Terms of Conditions
HVAC Service PSA Terms Canada
August 8, 2023

TERMS AND CONDITIONS 

 

DIGITAL ENABLED SERVICES mean services provided hereunder that employ JCCLP software and related equipment installed at Customer facilities and JCCLP cloud-hosted software offerings and tools to improve, develop, and enable such services. Digital Enabled Service may include, but are not limited to, (a) remote servicing and inspection, (b) advanced equipment fault detection and diagnostics, and (c) data dashboarding and health reporting.

CONTRACT PRICE means the price that Customer shall pay to JCCLP for the Services.

COVERED EQUIPMENT is the equipment for which Services are to be provided under this Agreement as set forth in the attached Equipment List.

EQUIPMENT FAILURE means the sudden and accidental failure of moving parts or electric or electronic components that are part of the Covered Equipment and are necessary for its operation.

PREMISES means those Customer premises where the Covered Equipment is located or Services performed pursuant to this Agreement.

REMOTE MONITORING SERVICES means remote monitoring of Covered Equipment and/or systems including building automation, HVAC equipment, and fire alarm, intrusion, and/or other life safety systems for alarm and event notifications using a UL Certified Central Station.
REMOTE OPERATIONS CENTER (ROC) is the department at JCCLP that remotely monitors alarm and industrial (HVAC) process signals.

REMOTE OPERATING SERVICES means remote interrogation, modification and/or operation of building automation, HVAC equipment, and/or other Covered Equipment.

SCHEDULED SERVICE VISITS are the on-site labor visits required to perform JCCLP recommended inspections and preventive maintenance on Covered Equipment.

SCHEDULED SERVICE MATERIALS are the materials required to perform Scheduled Service Visits on Covered Equipment, such as grease, lubricants and sprays, depending on the Covered Equipment.

REPAIR LABOUR is the labor necessary to restore Covered Equipment to working condition following an Equipment Failure, but does not include services relating to total equipment replacement due to obsolescence or unavailability of parts.

REPAIR MATERIALS are the parts necessary to restore Covered Equipment to working condition following an Equipment Failure, but excludes total equipment replacement due to obsolescence or unavailability of parts. At JCCLP’s option, Repair Materials may be new, used, or reconditioned.

 

SERVICE COVERAGE OPTIONS

 

BASIC COVERAGE means Scheduled Service Visits, plus Scheduled Service Materials if elsewhere noted in this Agreement, for Covered Equipment.  No parts or equipment are provided for under BASIC COVERAGE.

PREMIUM COVERAGE means BASIC COVERAGE as well as Repair Labour, plus Repair Material if elsewhere noted in this Agreement for Covered Equipment.

EXTENDED SERVICE means service for repairs performed outside JCCLP’s normal business hours (available either 24/5 or 24/7) and is available only if Customer has PREMIUM COVERAGE, as more fully described in Schedule A. The price for Extended Service, if chosen by Customer, is part of the total Contract Price.

 

If Services are performed, or materials, parts or equipment provided, beyond the scope or time period of those covered by the Service Coverage option selected by Customer, Customer agrees to pay JCCLP’s standard fee for all additional Services, materials, parts and equipment.

 

A. INITIAL EQUIPMENT INSPECTION NECESSARY FOR PREMIUM COVERAGE

 

If Customer has ordered PREMIUM COVERAGE, JCCLP will inspect the Covered Equipment within 45 days of the date of this Agreement or as seasonal or operational conditions permit. JCCLP will advise Customer if JCCLP finds any Covered Equipment not in working order or in need of repair. With the Customer’s approval, JCCLP will perform the work necessary to put the Covered Equipment in proper working condition. This work will be done at JCCLP’s standard fee for parts and labor in effect at that time. If the Customer does not want JCCLP to do the work identified by JCCLP, or if Customer does not have the work done, the equipment will be removed from the list of Covered Equipment and the price of this Agreement will be adjusted accordingly.  This inspection does not affect Customer’s warranty.  Should Customer not make recommended repairs, JCCLP reserves the right to invoice Customer for the cost of the inspection.

 

B. STANDARD OF CARE AND WARRANTIES

 

Customer understands JCCLP is a provider of services under this Agreement and shall not be considered a merchant or a vendor of goods.  JCCLP warrants its Services will be provided in a good and workmanlike manner for 90 days from the date of Services.  If JCCLP receives written notice of a breach of this warranty prior to the end of this warranty period, JCCLP will re-perform any non-conforming Services at no additional charge within a commercially reasonable time of the notification.    Customer acknowledges that re-performance, as provided herein, shall be its exclusive and only remedy with regards to any Services provided by JCCLP.

 

If JCCLP installs or furnishes a piece of equipment under this Agreement as part of JCCLP’s Services, JCCLP warrants that equipment labeled JCCLP shall be free from defects in material and workmanship arising from normal usage for a period of one (1) year. No warranty is provided for third-party products and equipment installed or furnished by JCCLP. Such products and equipment are provided with the third-party manufacturer’s warranty to the extent available, and JCCLP will transfer the benefits, together with all limitations, of that manufacturer’s warranty to Customer. All transportation charges incurred in connection with the warranty for equipment and/or materials not covered under this Agreement shall be borne by Customer. Except as provided herein, if JCCLP receives written notice of a breach of this warranty prior to the end of this warranty period, JCCLP will repair or replace (at JCCLP’s option) the defective equipment. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, ALL OTHER EQUIPMENT, MATERIALS, PARTS AND OTHER ITEMS PROVIDED BY JCCLP ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND.

 

CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT THESE WARRANTIES ARE THE SOLE WARRANTIES AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.  CUSTOMER FURTHER ACKNOWLEDGES THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY JCCLP, ITS AGENTS OR EMPLOYEES, SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER.  JCCLP makes no and specifically disclaims all representations or warranties that the services, products, software or third party product or software will be secure from cyber threats, hacking or other similar malicious activity, OR WILL DETECT THE PRESENCE OF, OR ELIMINATE, PREVENT, TREAT, OR MITIGATE THE SPREAD, TRANSMISSION, OR OUTBREAK OF ANY PATHOGEN, DISEASE, VIRUS OR OTHER CONTAGION, INCLUDING BUT NOT LIMITED TO COVID 19.

 

C. EXCLUSIONS

 

JCCLP’s Services and Warranty obligations do not include:

1. the repair or replacement of ductwork, casings, cabinets, structural supports, tower fill/slats/basin, hydronic and pneumatic piping, and vessels, gaskets, and piping not normally replaced or maintained on a scheduled basis, and removal of oil from pneumatic piping;
2. disposal of hazardous wastes (except as otherwise expressly provided herein);
3. disinfecting of chiller condenser water systems and other components for biohazards, such as but not limited to, Legionella unless explicitly set forth in the scope of services between the parties.Unless explicitly provide for within the scope of services, this is Out of Scope Services and the Customer’s exclusive responsibility to make arrangements for such services with a provider other than JCCLP.Mentions of chiller tube cleaning, condenser cleaning, cooling tower cleaning or boiler tube cleaning in any scope of services, only involve work to remove normal buildup of debris and scale using tube brush cleaning, pressure washing or acid flushing.Reference to such cleaning does not include chemical cleaning, disinfection or chemical water treatment required to eliminate, control or disinfect against biohazards such as but not limited to Legionella;
4. refrigerant; supplies, accessories, or any items normally consumed during the use of Covered Equipment, such as ribbons, bulbs and paper;
5. the furnishing of materials and supplies for painting or refinishing equipment;
6. the repair or replacement of wire in conduit, buried cable/transmission lines, or the like, if not normally replaced or maintained on a scheduled basis;
7. replacement of obsolete parts;
8. normal wear and tear; and
9. damages of any kind, including but not limited to personal injury, death, property damage, and the costs of repairs or service resulting from:

