Standard Terms and Conditions
December 7, 2023
These Standard Terms and Conditions are incorporated and form an integral part of the Agreement between Kastle and Customer, collectively referred to as the “Parties” and each individually as a “Party”, dated as of even date herewith (the “Effective Date”). The Scope of Work together with these Standard Terms and Conditions, and any attachments and exhibits or other agreed upon contract terms, are collectively referred to as the “Agreement documents” between the Customer and Kastle. It is expressly intended that these Standard Terms and Conditions shall govern over any other conflicting term in the Agreement documents.
1.1 Access Control System. The equipment and software used to control ingress and egress of authorized persons into a designated area and discourage, but not prevent or report, unauthorized entry into that area.
1.2 Fees shall mean compensation paid by Customer to Kastle for delivery of Services, including but not limited to Installation Services, Operations Services and Maintenance Services. Fees shall be invoiced and collected on an monthly basis from Customer, unless otherwise agreed to by the Parties.
1.3 Installation Services refers to installation of the security detection equipment and software system(s) at the Customer’s premises. An Installation Deposit of 25% of the Installation Fee is required from Customer. Kastle shall have no obligation to turn on the operations of the System until Installation Fee has been paid by Customer.
1.4 Laws. All laws, statutes, regulations, ordinances of any local, state, federal, national or other jurisdictional locality, and including, without limitation, all laws applicable to the export and import of products and services, privacy and personal data, payments to government officials in the jurisdictions where the Parties operate (e.g., the U.S. Foreign Corrupt Practices Act, OECD Anti-Bribery Convention, etc.) and other similar, comparable or equivalent laws, common law and equity, and any other laws applicable to a Party’s performance.
1.5 Operations Center. Kastle’s Operations Center is the location where some System activities are monitored and which may not be located in the same jurisdiction of the Customer’s premises.
1.6 Operations Services and Maintenance Services in turn, means the monitoring and maintenance of applicable parts of the System installed at the Customer’s premises for which fees are paid by the Customer on a recurring monthly basis. When the Fees for Operations Services and Maintenance Services are combined, they are called “Managed Service Fees.”
1.7 Video Monitoring System. A Video Monitoring System is a system that enables live views and recording of one or more areas.
1.8 Point Reporting System. A Point Reporting System is a System that is designed to detect and report changes in the status of designated electrical contact points. It is understood that by the addition or withdrawal of various system components, the System may be modified so that, in whole or in part, an Access Control System may become a Security Reporting System, and a Security Reporting System may become, or perform the functions of, an Access Control System. In addition, by the addition or withdrawal from time- to- time of various components or designated areas, a Point Reporting System may also become an Access Control System or a Security Reporting System, or either of such Systems may become, or perform the functions of a Point Reporting System.
1.9 Scope of Work is a detailed description of equipment and services to be provided by Kastle along with a summary of related Fees.
1.10 Security Reporting System. A system that is designed to detect unauthorized entry into specific designated areas.
1.11 Smart Home System. A system that is designed to automate features within individual units or rooms within the Customer’s premises.
1.12 Software. All software, including without limitation, software delivered as a service used to operate within the system and derive functionality from the system provided by Kastle.
1.13 System. The installed equipment together with Kastle’s software to monitor and operate the equipment makes up the “System” permitting on-going operations and monitoring of the electronic security detection equipment, access control, and /or smart home system as applicable.
2.1 Installation Services. If applicable, Customer authorizes Kastle or its subcontractors to install equipment as detailed in the Scope of Work for the system at Customer’s premises and to make any necessary inspections or tests in connection with such installation of equipment. The equipment shall be installed in a workmanlike manner in accordance with Kastle’s standard installation procedures. The estimated date the installation portion of the work is to be substantially completed is not a definite completion date and subject to change. Any latent defect, hazard or obstruction, pre-existing defective equipment in need of repair or replacement discovered during the installation of the equipment will be brought to Customer’s attention and may give rise to additional installation fees and costs in order to properly install the System at Customer’s sole expense on a time and materials basis. Kastle will use reasonable efforts to communicate with Customer to schedule the dates and times for installation services and with Customer’s written acknowledgement, Kastle will schedule date for installation services. Should installation be required in Customer’s tenants’ residences, Customer is responsible for communicating and scheduling installation with tenants and providing Kastle access to units to perform installation. If Kastle arrives at Customer’s location based on Customer’s acknowledgement and Customer (and Customer’s residents) are not ready for installation services to be commenced or to be fully completed, Kastle reserves the right to make additional charges for fees on a time and materials basis for extra work due to Customer’s delays or Customer’s requirement to provide partial work to the project. The Customer shall allow Kastle and its employees and subcontractors reasonable access to such premises for the purpose of performing the installation services and/or safeguarding its equipment at any point during the Term of the Agreement. Customer assumes all risk of loss of equipment once delivered to the Premises.
