|
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
<br />DocuSign Envelope ID: 901A240E-2C5B-47E4-916F-04BCE416D58B
|