Terms and Conditions of ERMS Service Agreement
This agreement is made Friday, May 19, 2017 between Empower Generators, Inc., a Florida corporation, (the “Company”), located at 364 SW 4th Court, Dania Beach, FL 33004, and DONALD TRIMAS as the subscriber (“Subscriber”), located at 1883 NW 141TH AVE PEMBROKE PINES FL 33028
Subscriber has agreed to purchase a ERMS device (the “Device”) from the Company and subscribe to monitoring services which will be provided by the company. The Company agrees to provide monitoring services for the Device in accordance with the terms and conditions of this Agreement
- SERVICES. During the term of this Agreement, the company will provide seven (7) days per week, twenty-four (24) hours per day monitoring of the Device (the “Monitoring Service”) in accordance with the provisions set forth herein. The Monitoring Service will include receipt, analysis and response via email or text message (SMS) to alarm signals made by the Subscriber through the Device.
THE MONITORING SERVICE WILL NOT BEGIN UNTIL A TEST SIGNAL FROM THE DEVICE HAS BEEN SUCCESSFULLY RECEIVED BY THE COMPANY AND YOU HAVE RECEIVED CONFIRMATION THAT SUCH SIGNAL HAS BEEN RECEIVED.
- PAYMENT AND TERMS. For the Monitoring Service, the subscriber agrees to pay the monthly, quarterly, or annual amount specified by the Company at the time of purchase beginning from the time the Device is activated. The Monitoring Service shall begin only when the test signal from the Device has been successfully received by the Company (the “Effective Date”). The original term of this Agreement is the billing cycle selected and will renew for the same consecutive billing cycle thereafter unless terminated pursuant to the terms of this Agreement. Subscriber agrees to pay all sales, service, property, use and local taxes; return check charges, or late charges, if applicable. In the event that it shall become necessary for the Company to undertake legal proceedings to collect payments due under this Agreement then the subscriber agrees to pay the Company’s reasonable attorney’s fees for such collection action except where prohibited by law.
- THE DEVICE AND THE MONITORING SERVICE HAVE CERTAIN LIMITATIONS. THE COMPANY MAKES NO REPRESENTATION OR WARRANTY AS TO THE PROMPTNESS OF OUR RESPONSE, NOR DOES THE COMPANY HAVE ANY CONTROL OVER THE RESPONSE TIME OR CAPABILITY OF ANY ENTITY OR PERSON WHO MAY BE NOTIFIED AS A RESULT OF THE DEVICE BEING USED. YOU FURTHER UNDERSTAND THE DEVICE MAY FAIL TO FUNCTION PROPERLY. IT IS UNDERSTOOD THAT A PORTION OF THE DEVICE RELIES UPON THE AVAILABILITY OF CELLULAR NETWORK COVERAGE TO OPERATE PROPERLY WHICH IS PROVIDED BY A THIRD PARTY THAT IS NOT CONTROLLED BY THE COMPANY. THE SUBSCRIBER HAS SELECTED THIS SERVICE WITH A FULL UNDERSTANDING OF ITS LIMITATIONS, AND THE LIMITATION OF THE COMPANY’S LIABILITY SET FORTH IN SECTION 14.
- MONITORING SERVICE. The Device is connected to the Company’s monitoring network. When a signal from the Device is received by the Company, the Company shall, without warranty, relay the signal to the Subscriber and any other recipient the Subscriber indicates. The Subscriber represent that the recipient contact information provided by the Subscriber to the Company is accurate. The Company may discontinue any particular form of response if required to do so by any governmental authority or insurance interest. SUBSCRIBER AGREES THAT THE COMPANY IS RESPONSIBLE ONLY FOR ENDEAVORING TO NOTIFY THE APPROPRIATE RECIPIENTS AND IS NOT RESPONSIBLE FOR THE PROMPTNESS, SUFFICIENCY OR ADEQUACY OF THE ACTION OF ANY RESPONDER OR ANY THIRD PARTY ACTING AS A RESPONDER UNLESS A SERVICE AGREEMENT IS CURRENT AND ACTIVE BETWEEN THE COMPANY AND THE SUBSCRIBER. SUBSCRIBER ACKNOWLEDGES THAT IN NO WAY DOES THE COMPANY REPRESENT OR GUARANTEE THAT THE RESPONDERS CAN BE CONTACTED, THAT THEY CAN OR WILL RESPOND, OR THAT ANY RESPONSE WILL BE SAFE OR EFFECTIVE. SUBSCRIBER AGREES THAT THE RESPONDERS ARE NOT AGENTS OR OTHER REPRESENTATIVES OF THE COMPANY AND ANY ACTION TAKEN BY THE RESPONDERS SHALL IN NO WAY BE IMPUTED TO THE COMPANY. YOU UNDERSTAND THAT THE COMPANY WILL NOT SEND ANY COMPANY PERSONNEL IN RESPONSE TO ANY SIGNAL UNLESS A SERVICE AGREEMENT IS CURRENT AND ACTIVE BETWEEN THE COMPANY AND THE SUBSCRIBER.