1. abuse, misuse, alterations, adjustments, attachments, combinations, modifications, or repairs to Covered Equipment not performed, provided, or approved in writing by JCCLP;
2. equipment not covered by this Agreement or attachments made to Covered Equipment;
3. acts or omissions of the Customer, including but not limited to the failure of the Customer to fulfill the Customer’s obligations contained inthis Agreement, Customer’s failure to follow operating instructions provided by Johnson Controls or the OEM; operator error, Customer’s failure to conduct preventive maintenance, issues resulting from Customer’s previous denial of JCCLP access to the Covered Equipment, and Customer’s failure to keep the site clean and free of dust, sand, or other particles or debris, unless such conditions are previously expressly acknowledged by JCCLP in writing;
4. use of the Covered Equipment in a manner or environment, or for any purpose, for which it was not designed by the manufacturer;
5. site-related and environmental conditions, including but not limited to power failures and fluctuations in electrical current (or “power surges”) and biohazards such as but not limited to Legionella associated with condenser water, cooling tower systems and subcomponent systems;
6. the effects of erosion, corrosion, acid cleaning, or damage from unexpected or especially severe freezing weather;
7. issues or failures not specifically covered by this Agreement; or
8. occurrences beyond JCCLP’s reasonable control and without JCCLP’s fault or negligence including but not limited to (i) accidents, severe weather, (ii) strikes, riots, civil unrest, (iii) acts of terrorism, acts of war.

 

D. CUSTOMER OBLIGATIONS AND COMMITMENTS TO JCCLP

 

1)   The Customer warrants that all Covered Equipment is in good working condition and that the Customer has given JCCLP all information concerning the condition of the Covered Equipment.

2)   The Customer agrees that, during the Term of this Agreement, the Customer will:

(a)  operate the Covered Equipment according to the manufacturer’s and JCCLP’s recommendations;

(b)  keep accurate and current work logs and information on the Covered Equipment as recommended by the manufacturer and JCCLP;

(c)  provide an adequate environment for Covered Equipment as recommended by the manufacturer and JCCLP, including, but not limited to, adequate space, electrical power, air conditioning, and humidity control;

(d)  notify JCCLP immediately of any equipment malfunction, breakdown, or other condition affecting the operation of the Covered Equipment;

(e)  allow JCCLP to start and stop, periodically turn off, or otherwise change or temporarily suspend equipment operations so that JCCLP can perform the Services required under this Agreement;

(f)   provide proper condenser and boiler water treatment, as necessary, for the proper functioning of Covered Equipment and protect against any environmental issues and instances of biohazards such as but not limited to Legionella; and

(g)  cooperate with JCCLP and provide any and all necessary information to facilitate the delivery of the Services by JCCLP as described herein in a timely manner; and

(h)  Unless otherwise agreed to by the parties, amounts are due upon receipt of the invoice.  Invoicing disputes must be identified in writing within 21 days of the invoice date.  Payments of any disputed amounts are due and payable upon resolution.  Payment is a condition precedent to JCCLP’s obligation to perform Services under the Agreement.  Failure to make payment when due will give JCCLP, without prejudice to any other right or remedy, the right to (a) stop performing any Services and/or terminate this Agreement; and (b) charge Customer interest on the amounts unpaid at a rate equal to the lesser of 1.5% per month or the maximum rate permitted under applicable law, until payment is made in full.  Customer agrees to pay all of JCCLP’s reasonable collection costs, including legal fees and expenses.

3)   Customer acknowledges and understands that unless water treatment for biohazards (such as Legionella) is explicitly included in the services JCCLP is providing, it is Customer's responsibility to provide such treatment. Customer also acknowledges that its failure to meet the above obligations will relieve JCCLP of any responsibility for any Covered Equipment breakdown, or any necessary repair or replacement of any Covered Equipment.  If Customer breaches any of these obligations, JCCLP shall have the right, upon written notice to Customer, to suspend its Services until Customer cures such breach.  In addition, Customer shall be responsible for paying or reimbursing JCCLP for any costs associated with corrective work required as a result of Customer’s breach of these obligations.

 

E. CHANGES TO CUSTOMER EQUIPMENT

 

The Customer retains the right to make changes or alterations to the Covered Equipment. If, in JCCLP’s sole opinion, such changes or alterations affect JCCLP’s Services or obligations, JCCLP shall have the right to make appropriate changes to the scope of this Agreement or the Contract Price.

 

F. ACCESS

 

The Customer will give JCCLP full access to all equipment that is either Covered Equipment or associated with Covered Equipment when JCCLP requests such access. If access cannot be provided, JCCLP’s obligations under this Agreement will be suspended until such access is provided. Matters affecting JCCLP’s access to the Covered Equipment may include, but are not limited to, the removal, replacement, repair, refinishing, restoration, reconstruction, or other remedial actions taken by the Customer with respect to equipment or to the Customer’s facility. Suspension of JCCLP’s duties for this reason will not cancel or suspend any of the Customer’s obligations under this Agreement.

 

G. INDEMNITY

JCCLP and the Customer agree to indemnify the other Party and their officers, agents, directors, and employees, from third party claims, demands, or suits for bodily injury, including death, or tangible property damage resulting from the intentional misconduct or any negligent acts by their employees or agents. Customer expressly agrees JCCLP shall be responsible only for such injury or damage caused by the intentional misconduct or the negligent act of JCCLP’s employees and agents and JCCLP shall not be responsible for any injury or damage caused, or contributed to, in any manner by Customer or any third-party. The obligations of JCCLP and of the Customer under this paragraph are further subject to paragraphs H and O below. 

 

H. LIMITATION OF LIABILITY

 

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL JCCLP and its affiliates and their respective personnel, suppliers and vendors (“JCCLP Parties”)  BE LIABLE TO customer OR ANY OTHER THIRD PARTY UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY EVEN IF ADVISED OF THE POSSIBILITY FO SUCH DAMAGES, FOR ANY (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (B)  LOST PROFITS, REVENUES, DATA, CUSTOMER  OPPORTUNITIES, BUSINESS, ANTICIPATED SAVINGS, OR GOODWILL; (c) BUSINESS INTERRUPTION, OR (D) DATA LOSS or other losses arising from viruses, ransomware, cyber-attacks or failures or interruptions to network systems OR OTHER LOSSES ARRISING FROM OR CAUSED BY THE MATERIALS, EQUIPMENT, PARTS OR SERVICES PROVIDED HEREUNDER OR THE FAILURE OF THE MATERIAL, EQUIPMENT, PART OR SERVICE TO PERFORM, ACCURATELY PERFORM, TIMELY PERFORM, OR OTHERWISE MEET THE NEEDS, SPECIFICATIONS OR EXPECTATIONS OF CUSTOMER, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF JCCLP OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  In any case, the entire aggregate liability of the JCCLP Parties TO CUSTOMER under this agreement FOR DAMAGES FOR ANY CAUSE WHATSOEVER (whether in contract, tort (including negligence), or otherwise) SHALL BE LIMITED TO THE GREATER OF (i) $25,000, OR (ii) THE AGGREGATE FEES PAID BY CUSTOMER TO JCCLP FOR THE SERVICES.

 

The waiver of warranty, exclusive remedies, waiver of consequential damages and limitation of liability set forth in this Agreement are fundamental elements of the basis for this Agreement.  JCCLP would not be able to provide the products, parts or Services on an economic basis, and would not have entered into this Agreement, without such limitations.