Any equipment provided by Kastle to Customer shall remain the personal property of Kastle until it has been fully paid for in accordance with the terms of this Agreement. In the event Customer fails to pay any amounts due in accordance with the terms of this Agreement, then Customer authorizes and empowers Kastle to remove any or all such equipment from the relevant premises. No such removal shall be deemed a waiver of any rights or remedies that Kastle may have at law or in equity. The risk of theft, damage or other loss of such equipment shall pass to Customer upon installation thereof.
2.2 Operations Services. After System installation and testing is complete, as applicable Kastle will provide the following Operations Services on an on-going basis from its Operations Center: card and data administration and programming; System monitoring and reporting 24 hours per day, seven (7) days per week; and as required, System software upgrades for the pieces of equipment that are subject to such monitoring and upgrades. Kastle shall provide instruction on retrieval of any historical logs of activity. These records are business records of Kastle and are maintained for approximately thirty (30) days. Customer acknowledges and agrees that while Kastle is licensed to provide such services in its home jurisdiction, licensure requirements may not be the same outside of the United States.
2.3 Maintenance Services. If applicable and purchased by the Customer, in exchange for the monthly Maintenance Fee, Kastle shall provide protective Maintenance Services for the equipment located at the Premises. Kastle will maintain all portions of the System in good working order during the Term of this Agreement and will correct, by repair or replacement any of the defective part or parts, any defect or defects in workmanship or material in the System which may develop from proper or normal use during the Term of this Agreement using personnel employed and supervised by Kastle and trained and qualified to keep the equipment properly adjusted. Kastle will repair any damage to the project and the service area caused by Kastle’s performance of the Maintenance services If the Customer does not elect to purchase the monthly Maintenance plan, such Maintenance Services will be invoiced to Customer on a time and materials basis at Kastle’s prevailing labor and equipment rates which are subject to change.
When applicable, Customer is responsible for any maintenance recommended or required for its Smart Home System. Should Customer request Smart Home maintenance services be provided by Kastle or its subcontractors, Customer will be charged by Kastle on a time and materials basis. Kastle is not liable for any system outage, errors, or other issues due to failure of Customer to maintain the Smart Home System.
2.4 Support Services. When applicable Kastle shall provide Customer access to Smart Home usage instructions. Customer’s employees are authorized to contact Kastle support and account management personnel to obtain assistance with using or managing System during standard business hours. Should Customer’s tenants or residents contact Kastle directly, Customer’s tenants or residents will be referred to Customer. Kastle will respond to Customer requests during standard business hours.
2.5 Limited Warranty. When applicable Kastle will correct by repair or replacement the defective part(s), defects in workmanship or materials in the System which may develop with proper and normal use during the period of one (1) year from the date of installation of the System. In the event Customer or any agent of Customer modifies or attempts to modify the equipment provided by Kastle without its prior written consent, any and all warranties set forth in this Agreement shall become null and void. Under no circumstances will Kastle be obligated to make repairs or replacement for equipment necessitated by the negligence or misuse of the equipment by Customer or others or by reason or any other cause beyond Kastle’s control. In no event shall the warranty and maintenance services provided hereunder include any repairs, maintenance, or service for any IP or other computer network used by Customer. Nor shall it cover equipment damaged by lightning, fire, water, temperature, humidity, acts of God, rodents, electrical storms, power surges, accident, or vandalism, or other failure not directly attributable to the failure of a component of the equipment installed by Kastle. The warranties set forth in this Agreement are exclusive and in lieu of any and all other warranties, express or implied, or by statute including without limitation, warranties of quality, merchantability or fitness for a particular purpose or use.
Except as expressly set forth in this Section 2.5, Kastle does not represent nor warrant that the notification process will not be compromised or circumvented; that Customer’s system will prevent any loss, injury, or damage, whether by burglary, holdup, or otherwise; that Customer’s system or the services will be performed without error or interruption; or that the process will in all cases provide the protection for which it was installed and expressly disclaims all such warranties. This warranty does not cover any damage caused by Customer’s failure to close, lock, secure, or otherwise protect or monitor any portion of Customer’s premises; intrusion; or theft. Customer agrees that Kastle expressly disclaims and has not and does not assume any liability for losses as a result of the inoperability of Customer’s system or services and/or the various protocols not functioning as intended.
