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29 Poplar Street,
East Rutherford, NJ 07073
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New York, NY 10279
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BLOG – IMAGINEERING WITH COMMUNICATIONS
October 17, 2018
Thank you for selecting Comtex to supply and install a CCTV and/or Access Control System (“System”). Please review this Terms and Conditions Agreement (“Agreement”) thoroughly because they regulate the installation and service of your system.
This Agreement is a legal agreement between Comtex, Inc., (“Comtex” or “We” or “Our”) and Your Company, (“Client” or “You” or “Your”). Comtex and Client may be individually referred to as a “Party” or collectively as the “Parties.” The Descriptive CCTV and/or Access Control Proposal (“Contract”), that You signed, describing the equipment, installation and cost of Your System, is expressly incorporated herein and constitutes part of this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and are representing to Comtex that You have the authority to bind such Entity and its affiliates to this Agreement.
ALL CCTV, VIDEO SURVEILLANCE, AND ACCESS CONTROL SYSTEMS, PRODUCTS, EQUIPMENT, CABLING, ACCESSORIES, REMOTE SUPPORT, PROGRAMMING, SOFTWARE, REPAIR AND SERVICES SUPPLIED, SOLD, DEPLOYED, RELOCATED OR INSTALLED BY COMTEX ARE SUBJECT TO THE FOLLOWING TERMS & CONDITIONS.
Any System installed by Comtex is designed to reduce the risk of loss or damage to or at Your premises so far as this can be done by the use of these systems. However, regardless of whether Your System is working properly or not, We do not guarantee that it will deter, prevent or capture illegal activity. We do not guarantee that the equipment cannot be removed, tampered with or made to stop working by You or any unauthorized person. We do not guarantee that it will not fail to record or require service at some point. We do not guarantee that it will secure your property, belongings or people on or near your property. Comtex does not warrant or represent that that the operation of Your System will be uninterrupted or error free. Comtex does not act and shall not be deemed to act as an insurer of Your property or the contents contained therein. Comtex does not provide a warranty that by virtue of the installation of one or more types of systems, the property, people or contents contained therein are completely secure or safe. Comtex does not sell or install burglar alarms and does not provide burglar or alarm monitoring services. You may contact a vendor who supplies and installs burglar alarms that may compliment Your System. Comtex shall have no liability in contract or tort for any loss suffered and in particular, we do not accept any liability whatsoever for any consequential loss or damage (including loss of earnings or profits or anticipated profits) which may arise from any malfunction or defect of any System. Should any of the above occur, Comtex is not responsible for any losses you may suffer directly or indirectly.
A. DISCLAIMER OF WARRANTIES
EXCEPT AS SPECIFICALLY SET FORTH IN YOUR CONTRACT AND THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY SYSTEM INSTALLED BY COMTEX IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND COMTEX MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE SPECIFICALLY AND WITHOUT LIMITING THE FOREGOING IN ANY WAY, COMTEX SPECIFICALLY DISCLAIMS ANY WARRANTY: (i) THAT ANY PRODUCT OR SOFTWARE WILL MEET ANY PARTICULAR REQUIREMENTS; OR (ii) THAT THE SYSTEM WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR THAT ANY DEFECTS IN THE SYSTEM OR SOFTWARE WILL BE CORRECTED; THE PARTIES AGREE, AND IT IS THEIR INTENTION, THAT IN NO EVENT SHALL ANY WARRANTY PROVIDED BY LAW APPLY UNLESS REQUIRED TO APPLY BY APPLICABLE STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. TO THE EXTENT THAT COMTEX CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
B. LIABILITY DISCLAIMER
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMTEX, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, OR PARTNERS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, REPUTATIONAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, (1) DAMAGES FOR LOST OR ANTICIPATED PROFITS, LOSS OF USE, BUSINESS, OR GOODWILL; (2) LOSS OR CORRUPTION OF DATA, EQUIPMENT, OR PRODUCTS; (3) COST OF PROCUREMENT, COVER, OR SUBSTITUTE GOODS OR SERVICES; (4) LOST OPPORTUNITY; (5) ANY OTHER INTANGIBLE LOSSES, EVEN IF COMTEX WAS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES OR ARISING OUT OF THE USE OF ANY GOODS OR SERVICES PROVIDED BY COMTEX WHETHER IN ANY OF THE FOREGOING, HOWEVER CAUSED, ARISING UNDER WRITTEN OR ORAL CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF COMTEX HAS BEEN INFORMED IN ADVANCE OR COULD HAVE REASONABLY FORESEEN SUCH COSTS, DAMAGES OR LOSSES.