 

1. FORCE MAJEURE

JCCLP shall not be liable, nor in breach or default of its obligations under this Agreement, for delays, interruption, failure to render services, or any other failure by JCCLP to perform an obligation under this Agreement, where such delay, interruption or failure is caused, in whole or in part, directly or indirectly, by a Force Majeure Event. A “Force Majeure Event” is a condition or event that is beyond the reasonable control of JCCLP, whether foreseeable or unforeseeable, including, without limitation, acts of God, severe weather (including but not limited to hurricanes, tornados, severe snowstorms or severe rainstorms), wildfires, floods, earthquakes, seismic disturbances, or other natural disasters, acts or omissions of any governmental authority (including change of any applicable law or regulation), epidemics, pandemics, disease, viruses, quarantines, or other public health risks and/or responses thereto, condemnation, strikes, lock-outs, labor disputes, an increase of 5% or more in tariffs or other excise taxes for materials to be used on the project, fires, explosions or other casualties, thefts, vandalism, civil disturbances, insurrection, mob violence, riots, war or other armed conflict (or the serious threat of same), acts of terrorism, electrical power outages, interruptions or degradations in telecommunications, computer, network, or electronic communications systems, data breach, cyber-attacks, ransomware, unavailability or shortage of parts, materials, supplies, or transportation, or any other cause or casualty beyond the reasonable control of JCCLP. If JCCLP's performance of the work is delayed, impacted, or prevented by a Force Majeure Event or its continued effects, JCCLP shall be excused from performance under the Agreement. Without limiting the generality of the foregoing, if JCCLP is delayed in achieving one or more of the scheduled milestones set forth in the Agreement due to a Force Majeure Event, JCCLP will be entitled to extend the relevant completion date by the amount of time that JCCLP was delayed as a result of the Force Majeure Event, plus such additional time as may be reasonably necessary to overcome the effect of the delay. To the extent that the Force Majeure Event directly or indirectly increases JCCLP's cost to perform the services, Customer is obligated to reimburse JCCLP for such increased costs, including, without limitation, costs incurred by JCCLP for additional labor, inventory storage, expedited shipping fees, trailer and equipment rental fees, subcontractor fees, compliance with vaccination requirements or other costs and expenses incurred by JCCLP in connection with the Force Majeure Event. If this Agreement covers fire safety or security equipment, the Customer understands that JCCLP is not an insurer regarding those services. JCCLP shall not be responsible for any damage or loss whatsoever that may result from fire safety or security equipment that fails to perform properly or fails to prevent loss or damage.

 JCCLP is not responsible for any injury, loss, or damage caused by equipment that is not Covered Equipment.

 

J. PRICING; PRICE ADJUSTMENTS AND INVOICING

 

Unless otherwise agreed by the parties in writing, fees for Services to be performed shall be paid annually in advance. Fees and other amounts due hereunder are due upon receipt of the invoice, which shall be paid by Customer via electronic delivery via EFT/ACH. Such payment is a condition precedent to JCCLP’s obligation to perform Services under the Agreement. Any invoice disputes must be identified in writing by Customer within 21 days of the date of invoice receipt. Payments of any disputed amounts of the invoice are due and payable upon resolution. Customer acknowledges and agrees that timely payments of the full amounts listed on invoices is an essential term of this Agreement and that failure by Customer to make payment in full when due is a material breach of this Agreement. Customer further acknowledges that if there is any amount outstanding on an invoice, it is material to JCCLP and will give JCCLP, without prejudice to any other right or remedy, the right to, without notice: (i) suspend, discontinue or terminate performing any services and/or withhold further deliveries of equipment and other materials, terminate or suspend any unpaid software licenses, and/or suspend JCCLP’s obligations under or terminate this Agreement; and (ii) charge Customer interest on the amounts unpaid at a rate equal to the lesser of one and one half (1.5) percent per month or the maximum rate permitted under applicable law, until payment is made in full.  JCCLP’s election to continue providing future services does not, in any way diminish JCCLP’s right to terminate or suspend Services or exercise any or all rights or remedies under this Agreement. JCCLP shall not be liable for any damages, claims, expenses, or liabilities arising from or relating to suspension of Services for non-payment. In the event that there are exigent circumstances requiring Services or the JCCLP otherwise performs services at the premises following suspension, those services shall be governed by the terms of this Agreement unless a separate contract is executed. If Customer disputes any late payment notice or JCCLP’s efforts to collect payment. Customer shall immediately notify JCCLP in writing and explain the basis of the dispute.  Customer will pay all of JCCLP’s reasonable collection costs (including legal fees and expenses). In the event of Customer’s default, the balance of any outstanding amounts will be immediately due and payable.

 

JCCLP may increase prices upon notice to the Customer to reflect increases in material and labor costs. If this Agreement is renewed, JCCLP will provide Customer with notice of any adjustments in the Contract Price applicable to any Renewal Term. Unless Customer terminates this Agreement in writing at least ninety (90) days prior to end of the then-current Term, the adjusted Contract Price shall be the price for the Renewal Term. Prices for products covered by this Agreement may be adjusted by JCCLP, upon notice to Customer at any time prior to shipment and regardless of Customer’s acceptance of JCCLP’s proposal or quotation, to reflect any increase in JCCLP’s cost of raw materials (e.g., steel, aluminum) inability to secure Products, changes or increases in law, labor, taxes, duties, tariffs or quotas, acts of government, any similar charges, or to cover any extra, unforeseen and unusual cost elements..

 

Customer shall provide financial information requested by JCCLP to verify Customer’s ability to pay for goods or services. If Customer fails to provide financial information or if JCCLP, in its sole discretion determines that reasonable grounds exist to question Customer’s ability or willingness to make payments when due (e.g., not making payments when due, late payments, or a reduction in Customer's credit score), JCCLP may defer shipments, change payment terms, require cash in advance and/or require other security, without liability and without waiving any other remedies JCCLP may have against Customer. JCCLP shall provide Customer with advance written notice of changes to payment terms.

 

K. JCCLP’s EQUIPMENT

 

JCCLP may provide tools, documentation, panels, or other control equipment in the Customer’s building for JCCLP’s convenience in performing JCCLP’s Services. Such equipment shall remain JCCLP’s property and JCCLP retains the right to remove the same during the Term or upon the termination of this Agreement.

 

L. JCCLP’s EMPLOYEES

 

The Customer acknowledges that JCCLP’s employees are a valuable asset to JCCLP. In the event during the Term of this Agreement or one hundred eighty (180) days thereafter Customer hires any JCCLP employee who worked at the Customer’s facility at any time the Customer agrees to 1) pay JCCLP an amount equal to 12 months’ salary for such employee, and 2) reimburse JCCLP for all costs associated with any training JCCLP provided to such employee during the three years before the date the Customer hires such employee.

 

M. ONE YEAR CLAIMS LIMITATION; FORUM; CHOICE OF LAW

 

Customer shall make all payments to JCCLP when due in accordance with the Price and Payment Terms provision of this Agreement or any renewal adjustments thereto, and such timely payment by Customer shall be a condition precedent to JCCLP’s obligation to perform its Services hereunder. If a dispute, claim, or other matter in question (“Dispute”) related in any manner to this Agreement arises, the Parties shall promptly attempt in good faith to resolve such Dispute by negotiation.  The Parties further agree as follows:

JCCLP shall have the sole and exclusive right to determine whether any dispute, controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be submitted to a court of law or arbitrated. This Agreement shall be governed by and be construed in accordance with the laws of Ontario, without regard to conflicts of law principles thereof, and the exclusive venue for any such litigation or arbitration shall be in Ontario, Canada.  The parties waive any objection to the exclusive jurisdiction of the specified forums, including any objection based on forum non conveniens. In the event the matter is submitted to a court, JCCLP and Customer hereby agree to waive their right to trial by jury.  In the event the matter is submitted to arbitration by JCCLP, the costs of arbitration shall be borne equally by the parties, and the  arbitrator’s award may be confirmed and reduced to judgment in any court of competent jurisdiction.  If JCCLP prevails in any collection action, Customer will pay all of JCCLP’s reasonable collection costs (including legal fees and expenses). Except as provide below, no claim or cause of action, whether known or unknown, shall be brought by either party against the other JCCLP more than one year after the claim first arose.  Claims not subject to the one-year limitation include claims for unpaid: (1) contract amounts, (2) change order amounts (approved or requested) and (3) delays and/or work inefficiencies.  