Unless otherwise agreed, Customer will pay Kastle for the installation of equipment monitoring, and maintenance services as applicable as set forth in the Scope of Work. Unless otherwise agreed upon, Customer is required to pay no less than twenty five percent (25%) of the Installation Fee upon contract execution as a deposit and thereafter Kastle is entitled to progress payments for the installation of the System. Kastle will invoice Customer for the remaining outstanding balance for the Installation Fee as progress of the System is completed. Kastle is not obligated to activate or start the operation of the System until the Installation Fee has been paid in full by the Customer. Operations and Maintenance Fees will be due from Customer upon presentation of Kastle’s invoice. In the event the Parties agree to combine Operations and Maintenance Fees, it will be called “Managed Service Fees.” Fees do not include any permits and associated costs, any elevator service work or third party charges which are exclusively responsibility of Customer, any enrollment fees for vendor management systems in which Customer may require Kastle to enroll, or any federal, state, or local taxes including property, license, privilege, sales, use, excise, gross receipts or other similar taxes, which may now or hereafter become applicable to the services or equipment provided by Kastle pursuant to this Agreement. If such taxes do apply, Kastle will list them separately on the invoice for which the Customer shall be responsible for payment. The rates charged for Operations and Maintenance Fees (or if combined Managed Service Fees) will increase annually by four percent (4%) and will go into effect on the anniversary date of the Agreement. Other terms and conditions of the Agreement may be subject to change with 30 days written notice to Customer.
4. OVERDUE INVOICES
In the event any undisputed invoice for Fees is not paid within thirty (30) days after its due date, Kastle may, in its sole discretion, impose a two percent (2%) per month finance charge (up to the maximum allowed under applicable law) and/or suspend services provided by Kastle until such invoice is paid in full. In no event shall any such suspension of services give rise to a breach of contract claim by Customer against Kastle in connection with this Agreement. In addition, the fees for any installation service provided by Kastle shall be adjusted to compensate for any additional costs arising from such suspension, including without limitation, increased costs of materials or overtime charges for labor. This provision shall not limit Kastle’s right to terminate this Agreement if Customer fails to pay amounts due in accordance with this Agreement. Should Kastle exercise its right to terminate this Agreement for such failure to timely pay, in addition to the outstanding amounts due to Kastle, Customer shall reimburse Kastle for its cost of collection, including reasonable attorneys’ fees, in addition to any other remedies available at law or in equity.
Kastle shall not be liable for failure to perform hereunder due to acts of God or of the public enemy, or of any Government or agency thereof, fires, floods, earthquakes, epidemics, quarantine restrictions, strikes, work stoppages, freight embargoes, severe or inclement weather, electrical storms, power failures, gas leaks, differences with workmen, restrictions imposed by Government agencies, war, hostilities, riot, rebellion, acts of terrorism, delay in or lack of transportation facilities, inability to secure materials, interruption or unavailability of telephone, internet, fiber, or other network components whether provided by Customer or otherwise, or any other cause beyond the control of Kastle. In the event of any delay due to any such cause, the date of performance of any act by Kastle will be postponed by such length of time as may be reasonably necessary to compensate for such delay.
6. INSURANCE/ALLOCATION OF RISK
The parties intend that the Customer assume all potential risk and damage that may arise at the Customer’s premises by any cause or by any reason, even in the event of failure of the equipment, system or Kastle’s services. Customer will look to its own insurance carrier for any loss or assume the risk of loss. Kastle shall not be responsible for any portion of any loss or damage which is recovered or recoverable by Customer from insurance covering such loss or damage or for such loss or damage against which Customer is indemnified or insured. Customer and all those claiming rights under Customer waive all rights against Kastle and its subcontractors for loss or damages caused by perils intended to be detected by Kastle’s services or covered by insurance to be obtained by Customer, except such rights as Customer or others may have to the proceeds of insurance.
The Customer agrees to indemnify and hold harmless Kastle, its employees, agents, and subcontractors, from and against all claims, lawsuits, including those brought by third parties, including reasonable attorneys’ fees and losses, asserted against and alleged to be caused by operation of the System. The Customer shall further, at its own expense, indemnify and defend any claim that the Services, System or equipment supplied by Kastle has an adverse effect on or adversely affects any other services or systems used by the Customer and/or its tenants in their residences or their performance or functionality. Parties agree that there are no third-party beneficiaries of this Agreement. The obligations in this paragraph shall not apply to the extent any claim or loss arises or results from the gross negligence or willful misconduct of Kastle. The Customer on its behalf and any insurance carrier waives any right of subrogation the Customer’s insurance carrier may otherwise have against Kastle or Kastle’s subcontractors arising out of this Agreement or the relation of the parties hereto.
The Customer warrants that it has undertaken all necessary actions to address potential privacy concerns that may arise and will indemnify and hold Kastle harmless from any claims, actions, and/or losses in this regard. The Customer warrants it is duly authorized to place cameras in the monitored areas; camera views are of such a nature that the Operator is not inadvertently exposed to areas deemed to be inappropriate (such as the inside of bathrooms, locker rooms, bedrooms, or other areas where privacy should be expected). The Customer further agrees and acknowledges that is unaware of any violation by the Services of any privacy standards, rules, or regulations of Customer which may apply to Customer or Customer’s shareholders, owners, directors, officers, employees, agents, representatives, entrants, or customers and that it will provide Kastle with written notice of any potential privacy concerns.
