Live-Guard, LLC – STANDARD TERMS & CONDITIONS
These Standard Terms and Conditions are an integral part of the attached agreement for equipment and/or services between Customer and Live-Guard, LLC having its principal office located at 7122 S. Sheridan, Tulsa, OK 74133, herein called “Company”, and form a part of that contract. Customer’s signature on the attached document and/or payments for system monitoring and or installation signifies Customer’s agreement to be bound by these Standard Terms and Conditions.
1. PRICING AND PAYMENT TERMS: 1) Company shall have monthly invoices provided to Customer on or about the 15th of each month proceeding the month for which services are to be provided. Invoices will be due the first of each month for which services are to be provided and may incur a $25 late fee if not received by the 10th of each month during which services are provided. 2) Payments shall be made by check to the address on the invoice. 3) Company reserves the right to terminate this agreement or any order, or to suspend its performance, immediately and without prior notice, upon Customer’s failure to perform its obligations under this agreement, including, without limitation, any failure to pay amounts due hereunder. 4) Customer shall pay a reconnection charge of $200 if service is suspended or terminated due to Customer’s failure to make timely payments of invoices or upon other Customer default. Customer shall not receive credit for interruptions in the operation of equipment or of service for less than 72 consecutive hours, regardless of the cause of such interruption. Any interruption credit shall be for the period of interruption exceeding 72 hours.
2. DUTIES OF THE CUSTOMER: 1) It is the duty of the Customer to assess and determine their security needs and type and location of surveillance and surveillance equipment. Company shall not be responsible for such assessment and determination and makes no representation or warranty as to suitability or adequacy of the surveillance system, coverage or equipment, all of which are the sole responsibility of Customer. 2) Customer grants to Company and its personnel the continuing right to access the project site to perform this Agreement and authorizes Company, its agents and contractors to install, inspect, test and repair all equipment, supplies, and materials as and when necessary or appropriate, as determined by the Company. 3) Customer is responsible to provide site lighting, fencing, and other perimeter and access control equipment and facilities requested by the Company related to the subject of this Agreement. 4) Customer is required to provide at least 14 business days advance notice to schedule the relocation of equipment relocations. 5) Customer recognizes and agrees that video monitoring services will be provided to the Customer by a third-party Monitoring Service and will look exclusively to the third party Monitoring Service and agree to the Terms and Conditions of that company applicable to all aspects of those services. No representations or warranties are made by the Company to the Customer regarding any aspect of monitoring services provided by the third-party Monitoring Service. 6) It is Customer’s duty to notify Company of site changes that require changes in security equipment or scheduling. 7) Customer will obtain and keep in effect, at Customer’s sole expense, all permits or licenses that may be required for the installation and operation of the System.
3. DUTIES OF THE COMPANY: 1) Company shall recommend an independent licensed contractor who is responsible for the delivery, set up and removal of all security equipment requested within the Agreement by the Customer. 2) Installation Company shall maintain in full force and effect commercially reasonably amounts of General Liability Insurance, Workers’ Compensation Insurance and Automobile Liability insurance policies for its employees working at Customer’s site. Evidence of such insurance shall be provided promptly upon request. 3) If excessive false alarms are caused by carelessness, malicious, or unintended use of the video monitoring, Company may, in its sole discretion, deem the same to be Customer’s material breach of this Agreement and Company shall be excused from further performance until Customer agrees to eliminate conditions or factors interfering with the services of the proper operation of equipment. Company is not a licensed contractor and is responsible for the supply of all hardware equipment provided to the customer upon receipt of initial deposit payment.
4. FAILURE TO PAY CHARGES OR HONOR AGREEMENT: If payment is not received in 45 days of Customer’s receipt of invoice, it is considered Past Due and services may be suspended at Company’s discretion and monitoring services may be temporarily stopped until payment balance is eliminated. If payment(s) are not received by the Company within 60 days of Company being provided with the original invoice, the Company may cancel the account. If this occurs, the past due and remaining balance of the Agreement will remain due and will be payable in full within 30 days of account being canceled. In addition to this remedy, Company does not waive and retains the right to exercise, any other legal remedy to collect any and all amounts due by the Customer. Company will have no liability to provide for alarm monitoring services at any time account is in past due status.
