- Parties: This lease Agreement (“Agreement”) is made by and between Apartment Guardian Inc (“Company”) and the above signed (“Customer”). Customer is sometimes referred to as “you” or “your”. Company is sometimes referred to as “we”, “us” or “our”.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
- Effective Date: Agreement is effective as of the date of this Agreement (“Effective Date”).
- Lease of Equipment: Company agrees to furnish to you the above listed Equipment. You agree that the Equipment is Company’s personal property under the Uniform Commercial Code. You understand and agree that this is a lease and not a sales Agreement. Company owns the Equipment for all purposes, including any data generated from the Equipment. You shall at all times keep the Equipment free and clear of all liens, claims, levies and legal processes not created by Company, and shall at your expense protect and defend Company against the same.
- Lease Term: Company agrees to lease you the Equipment for the Lease Term above. After the Lease Term ends, this Agreement shall automatically renew on a month-to-month basis, unless terminated pursuant to this Agreement. If no time period is indicated above, the Lease Term shall be from month-to-month.
- Termination of Agreement: Company may elect to terminate this Agreement at any time. You may terminate this Agreement at any time by providing the Company thirty (30) days’ advance notice of your intent to terminate the Agreement. In the event you elect to terminate this Agreement prior to the end of a Lease Term, an early termination fee equaling the lesser of (i) the remaining amount due pursuant to this Agreement; or (ii) $150.00, will apply. In the event this Agreement is terminated, your obligations under this Agreement shall survive, except you shall not have any future obligation to pay the monthly lease fee. In the event this Agreement naturally expires or terminates, you must return all Equipment to Company. Failure to return the Equipment within ten (10) days of the expiration or termination of this Agreement will result in a charge equal to the replacement cost of the Equipment. You understand and agree that this Agreement may be terminated by Company in the event you: (i) fail to follow any recommendations Company may make for the repair or replacement of defective Equipment; (ii) misuse or damage the Equipment; (iii) cause an excessive number of false alarms; or (iv) breach this Agreement.
- Monthly Payments: You agree to pay any Initial Cost and all Monthly Fees as listed above. All payments shall be made in United States Dollars. The first payment to be made pursuant to this Agreement, unless otherwise agreed upon, shall be due as of the Effective Date. Payment is due within 30 days of invoice. If any payment is thirty (30) days late you shall be deemed in default of this Agreement and you will be charged interest on the outstanding balance owed at eighteen percent (18%) per annum (1.5% per month). In the event of default, Company may terminate this Agreement. All payments to Company will be applied towards accrued interest and fees first. You understand and agree that this Agreement is a net lease and the obligation to pay all monthly payments and all other amounts due under this Agreement shall be absolute and unconditional under all circumstances and shall not be subject to any abatement, defense, counterclaim, setoff, recoupment or reduction for any reason whatsoever.
- Start of Service: Company makes no promise as to when the Equipment will be delivered to Customer. Company assumes no liability for delays in delivery of the Equipment.
- Cellular Network: You acknowledge and understand that Equipment uses cellular signals and services and that the Equipment is dependent on access to cellular signals and services. A number of factors outside the control of Company can limit, impair or block your Equipment from access to a cellular signal and service such as building construction style, building materials, atmospheric conditions (i.e., weather), distance from transmitter to receiver, surrounding terrain, battery life, signal strength, cellular network traffic, cellular tower conditions and interference from other cellular devises. In the event the Equipment cannot access a cellular signal or service the Equipment will not work.You acknowledge and understand that Equipment relies on third party services from wireless carriers such as AT&T, All-Tel, Cingular, Sprint, T-Mobile and Verizon that are not owned or controlled by Company. You acknowledge and understand that even if Equipment works well at the time of first test, activation or installation, you are responsible for monitoring signal strength, power and service quality on an on-going basis. Company is not responsible for maintaining or monitoring the cellular networks used for communication. Equipment can only work if cellular networks are working correctly and providing adequate signal strength. You agree to test your Equipment on a regular basis to identify any deterioration of cellular network service and signal strength.
- Release of Liability: You acknowledge and understand that cellular networks, signals and services can fail at any time and therefore you release Company, its staff, employees, owners, members, managers, attorneys, accountants, contractors, representatives, vendors, assigns, heirs, executors, insurers or employees of any of them (collectively, “Representatives”) fully from any and all claims, losses damages, liability, fines, fees, costs, expenses or penalties (“Claims”) related to the use of Apartment Guardian’s products and services, including but not limited to transmission of emergency signals or communications over cellular networks.
- Municipal Police, Fire Department or other Agency: You acknowledge and agree that (i) signals transmitted by Equipment will be monitored in Municipal Police and/or Fire Departments or other Agencies (“Emergency Responders”) and such Emergency Responders are not the agents of Company, and (ii) Company does not assume any responsibility for the manner in which such signals are monitored or the response, if any, to such signals. Customer agrees to indemnify, defend and hold Company harmless for all actions taken by Emergency Responders.