The Customer acknowledges that not all the Premises and property may be within the recordable coverage area of any video equipment. Video monitoring of any type, including that similar to the Services, may deter and reduce crimes, but will not stop all crimes. Kastle is not assuming liability and, therefore, shall not be liable to the Customer for any loss, personal injury, or property damage or theft sustained by the Customer. In the event of any loss or injury to any person or property, the Customer agrees to look exclusively to their insurer or other third parties to recover damages. The Customer releases Kastle from any claims for contribution, indemnity or subrogation.
In addition to the foregoing, the Customer agrees to and shall defend Kastle and its officers, directors, agents, and employees, advance expenses for litigation and arbitration, including investigation, legal and expert witness fees, from and against any and all third party claims, lawsuits, actions, losses, damages, liabilities, obligations, expenses, and costs, including reasonable attorneys’ fees and losses reasonably incurred in the defense of any claim whatsoever arising out of or resulting from (a) Customer’s use of the equipment or Services; (b) a third party’s reliance on the System or Services; or (c) a failure of the Monitoring Service to prevent bodily injury, death, property damage or loss, except to the extent such failure is the result of gross negligence or willful misconduct by Kastle.
The parties agree that the obligations of Section 7 will remain in full force and effect following the termination of this Agreement for any reason.
8. DAMAGES AND LIMITATION OF LIABILITY
Kastle is not an insurer under this Agreement, and the fees Kastle charges Customer are not insurance premiums. The payments set forth in this Agreement are based solely on the established value of the System (“System” as defined above) and the services to be provided hereunder and are unrelated to the value of Customer’s property, the property of others located in Customer’s premises, or any risk of loss on Customer’s premises. The equipment and Kastle’s services are designed to detect and reduce certain risks of loss, though Kastle does not guarantee that no loss or damage will occur. Customer understands, acknowledges, and agrees that Kastle does not and cannot prevent, prohibit, limit, mitigate, or otherwise insure personal injury or loss or damage of life or property; the payments provided for herein are based solely on the value of Customer’s system and services as subscribed to hereunder or described herein; that Kastle makes no guaranty or warranty (except as expressly set forth in Section 2.5 herein), including, without limitation, any express or implied warranty of merchantability, fitness for a particular purpose, that Customer’s system or services will avert, prevent, or mitigate a loss of any kind or the consequences of the loss of any kind which Customer’s system or the services may be designed or intended to detect or avert. Kastle is not assuming liability, and, therefore, shall not be liable to Customer or any other third party for any loss, economic or non-economic, in contract or tort, data corruption or inability to retrieve data, personal injury or property damage sustained by Customer as a result of equipment failure, human error, fire, smoke, water, temperature or humidity, or any other cause whatsoever, regardless of whether or not such loss or damage was caused by or contributed to by Kastle’s breach of contract, negligent performance to any degree in furtherance of this Agreement, any extra contractual or legal duty, strict products liability, or negligent failure to perform any obligation pursuant to this Agreement or any other legal duty. Because of the nature of the System and the services to be provided, the Parties agree that Kastle’s liability for damages shall be limited in the manner described below.
8.1 DAMAGES DURING INSTALLATION. In the event any property of Customer or of its agents or tenants is destroyed or damaged by any negligent act or omission of Kastle or its agents during the installation, servicing or repair of the System (as opposed to the operation or monitoring of the System), or in the event of any personal injury to Customer or to its agents or tenants arising from any negligent act or omission of Kastle or its agents during such installation, servicing, or repair of the System, then under either circumstance, Kastle’s maximum liability for such direct damages or injury shall be limited to the lesser of the actual cost of repair and replacement of the damaged property article or $10,000 dollars.
8.2 DAMAGES DURING OPERATION OR MONITORING OF SYSTEM.
8.2.1 To the extent that the System is an Access Control System, Security Reporting System, Smart Home System, or Video Monitored System, Customer understands that such System is intended to discourage, but not prevent, unauthorized entry, destruction of property or harm to persons and, as such, the System is not designed for or intended to provide security for the Premises, its contents or its occupants. KASTLE MAKES NO GUARANTY OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE SERVICES, SYSTEM OR EQUIPMENT SUPPLIED WILL DETECT OR AVERT SUCH EVENTS OR THE CONSEQUENCES THEREFROM. Kastle does not undertake any risk that Customer’s person or property, or the person or property of others, may be subject to injury or loss if such an event occurs, and Customer solely shall be liable and responsible to their tenants and others. Accordingly, the parties agree that except with respect to direct damages or direct injury caused solely by Kastle’s gross negligence or willful misconduct, Kastle shall not be liable for any damages, including but not limited to special, indirect, incidental or consequential damages arising from, or claimed to have arisen from, any unauthorized entry, destruction to property or harm to persons; provided however, that, in the event of any failure of the System, Kastle shall remain obligated to make corrections in the System subject to the terms of Limited Warranty or Maintenance program if applicable.