IF ANY LIMITATIONS ARE HELD INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN COMTEX’S TOTAL CUMULATIVE LIABILITY WILL NOT EXCEED $500.00. THE LIMITATION OF LIABILITY SET FORTH IN THIS SUB-SECTION DOES NOT APPLY TO LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE ANY LIABILITY WHICH MAY NOT BE RESTRICTED, LIMITED OR EXCLUDED PURSUANT TO APPLICABLE LAW. THIS SECTION SHALL NOT DISCLAIM, LIMIT, OR CAP CLIENT’S OBLIGATION TO PAY ANY FEES OR CHARGES OR OTHER AMOUNT OWED TO COMTEX OR ANY DAMAGES TO WHICH COMTEX IS ENTITLED UNDER APPLICABLE LAW.
A. Indemnification Obligations
To the maximum extent permitted by applicable Law, You shall indemnify and hold harmless, individually and collectively, Comtex, its affiliates, agents, and employees and other providers who furnish goods and services to You in connection with Your System, and their officers, directors, managers, and employees (the “Indemnified Parties”) from and against any and all liability, claims, losses (including loss of profits, revenue and goodwill), damages, fines, penalties, injuries to persons or property, costs, and expenses (including reasonable attorneys’ fees and dispute resolution expenses) resulting directly or indirectly from or related to: (i) the use of or reliance of any System and Software by You or any third party acting with Your permission, knowledge, authority or direction; (ii) a breach of this Agreement or any other Agreement with Comtex, by You, or any End User; (iii) any negligent acts, omissions to act or willful misconduct by You or any third party acting with Your permission, knowledge, authority or direction; (iv) the inability to use any System, or the failure or outage of a System and/or Software for any reason; (v) the use of a System in connection with a violation of any applicable law, code, regulation, or ordinance by the Client; or (vi) the misappropriation, breach, violation, or infringement of any right, title or interest of any third party, including but not limited to, contractual rights, Intellectual Property rights, and rights of privacy; (vii) failure to promptly install any updates of any software or firmware or accept or use modified or replacement items provided by or on behalf of Comtex; (viii) Your use of, reliance on, or publication, communication or distribution of anything on Our Website; or (x) your violation of any law or regulation. Further, Client will indemnify and hold harmless Comtex against all damages, costs, and legal fees finally awarded against Comtex by a court of competent jurisdiction or in Arbitration in connection with such third-party claim or agreed to in a written settlement agreement approved in writing by the Client.
B. Defense and Indemnification Procedures
If Comtex becomes an Indemnified Party, Comtex will have the right to participate at its own expense in the defense of such third-party claim, including any related settlement negotiations. No such claim may be settled or compromised by the Indemnifying Party without the Indemnified Party’s express written consent (which such consent may not be unreasonably withheld, conditioned, or delayed), unless such settlement or compromise includes a full and complete release of all claims and actions against the Indemnified Party by each party bringing such third-party claim.
III. DISPUTE RESOLUTION
A. Good Faith Attempt to Settle Disputes
In the event of any dispute or claim arising out of or relating to the Agreement (a “Dispute”), each Party will appoint a duly authorized representative which will confer with the other Party before either Party brings legal action, to make a reasonable and good faith effort to settle or otherwise resolve such Dispute.
B. Resolution in Small Claims Court.
In the event the Dispute is not resolved, and the claim falls within the dollar limit allowed by New Jersey Superior Court, Small Claims Court, along with any other jurisdictional requirements, either Party must seek to have that dispute resolved in Small Claims court in New Jersey.
