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DocuSign Envelope ID:AA9CA136-3D94-47B1-93F8-5FC9F527B627
<br /> Agreement.This mutual waiver includes damages incurred by the Customer for loss of use,income,profit,loss by reason of facility shut down or fluctuation in
<br /> facility service or operation,loss of electronic or other data,Customer claims,or other economic loss or personal injury in connection with or arising out of the
<br /> existence,furnishing,functioning or use of the work,Services,goods,and/or materials provided by ADT,including any damages arising from any theft by a third
<br /> party.
<br /> 20.Assignment.Neither Customer nor ADT may assign this Agreement or the obligations created thereby without the prior written consent of the other party,
<br /> which consent will not be unreasonably withheld.Notwithstanding the foregoing,ADT may assign this Agreement to a company under common ownership or
<br /> control and may subcontract with third parties to perform any or all of its obligations under this Agreement.
<br /> 21.Binding on Successors.Subject to any restrictions stated in any other provision of the Agreement,the Agreement will be binding on and will inure to the
<br /> benefit of the Parties and their respective successors and permitted assigns.None of the provisions of the Agreement are intended to provide any rights or
<br /> remedies to any person(including without limitation any employees,customers,or creditors of either of the parties hereto),other than the Parties and their
<br /> respective successors and permitted assigns.
<br /> 22.Severability.In the event that any of the provisions of the Agreement should be held invalid or unenforceable by law,such invalidity or unenforceability will
<br /> not affect the validity or enforceability of any other provision of the Agreement.
<br /> 23.Entire Agreement.The Agreement contains the entire agreement between the parties with respect to the subject matter of the Agreement and supersedes
<br /> any and all prior oral and/or written understandings and agreements.There are no oral or written agreements,representations,or understandings by or between
<br /> the parties affecting the Agreement or related to the Services to be performed by ADT.By entering into the Agreement,each Party is relying solely on its own
<br /> judgment,investigation,and advice,and such other investigation,advice,legal counsel,and technical consultation as it deems appropriate.
<br /> 24.Non-Solicitation.Customer and ADT agree that ADT has made an investment in its employees and subcontractors("Personnel")which is not easily
<br /> measured or ascertained.Should Customer(or any of its subsidiaries or divisions)hire such Personnel,ADT shall be damaged in an amount that cannot be
<br /> easily measured.Therefore,Customer agrees to pay to ADT as liquidated damages the amount of thirty-five percent(35%)of the annual gross salary of such
<br /> Personnel(which shall be calculated by multiplying by twelve(12)the monthly salary on the last day of the Personnel's employment)in the event that Customer
<br /> (or any of its subsidiaries or divisions)hires such Personnel at any time during the term of this Agreement or within three(3)years after the termination of this
<br /> Agreement.The Parties agree that the liquidated damages specified in this section are a reasonable forecast of just compensation to ADT and not a penalty or
<br /> punitive amount.
<br /> 25.Governing Law and Attorney's Fees.The parties knowingly,expressly,and willingly,and as a matter of agreed-upon risk allocation,agree that all disputes
<br /> under or relating to this Agreement or otherwise shall be decided in accordance with the substantive laws of the State where the Services are performed without
<br /> regard to the conflict of laws provisions thereof.Any controversy or claim arising out of or relating to this Agreement,or the breach thereof,shall be resolved
<br /> through binding arbitration administered by the American Arbitration Association under its Construction Industry Arbitration Rules in the location closest to where
<br /> the Services are performed,and judgment on the award rendered by the arbitrator(s)may be entered exclusively in the Superior Court of the County where the
<br /> Services are performed,and by entering into the Agreement,Customer and ADT voluntarily consent to jurisdiction in such court.The substantially prevailing
<br /> party in the arbitration shall be entitled to recover its reasonable attorneys'fees,costs(including arbitration and collection costs),and expenses incurred in
<br /> connection therewith.
<br /> 26.Force Majeure.ADT shall not be responsible for any delays or costs caused by acts of God(such as fires,earthquakes,floods,hurricanes,tropical storms,
<br /> tornadoes,explosions and other severe acts of nature or weather),war,revolutions,acts of terrorism,epidemics,pandemics,contagions,acts of governmental
<br /> authorities such as expropriation,condemnation,quarantining,executive orders and changes in laws and regulations,raw material shortages,component
<br /> shortages,strikes,labor disputes or for any other cause beyond ADT's reasonable control.ADT shall be entitled to a Change Order and reimbursement for all
<br /> demonstrable costs incurred due to Force Majeure and an extension of time equivalent to the delay caused by Force Majeure. The parties expressly agree that
<br /> any delays or costs caused by or related to COVID-19,foreseeable or not,shall be considered a Force Majeure event for purposes of this Agreement.