8.2.2 Customer acknowledges and agrees that the type, character, quantity, and extent of either the potential risks to Customer, its entrants, or any person’s life or property and/or any actual damages thereto, which may result from any alleged or actual failure of Customer’s system to properly operate, are uncertain and any estimation of such damages would be unreasonable, impractical, and extremely difficult. This is due, in part or in whole, to such variables as: (a) uncertainty about the amount or value of Customer’s property or the property of others kept on the premises which may be lost, stolen, destroyed, damaged, or otherwise affected by occurrences which the System or Service may be designed to detect or avert; (b) the response time of any first responder, should any be dispatched as a result of notification; (c) what portion, if any, of any loss would be proximately caused by any actual or alleged failure by Kastle to perform the Services or by the System to operate; (d) the nature of occurrences which might cause injury or death to Customer or any other person which the System or Services is intended to detect or avert; (e) the reliability of the Internet connection, network, hardware, Internet service provider or telephonic communication lines to consistently connect to or monitor Customer’s facilities or equipment; or (f) training, attendance, the level of subjective decision making on the part of or visual identification of a violation by the Operator and staffing requirements at Kastle’s monitoring center. Kastle will incur no liability for any delay in response time or non-response of police, fire department, patrol personnel or others notified by Kastle or by the System.
8.2.3 Due to the uncertainty described immediately above in section 8.2.2, Customer agrees that, if Kastle is found liable for loss, damage or injury under any legal theory due to a failure of Services, System or Equipment in any respect, its liability shall be limited to the sum of $5,000.00 as Customer’s sole remedy. It is agreed this sum will be the sole remedy because it is impractical and extremely difficult to determine the actual damages, if any, which may result from Kastle’s unexcused failure to perform any of its obligations under this Agreement.
8.3 LIMITATION OF LIABILITY. FOR PURPOSES OF THE CAPS ON DAMAGES SET FORTH ABOVE, CUSTOMER AGREES THAT SHOULD THERE ARISE ANY LIABILITY ON THE PART OF KASTLE, FOR ONE OR MORE BREACHES, DISPUTES, CONTROVERSIES OR CLAIMS ARISING UNDER OR IN CONNECTION WITH SERVICES PROVIDED HEREUNDER (WHETHER ANY SUCH BREACH, DISPUTE, CONTROVERSY OR CLAIM IS BASED UPON CONTRACT, TORT, STATUTE, EQUITY OR ANY OTHER LEGAL THEORY), AND FOR EVERY EVENT AND FOR EVERY CLAIM THAT OCCURS AS A RESULT OF KASTLE’S NEGLIGENT PERFORMANCE TO ANY DEGREE OR NEGLIGENT FAILURE TO PERFORM ANY OF KASTLE’S OBLIGATIONS PURSUANT TO THIS AGREEMENT OR ANY OTHER LEGAL DUTY, THEN THE TOTAL CUMULATIVE LIABILITY OF KASTLE, ITS SUBSIDIARIES AND OTHER AFFILIATES, ITS/THEIR SUCCESSORS OR ASSIGNS FOR ALL SUCH BREACHES, DISPUTES, CONTROVERSIES, EVENTS, AND CLAIMS, WHEN COMBINED WITH ALL OTHER LIABILITY ARISING UNDER THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, CLAIMS THAT MAY OTHERWISE BE THE SUBJECT OF INDEMNIFICATION), IN THE AGGREGATE SHALL NOT EXCEED A SUM EQUAL TO THE TOTAL AMOUNT OF FEES PAID TO KASTLE BY CUSTOMER UNDER THIS AGREEMENT FOR THE SERVICES FOR THE RELEVANT SITE-SPECIFIC SCOPE OF WORK DURING THE PRECEDING TWLEVE (12) MONTHS. RECOVERY OF SUCH AMOUNT AS LIMITED HEREBY WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND CUSTOMER RELEASES KASTLE AND ITS SUBSIDIARIES, AFFILIATES, SUCCESSORS, AND ASSIGNS, FROM ANY LIABILITY IN EXCESS OF SUCH AMOUNT. IN NO EVENT, AND REGARDLESS OF THE NATURE OF THE CLAIM, SHALL KASTLE (OR ITS SUBSIDIARIES AND OTHER AFFILIATES, ITS/THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS) BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY PUNITIVE OR EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, LOSS OF PROFITS, SALES OR BUSINESS, LOSS OF ANTICIPATED PROFITS, SAVINGS OR BUSINESS, LOSS OF COMMERCIAL REPUTATION OR OTHER ECONOMIC LOSS, LOSS OR DAMAGE TO GOODWILL, LOSS OF DATA OR LOSS OF USE DAMAGES, ADDITIONAL COSTS OF PROCURING REPLACEMENT GOODS, SERVICES, SOFTWARE OR DELIVERABLES IN PLACE OF THOSE PROVIDED OR THAT WOULD HAVE BEEN PROVIDED UNDER THE AFFECTED STATEMENT OF WORK, ON EARLY TERMINATION OF A STATEMENT OF WORK, ADDITIONAL OPERATIONS AND ADMINISTRATIVE COSTS AND EXPENSES OF MIGRATING FROM THE SERVICES TO REPLACEMENT SERVICES) ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING ANY SCOPE OF WORK), REGARDLESS OF WHETHER CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT KASTLE MAY NOT, AS A MATTER OF APPLICABLE LAW, LIMIT CERTAIN LIABILITIES, KASTLE’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. NO PRINCIPAL, PARTNER, MEMBER, SHAREHOLDER, MANAGER, DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF KASTLE OR OF ANY DIRECT OR INDIRECT PRINCIPAL, PARTNER, MEMBER, OR SHAREHOLDER OF KASTLE SHALL HAVE ANY LIABILITY FOR ANY MATTER ARISING UNDER, RELATED TO, OR IN ANY WAY CONNECTED WITH, THIS AGREEMENT. KASTLE IS NOT AN INSURER UNDER THIS AGREEMENT AND CUSTOMER ACCEPTS THE LIMITATION OF KASTLE’S LIABILITY AS REASONABLE GIVEN THE SERVICES PROVIDED UNDER THIS AGREEMENT.