C. Binding Arbitration.
If negotiations fail to resolve the Dispute within thirty (30) calendar days, and small claims court is not a valid option due to the size or nature of the claim, all disputed claims must be resolved by binding arbitration before a single arbitrator in accordance with the commercial rules of the American Arbitration Association (“AAA”) in effect as of the date this Agreement goes into effect. This agreement to arbitrate is intended to be given the broadest possible meaning under Applicable Laws. The place of arbitration will be in Bergen County New Jersey. The complaining Party shall notify the other Party in writing thereof. Within thirty (30) days of such notice, management level representatives of both Parties shall meet at an agreed location to attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining Party shall seek remedies exclusively through arbitration. The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after one year from when the aggrieved party knew or should have known of the controversy, claim, dispute or breach. The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys’ fees and costs), shall be borne by the unsuccessful party, as determined by the arbitrators, and shall be awarded as part of the arbitrator’s award. It is specifically understood and agreed that any party may enforce any award rendered pursuant to the arbitration provisions of this Section by bringing suit in any court of competent jurisdiction. The parties agree that the arbitrator shall have authority to grant injunctive or other forms of equitable relief to any party. This Section shall survive the termination or cancellation of this Agreement. Judgment may be entered on the arbitrator’s award in any court having jurisdiction.
IV. CLIENT’S OBLIGATIONS FOR INSTALLATION
Client represents and warrants that it is the owner of Client’s said premises or has the authority from the owner or any other person in control of Client’s facility to permit Comtex to install the equipment and cabling at Your facility which may include, but is not limited to, drilling holes, driving nails, making attachments or doing such other things as may be necessary or related to the installation of the System. Client acknowledges that Comtex has no way of knowing of the existence of hidden pipes, wires or other obstructions within walls, ceilings, doors or any other concealed spaces or a condition which differs from those originally encountered or an unexpected condition that affects the cost of the installation, and that is the obligation of You to make Comtex aware of such conditions in advance, failing which Comtex shall has no responsibility whatsoever for any damage that may be caused or any additional costs that may be required to complete the installation as per Contract.
Client agrees, at its expense, at all other times during the period of installation and maintenance services to: (i) allow Comtex employees access to the areas where the equipment is to be installed; ii) provide all patching, painting, concrete, and other openings, floor reinforcements and ceiling tiles; (iii) provide ample electric current and electrical support for the equipment, terminating in rooms where required; (iv) accept the risk of loss for any damage or destruction of Your equipment installed and/or left on premises to be installed, at the time of delivery to Your premises, except with respect to damage or destruction resulting from the negligence of a Comtex technician and (v) accept responsibility for ensuring that Your network and access, whether remote or on site, are secure and backing up Your data.
C. Remote Access
Client agrees that if remote access to Your System was granted at time of installation or commencement of a service contract, it will remain available to Comtex. If changes to remote access are made by You including, but not limited to, new IP addresses, security procedures, or hardware, You agree to notify Comtex of such changes and You understand that failure to do so may hinder Our ability to provide timely service or support. If remote access is unobtainable due to Client provided equipment and an onsite service call is required as a result, Client is responsible to pay Comtex’s on site current labor rate.
V. INSTALLATION OF EQUIPMENT AND DELAYS
Our non-union crew will install this system during normal work days and hours. The Contract price for Your System and its deployment is priced to include a specified time frame for installation. If a technician must make an unscheduled site visit or return to the site during the period of installation, or for the maintenance or repair of Your System thereafter, including but not limited to the following reasons, (i) required cabling is missing, (ii) Client’s network is not properly configured or has an issue, (ii) Client’s network is missing required equipment (router, QOS, PoE switch), (iv) no internet access, (v) Client’s IT vendor is not available and needed during deployment, (vi) any other delay that is caused by the Client, or (vii) if Client does not fulfill its obligations as defined in paragraph , Client agrees that any of the foregoing delays or obligations set forth in Section IV herein will result in additional charges on a time and material basis at Comtex’s then current rate. Charges will apply to the real time lost by Comtex technicians including travel time and time on site.