- False Alarms and Forced Entries: If the Equipment is used to call, contact, hail, summon, or request an Emergency Responder, you shall (i) pay, without reimbursement from Company, or (ii) reimburse Company, for any fines, fees, costs, expenses or penalties assessed against you or Company by any court or governmental agency, for any reason. In the event the Equipment is used to call, contact, hail, summon, or request an Emergency Responder, the Emergency Responders may use forcible means to gain access to you, which may result in damage to your or another’s premises. Such damage, cost and expense shall be borne solely by you without recourse to Company or Representatives. Company has no control over the actions of Emergency Responders. Company has no control over the response time of Emergency Responders. You acknowledge, understand and agree that you may be able to reach Emergency Responders or municipal paramedic or private ambulance service by telephone including, in many areas, by dialing 911 in addition to relying on the Equipment provided by the Company under this Agreement. You hereby release Company fully from all claims, losses and damages that may arise from any forced entry or any delayed response by Emergency Responders.
- Global Positioning System: You acknowledge and understand that Equipment uses a Global Positioning System (“GPS”) and that Emergency Responders and Company may use the GPS to find your location at any given time. Global positioning capabilities are not available if satellite signals are obstructed; you must be outdoors with a clear line of sight between you and the satellites. You understand that the Equipment’s usage of the GPS system is fundamental to aiding Emergency Responders to your location. You understand that due to the very nature of GPS technologies, there will be times when the Equipment is unable to secure, maintain, or transmit signals, or that the information transmitted is not reliable, and thus, Emergency Responders will be unable to receive such signals. You also understand that Equipment does not receive/send signals when the Equipment is damaged, does not have an adequate power source or is otherwise non-operational. You agree that Company shall not, in any way, be liable for, or have responsibility with respect to, the GPS system, any of the information therein obtained, or for interruptions in service for any reason whatsoever.
- Limited Warranty. If the Equipment becomes defective due to a defect in materials, workmanship or design within ninety (90) days of the start of service, Company shall replace or repair the Equipment at Company’s election. This warranty is not assignable. At Company’s election, you must deliver the Equipment to Company’s office (at your sole cost). This warranty does not cover damages caused by accident, vandalism, negligence or mistake, flood, water, lightning, fire, intrusion, abuse, misuse, acts of god, casualty (including electricity), attempted unauthorized repair service, modification or improper use, or any other cause (excluding ordinary wear and tear). You acknowledge that, except as expressly set forth in this section: (1) any affirmation of fact or promise made by Company shall not be deemed to create an express warranty; (2) Company does not make any representation or warranty, including any implied warranty or merchantability or fitness, that the Equipment or may not be compromised or circumvented; (3) the Equipment will in all cases be used by you for the signaling and response for which it was intended; (4) there are no express warranties that extend beyond those on the face of the Agreement or herein, and (5) all implied warranties, if any, coincide with the duration of this warranty.
- Prevention of Harm: You acknowledge and understand that Company cannot guarantee Equipment will keep you safe from assailants, attackers, invaders, etc. You acknowledge and understand the Equipment is designed to provide a means to communicate to Emergency Responders. The Equipment is not designed for, nor should it be used for any other purpose. Company makes no guarantees, warranties or assurances that Emergency Responders will be able to provide assistance or protect you from harm. Company makes no guarantees, warranties or assurances that Emergency Responders will be able to reduce or prevent death, or bodily injury or harm or damage to property.
- Disclaimers and Limitations:
THE EQUIPMENT, SERVICE AND THE INFORMATION, SOFTWARE, PRODUCTS AND SERVICES ASSOCIATED WITH IT ARE PROVIDED “AS IS.” WE AND/OR OUR SUPPLIERS, PARTNERS AND AFFILIATES DISCLAIM ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE EQUIPMENT, SERVICE AND ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED HEREIN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. USE OF OUR EQUIPMENT AND SERVICE IS AT YOUR OWN RISK. WE AND/OR OUR SUPPLIERS, ARE NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR OTHER INJURY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE EQUIPMENT OR SERVICE OR WITH THE DELAY OR INABILITY TO USE THE EQUIPMENT, SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES OBTAINED THROUGH US, OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE AND/OR OUR SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
Limitation of Liability
IN NO EVENT SHALL WE OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. OUR LIABILITY, AND THE LIABILITY OF OUR SUPPLIERS AND AFFILIATES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE, SHALL NOT EXCEED THE TOTAL SUM OF $50.00. THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE CONTRACT BETWEEN US AND YOU. Some states do not allow the limitation of liability, so the foregoing limitation may not always apply.