8.4 Effect of Unauthorized Modification. The parties agree and understand that the System is intended to operate as designed and installed by Kastle and without any modifications which have not been authorized by Kastle. Accordingly, notwithstanding any provisions of this Section 8.4 to the contrary, in the event Customer or any agent of Customer modifies or attempts to modify the System without the express written authority of Kastle and such unauthorized modification is in any way a contributing proximate cause of a loss, the parties agree that notwithstanding any other contributing proximate cause of such loss, Kastle shall not be liable for any damages whatsoever arising from or which are claimed to have arisen from such loss including, without limit, special, indirect, incidental or consequential damages arising from or which are claimed to have arisen from any unauthorized entry, damaged or stolen property, or property which may have become unoccupied.
8.5 Independent Allocations of Risk. Each provision of the Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of this Agreement between the Parties. This allocation is reflected in the pricing offered by Kastle to Customer and is an essential element of the basis of the bargain between the Parties. Customer acknowledges that this Agreement contains exculpatory language, indemnity, insurance, allocation of risk and limitation of liability provisions.
9. AVAILABILITY OF SERVICES AND COMMUNICATION ARRANGEMENTS
Kastle is not an Internet Service Provider (ISP) or cellular service provider, and Kastle does not guarantee the availability of electricity or electrical power, Internet connectivity, or the transmission of signals between the Customer premises and the Operations Center or when applicable, the Alarm.com smart home data center and PointCentral Network via any communications link. Kastle may terminate or suspend its obligation to provide services at any time in the event of: (a) a breach by Customer of this Agreement; (b) Customer abuses the System or its use of the services provided by Kastle; (c) the Operations Center, the connecting lines or the System are destroyed or are so substantially damaged that it is impractical to continue service; (d) Kastle is unable to secure or retain the connections or privileges necessary for the transmission of signals between the premises and the Operations Center or when applicable, Alarm.com smart home data center and PointCentral Network; or (e) from time to time and upon reasonable notice to Customer, Kastle needs to perform maintenance on the system or the Operations Center or when applicable, Alarm.com smart home data center and PointCentral Network. Customer understands and agrees that all calls made to and from Customer and the Operations Center may be subject to recording by Kastle and that such recording will be maintained for not less than thirty (30) days. Customer, for itself and its agents and employees, hereby consents to such recording and authorizes Kastle to maintain all data, voice and alarm communications. In the event Kastle ceases to provide monitoring services to Customer for any reason whatsoever, Customer authorizes and grants Kastle the right to make the necessary arrangements with the communications service provider to disconnect the service from the Customer premises to the Operations Center.
10. OWNERSHIP OF DATA
Customer agrees and acknowledges that all video, audio, and other electronic information and communications (“Data”) is recorded and stored on the Customer’s premises. Kastle does not record, back up, or store any Data; however, Kastle does store limited Data related to specific incidents for a brief period. Customer grants Kastle an irrevocable, limited license to monitor and use the Data for any purpose during the term of this Agreement and an irrevocable, limited license to use and store limited Data related to specific incidents. In addition to the foregoing, Customer authorizes Kastle to share Data with law enforcement to help arrest or prosecute suspected criminals or divulge Data pursuant to Court orders or subpoenas.
11. HAZARDOUS MATERIALS
Unless otherwise set forth in a Scope of Work, the Fees under this Agreement do not contemplate work in any areas that contain hazardous materials, including without limitation, asbestos. In the event any such hazardous materials are discovered in the building in which Kastle is to perform services under this Agreement, Kastle shall have the right to cease work immediately in the area affected until such materials are removed or rendered harmless. Any additional expenses incurred by Kastle as a result of the discovery or presence of hazardous material shall be the responsibility of Customer and shall be paid promptly upon invoicing or, at Kastle’s option, may be added to the Fees.