- CELLULAR COVERAGE; GEOGRAPHIC LIMITATIONS. The ability of the Device to properly function is dependent upon the availability of cellular network coverage at the Subscribers location. The Device will function only in areas, locations and buildings where such service is available. If such service is unavailable or unreliable, the Device may not function properly. In such event, the Company may be unable to relay the trouble signal to a responder/recipient. The Subscriber agrees that the Company may from time to time change the monitoring charges based on the cellular provider’s charges without notice.
- SUBSCRIBER’S DUTIES. Subscriber shall:
- use the Device and the Monitoring Service in accordance with the terms and conditions of this Agreement and the procedures and specifications provided by the Company and shall not use the Device and the Monitoring Service for any other purposes;
- complete and give the Company a Subscriber Information Form and notify the Company in writing of any changes in the persons or telephone numbers on your call list;
- not alter, modify or attempt repairs on the Device, except pursuant to the instructions of the Company or the Company’s authorized service representatives;
- not allow any other person to use the Device unless such person is approved by the Company.
- allow the Company or the Company’s authorized service representatives access to the Device in order to inspect the Device, performance maintenance or repairs to the Device or remove the Device after termination or expiration of this Agreement.
- CONSENT TO DISTRIBUTION OF INFORMATION.The Subscriber is providing the Company with certain information for the purposes of providing the Monitoring Service. The Subscriber hereby agrees that the company may provide the responders/recipients and any other necessary third party, as determined by the Company in the Company’s reasonable discretion, with access to such information provided by the Subscriber in connection with this Agreement. The Subscriber hereby releases the Company from all liability, which may arise out of the Company’s disclosure of such information to the responders/recipients and any other necessary third parties.
- EQUIPMENT MAINTENANCE. The Company may repair or replace, as determined in the Company’s sole discretion, the Device if it becomes damaged or is defective during the period of any warranty offered to the Subscriber at the time of purchase, unless (i) the Device has previously been disassembled, repaired or modified by someone other than the Company s or the Company’s authorized service representative or (ii) the Device has been damaged as a result of the negligence or misconduct by any person other than the Company or the Company’s authorized service representative. If the Device becomes damaged as a result of (i) or (ii) above, the Subscriber shall pay the Company the replacement price for the Device.
- RESPONSE. The Subscriber acknowledges that the Company makes no representation or warranty as to the promptness of the response time or capability of any responder/recipient who may be notified as a result of the Device being used. The Subscriber further understands that the Company may fail to properly respond to an signal from the Device or that the Device may fail to operate properly. The Subscriber further acknowledges that the Company shall not be obligated to perform the Monitoring Service during any time when the Device is inoperative.
- TERMINATION, DEFAULT.
(a) If the Subscriber materially breaches this Agreement, including, without limitation, by failing to make any payment when due, the Company may discontinue the Monitoring Service and terminate this Agreement. If service is suspended because the Subscriber has breached this Agreement, and the Subscriber asks the Company to reactivate the Device after the Subscriber has cured such breach, the Subscriber will pay, in advance, the Company’s then prevailing reconnection fee. The Subscriber authorizes the Company to investigate the Subscriber’s credit record, and to report payment performance under this Agreement to credit agencies and credit reporting services. THE SUBSCRIBER UNDERSTANDS THAT THE DEVICE WILL NOT WORK WITH EQUIPMENT USED BY OTHER COMPANIES OR MONITORING CENTERS.
