TERMS AND CONDITIONS OF SALE

THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION

1. These terms and conditions shall apply to all sales of “Equipment” and security monitoring services (“Services”) by Comporium Inc. and its affiliate Comporium SMA Solutions, Inc. (collectively “Company”) to you (the “Subscriber”). These terms and conditions of sale create a binding contract between you and Company (the “Agreement”).  This Agreement expressly limits Subscriber’s acceptance to the these terms and conditions.  By ordering any Equipment or Services you acknowledge that you have read and understand the Agreement and agree to be bound by the terms thereof.

2. LIMITED WARRANTY. Company agrees to repair or replace at its option any Equipment which, within (1) one year of purchase, is defective due to faulty materials or workmanship.  Thereafter, Subscriber shall be responsible for all repair or replacement costs, including labor and material costs, related to the Equipment.

3. MONITORING SERVICE. THE EQUIPMENT THAT YOU PURCHASE FROM COMPANY UNDER THIS AGREEMENT WILL NOT BE MONITORED, UNLESS YOU PURCHASE SECURITY MONITORING SERVICES SEPARATELY AND PURCHASE EQUIPMENT ELIGIBLE FOR MONITORING SERVICES.  If Subscriber purchases security monitoring services, Company will monitor Subscriber’s connected Equipment, eligible for monitoring services, twenty-four hours per day seven days per week.  If a signal is received from the Equipment, Company will seek to create two-way voice communication by telephone with one or more “Responder(s)” designated in writing by Subscriber.  Monitoring and reasonable attempts to contact the Responder(s) by telephone are Company’s only obligations.  Subscriber agrees to notify Company of Subscriber’s disposition with regard to any signal within twenty-four hours.

4. LIMITATION OF TECHNOLOGY. Subscriber understands and agrees that the functionality of the Equipment and Services rendered under this Agreement requires broadband (“Internet”) (with a level minimum of 512 kbps) and adequate cellular service.  Any interruption of Internet service will cause the Equipment to be non-operational and the Company will not be able to provide security monitoring services, if applicable.  Subscriber understands and agrees that Company does not control or guarantee either Internet service or cellular coverage.  Subscriber also understands and agrees that broadband (Internet) at Subscriber’s location may be wireless and is dependent on what is commonly called wireless local area network. Anytime Subscriber’s wireless local area network is non-operational, the Equipment and Services, will likewise be non-operational. This acknowledgement applies to every term and condition of this agreement.

5. INSTALLATION OF EQUIPMENT AND SMOKE DETECTORS. Equipment installations should comply with all applicable laws, codes and standards.  The current code reference 11.5.1.1 reads as follows: “Where required by applicable laws, codes, or standards for the specified occupancy, approved single- and multiple-station smoke alarms shall be installed as follows: In all sleeping rooms, outside of each separate dwelling unit sleeping area (within 21ft of any door to a sleeping room) the distance measured along a path of travel, and on every level of a dwelling unit, including basements. Exception:  Smoke alarms shall not be required in sleeping rooms in existing one- and two-family dwelling units”.  In the event that the Subscriber purchases smoke detectors from Company, Subscriber is indicating your understanding of the current code and acknowledging that Company has advised you that it is our recommendation to install smoke alarms in each sleeping room.

6. (a) DISCLAIMER OF WARRANTIES. Company does not represent or warrant that any Equipment or Services sold hereunder may not be compromised or circumvented or that the Equipment or Services will prevent any personal injury, loss of life, or property loss or damage or that the Equipment or Services will in all cases provide the notification which is intended, and the Subscriber has not relied upon any such representation or warranty.  The Subscriber acknowledges that any affirmation of fact or promise made by Company or its agents, servants or employees, shall not be deemed to create an express warranty unless included in this Agreement in writing.  The limited warranty set forth in Section 2 shall not cover defective Equipment that results from use or installation of the Equipment by Subscriber in a manner not in compliance with the Company’s or the manufacturer’s written instructions or industry standards.  SELLER MAKES NO OTHER WARRANTY, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT WITH RESPECT TO COMPANY SERVICES, EQUIPMENT, SYSTEMS OR LICENSED SOFTWARE.  ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT ALLOWED BY LAW.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY DOES NOT WARRANT THAT COMPANY SERVICES, EQUIPMENT, SYSTEMS OR LICENSED SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF LATENCY OR DELAY, OR THAT COMPANY SERVICES, EQUIPMENT, SYSTEMS OR LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS OR PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES.

7. MEDICAL AND/OR RELATED EXPENSES. If Subscriber purchases security monitoring services, Subscriber does hereby authorize Company to seek to notify Responders and to obtain third party assistance in the event of an alarm.  Subscriber shall be obligated for and agrees to pay any cost and expenses whatsoever incurred as a result of such notifications.   

