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<br />MSNC111120 8
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<br />sought based on breach of warranty, breach of contract,
<br />negligence, strict liability in tort, or any other legal theory.
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<br />In no event shall Brady be liable for any damages (whether direct or
<br />indirect) resulting from hazardous materials, mold, fungus, bacteria,
<br />microbial growth, or other contaminates or airborne biological
<br />agents. Additionally, Brady shall not be liable for any damages
<br />(whether direct or indirect) resulting from work performed on boiler
<br />systems where in the Customer has permitted untrained personnel
<br />to perform services and adjustments on the boiler systems, or on
<br />systems where safety systems have been altered or bypass or on
<br />any systems where fuel oil ‘pooling’, gas odors, exposed piping,
<br />suspected asbestos or other safety hazards exist.
<br />
<br />If Brady is found liable for loss, damage or injury under any legal
<br />theory due to a failure of the Customer’s services, system or
<br />equipment in any respect, its liability shall be limited to a sum equal
<br />to 10% of the Annual Service Charge or $1,000, whichever is
<br />greater, as agreed upon damages and not as a penalty, as
<br />Customer's sole remedy. The provisions of this Section shall apply
<br />no matter how the loss, damage or injury or other consequence
<br />occurs, even if due to Brady's performance or non-performance of
<br />its obligations under this Agreement or from negligence, active or
<br />otherwise, strict liability, violation of any applicable consumer
<br />protection law or any other alleged fault on the part of Brady, its
<br />agents or employees. If any other person, including Customer's
<br />subrogating insurer, makes any claim or files any lawsuit against
<br />Brady in any way relating to the services, system or equipment that
<br />are the subjects of this Agreement then Customer shall indemnify
<br />and hold Brady harmless from any and all such claims and lawsuits
<br />including the payment of all damages, expenses, costs and
<br />attorneys' fees.
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<br />11. Discovery Period
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<br />No suit or action shall be brought against Brady or its agents,
<br />employees, subsidiaries, affiliates or parents (both direct and
<br />indirect) more than one year after the incident that resulted in the
<br />loss, injury or damage occurred, or the shortest duration permitted
<br />under applicable law if such period is greater than one year. The
<br />provisions of this section shall apply to and benefit Brady and its
<br />agents, employees, contractors, subsidiaries, affiliates, and
<br />vendors. If this Agreement provides for a direct connection to a
<br />municipal police or fire department or other organization, then that
<br />department or other organization may also invoke the provisions of
<br />this section against any claims due to any failure of such
<br />department or organization. Brady is not responsible for the
<br />preservation of any computer programs or data and Customer is
<br />responsible for maintaining adequate back-ups.
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<br />12. Warranty
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<br />Brady’s warranty with respect to manufactured material supplied is
<br />limited to the manufacturer’s warranty (if any). In no event shall
<br />Brady be liable to Customer for any breach of the manufacturer’s
<br />warranty or for any consequential or special damages or for
<br />transportation or other expenses, which may arise in connection
<br />with any defective goods.
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<br />Brady’s warranty with respect to labor is that the services have
<br />been properly performed. The labor warranty is for a period of 90
<br />days from completion and Brady’s obligation under this warranty is
<br />limited to correcting any improperly performed labor. In no event
<br />shall Brady be liable to Customer for any breach of the labor
<br />warranty or for any consequential or special damages or for other
<br />expenses, which may arise in connection with any improperly
<br />performed labor.
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<br />Brady makes no warranty with respect to systems performance or
<br />emissions readings between preventive maintenance inspections
<br />and exhaust gas analysis. Additionally, Brady makes no warranty or
<br />representation with respect to work performed on systems where in
<br />the Customer has permitted untrained personnel to perform
<br />services and adjustments on the boiler systems, or on systems
<br />where safety systems have been altered or bypass or on any
<br />systems where fuel oil ‘pooling’, gas odors, exposed piping,
<br />suspected asbestos or other safety hazards exist.
<br />
<br />THESE WARRANTIES ARE EXPRESSLY MADE IN LIEU OF ANY
<br />AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
<br />INCLUDING THE WARRANTIES OF MERCHANTABILITY AND
<br />FITNESS FOR A PARTICULAR PURPOSE.
<br />
<br />13. Exceptions to Warranty
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<br />The following “Conditions” are not covered by Brady’s warranty:
<br />a. Damage or extra service needed as the result of accidents,
<br />acts of God, lightning, strikes, riots, floods, terrorism, acts of
<br />war, alteration, misuse, tampering or abuse, adjustments,
<br />repairs or maintenance not done by Brady or from parts,
<br />accessories, attachments or other devices not furnished by
<br />Brady;
<br />b. Customer's failure to properly follow operating instructions
<br />provided by Brady;
<br />c. Adjustments necessitated by misalignment of video cameras,
<br />improper adjustment of monitor brightness and contrast tuning
<br />dials or insufficient light on the area viewed by the camera(s);
<br />d. Trouble due to interruption of Telecom Service;
<br />e. Battery failure;
<br />f. Devices designed to fail in protecting the Customer’s systems,
<br />such as, but not limited to, fuses and circuit breakers; or
<br />g. Changes to the Customer’s system requested by Customer.
<br />
<br />If Customer requests service under the Warranty and Brady’s
<br />representative finds that one of the “Conditions” has led to the
<br />inoperability or apparent inoperability of the Customer’s system, or
<br />any component, Brady may bill Customer for the service call
<br />whether or not Brady actually works on the Customer’s system. If
<br />repairs are required due to one of the above “Conditions,” Brady will
<br />charge Customer for such work on a time and materials basis at
<br />Brady’s then applicable rates for labor and materials.
<br />
<br />14. Non-solicitation of Employees
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<br />Each Party acknowledges that the other Party has expended
<br />significant time, effort and expense in the hiring, training, and
<br />retention of its employees in conjunction with providing specialized
<br />services, such as those provided in this Agreement, and therefore
<br />shall not, during the term of this Agreement and for a period of one
<br />year thereafter, either directly or indirectly, solicit for employment or
<br />employ any current or former employee of the other within one year
<br />of such termination of employment date, with whom such Party has
<br />had any contact during the course of this Agreement.
<br />
<br />15. Additional Services
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<br />Service fees are premised on the equipment being in operable and
<br />maintainable condition. If an inspection by Brady prior to or during
<br />the performance of services reveals that additional services or
<br />repairs are necessary, outside the scope of this Agreement, Brady
<br />shall notify Customer.
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<br />Customer may instruct Brady to perform such repairs in writing, and
<br />Brady shall perform those services or repairs at the currently
<br />established rates (including rates reflecting overtime labor costs for
<br />services provided outside normal business hours). These additional
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