. THE EXPRESS WARRANTIES OF ICONE STATED IN SECTION 15(A) ABOVE (i) DO NOT APPLY TO PRODUCTS NOT MANUFACTURED BY ICONE (MANUFACTURER WARRANTY APPLIES), SOFTWARE NOT DEVELOPED BY ICONE, CONSUMABLE ITEMS, SPARE PARTS, OR SERVICES; AND (ii) DO NOT APPLY TO PRODUCTS, OR COMPONENTS THEREOF (INCLUDING WITHOUT LIMITATION ANY SOFTWARE COMPONENT), WHICH HAVE BEEN ALTERED, MODIFIED, REPAIRED OR SERVICED IN ANY RESPECT EXCEPT BY ICONE OR ITS REPRESENTATIVES.  IN ADDITION, THE EXPRESS WARRANTIES OF ICONE STATED IN SECTION 15(A) ABOVE DO NOT APPLY TO ANY SOFTWARE COMPONENT OF A PRODUCT WHICH IS SOLD OR LICENSED SUBJECT TO A SEPARATE LICENSE AGREEMENT OR OTHER DOCUMENT RELATING TO SUCH SOFTWARE COMPONENT AND THE WARRANTIES APPLICABLE TO ANY SUCH SOFTWARE COMPONENT SHALL BE SOLELY AS STATED IN SUCH OTHER LICENSE AGREEMENT OR DOCUMENT.  ICONE AND CSS EACH MAKE NO WARRANTIES THAT THE SOFTWARE COMPONENTS OF ANY PRODUCT WILL OPERATE IN CONJUNCTION WITH ANY OTHER SOFTWARE OR WITH ANY EQUIPMENT OTHER THAN THE PRODUCTS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ICONE IS NOT LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOSS OF USE OF THE PRODUCT, INCONVENIENCE OR DAMAGES OF ANY CHARACTER, WHETHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF INFORMATION OR DATA CONTAINED IN, STORED ON, OR INTEGRATED WITH ANY PRODUCT RETURNED TO ICONE FOR WARRANTY REPAIR) RESULTING FROM THE USE OF THE PRODUCT, RELATING TO WARRANTY SERVICE, OR ARISING OUT OF ANY BREACH OF THIS LIMITED WARRANTY, EVEN IF ICONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IMPORTANT: CCSS AND ICONE DO NOT PROVIDE EMERGENCY PUBLIC SAFETY CONNECTIONS OR MISSION CRITICAL MESSAGING THROUGH THE AIRTIME. 

D. DISCLAIMER.  THE EXPRESS WARRANTIES OF ICONE AND CSS STATED IN SECTION 15(A) ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.  

E. CUSTOMER WARANTIES.  The Customer will not make any statements, representations or claims and will not give any warranties to any end customer or potential end customer in respect of the Products or the Airtime, save to the extent specifically authorized by ICone, such authorization to be given by ICone in writing at the relevant time.  The Customer will indemnify ICone fully, on demand, against all losses, damages, expenses, costs and other liabilities (including, without limitation, legal and other professional fees) incurred by or awarded against ICone as a result of any breach by the Customer of any of its obligations under this Section 15(E).  The limitations and exclusions of liability in respect of the Customer under Section 16 will not apply to the indemnity under this Section 15(E).

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16.  LIMITATION OF LIABILITY 

1. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT:  (A) CSS’S AND ICONE’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SALE OF PRODUCTS AND PROVISION OF SERVICES TO CUSTOMER, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), AND INCLUDING ANY LIABILITY UNDER SECTIONS 14 AND 15 ABOVE, SHALL  NOT EXCEED THE AMOUNT PAID TO ICONE BY CUSTOMER IN THE TWELVE MONTHS PRECEDING THE CLAIM FOR THE PURCHASE UNDER THIS AGREEMENT OF THE SPECIFIC PRODUCT(S) THAT ACTUALLY CAUSED THE DAMAGE OR LOSS; (B) ICONE AND CSS SHALL NOT BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF ICONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (C) EXCEPT AS PROVIDED IN SECTIONS 14(A) AND 15(B) ABOVE (BUT ONLY TO THE EXTENT AND SUBJECT TO THE LIMITATIONS SET FORTH IN SECTIONS 14 AND 15 AND CLAUSES “(A)” AND “(B)” OF THIS SECTION 16), ICONE SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE PRODUCTS OR FOR ANY CLAIMS RELATING TO PRODUCT USE ON A NETWORK, AND CUSTOMER SHALL DEFEND ICONE FROM, AND INDEMNIFY AND HOLD ICONE and CSS HARMLESS AGAINST, ALL SUCH CLAIMS.  THE PARTIES EXPRESSLY AGREE THAT THE PRODUCTS ARE NOT CONSIDERED TO BE GOODS FOR USE PRIMARILY FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES, OR CONSUMER GOODS, FOR PURPOSES OF THE UNIFORM COMMERCIAL CODE, SALE OF GOODS ACT OR OTHERWISE.  THE FOREGOING STATES THE ENTIRE LIABILITY OF ICONE WITH REGARD TO THIS AGREEMENT AND THE PRODUCTS.  THE LIMITATIONS OF LIABILITY CONTAINED IN SECTIONS 14 AND 15 ABOVE AND THIS SECTION 16 ARE A FUNDAMENTAL PART OF THE BASIS OF CSS’S BARGAIN HEREUNDER, AND CSS WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS.
2. ICone and CSS will not be liable to the Customer in tort (including negligence), breach of contract, under any indemnity or otherwise for:
   