12. USE OF SOFTWARE
All Software, including without limitation, software delivered as a service included within the system provided by Kastle hereunder is licensed, not sold to Customer only for use in connection with the System and in accordance with the Agreement. Such Software may be used by Customer only on that portion of the System in which it has been initially installed by Kastle and may not be copied or used in or on any other terminal or device, either within the System or otherwise, without Kastle’s written consent and payment of Kastle’s normal fees for such additional use. Customer may not distribute, sublicense, lease, reverse engineer, decompile or disassemble the Software or any part of the Software or make the Software available to any third party. Customer may not remove or alter any copyright or proprietary notices on the Software. Customer agrees that the Software will not be accessed in any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws”), and Customer shall comply with all such Export Laws. All rights to use the Software are granted on condition that such rights are forfeited if Customer fails to comply with the terms of this Agreement. The Software was developed at solely private expense and meets the definition of “Commercial Items,” as that term is defined in FAR 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in FAR 12.212 and DFARS 227.7202, as applicable. Consistent with FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright laws of the United States.
Customer will take all commercially reasonable actions, or all actions required by law to fully and completely disclose and inform any employee, representative, guest, or invitee of Customer of Kastle’s System and Services. Kastle will not be responsible for Customer’s failure to disclose or inform any such employee, representative, guest, or invitee of Customer. Customer agrees to defend, indemnify and hold Kastle, its subsidiaries and other affiliates, its/their respective directors, officers, employees, agents, successors or assigns (“the Kastle Parties”), for all claims related to or arising in any way from Customer’s alleged or actual failure to disclose or inform or any alleged or actual violation of any privacy right or applicable privacy law, statute, rule or regulation or any other applicable federal, state or local law, statute, rule or regulation. If Customer fails to post signage under this Section 13 or fails to fully and completely disclose and inform any employee, representative, guest, or invitee of Kastle’s System and Services, Customer shall defend, indemnify and hold harmless the Kastle Parties against any and all third-party claims directly or indirectly arising out of or in any way related to a third party’s reliance on the Services or Customer’s System. Customer will permit Kastle to post signs at Customer’s facility and allow Kastle a limited right of access to remove any signage posted by Kastle upon termination of this Agreement or the Services for any reason. Regardless of any signage, Customer remains responsible for all incidents on its Premises.
14. EQUAL OPPORTUNITY
As defined in the regulations of the Secretary of Labor at 41 CFR 60-1.4(a) is hereby incorporated by reference. The parties shall abide by the requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans. The parties shall abide by the requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.
Kastle may terminate this Agreement and cease provision of Services upon Customer’s default under this Agreement including but not limited to the obligation to make timely payment of Fees, for abuse of Kastle employees, and for any other reason in its sole and absolute discretion. Kastle may terminate this Agreement if a receiver, liquidator, or trustee for Customer shall be appointed by court order; or a petition shall be filed against Customer under any bankruptcy, reorganization, or insolvency law; or Customer shall file a petition in voluntary bankruptcy or shall request reorganization under any provision of voluntary bankruptcy, reorganization, or insolvency laws; or if Customer shall make an assignment for the benefit of creditors, then to the extent permitted by applicable law this entire Agreement shall immediately terminate upon the happening of any such event.
16. TERM AND EARLY TERMINATION FEE
The initial Term of the Service Agreement is specified in the Scope of Work and each Term shall automatically renew for subsequent periods of one (1) year unless either party gives the other written notice of termination at least thirty (30) days prior to the expiration of the current term. In the event the initial Term is for multiple years, should the Customer terminate the Agreement prior to expiration of the Term for its convenience or for any reason other than cause based on Kastle’s material default, Customer is obligated to pay an Early Termination Fee in the amount of the monthly Operations and Maintenance Fees (or Managed Service Fee) multiplied by the number of months remaining in the balance of the Term of the Agreement. Customer shall have the right, prior to the end of initial Term, to cancel Kastle’s Services with 30 days written notice subject to the Early Termination Fee as described herein.
17. LEASED EQUIPMENT
In the event Customer leases all or a portion of the System from a lessor (“Lessor”), subject to an agreement authorizing Lessor under certain circumstances to cause Kastle to discontinue providing services to Customer under this Agreement, Customer agrees that, if Lessor notifies Kastle in writing that Customer is in default under its agreement with Lessor and directs Kastle to suspend services under this Agreement (a “Default Notice”), no less than three (3) days after Kastle notifies Customer that it has received the Default Notice, Kastle may terminate monitoring the System and delivering other services to Customer pursuant to this Agreement. Customer agrees that Kastle need not confirm nor independently verify the accuracy of the Default Notice and that, if Kastle receives a Default Notice, Kastle may suspend services. In the event Kastle receives a Default Notice, Kastle may, but is not obligated to, inform Customer’s tenants of the pending termination of services by posting a notice in the Building or by other such means as Kastle may determine. Kastle shall not be liable to Customer for any loss or damage which may occur to persons or property if Kastle suspends services in compliance with a Default Notice and Customer will hold Kastle harmless from any and all claims and costs, including attorney’s fees, arising from and based in whole or in part upon claims of injury or damage to persons or property due to Kastle’s suspension of services in compliance with a Default Notice. Kastle shall reinstate its service to Customer within one (1) day after it receives written instructions to do so from Lessor subject to the terms of this Agreement and any delay which may be caused by the unavailability of communications service.