Services Obligation Suspended:  The Parties agree while arbitration of the Dispute is pending, JCCLP’s obligation to provide continued Services as set forth in this Agreement shall be temporarily suspended until the arbitration award is issued. In the event JCCLP elects to suspend its Services Customer will remain obligated to pay any outstanding amounts owed JCCLP but will not be obligated to pay for the Services suspended. The right of JCCLP to suspend its Services hereunder is in addition to all other rights JCCLP may have at law or in equity and does not impair the rights of JCCLP with regard to a Dispute hereunder.  The Customer expressly agrees JCCLP may not be held liable for damages of any nature which Customer may suffer as a result of JCCLP’s temporary suspension of its Services in accordance with this provision.

The rights and obligations of JCCLP herein are in addition to, and do not alter, impair, limit, or otherwise waive any other rights granted JCCLP in equity or by statute.

 

N. TERM AND TERMINATION

 

1. The Original Term is as set forth herein. At the conclusion of the Original Term, this Agreement shall automatically renew and extend for successive terms equal to the Original Term unless the Customer or JCCLP gives the other written notice it does not want to renew prior to the end of the then-current term (each a “Renewal Term”). The notice must be delivered at least ninety (90) days prior to the end of the Original Term or any Renewal Term. The Original Term and any Renewal Term may be referred to herein as the “Term.” Customer agrees to issue and send a Purchase Order to JCCLP at least thirty (30) days prior to expiration of the Original Term or any Renewal Term if necessary for payments to be processed, but failure to do so is not a pre-condition to Renewal Term payments being due to JCCLP.

    

2. Remote Monitoring Services and Remote Operating Services may be immediately canceled by either party if JCCLP’s Remote Operations Center, connecting wires, or monitoring systems are destroyed by fire or other catastrophe, or where the Premises are so substantially damaged that it is impractical to continue Services.

    

3. If either party fails to perform any of its material obligations under this Agreement, the other party shall provide written notice thereof to the party alleged to be in default. Should the party alleged to be in default fail to respond in writing or take action to cure the alleged default within ten (10) days of receiving such written notice, the notifying party may terminate this Agreement by providing written notice of such termination.

    

4. JCCLP may terminate this Agreement and discontinue any Services if JCCLP is unable to obtain or continue to support technologies, equipment or component parts that are discontinued, become obsolete or are otherwise not commercially available, or for convenience upon forty-five (45) days written notice. JCCLP will not be liable for any damages or subject to any penalty as a result of any such termination.

    

5. If JCCLP’s performance of its obligations becomes impracticable due to obsolescence or unavailability of systems, equipment, or products (including component parts and/or materials) or because the JCCLP or its supplier(s) has discontinued the manufacture or the sale of the equipment and/or products or is no longer in the business of providing the Services, JCCLP may terminate this Agreement, or the affected portions, at its sole discretion upon notice to Customer.

   JCCLP may terminate this Agreement, or the affected portions, at its sole discretion upon notice to the Customer if JCCLP’s       performance of its obligations are prohibited because of changes in applicable laws, regulations or codes.

6. Upon termination of this Agreement for any reason, Customer shall pay to JCCLP all undisputed amounts owed through the date of termination within thirty (30) days of such termination. If Customer terminates this Agreement, other than in accordance with this Section N, Customer shall also pay Johnson Controls 35% of the charges for Services remaining to be paid for the unexpired Term of this Agreement as liquidated damages and not as a penalty. Customer shall provide JCCLP with reasonable access to the Premises to remove the Gateway Device and any other JCCLP property and to un-program any controls, intrusion, fire, or life safety system, as applicable. Customer shall be liable for all fees, costs, and expenses that JCCLP may incur in connection with the enforcement of this Agreement, including without limitation, reasonable attorney fees, collection agency fees, and court costs.

 

O. ASBESTOS, MOLD AND HAZARDOUS MATERIALS

 

1)   Asbestos-Containing Materials:  Neither Party desires to or is licensed to undertake direct obligations relating to the identification, abatement, cleanup, control, removal or disposal of asbestos-containing materials (“ACM”).  If either Customer or JCCLP becomes aware of or suspects the presence of ACM that may be disturbed by JCCLP’s Services, it shall immediately stop the Services in the affected area and notify the other’s contacts.  As between Customer and JCCLP, Customer shall be responsible at its sole expense for addressing the potential for or the presence of ACM in conformance with all applicable laws and addressing the impact of its disturbance before JCCLP continues with its Services, unless JCCLP had actual knowledge that ACM was present and acted in disregard of that knowledge, in which case (a) JCCLP shall be responsible at is sole expense for remediating areas impacted by the disturbance of the ACM, and (b) Customer shall resume its responsibilities for the ACM after JCCLP’s remediation has been completed.

2)   Other Hazardous Materials:  JCCLP shall have no obligations relating to the identification, abatement, cleanup, control, removal or disposal of mold, regardless of the cause of the mold. JCCLP shall be responsible for removing or disposing of any Hazardous Materials that it uses in providing Services (“JCCLP Hazardous Materials”) and, other than mold, for the remediation of any areas impacted by the release of JCCLP Hazardous Materials.  For other Hazardous Materials that may be otherwise present at its facilities (“Non-JCCLP Hazardous Materials”), Customer shall supply JCCLP with any information in its possession relating to the presence of such materials if their presence may affect JCCLP’s performance of the Services.  If either Customer or JCCLP becomes aware of or suspects the presence of Non-JCCLP Hazardous Materials that may interfere with JCCLP’s Services, it shall immediately stop the Services in the affected area and notify the other’s contacts.  As between Customer and JCCLP, Customer shall be responsible at its sole expense for removing and disposing of mold and Non-JCCLP Hazardous Materials from it facilities and the remediation of any areas impacted by mold or the release of the Non-JCCLP Hazardous Materials. Notwithstanding the forgoing, if JCCLP had actual knowledge that Non-JCCLP Hazardous Materials other than mold were present and acted in disregard of that knowledge, then in such case (a) JCCLP shall be responsible at its sole expense for the remediation of any areas impacted by JCCLP's release of such Hazardous Materials, and (b) Customer shall remain responsible at its sole expense for the removal of Hazardous Materials that have not been released and for releases not resulting from JCCLP’s performance of the Services.

3)   Environmental Indemnity.  To the fullest extent permitted by law, Customer shall indemnify and hold harmless JCCLP and JCCLP’s Subcontractors, and their respective directors, officers, employees, agents, representatives, shareholders, affiliates, and successors and assigns, from and against any and all losses, costs, damages, expenses (including reasonable legal fees and defense costs), claims, causes of action or liability, directly or indirectly, relating to or arising from Customer’s or the owner’s use, storage, release, discharge, handling or presence of ACM or Non-JCCLP Hazardous Materials on, under or about the facility(ies), or the noncompliance with this Section O.  To the fullest extent permitted by law, JCCLP shall indemnify and hold harmless Customer, its officers, directors, employees, agents, representatives, shareholders, affiliates, successors and assigns, from and against any and all losses, claims, damages, expenses (including reasonable legal fees and defense costs), claim, causes of action or liability, directly or indirectly, relating to or arising from JCCLP’s use, storage, release, discharge, handling or presence of JCCLP Hazardous Materials on, under or about the facility(ies), or the noncompliance with this Section O.