- SUSPENSION OR CANCELLATION OF THIS AGREEMENT. The Subscriber understands that the Company may stop or suspend the Monitoring Service for any of the following reasons: (a) strikes, severe weather, earthquakes or other such events beyond the Company’s control affecting the operation of the Company or so severely damage your premises that continuing service would be impractical; (b) an interruption or unavailability of the Monitoring Service as a result of a disruption to the electrical lines, cellular network, radio towers and GPS network that prevents a connection between the Device and the Company; (c) the Subscriber’s failure to pay the service charge due to the Company; (d) The Company is unable to provide service because of some action or ruling by any governmental authority; (e) The Company is unable to subcontract for the Monitoring Service 24 hours a day, 7 days a week, and (e) The Subscriber becomes a debtor in a bankruptcy proceeding.
- ASSIGNEES AND SUBCONTRACTORS. The Company may transfer or assign this Agreement without notifying the Subscriber and without the Subscriber’s consent. The Subscriber may not transfer this Agreement to someone else unless the Company approves the transfer in writing. The Company may use subcontractors (including any other independent monitoring center) to provide the Monitoring Service, and this Agreement shall apply to them and the work they perform and protect them in the same manner as it is applies to and protects the Company. The Subscriber acknowledges and agrees that any subcontractor shall be considered an “independent contractor” and therefore not affiliated with the Company in any way as a partner, joint venture, agent or employee.
- CHANGES TO THE DEVICE. If the Subscriber or any governmental agency or insurance interest wants the Company to change the Device described herein, or change it after it is installed, the Subscriber agrees to pay the Company’s standard parts and labor charges for such changes.
- THE COMPANY IS NOT AN INSURER; WARRANTY AND DISCLAIMER; LIMITATION OF LIABILITY.
(a) The Subscriber understands and agrees that the Company is not an insurer of the Subscriber’s premises or property. The Subscriber understands and agrees that the amount the Subscriber pays to the Company is based solely only on the value of the Monitoring Service provided by the Company and not on the value of the Subscriber’s generator, premises or its contents. The Subscriber assumes all risk of loss or damage to premises or the contents thereof. The Subscriber agrees to look exclusively to their insurer to recover damages. The Subscriber waives all subrogation and other rights of recovery against the Company that any insurer or other person may have as a result of paying any claim for loss or injury to any other person.
(b) THE COMPANY MAKES NO GUARANTEES OR WARRANTIES OF ANY KIND RELATING TO THE DEVICE AND THE MONITORING SERVICE AND EXPRESSLY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE DEVICE AND THE MONITORING SERVICE, INCLUDING, WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THIS AGREEMENT, THERE SHOULD ARISE ANY LIABILITY WITH REGARD TO THE DEVICE AND/OR THE MONITORING SERVICE, THE COMPANY’S MAXIMUM LIABILITY ARISING OUT OF THE PROVISION OF THE DEVICE AND/OR THE MONITORING SERVICE, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED $250.00. SINCE IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES WHICH MAY ARISE DUE TO A FAILURE OF THE DEVICE AND/OR THE MONITORING SERVICE, THIS SUM SHALL BE COMPLETE AND EXCLUSIVE AND SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES AND NOT AS A PENALTY. THIS SUM IS THE SUBSCRIBER’S SOLE REMEDY NO MATTER HOW THE LOSS, DAMAGE, INJURY OR OTHER CONSEQUENCE IS CAUSED, EVEN IF CAUSED BY THE COMPANY’S NEGLIGENCE, GROSS NEGLIGENCE, FAILURE TO PERFORM DUTIES UNDER THIS CONTRACT, STRICT LIABILITY, FAILURE TO COMPLY WITH ANY APPLICABLE LAW, OR OTHER FAULT. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
- THIRD PARTY INDEMNIFICATION AND NO SUBROGATION. If anyone other than the Subscriber asks the Company to pay for any harm or damages (including property damage, personal injury or death) connected with or resulting from (i) the Company’s breach of this Agreement or a failure of the Device and/or the Monitoring Service, (ii) The Company’s negligence, gross negligence or failure to perform, (iii) any other improper or careless activity of the Company in providing the Device and/or the Monitoring Service or (iv) a claim for indemnification or contribution, the Subscriber will pay us (a) any amount which a court orders the Company to pay or which the Company reasonably agrees to pay, and (b) the amount of the Company’s reasonable attorneys’ fees and any other losses or costs that the Company may pay in connection with the harm or damages. Unless prohibited by the Subscriber’s property insurance policy or other insurance, the Subscriber agrees to release the Company from any claims of any parties suing through the Subscriber’s authority or in the Subscriber’s name, such as the Subscriber’s insurance carriers, and the Subscriber agrees to defend the Company against any such claim. The Subscriber will notify their insurance carrier(s) of this release.