- Indemnification: If anyone other than you, including your insurance Company, asks Company or Representatives to pay for any Claims (including economic losses, property damage, personal injury, or death) arising out of or from, in connection with, related to, as a consequence of, or resulting from any reason, including (1) active or passive, sole, joint or several negligence of any kind or degree of Company or any of the Representatives, whether before or after the subscriber’s acceptance of this Agreement, (2) improper operation of Equipment or the failure of the Equipment to operate, (3) Breach of contract, or (4) any claims for subrogation, contribution or indemnification, you agree to be liable for and to pay (without any condition that Company or Representatives first pay) for all such Claims, including attorneys’ fees, which may be asserted against or incurred by Company or any of the Representatives in connection with any and all such Claims.
- Binding Agreement: This Agreement is binding on Customer, Customer’s heirs, executors and administrators.
- Right to Subcontract: Company may, in its sole and absolute discretion, subcontract services under this Agreement. You acknowledge and agree that the provisions of this Agreement inure to the benefit of and are applicable to any subcontractors engaged by Company to provide any service set forth herein to you, and bind you to such subcontractor(s) with the same force and effect as they bind you to Company.
- Applicable Law. The laws of the State of Arizona govern the interpretation of this Agreement, without reference to choice of law principles. Any litigation arising out of the terms of this Agreement shall be filed in the Maricopa County Superior Court. All parties irrevocably consent to the sole and exclusive jurisdiction and venue in such court for such purposes.
- Dispute Resolution: Any claim or controversy arising out of or relating to the use of our Equipment or Service, to the goods or services provided by us, or to any acts or omissions of other users for which you may contend we are liable, including but not limited to any claim or controversy (“Dispute”), shall be finally, and exclusively, settled by arbitration in Maricopa County, Arizona, from which arbitration there shall be no appeal. The arbitration shall be held before one arbitrator. The arbitrator shall be selected pursuant to the AAA rules. The arbitrator shall apply the substantive law of the state of Arizona, except that the interpretation and enforcement of this arbitration provision shall be governed by the U.S. Federal Arbitration Act. To begin the arbitration process, a party must make a written demand therefore. Each party shall bear its own costs and attorneys’ fees. Any judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The arbitrator shall not have the power to award damages in connection with any Dispute in excess of actual compensatory damages and shall not multiply actual damages or award consequential, punitive or exemplary damages, and each party irrevocably waives any claim thereto. The agreement to arbitrate shall not be construed as an agreement to the joinder or consolidation of arbitration under this Agreement with arbitration of disputes or claims of any non-party, regardless of the nature of the issues or disputes involved. THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING ARBITRATION. YOU THUS GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. YOU ACKNOWLEDGE AND AGREE THAT YOU AND WE ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and we otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY.
- Class Action/Jury Trial Waiver: WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE EQUIPMENT OR SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
- This Agreement is not assignable by the Customer except upon written consent of Company first being obtained, which consent may be withheld. Company shall have the right to assign this Agreement or to subcontract any of its obligations under this Agreement without notice to Customer.
- No Waiver of Breach. If you or Company shall waive any breach of this Agreement, it shall not be construed as a waiver of any subsequent breach. Your right and Company’s rights hereunder shall be cumulative, and any rights hereunder may be exercised concurrently or consecutively and shall include all remedies available even though not expressly referred to herein.
- Integrated Agreement; Modifications. This Agreement contains the entire Agreement between you and Company concerning the transactions described in this Agreement and supersedes all prior or current negotiations, commitments, contracts, express or implied, warranties, express or implied, statements and representation, written or oral, pertaining to such matters, all of which are merged into this Agreement. In executing this Agreement, Customer is not relying on any advice or advertisement of Company. NO PERSON ACTING ON THE COMPANY’S BEHALF HAS ANY AUTHORITY TO MAKE OR CLAIM ANY REPRESENTATION, TERM, PROMISE, CONDITION, STATEMENT, WARRANTY, OR INDUCEMENT (COLLECTIVELY “INDUCEMENT”) NOT EXPRESSED HEREIN. BY ACCEPTING THESE TERMS AND CONDITIONS, YOU REPRESENT THAT YOU ARE NOT RELYING ON ANY INDUCEMENT THAT IS NOT EXPRESSED IN THIS AGREEMENT.
- Valid Agreement. Should any provision hereof (or portion thereof), or its application to any circumstances, be held illegal, invalid or unenforceable to any extent, the validity and enforceability of the remainder of the provision and this Agreement, or of such provisions as applied to any other circumstances, shall not be affected thereby, and shall remain in full force and effect as valid, binding and continuing.
- Right of Cancellation: YOU MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE YOU SIGN THIS LEASE.