V. HAZARDOUS MATERIALS
It is the responsibility of Client to inform Comtex of any hazardous materials in Your facility, including but not limited to Asbestos, mold, or lead paint. If Comtex encounters and of the aforementioned, We have the right to cease the project until such a time that the work area is deemed safe for Our technicians. If Our technicians must leave Your facility because of Your failure to notify Comtex of the existence of hazardous materials, You will be charged for the return trip.
VI. SERVICE OF SYSTEM
Your System comes with a one year guarantee as described in Your Contract. Prior to the expiration of Your guarantee a Comtex representative will contact you and offer you an option to subscribe to a Comtex service contract. If you opt not to enroll in our service contract program, then You always have the option to contact Us when Your System requires service and You will be billed on a time and material basis at the then prevailing labor or programming rates. Comtex’s obligations under the guarantee and/or service contract are subject to the exclusions in Your Contract and contingent on Your invoices being paid and current.
Except where otherwise expressly stated in the Agreement, all notices or other communications must be made in writing and delivered in person, upon delivered email, facsimile, or overnight courier service, and addressed as follows: to Comtex at 29 Poplar Street, East Rutherford, New Jersey 07073. All notices to be valid must be confirmed by Comtex as received. Client agrees that all electronic notices have the full force and effect of paper notices.
B. Force Majeure
Excluding either Party’s payment obligations under this Agreement, neither Party will be responsible or liable for any failure to perform or delay in performing to the extent resulting from any event or circumstance that is beyond that Party’s reasonable control, including without limitation any act of nature; national emergency; third-party telecommunications networks; riot; war; terrorism; governmental act or direction; change in Laws; fiber, cable, or wire cut; power outage or reduction; rebellion; revolution; insurrection; earthquake; storm; hurricane; flood, fire, or other natural disaster; strike or labor disturbance; or other cause, whether similar or dissimilar to the foregoing, not resulting from the actions or inactions of such Party.
C. No Waiver
In no event shall any failure or delay by Comtex to: (i) assert or exercise any right; (ii) demand fulfillment or performance of any obligation; or (iii) avail itself of any remedy under these Agreement, in whole or in part, be deemed a waiver of any right or remedy under these Agreement on such occasion or any other occasion.
D. Headings, Interpretation
The headings, section titles, and captions used in this Agreement are for convenience of reference only and will have no legal effect. All defined terms include related grammatical forms, and, whenever the context may require, the CCTV or Access Control singular form of nouns and pronouns include the plural, and vice versa.
E. Governing Law
This Agreement and Your Contract shall be governed by and construed under the laws of the State of New Jersey without regard to its conflict of law rules.
F. Entire Agreement
This Agreement, together with any exhibits, Orders, and Attachments, and Your Contract(s) signed by You, each of which is expressly incorporated into this Agreement with this reference, constitute the entire agreements between the Parties and supersedes and replaces any and all prior or contemporaneous understandings, proposals, representations, marketing materials, statements, or agreements, whether oral, written, or otherwise, regarding such subject. If there is a conflict, Your Contract shall control.
In addition to the charges included herein, You agree to pay any sales and use taxes, fees, permit fees or charges for the installation and use of the Licenses provided for under this Agreement which are authorized or imposed by any governmental body or agency.
H. Severability and Waiver
In the event any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, such provision(s) will be stricken and the remainder of this Agreement will remain legal, valid and binding. The failure by either Party to exercise or enforce any right conferred by this Agreement will not be deemed to be a waiver of any such right or to operate so as to bar the exercise or enforcement of any such or other right on any later occasion. Except as otherwise expressly stated in this Agreement, all rights and remedies stated in the Agreement are cumulative and in addition to any other rights and remedies available under the Agreement, at Law, or in equity.
The rights and obligations of either Party that by their nature would continue beyond the expiration or termination of this Agreement, including without limitation payment obligations, warranty disclaimers, indemnities, limitations of liability, definitions and miscellaneous.