 

P.  ASSESSMENT

 

All stated prices are exclusive of and Customer agrees to pay any taxes, fees, duties, tariffs, false alarm assessments, installation or alarm permits and levies or other similar charges imposed and/or enacted by a government, however designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the amounts paid under this Agreement.

Q. MISCELLANEOUS PROVISIONS

 

1)   Any notice that is required to be given under this Agreement must be in writing and sent to the Party at the address noted on the first page of this Agreement.

2)   This Agreement is not assignable by the Customer except upon written consent of JCCLP first being obtained. JCCLP shall have the right to assign this Agreement, in whole or in part, or to subcontract any of its obligations under this Agreement without notice to Customer.

3)   This Agreement is the entire Agreement between JCCLP and the Customer and supersedes any prior oral understandings, written agreements, proposals, or other communications between JCCLP and the Customer.

4)   Any change or modification to this Agreement will not be effective unless made in writing. Such written modification must specifically indicate that it is an amendment, change, or modifications to this Agreement.

5)   The Customer acknowledges and agrees that any purchase order issued by Customer, in accordance with this Agreement, is intended only to establish payment authority for the Customer’s internal accounting purposes. No purchase order shall be considered to be a counteroffer, amendment, modification, or other revision to the terms of this Agreement. No term or condition included in the Customer’s purchase order will have any force or effect.

6)   Should any changes to relevant regulations, laws, or codes substantially affect JCCLP’s Services or obligations, the Customer agrees to negotiate in good faith with JCCLP for appropriate and equitable changes to the scope or price of the Agreement or both.

7)   JCCLP expressly disclaims any requirement, understanding or agreement, express or implied, included directly or incorporated by reference, in any Customer purchase order, solicitation, notice or otherwise, that any of JCCLP’s personnel be vaccinated against Covid-19 under any federal, state/provincial or local law, regulation or order applicable to government contracts or subcontracts. Any such requirement shall only apply to JCCLP’s personnel if and only to the extent contained in a written agreement physically signed by an authorized officer of JCCLP.

8)   The Parties agree and acknowledge that this is a negotiated agreement and that the rule of construction that any ambiguities are to be construed against the drafting Party shall not apply.

9)   Nothing contained in this Agreement shall create a contractual relationship with or cause of action in favor of a third party against JCCLP.  The Services under this Agreement are being performed solely for the Customer’s benefit, and no other party or entity shall have any claim against JCCLP because of this Agreement or the performance or non-performance of the Services hereunder.

10) The failure of JCCLP or the Customer to insist upon, or to delay enforcing the strict performance of the terms and conditions hereof, or any right or remedy, as provider herein, shall not constitute or be construed as a waiver or relinquishment of either Party's right to thereafter enforce the same in accordance with this Agreement in the event of a continuing or subsequent default on the part of JCCLP or the Customer.

11) Customer is solely responsible for the establishment, operation, maintenance, access, security and other aspects of its computer network (“Network”) and shall supply JCCLP secure Network access for providing its services.  Products networked, connected to the internet, or otherwise connected to computers or other devices must be appropriately protected by Customer and/or end user against unauthorized access.

12) Customer is responsible to take appropriate measures, including performing back-ups, to protect information, including without limit data, software, or files (collectively “Data”) prior to receiving the service or products.

 

R. SEVERANCE

 

Should any term, part, portion, or provision of this Agreement be decided or declared by the courts to be, or otherwise found to be, illegal or in conflict with any law of the Province governing this Agreement or Canada, or otherwise be rendered unenforceable or ineffectual, the validity of the remaining parts, terms, portions, and provisions shall be deemed severable and shall not be affected thereby, provided such remaining parts, terms, portions, or provisions can be construed in the substance to constitute the Agreement that the Parties intended to enter into in the first instance.

 

S. JCCLP’S INTELLECTUAL PROPERTY

 

JCCLP shall retain all right, title and interest in and to any (a) deliverables provided to Customer hereunder, including without limitation, all software source and object code, documentation, technical information or data, specifications and designs and any changes, improvements or modifications thereto or derivatives thereof (“Deliverables”) and (b) Know-How (defined below) employed by JCCLP in the creation of the Deliverables or performance of the Services, whether known to JCCLP prior to, or developed or discovered or acquired in connection with, the performance of its obligations hereunder.  Ownership of all Deliverables and Know-How shall vest solely in JCCLP and no Deliverables shall be deemed “works made for hire.”  Without limiting the generality of the foregoing, ownership of all source files used in the course of performing the Services shall remain the exclusive property of JCCLP.  For purposes of this Agreement, “Know-How” means any know-how, processes, techniques, concepts, methodologies, tools, analytical approaches, database models and designs, discoveries, and ideas furnished, produced by, developed, employed or used by JCCLP in the creation or provision of the Deliverables or in the performance of the Services, and any changes, improvements or modifications thereto or derivatives thereof.

 

T. CONNECTED EQUIPMENT SERVICES. 

 

Certain equipment sold hereunder includes by default JCCLP’s Connected Equipment Services.  If Customer’s equipment includes Connected Equipment Services, such services will be on by default and the remote connection will continue to connect to Customer’s Equipment through the full equipment lifecycle, unless Customer specifically requests in writing that JCCLP disable the remote connection or JCCLP discontinues or removes such remote connection. For more information on whether your particular equipment includes Connected Equipment Services, a subscription to such services and the cost, if any, of such subscription, please see your applicable order, quote, proposal, or purchase documentation or talk to your JCCLP sales representative. If Customer’s equipment includes Connected Equipment Services, JCCLP will provide a cellular modem or other gateway device (“Gateway Device”) owned by JCCLP or Customer will supply a network connection suitable to establish a remote connection with Customer’s applicable equipment to permit JCCLP to use Connected Equipment Services to perform first-year and extended warranty services as well as other services, including troubleshooting, quarterly health reports, remote diagnostic and monitoring and aftermarket services. For certain subscriptions, Customer will be able to access equipment information from a mobile or smart device using Connected Equipment Service’s mobile or web app. Any Gateway Devices provided hereunder shall remain JCCLP’s property, and JCCLP may upon reasonable notice access and remove such Gateway Device and discontinue services in accordance with the Software Terms. If Customer does not permit JCCLP to connect via a connection validated by JCCLP for the equipment or the connection is disconnected by Customer, and a service representative must therefore be dispatched to the Customer site, then the Customer will pay JCCLP at JCCLP’s then-current standard applicable contract regular time and/or overtime rate for services performed by the service representative. JCCLP disclaims any obligation to advise Customer of any possible equipment error or malfunction. Customer acknowledges that, while Connected Equipment Services generally improve equipment performance and services, Connected Equipment Services does not prevent all potential malfunction, insure against all loss or guarantee a certain level of performance and that JCCLP shall not be responsible for any injury, loss, or damage caused by any act or omission of JCCLP related to or arising from the monitoring of the equipment under Connected Equipment Services.

 

U. CUSTOMER PORTAL

 

Customer shall have the right to participate in JCCLP’s Customer Portal pursuant to the then applicable Customer Portal Terms of Use Agreement.