- LIMITATION ON LAWSUITS; WAIVER OF JURY TRIAL. Both parties agree that no lawsuit or any other legal proceeding brought in connection with this Agreement shall be brought or filed more than one (1) year after the incident giving rise to the claim occurred. In addition, each of the parties hereby waives its rights to a jury trial of any claim or action based upon or arising out of this Agreement, directly or indirectly, and/or the relationship that is being established among the parties hereunder. The scope of this waiver is intended to cover all disputes that may be filed in court, including without limitations contract, tort, breach of duty, and all other common law and statutory claims. This waiver is irrevocable and may not be modified either orally or in writing. This waiver applies to any future amendments, renewals, supplements or modifications of or to this Agreement. In the event of litigation covered by the scope of this waiver, this Agreement may be filed in court as a written consent to a trial by the court.
- AMENDMENT AND WAIVER. This Agreement may not be amended except in a writing signed by the Company. Amendments of which the Company gives notice and posts to the Company’s website at www.empowergenerators.com will be deemed a writing signed by the Company. Any amendment to this Agreement will take effect immediately upon being posted to the Company’s website and the Subscriber’s continued use of the Services after an amendment is so posted constitutes the Subscriber’s acceptance of an amendment to the agreement.
- SEVERABILITY. In the event any one or more of the provisions of this Agreement is held to be unenforceable under applicable law, such unenforceability shall not affect any other provision of this Agreement and this Agreement shall be construed as if said unenforceable provision had not been contained herein.
- GOVERNING LAW. This Agreement and the respective rights and obligations of the parties hereto shall be governed by and construed in accordance with the laws of the State of Florida, without regard to conflicts of law’s provisions.
- ATTORNEYS FEES. In the event that it should become necessary for the Company to institute legal proceedings against Subscriber to enforce any provision of this Agreement, Subscriber agrees to pay the Company reasonable attorneys’ fees and costs, except where prohibited by law.
Payment and Term
The Subscriber shall pay the Company $450.00 for the Device /Installation and $ 0.00 p/month for the monitoring service.
The term of the contract is 1 (one) Year commencing on Friday, May 19, 2017 and terminating Friday, May 18, 2018 The contract shall be automatically renewed if not terminated by either party according to the provisions of this contract. Payment shall be made by credit card or other acceptable method on a reoccurring basis as delineated in the attached Credit Card Authorization Form.
This contract shall be governed by the laws of the County of Broward in the State of Florida and any applicable Federal law.
- CANCELLATION:THE SUBSCRIBER MAY CANCEL THIS AGREEMENT AND THE MONITORING SERVICE HEREUNDER PROVIDED THAT THE SUBSCRIBER DOES SO IN WRITING AT LEAST 60 DAYS PRIOR TO THE RENEWAL DATE. TO CANCEL THIS AGREEMENT AND THE MONITORING SERVICE HEREUNDER, SUBSCRIBER MUST MAIL OR DELIVER A SIGNED AND DATED NOTICE OF CANCELLATION TO THE COMPANY. THE NOTICE OF CANCELLATION SHOULD BE COMMUNICATED IN WRITING TO EMPOWER GENERATORS, INC., 364 SW 4TH COURT, DANIA BEACH, FLORIDA 33004; ATTENTION: CANCELLATION DEPARTMENT.
Subscriber understands and agrees that the Company’s duties and obligations to provide the Device, the Monitoring Service and any other services arise solely and exclusively out of this Agreement and not otherwise.