Each party agrees to hold all confidential information of the other party in confidence and not to, directly or indirectly, copy, reproduce, distribute, duplicate, reveal, report, publish, disclose, cause to be disclosed or otherwise transfer such confidential information to any third party or utilize such confidential information for any purpose other than as expressly contemplated by the Agreement. Each party acknowledges that, as between the parties, all confidential information it receives from or on behalf of the disclosing party, including all copies thereof in such party’s possession or control, shall be and remain the sole and exclusive, proprietary property of the disclosing party. Except to the extent expressly stated in these terms and conditions, neither party shall have any right, title or interest in or to the other party’s confidential information. No proprietary right or license is granted to either party under this Agreement. Confidential information shall not include any information that a party can show: (a) was in the public domain at the time of disclosure through no fault of such party; (b) is published or otherwise becomes part of the public domain through no fault of such party; (c) was rightfully already known by, or in the possession of, such party without obligation of confidentiality or other restriction at the time of disclosure; (d) was disclosed, without restriction, by a third party who rightfully received such information and had a lawful right to disclose such information; or (e) was independently developed by such party without reference to, or use of, confidential information of the other party. In addition, a party shall not be considered to have breached its obligations under Section 18 for disclosing confidential information to the extent such disclosure is required to satisfy any legal requirement of a competent court or governmental authority (including any state or federal regulatory agency having oversight of a party). The confidentiality obligations of the parties under this Section shall apply for three (3) years following termination of the Agreement and, as to all confidential information which constitutes a trade secret under applicable law, for so long as such confidential information remains protected as a trade secret under applicable law.
The parties in good faith intend to resolve all disputes under the Agreement to the best of their abilities in an informal manner. To accomplish this end, the parties will attempt, at a minimum, to resolve disputes through communications between their staffs, and, if resolution is not reached at that level, a procedure for review and action on such disputes by appropriate management level officials within Kastle’s and Customer’s organization. In the event that a resolution of the dispute is not mutually agreed upon, the parties agree to mediate the dispute, or proceed with litigation in the event mediation should fail. Both parties hereby irrevocably consent to the exclusive jurisdiction of and venue in the state and federal courts with jurisdiction over Fairfax County, Virginia and waive any right to a jury trial in any such proceeding.
20.1 Modification. The Agreement may be changed only by a written agreement signed by an authorized agent of both Parties. Other terms and conditions of these Standard Terms and Conditions may be subject to change with 30 days written notice to Customer.
20.2 Force Majeure, Acts of War or Terrorism. Notwithstanding anything in this Agreement to the contrary, Kastle shall not be liable for any damages (including, without limit, personal injuries or death or property damage of any sort, whether tangible or intangible, or any special, indirect, incidental or consequential damages) caused by forces beyond its control or Force Majeure, or contributed to or in any way arising directly or indirectly out of or in connection with “war” (whether or not declared), or any act or condition incident to war, or “terrorism”, as such terms may be defined in any applicable insurance policies maintained by Kastle at the time of the occurrence in issue or as any of such events or conditions may be verified or recognized by the United States Government as an act of war or terrorism, or any similar occurrences now or hereafter excluded from Kastle’s applicable insurance policies. Kastle shall not be held responsible for all or any part of the work under any Scope of Work when, due to governmental action, statute, ordinance or regulation, strike or other labor trouble, fire, windstorm, pandemic or epidemic or governmental orders or action related thereto, or other incidents outside of Kastle’s control, such performance is impossible or impractical.
20.3 Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Virginia without regard to conflicts-of-law principles.
20.4 Attorneys’ Fees. In the event of any controversy, claim or litigation between Kastle and Customer arising out of or relating to the Services or this Agreement, the prevailing party shall be entitled to reasonable costs and expenses, including, without limitation, attorneys’ fees and expert witness fees, as fixed by a court of competent jurisdiction, from the non-prevailing party.
20.5 Severability. If any part of the Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of the Agreement will remain in full force and effect.
20.6 Entire Agreement. The Agreement is the final, complete, and exclusive expression of the agreement between the Parties and supersedes and replaces all previous oral and written communications, representations, proposals, understandings, undertakings, and negotiations with respect to the subject matter hereof. The Agreement will prevail over terms and conditions of any Customer-utilized Services or Vendor Agreement, or Customer-issued purchase order or work authorization or other ordering documents which will have no force and effect even if Kastle accepts or does not otherwise reject the purchase order or other ordering document.
CONFIDENTIAL VA PSSBL #11-2295