<br /> 27.Customer Cooperation.Customer shall permit or arrange for reasonable access to the premises by ADT's design,installation,and maintenance personnel.
<br /> Customer shall cooperate with ADT in obtaining any and all necessary consents and waivers from the owner of the Premises in connection with the Services and
<br /> shall supply all supplemental equipment and facilities necessary for the installation,such as structural changes,conduits,back boxes,commercial power
<br /> electrical wiring,outlets,and associated equipment,equipment room(s),and necessary operating environment as specified by the manufacturers of any goods
<br /> or equipment to be installed.This pricing specified in the Agreement is based upon Customer's premises and facilities being available to allow ADT to perform
<br /> continuous,uninterrupted work between 8:00 am and 5:00 pm,Monday through Friday,pursuant to a prearranged schedule.Customer shall provide free and
<br /> clear access to all work areas including the removal of furniture,shelving,and other impediments.Additional labor will be billed if ADT's labor schedule is altered
<br /> or unscheduled overtime is required by reason of ADT's inability to have access to the premises and facilities.
<br /> 28.Risk of Loss.This Section shall govern risk of loss of goods,materials and equipment notwithstanding ownership of the same pursuant to Section 9 hereof.
<br /> ADT shall bear the risk of loss or damage to the goods,materials,and equipment while the same are in transit until delivery to Customer's premises.ADT shall
<br /> be responsible for loss or damage to the goods,materials,and equipment during testing or installation to the extent directly caused by ADT's employees or
<br /> agents,but not by others.Customer shall be responsible for security and proper storage of goods,material,and equipment after delivery to Customer's premises
<br /> and shall be responsible for loss or damage. For ADT owned equipment,Customer shall keep all installed and uninstalled equipment owned by ADT insured
<br /> against all risks of loss in an amount equal to the replacement cost and,at ADT's request,list ADT on the policy as the"loss payee."
<br /> 29.Delays.ADT will not be responsible for delays and damages due to delays either by Customer or other contractors that impede progress and scheduling of
<br /> the Services.Any such delays that cause ADT to incur more labor hours to complete the Services or overtime hours than was originally bid will be the subject of
<br /> an equitable adjustment to the Contract Price and Customer shall pay the same.ADT will give appropriate notice when possible to the Customer prior to either
<br /> the Customer or ADT incurring such charges.ADT shall be reimbursed for all costs incurred by ADT or its subcontractors due to work by others that alters or
<br /> delays the Services,whether before,during,or after ADT has started performing the Services.
<br /> 30.Hazardous Materials.Hazardous materials abatement is excluded.This includes,but is not limited to asbestos and lead and any other materials defined as
<br /> being radioactive,infectious,hazardous,dangerous,or toxic by any federal,state,or local statute,regulation,or ordinance. If ADT encounters hazardous
<br /> materials,it will immediately stop work in the affected area(as determined in ADT's discretion)until remediated by Customer.Customer agrees it will indemnify
<br /> and hold ADT,its employees,officers,directors and affiliates harmless from and against any claim,suit or proceeding and loss or liability arising from or related
<br /> to any toxic substance,pollution or contamination that ADT does not bring to or generate on the Project site to the proportionate extent such claim,suit or
<br /> proceeding or loss or liability is associated with such hazardous waste,toxic substance,pollution or contamination,including but not limited to bodily injury
<br /> (including death)to persons,damages to property,disposal and replacement costs for contaminated equipment and materials,fines and other remediation costs,
<br /> and damage and/or loss of natural resources.
<br /> 31.Systems Management,Optimization,Maintenance,and Backup.Unless ADT is specifically hired to perform security systems management,
<br /> administration,optimization,maintenance or data backups and such work is specified in the Scope of Work,these tasks must be performed by others and will
<br /> not be performed by ADT.Customer assumes all responsibility for performance of these mission critical tasks and assumes all responsibility for ensuring that
<br /> any equipment will perform as anticipated in any of Customer's systems.Customer warrants that,if applicable,it has all necessary bandwidth(wired or wireless)
<br /> to accommodate all equipment covered under this Agreement.ADT's Work does not include maintaining copies of Customer system configuration or user
<br /> databases for any systems,unless Customer specifically hires ADT to do so under a Performance Optimization,Data Management and Backup,or Maintenance
<br /> Program.ADT also does not keep copies of Customer system administrator passwords. If the information referenced above is lost by Customer,access to
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