8. CANCELLATION: YOU, THE SUBSCRIBER MAY CANCEL SECURITY MONITORING SERVICES AT ANY TIME PRIOR TO MIDNIGHT OF THE  THIRD (3^RD) BUSINESS DAY AFTER THE DATE OF PURCHASE.  THE SUBSCRIBER ACKNOWLEDGES RECEIPT OF THE NOTICE OF CANCELLATION FORM, WHICH EXPLAINS THIS RIGHT.

9. BINDING NATURE.  THE TERMS AND PROVISIONS ON ALL PAGES OF THIS AGREEMENT ARE AN INTEGRAL PART OF THIS AGREEMENT AND ARE BINDING ON COMPANY AND SUBSCRIBER.  ALL TERMS AND CONDITIONS ON ALL PAGES SHOULD BE READ CAREFULLY.

10.   ANCILLARY EQUIPMENT AND CHARGES.  The Subscriber agrees to supply and pay any charges for 24-Hour 110-volt circuit as required to power the Equipment and the appropriate communications services or other equipment necessary to operate the Equipment. Company shall not be responsible for any costs for parts and/or labor associated with adapting the Subscriber’s internet or telephone communication system for use with the Equipment.

11. TESTING AND PROTECTION OF THE SYSTEM. It is solely the Subscriber’s responsibility to test the operation and functionality of the Equipment.  For security monitoring services, monitoring tests may normally be made without charge on weekdays between 5 p.m. and 11 p.m. with prior coordination with the system operators.

12. DELAYS AND FAILURES. Company assumes no liability for delays or interruption of Services due to strikes, riots, floods, fires, acts of God, pandemics, mechanical or electrical equipment failures or any cause beyond the control of Company.   Company may terminate the provision of Services if it cannot maintain transmission privileges and shall not be liable for any damages or penalties as a result of such termination.  Company may also cancel this Agreement, without prior notice, in the event its Central Operating Station is destroyed or damaged by a catastrophe and it is impracticable to continue or restore Service.

13. TERMINATION. Company shall have the right to terminate Services provided hereunder, in whole or in part, upon giving (10) days written notice to Subscriber if any of the following occurs: (i) Subscriber violates any part of this Agreement, (ii) Subscriber fails to pay all fees or charges when due, (iii) Subscriber abandons or sublets the premises where Services are provided or (iv) upon written notice to Subscriber for any other reason or for no reason.  Any Sections herein that by their nature should survive the termination of Services, shall survive and be enforceable after termination of Services. 

14. RELEASE FROM LIABILITY AND WAIVER OF SUBROGATION. Subscriber hereby waives, releases, discharges and agrees to hold Company, its directors, officers, employees and agents harmless from any and all claims, liabilities, damages, losses or expenses arising from or caused by any hazard covered by insurance whether said claim is made by Subscriber or by any other party claiming under or through Subscriber, including any insurer, by way of subrogation or otherwise.

15. INDEMNIFICATION FROM THIRD PARTY ACTION. In the event any person not a party to this Agreement, including Subscriber’s insurance company, shall make any claim or file any lawsuit against Company, its officers, employees or agents (“Indemnities”) for any reason whatsoever, including, but not limited to, the operation or non-operation of the Equipment, Subscriber agrees to indemnify, defend and hold the Indemnities harmless to the maximum extent allowed by law from any and all claims and lawsuits including the payment of all damages, expenses, costs and attorney’s fees whether these claims and lawsuits are based on alleged intentional conduct, active or passive negligence or strict or product liability on the part of Company, its officers, employees or agents.

16. FORCIBLE ENTRY. If Subscriber purchases security monitoring services, Subscriber acknowledges consent for “Respondees” fire, law enforcement and emergency medical personnel contacted by Company to enter the premises, with force, if necessary.  Subscriber does hereby release Company from any and all liability whatsoever as a result of said forcible entry.
17. LIMITATION OF COMPANY’S LIABILITY. It is understood that Company is not an insurer of person, life, limb or property and that insurance covering personal injury, life and property loss shall be obtained by the Subscriber, if so desired.  Company is being paid for Equipment and/or Services as requested by Subscriber.  Company and the Subscriber acknowledge that the amounts being charged by Company are not sufficient to guarantee in any way that no loss or damage will occur and that Company is not assuming responsibility for any personal injury, loss of life, or property loss or damage which may occur even if due to Company’s negligent performance or which may arise due to the faulty operation of the Equipment, the failure of Services or the failure to perform said Services.  Company and Subscriber hereby agree that if, notwithstanding the above provisions, there should arise any liability whatsoever on the part of Company, its directors, officers, employees or agents, it is agreed that such liability shall be limited to two hundred fifty dollars ($250.00).  This sum shall be complete and exclusive and shall be paid and received as an exclusive remedy and not as a penalty.  In the event that the Subscriber wishes Company to assume a greater liability, the Subscriber may request to obtain from Company a higher limit by paying an additional amount proportioned to the increase of said potential liability, but such additional obligation shall in no way be interpreted to hold or constitute Company as an insurer.  Any request by the Subscriber for a higher limit shall be given to Company in writing by certified mail, return receipt requested and no such request shall be binding on Company unless expressly agreed to in writing by Company.  Notwithstanding anything else contained herein to the contrary and to the maximum extent permittted by applicable law, in no event will Company be liable to Subscriber for any consequential, exemplary, incidental, indirect, special, speculative, or other damages, losses, costs, attorneys’ fees or court costs arising out of this Agreement, even if Company is made aware of the potential for such damages.