 

      V. DIGITAL ENABLED SERVICES 

 

Digital Enabled Services; Data.  If JCCLP provides Digital Enabled Services under this Agreement, these Digital Enabled Services require the collection, transfer and ingestion of building, equipment, system time series, and other data to JCCLP’s cloud-hosted software applications.  Customer consents to and grants JCCLP right to collect, ingest and use such data to enable JCCLP and its affiliates and agents to provide, maintain, protect, develop and improve the Digital Enabled Services and JCCLP products and services. Customer acknowledges that, while Digital Enabled Services generally improve equipment performance and services, Digital Enabled Services do not prevent all potential malfunction, insure against all loss, or guarantee a certain level of performance. Customer shall be solely responsible for the establishment, operation, maintenance, access, security and other aspects of its computer network (“Network”), shall appropriately protect hardware and products connected to the Network and will supply JCCLP secure Network access for providing its Digital Enabled Services. If Customer accesses and uses Software that is used to provide the Digital Enabled Services, the Software Terms (defined below) will govern such access and use.

 

        W. JCCLP DIGITAL SOLUTIONS

JCCLP Digital Solutions. Use, implementation, and deployment of the software and hosted software products (“Software”) offered under these terms shall be subject to, and governed by, JCCLP's standard terms for such Software and Software related professional services in effect from time to time at www.johnsoncontrols.com/techterms (collectively, the “Software Terms”). Specifically, the JCCLP General EULA set forth at www.johnsoncontrols.com/buildings/legal/digital/generaleula governs access to and use of software installed on Customer’s premises or systems and the JCCLP Terms of Service set forth at www.johnsoncontrols.com/buildings/legal/digital/generaltos govern access to and use of hosted software products. The applicable Software Terms are incorporated herein by this reference. Other than the right to use the Software as set forth in the Software Terms, JCCLP and its licensors reserve all right, title, and interest (including all intellectual property rights) in and to the Software and improvements to the Software. The Software that is licensed hereunder is licensed subject to the Software Terms and not sold. If there is a conflict between the other terms herein and the Software Terms, the Software Terms shall take precedence and govern with respect to rights and responsibilities relating to the Software, its implementation and deployment and any improvements thereto.

 

Notwithstanding any other provisions of this Agreement, unless otherwise agreed, the following terms apply to Software that is provided to Customer on a subscription basis (i.e., a time limited license or use right), (each a “Software Subscription”):  Each Software Subscription provided hereunder will commence on the date the initial credentials for the Software are made available (the “Subscription Start Date”) and will continue in effect until the expiration of the subscription term noted in the applicable statement of work, order or other applicable ordering document . At the expiration of the Software Subscription, such Software Subscription will automatically renew for consecutive one (1) year terms (each a “Renewal Subscription Term”), unless either party provides the other party with a notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term.  To the extent permitted by applicable law, Software Subscriptions purchases are non-cancelable, and the sums paid nonrefundable.  Fees for Software Subscriptions shall be paid annually in advance, invoiced on the Subscription Start Date and each subsequent anniversary thereof.  Customer shall pay all invoiced amounts within thirty calendar days after the date of invoice.  Payments not made within such time period shall be subject to late charges as set forth in the Software Terms. Unless otherwise agreed by the parties in writing, the subscription fee for each Renewal Subscription Term will be priced at JCCLP's then-applicable list price for that Software offering.  Any use of Software that exceeds the scope, metrics or volume set forth in this Agreement and applicable SOW will be subject to additional fees based on the date such excess use began.

 

     X.  LIEN LEGISLATION

Notwithstanding anything to the contrary contained herein, the terms of this Agreement shall be subject to the lien legislation applicable to the location where the work will be performed, and, in the event of conflict, the applicable lien legislation shall prevail.

Y. LANGUAGE OF THE CONTRACT

 

This Agreement is drawn in English at the request of the parties hereto.  La présente convention est rédigée en anglais à la demande des parties.

         Z. PRIVACY.

1)JCCLP as Processor: Where JCCLP factually acts as Processor of Personal Data on behalf of Customer (as such terms are defined in the DPA) the terms at www.johnsoncontrols.com/dpa (“DPA”) shall apply.

2) JCCLP as Controller: JCCLP will collect, process and transfer certain personal data of Customer and its personnel related to the business relationship between it and Customer (for example names, email addresses, telephone numbers) as controller and in accordance with JCCLP’s Privacy Notice at https://www.johnsoncontrols.com/privacy. Customer acknowledges JCCLP’s Privacy Notice and strictly to the extent consent is mandatorily required under applicable law, Customer consents to such collection, processing and transfer. To the extent consent to such collection, processing and transfer by JCCLP is mandatorily required from Customer’s personnel under applicable law, Customer warrants and represents that it has obtained such consent.

ADDENDUM TO PSA TERMS AND CONDITIONS FOR

MONITORING OF INTRUSION, FIRE AND OTHER SAFETY SYSTEMS

If Remote Monitoring Services explicitly includes remote fire alarm monitoring, security alarm monitoring or video monitoring in the scope of work or customer charges, the Agreement is hereby modified and amended to include the terms and provisions of this Addendum to the PSA for Monitoring of Intrusion, Fire and Safety Systems (the “Addendum”).  Capitalized terms that are not defined herein, shall have the meaning given to them in the Agreement. In the event of a conflict between the terms and conditions of this Addendum and those appearing in the Agreement, the terms and conditions of this Addendum shall prevail.

1. Remote Monitoring of Alarm Signals. If JCCLP receives an emergency alarm signal at JCCLP’s ROC, JCCLP shall endeavor to notify the appropriate police or fire department, or other emergency response agency having jurisdiction and JCCLP shall endeavor to notify Customer or its designated representative by email unless instructed to do otherwise by Customer in writing and/or based on standard operating procedures for the ROC. JCCLP, upon receipt of a non-emergency signal from the Premises, shall endeavor to notify Customer’s representative pursuant to Customer’s written instructions, defaulting to email or text notification. Customer acknowledges that if the signals transmitted from the Premises will be monitored in a monitoring facility not operated by JCCLP, the personnel in such monitoring facilities are not the agents of JCCLP, nor does JCCLP assume any responsibility for the manner in which such signals are monitored or the response to such signal.
2. Remote Monitoring Services Pricing. Remote Monitoring Services shall be provided by JCCLP if the Agreement includes a charge for such Service. If such Service is purchased, JCCLP will monitor the number of alarms for the Premises and the initial charge is based on the pricing agreed to by the parties, subject to the terms and conditions of this Addendum. If the number of alarms produced at the Premises goes beyond the contracted number of alarms in a month, Customer will be billed an overage fee.
3. Communications Media. Customer acknowledges that monitoring of Covered Equipment requires transmission of signals over standard telephone lines and/or the Internet and that these modes of transmission may be interrupted, circumvented, or compromised, in which case no signal can be transmitted from the Premises to the monitoring facility. Customer understands that to allow the monitoring facility to be aware of such a condition, additional or alternative protection can be installed, such as line security devices, at Customer’s cost and expense and for transmission via telephone line only. Customer acknowledges it is aware that line security devices are available and, unless expressly identified in Schedule A - Equipment List, has declined to purchase such devices. Customer further acknowledges that such additional protection is not available for Internet transmission under this Agreement.
4. False/Unnecessary Alarms; Service Calls. At JCCLP’s option, an additional fee may be charged for any false alarm or unnecessary Service Visit caused or necessitated by Customer. In addition, Customer shall be fully responsible and liable for fines, penalties, assessments, taxes, fees or charges imposed by a governmental body, telephone, communication, or signal transmission JCCLP as the result of any false alarm and shall reimburse JCCLP for any costs incurred by JCCLP in connection therewith. Customer shall operate the system carefully so as to avoid causing false alarms. False alarms can be caused by severe weather or other forces beyond the control of JCCLP. If an undue number of false alarms are received by JCCLP, in addition to any other available remedies available to JCCLP, JCCLP may terminate this Agreement and discontinue any Service(s) and seek to recover damages. If an agent is dispatched, by a governmental authority or otherwise, to respond to a false alarm, where the Customer, or any other party has intentionally, accidentally or negligently activated the alarm signal, Customer shall be responsible for and pay any and all fees and/or fines assessed with respect to the false alarms and pay to JCCLP the additional charges and costs incurred by it from a false alarm. If the Customer's system has a local audible device, Customer authorizes JCCLP to enter the Premises to turn off the audible device if JCCLP is requested or ordered to do so by governmental authorities, neighbors or anyone else and Customer will pay JCCLP its standard service call charge for each such visit. Police agencies require repair of systems which cause false dispatches. Customer shall maintain the equipment necessary for JCCLP to supply the Services and Customer shall pay all costs for such maintenance. At least monthly, Customer will test the system's protective devices and send test signals to the ROC for all monitoring equipment in accordance with instructions from JCCLP or the ROC. Customer agrees to test the monitoring systems, including testing any ultrasonic, microwave, infrared, capacitance or other electronic equipment prior to the end of each month and will immediately report to JCCLP if the equipment fails to respond to the test. Customer shall make any necessary repairs as soon after receipt of notice as is reasonably practical. Customer shall at all times be solely responsible for maintaining any sprinkler system in good working order and provide adequate heat to the Premises.
5. Remote Monitoring of Video Monitoring Services. During the Term, JCCLP's sole and only obligation arising from the inclusion of Video Monitoring Services in any Service offering shall be to monitor the digital signals actually received by JCCLP at its ROC from means of the Video System and upon receipt of a digital signal indicating that an alarm condition exists, to endeavor, as permitted by law, to notify the police or other municipal authority deemed appropriate in JCCLP’s absolute discretion and to such persons Customer has designated in writing to JCCLP to receive notification of such alarm condition as set forth herein. . No alarm installation, repair, maintenance or guard responses will be provided under this Video Monitoring Services option. JCCLP may, without prior notice to Customer, in response to applicable law or insurance requirements, revise, replace, discontinue and/or rescind its response policies and procedures. 
   