   1. any outage, unavailability or degradation of the Airtime due to malfunction of any network or other equipment, suspension or termination of the Airtime as permitted by this Agreement, or any other cause; or
   2. any acts or omission of the network provider that lead to any outage, unavailability or degradation of the Airtime; or
   3. any acts or omissions of a telecommunications carrier unaffiliated with ICone that provides services in relation to this Agreement; or
   4. any outage, unavailability or degradation of the Airtime caused by any legal or regulatory requirements of a specific state, province or country; or
   5. libel, slander, invasion of privacy infringement of copyright or any other Intellectual Property Rights arising from material transmitted or received via the Airtime; or

f. infringement of patents or other Intellectual Property Rights arising from use of the Airtime or the Products in combination with services or equipment provided by the Customer; or

g. use of the Airtime in a manner not authorized by this Agreement.

C. The Customer acknowledges and accepts that the availability of the Airtime, and in particular the ability of any particular Product to send and receive messages cannot be guaranteed as such availability is affected by various factors including, but not limited to, geographical position, environmental conditions, network availability or operator error.  Consequently, ICone and CSS excludes all liability of any kind whatsoever for any losses of whatsoever nature suffered by the Customer as a consequence of a Product being unable to send or receive Data.

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17.  U.S. GOVERNMENT RESTRICTED RIGHTS: If the Products and Airtime and all related documentation and technical data are acquired under the terms of a U.S. Government contract, any and all use, duplication and disclosure thereof by the United States of America, its agencies and/or instrumentalities ("U.S. Government") are subject to the restrictions contained in subparagraphs (a) through (d) of the Commercial Computer Software—Restricted Rights at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR supplement, as applicable, as well as all applicable software licenses and other licenses in connection with the ICone Products and Airtime, documentation and technical data and ICone’s rights therein.

18. SEVERABILITY: If any provision of this Agreement is held to be unenforceable, it will be modified to be enforceable to the maximum extent permitted under applicable law and all other terms will remain in full force. If the unenforceable provision cannot be so modified, it will be excluded from this Agreement, and all other terms of this Agreement will remain in full force.

19. PRECEDENCE: In the event that the different parts of this Agreement are conflicting, the written documents forming part of this Agreement will prevail in the following order: (i) this Agreement; (ii) the Scope of Work; and (iii) any other written documentation attached hereto.

20. NOTICES: All official notices will be in writing and made by overnight mail or certified mail, addressed to the other party at its address set forth in this Agreement or at such other address as the other party may have designated in writing.

21. ASSIGNMENT: Neither party will assign this Agreement without the other party’s prior written consent, which will not be unreasonably withheld. However, upon 30 days’ prior written notice to the other party, either party may assign this Agreement at any time to any of its affiliates, subsidiaries or successors.

22. LAW & JURISDICTION: (a) This Agreement will be governed by the law of the State in which the applicable Services are performed. The parties hereby submit to the jurisdiction of the courts of such State. All terms in this Agreement are only intended to apply to the maximum extent permitted by applicable Minnesota law.

23. DEFINITIONS: “Site” means all premises where Services are performed under this Agreement; “Remote Guarding” means guarding and related services conducted from a remote location using electronic security equipment, including, without limitation, video and voice communication equipment, “Guard” means any duly appointed employee,  affiliate, or individual of subcontractor  whose responsibility is to perform the duties of watching and protecting the assets of the Contractor, under this agreement, post orders, and other attachments, in accordance to local laws or definitions. “Loss” means all suits, claims, losses, damages and expenses (including, without limitation, investigative costs, reasonable attorneys’ fees and costs of suit) arising from all events or circumstances related to or in connection with the same general condition; 

24. ENTIRE AGREEMENT: This Agreement and anything attached to or incorporated into them, constitute the entire agreement between the parties. Any representations, promises or agreements not embodied in this Agreement will not be enforceable. All changes to this Agreement will only be binding on a party if approved in writing by an authorized representative of that party.

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Document ID: 150290

Matter: 206