18. THIRD PARTY SUPPLIERS OF EQUIPMENT AND SERVICES - LIMITATIONS OF LIABILITY.   At its sole discretion, Company may use one or more subcontractors, suppliers, vendors or licensors (collectively, “Suppliers”) to provide Equipment, security monitoring services and other services. Subscriber agrees and acknowledges that such Suppliers are not insurers and agrees the provisions for RELEASE FROM LIABILITY AND WAIVER OF SUBRIGATION, INDEMNIFICATION FROM THIRD PARTY ACTION and LIMITATION OF COMPANY’S LIABILITY in Paragraphs 14, 15 and 17 of this document shall apply for the benefit of all Suppliers, their directors, officers, employees and agents as fully as if they had been specifically named herein in place of “Company” throughout.  To the extent permitted by law, the limitations of liability set forth in this Agreement shall apply to the products and services that our Suppliers provide, and shall apply to them and protect such Suppliers in the same manner as it applies to and protects Company.  You expressly understand and agree that you have no contractual relationship whatsoever with ANY THIRD PARTY SUPPLIER being relied upon to provide services to you, or its affiliates or contractors, and that you are not a third party beneficiary of any agreement between COMPANY and any SUPPLIER. In addition, you acknowledge and agree that ANY THIRD PARTY cellular or broadband service provider and its affiliates and contractors shall have no legal, equitable, or other liability of any kind to you and you hereby waive any and all claims or demands therefor.

19. ASSIGNMENT. It is specifically agreed that the Subscriber shall not be permitted to assign this Agreement without prior written consent of Company and any assignment without such consent shall be without effect and shall be deemed a breach of this Agreement. Company shall have the right to assign this Agreement to any other company engaged in a business similar to that of Company and upon such assignment shall be relieved of any obligations created herein.

20. DISPUTE RESOLUTION. Subscriber agrees to attempt to resolve all disputes with Company informally before resorting to arbitration.  Subscriber agrees to notify Company of any dispute within fourteen (14) days of discovery by calling Company’s customer service department or an account representative.  If Company does not resolve Subscriber’s claim within fourteen (14) days of receiving notice, Subscriber may pursue the claim through binding arbitration.  INSTEAD OF SUING IN COURT, SUBSCRIBER AND COMPANY AGREE TO ARBITRATE ALL DISPUTES THAT ARISE OUT OF OR IN ANY WAY RLEATE TO: (1) THIS AGREEMENT; (2) ANY OTHER AGREEMENT(S) WITH COMPANY; OR (3) THE SERVICES OR EQUIPMENT PROVIDED BY COMPANY.  ARBITRATION SHALL BE INSTITUTED BEFORE THE AMERICAN ARBITRATION ASSOCIATION IN ROCK HILL, SOUTH CAROLINA, BEFORE A SINGLE ARBITRATOR.  YOU AND COMPANY EACH AGREE THAT ARBITRATION WILL BE BINDING AND SOLELY BETWEEN SUBSCRIBER AND COMPANY AND SHALL NOT BE BROUGHT ON BEHALF OF OR TOGETHER WITH OTHER INDIVIUDAL CLAIMS IN A CLASS OR REPRESENTATIVE CAPACITY.  SUBSCRIBER AGREES THAT NO ARBITRATION DEMAND OR ANY OTHER LEGAL PROCEEDING CONNECTED WITH THE SERVICES OR EQUIPMENT PROVIDED HEREUNDER SHALL BE BROUGHT OR FILED BY SUBSCRIBER MORE THAN ONE (1) YEAR AFTER THE INCIDENT GIVING RISE TO THE CLAIM OCCURRED.  ALL COSTS AND FEES OF ARBITRATION SHALL BE BORNE EQUALLY BY THE PARTIES.

21. GENERAL TERMS. This Agreement shall be governed by the laws of the State of South Carolina, without giving effect to its rules of conflict of laws.  This Agreement constitutes the full understanding by and between the parties hereto and may not be amended or modified except in writing and signed by both parties.  If any provision or part of this Agreement is held to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect as if such invalid or unenforceable provision had never appeared herein.