     a. Inception and conclusion of service. Video Monitoring shall be provided by JCCLP if this Agreement includes a charge for Video Monitoring Services. If such Video Monitoring Service is purchased, Video Monitoring Services will begin when the Video System is installed and operational, and when the necessary communications connection is completed. No obligation for the provision of this Video Monitoring Service will commence until these requirements are met.
   
     b. Customer Equipment. Customer shall obtain, at its own cost and expense: (a) the equipment necessary to connect to JCCLP’s ROC; and (b) whatever permission, permits or licenses that may be necessary from all persons, governmental authorities, utility, and any other related service providers in connection with the Services.  The video system to be used by the Customer is intended to produce and transmit video images (the “Video System Images”) of the Premises to the ROC (the “Video System”). JCCLP makes no promise, warranty or representation that the video system will operate as intended. Customer further agrees that, notwithstanding any role or participation by JCCLP in Video System and Video System Images, JCCLP shall have no responsibility or obligation with regard to Customer, the Video System or any other Customer equipment.
   
     c. System Location. The Video System related cameras shall be located and positioned by Customer along with attendant burglary digital alarm signal(s). Customer shall ensure that the Video System related cameras will be positioned and located such that it will only produce or capture Video System Images of areas of the Premises.  Customer will provide adequate illumination under all operating conditions for the proper viewing of the cameras. Customer acknowledges and agrees that JCCLP has exercised no control over or participated in locating or positioning the Video System related camera including, but not limited to selecting what areas, locations, things or persons that the Video System Images may depict or capture.
   
     d. Images. Customer shall be solely responsible for the Video System Images produced or captured by the Video System and Customer shall defend, indemnify and hold harmless JCCLP and its officers, agents, directors, and employees, from any and all damages, losses, costs and expenses (including reasonable attorneys’ fees) arising out of third party claims, demands, or suits in connection with the use, operation, location and position of the Video System, and the Video System Images resulting there from, including, but not limited to, any claims of any person depicted in a Video System image, including but not limited to, any claim by such person that his or her privacy has been invaded or intruded upon or his or her likeness has been misappropriated. Any duty to obtain the consent or permission of any person depicted in a Video System Image to have his or her likeness to be depicted, received, transmitted or otherwise used, and the duty to determine and comply with any and all applicable laws, regulations, standards and other obligations that govern the legal, proper and ethical use of video capturing devices, such as the Video System, including, but not limited to, notification that the Video System is in use at the Premises, shall be the sole responsibility of the Customer. JCCLP agrees to make Video System Images available to Customer and upon their respective request.  JCCLP makes no promise, warranty or representation as to the length of time that it retains Video Images, or the quality thereof. 
   
     e. Video System Signals.  When a signal from the Video System is received, JCCLP reserves the right to verify all alarm signals before notifying emergency personnel and may choose not to notify emergency personnel if it has reason to believe, in its sole discretion, that an emergency condition does not exist. JCCLP will first attempt to verify the nature of the emergency by using visual verification and/or the two-way voice system (if applicable) of the Video System included in Customer's system.  If JCCLP determines that an emergency condition exists, JCCLP will endeavor to notify the proper police or emergency contact on a notification call list provided in writing by Customer to JCCLP, or its designee. When a non-emergency signal is received, JCCLP will attempt to contact the first available Customer representative on the notification call list but will not notify emergency authorities, this notification will be in the form of email or text and follow ROC processes. If the customer requires phone calls to the call list for any emergency or non-emergency situation, the customer will need to make this request in writing. Customer authorizes and directs JCCLP, as its agent, to use its full discretion in causing the arrest or detention of any person or persons on or around the premises who are not authorized by Customer. JCCLP WILL NOT ARREST OR DETAIN ANY PERSON. 
   
     f. Recordings.  Customer consents to the tape recording of all telephonic communications between the Premises and JCCLP.   JCCLP will have no liability arising from recording (or failure to record) or publication of any two-way voice communications, other video recordings or their quality. JCCLP shall have no liability in connection with Video System or the Video System Images, including, but not limited to, any failure, omission, negligence, or other act by JCCLP, or any of its officers, employees, representatives, agents, contractors, or any other third party in connection with the receipt (or failure of receipt), transmission, reading, interpreting, or response to any Video Image.
6. Risk of Loss is Customer’s. JCCLP does not represent or warrant that the Services will detect or prevent the events they are intended to help detect or prevent including any burglary, holdup, fire or otherwise ("Detection Events"), or that the Services will be uninterrupted or error-free. Customer assumes all risk of loss or damage to Customer's person or property, or the property of others, if such an event occurs. Neither JCCLP nor its suppliers shall have any liability for loss, damage, or injury due directly or indirectly to Detection Events, or the consequences therefrom.Further, expressly excluded from this Agreement are the warranties of merchantability or fitness or suitability for a particular purpose. 
   
   

   NOTWITHSTANDING THE FOREGOING, IF JOHNSON CONTROLS SHOULD BE FOUND LIABLE FOR LOSS, DAMAGE OR INJURY DUE TO AN ACT OR OMISSION BY JOHNSON CONTROLS OR A FAILURE OF THE EQUIPMENT OR SERVICE IN ANY RESPECT, ITS LIABILITY WILL BE LIMITED TO A SUM EQUAL TO 10% OF THE ANNUAL SERVICE CHARGE OR $1,000, WHICHEVER IS GREATER, AS THE AGREED UPON DAMAGES AND NOT AS A PENALTY, AND AS THE EXCLUSIVE REMEDY. THIS PARAGRAPH SHALL APPLY IF LOSS, DAMAGE OR INJURY, IRRESPECTIVE OF CAUSE OR ORIGIN, AND REGARDLESS OF LEGAL THEORY, RESULTS DIRECTLY OR INDIRECTLY TO PERSON OR PROPERTY OR FROM PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS IMPOSED BY THIS AGREEMENT. IF ANY THIRD PARTY, INCLUDING CUSTOMER’S SUBROGATING INSURER, MAKES A CLAIM OR FILES A LAWSUIT AGAINST JOHNSON CONTROLS IN ANY WAY RELATING TO THE EQUIPMENT OR SERVICES, CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS JOHNSON CONTROLS FROM ANY AND ALL SUCH CLAIMS AND LAWSUITS INCLUDING THE PAYMENT OF ALL DAMAGES, EXPENSES, COSTS AND ATTORNEYS' FEES.

7. JCCLP’S RECEIPT OF ALARM SIGNALS, ELECTRONIC DATA, VOICE DATA OR IMAGES (COLLECTIVELY, “ALARM SIGNALS”) FROM THE EQUIPMENT OR SYSTEM INSTALLED IN THE PREMISES IS DEPENDENT UPON PROPER TRANSMISSION OF SUCH ALARM SIGNALS. JCCLP’S ROC CANNOT RECEIVE ALARM SIGNALS WHEN THE CUSTOMER’S TELCO SERVICE OR OTHER TRANSMISSION MODE IS NOT OPERATING OR HAS BEEN CUT, INTERFERED WITH, OR IS OTHERWISE DAMAGED, OR IF THE ALARM SYSTEM IS UNABLE TO ACQUIRE, TRANSMIT OR MAINTAIN AN ALARM SIGNAL OVER CUSTOMER’S TELCO SERVICE OR TRANSMISSION MODE FOR ANY REASON INCLUDING BUT NOT LIMITED TO NETWORK OUTAGE OR OTHER NETWORK PROBLEMS SUCH AS CONGESTION OR DOWNTIME, ROUTING PROBLEMS, OR INSTABILITY OF SIGNAL QUALITY. CUSTOMER UNDERSTANDS THAT SIGNAL TRANSMISSION FAILURE MAY OCCUR OVER CERTAIN TYPES OF TELCO SERVICES SUCH AS SOME TYPES OF DSL, ADSL, VOIP, DIGITAL PHONE, INTERNET PROTOCOL BASED PHONE OR OTHER INTERNET INTERFACE-TYPE SERVICE OR RADIO SERVICE, INCLUDING CELLULAR, WIRELESS OR PRIVATE RADIO, OR CUSTOMER'S PROPRIETARY TELCOMMUNICATION NETWORK, INTRANET OR IP-PBX, OR OTHER THIRD-PARTY EQUIPMENT OR VOICE/DATA TRANSMISSION NETWORKS OR SYSTEMS OWNED, MAINTAINED OR SERVICED BY CUSTOMER OR THIRD PARTIES, IF: (1) THERE IS A LOSS OF NORMAL ELECTRIC POWER TO THE MONITORED PREMISES OCCURS (THE BATTERY BACK-UP FOR JCCLP’S ALARM PANEL DOES NOT POWER CUSTOMER’S COMMUNICATION FACILITIES OR TELCO SERVICE); OR (2) ELECTRONIC COMPONENTS SUCH AS MODEMS MALFUNCTION OR FAIL. CUSTOMER UNDERSTANDS THAT JCCLP WILL ONLY REVIEW THE INITIAL COMPATIBILITY OF THE ALARM SYSTEM WITH CUSTOMER’S TELCO SERVICE AT THE TIME OF INITIAL INSTALLATION OF THE ALARM SYSTEM AND THAT CHANGES IN THE TELCO SERVICE’S DATA FORMAT AFTER JCCLP’S INITIAL REVIEW OF COMPATIBILITY COULD MAKE THE TELCO SERVICE UNABLE TO TRANSMIT ALARM SIGNALS TO JCCLP’S ROC. IF JCCLP DETERMINES IN ITS SOLE DISCRETION THAT CUSTOMER’S TELCO SERVICE IS COMPATIBLE, JCCLP WILL PERMIT CUSTOMER TO USE ITS TELCO SERVICE AS THE PRIMARY METHOD OF TRANSMITTING ALARM SIGNALS, ALTHOUGH CUSTOMER UNDERSTANDS THAT JCCLP RECOMMENDS THAT CUSTOMER ALSO USE AN ADDITIONAL BACK-UP METHOD OF COMMUNICATION TO CONNECT CUSTOMER’S ALARM SYSTEM TO JCCLP’S ROC REGARDLESS OF THE TYPE OF TELCO SERVICE USED. CUSTOMER ALSO UNDERSTANDS THAT IF JCCLP DETERMINES IN ITS SOLE DISCRETION THAT CUSTOMER’S TELCO SERVICE IS, OR LATER BECOMES, NON-COMPATIBLE, OR IF CUSTOMER CHANGES TO ANOTHER TELCO SERVICE THAT IS NOT COMPATIBLE, THEN JCCLP WILL REQUIRE THAT CUSTOMER USE AN ALTERNATE METHOD OF COMMUNICATION ACCEPTABLE TO JCCLP AS THE PRIMARY METHOD TO CONNECT CUSTOMER’S ALARM SYSTEM TO JCCLP’S ROC. JCCLP WILL NOT PROVIDE FIRE OR SMOKE ALARM MONITORING FOR CUSTOMER BY MEANS OTHER THAN AN APPROVED TELCO SERVICE AND CUSTOMER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE FOR ASSURING THAT IT USES APPROVED TELCO SERVICE FOR ANY SUCH MONITORING AND THAT IT COMPLIES WITH NATIONAL FIRE ALARM STANDARDS AND LOCAL FIRE CODES. CUSTOMER ALSO UNDERSTANDS THAT IF CUSTOMER’S ALARM SYSTEM HAS A LINE CUT FEATURE, IT MAY NOT BE ABLE TO DETECT ALARM SIGNALS IF THE TELCO SERVICE IS INTERRUPTED, AND THAT JCCLP MAY NOT BE ABLE TO DOWNLOAD SYSTEM CHANGES REMOTELY OR PROVIDE CERTAIN AUXILIARY MONITORING SERVICES THROUGH A NON-APPROVED TELCO SERVICE. CUSTOMER ACKNOWLEDGES THAT ANY DECISION TO USE A NON-APPROVED TELCO SERVICE AS THE METHOD FOR TRANSMITTING ALARM SIGNALS IS BASED ON CUSTOMER’S OWN INDEPENDENT BUSINESS JUDGMENT AND THAT ANY SUCH DECISION IS MADE WITHOUT ANY ASSISTANCE, INVOLVEMENT, INPUT, RECOMMENDATION, OR ENDORSEMENT ON THE PART OF JCCLP. CUSTOMER ASSUMES SOLE AND COMPLETE RESPONSIBILITY FOR ESTABLISHING AND MAINTAINING ACCESS TO AND USE OF THE NON-APPROVED TELCO SERVICE FOR CONNECTION TO THE ALARM MONITORING EQUIPMENT.  CUSTOMER FURTHER UNDERSTANDS THAT THE ALARM SYSTEM MAY BE UNABLE TO SEIZE THE TELCO SERVICE TO TRANSMIT AN ALARM SIGNAL IF ANOTHER CONNECTION HAS DISABLED, IS INTERFERING WITH, OR BLOCKING THE CONNECTION.