5. TERM AND TERMINATION: 1) The charges due under this Agreement are based on the Customer’s agreement to receive and pay for the services provided for the full term and that Company has relied upon Customer agreement and has incurred costs in deciding to enter into this Agreement. If Customer cancel service or otherwise terminate this Agreement during its initial or automatic renewal terms as described herein, or for a reason set forth below, Customer agree to pay the remaining balance due for the remaining term in full within 30 days of termination. This amount is a contract termination charge and is not a penalty. 2) Following the initial Term of this Agreement for equipment sales and installation, monitoring services will be provided as a part of this Agreement by a third party monitoring service arranged for the Customer by the Company for a minimum of 36 months commencing immediately after initial installation of the equipment and pricing will be guaranteed for the entire term. Following the initial 36 month term of this Agreement, this Agreement shall automatically be renewed on the annual anniversary of the initial term unless Customer provides Company written notice within 30 days prior to renewal anniversary. 3) Where Customer fails to deliver written notice of termination or cancels prior to the end of initial or renewal term, Customer shall remain liable for all remaining equipment and service related fees and expenses remaining for the term with the full value of the remaining balance due within 30 days of cancellation services regardless of whether or not Customer provides written notice of termination to Customer. 4) At the expiration or termination of this Agreement or in the event of any default in performance by Customer, Company is authorized to enter upon Customer’s site and to remove all or any portion of the equipment, materials, and supplies provided by Company. Company may elect to abandon all or any portion thereof. 5) Removal of Company equipment shall be without prejudice to the collection of any and all amounts due under this Agreement, including any extensions or renewals thereof.
6. ADDITIONAL CHARGES AND OFFSET RIGHTS: Customer agrees to pay all construction/alarm use fees; all directly or indirectly imposed false alarm fees, fines or charges; all telephone, internet or signal transmission company charges; and all other assessments, fees, and charges related to the video monitoring and surveillance system. Customer agree to pay a service charge if a Company responds to a requested service call at Customerr premises for any needed repairs or maintenance.
7. ALARM MONITORING AND NOTIFICATION SERVICE: When an alarm event is received at the monitoring facility, effort to contact authorities will be made. Company or its representatives are in no way responsible for ensuring that those parties respond. Customer understands that, upon receiving notification that an alarm event has been received at the monitoring station, the police department or other responding authority may forcibly enter Customer premises. Customer understands that Company will never arrest or detain any person for any reason. The monitoring station will monitor signals from the equipment during the term of this Agreement. Customer agrees to provide up to date emergency contacts and that they will be able to be reached and will respond. Emergency contacts provided by the Customer will be authorized to act on Customer’s behalf and have the authority to cancel an alarm prior to notification of emergency responders. The monitoring station may rely on Customer emergency contact information and the instructions of any such person(s). Customer agrees that emergency contacts may be contacted to verify that a signal is not a false alarm. Customer understands that any service provided by Company under this Agreement may be provided by a third party with whom has engaged to perform such service and Customer agree that Company is Customer authorized representative to give directions to such third parties related to any services to be provided under this Agreement. Customer acknowledges and agree that the provisions of this Agreement relate to any third party that performs services related to this Agreement. If any equipment is not functioning properly or if false alarm events become excessive, Customer grants authority to temporarily or permanently disable alarm events from being received by the monitoring center until the issue is resolved by the Customer. Customer understands that a) the equipment communicates with the monitoring center through each location’s local internet connection, b) the system relies on electrical power of the individual location, c) communications over the local network and/or local electrical power may be interrupted, delayed or otherwise limited for a variety of reasons, including environmental conditions, unavailability of power or network connectivity at a location, system capacity, and other factors. Accordingly, Customer understand that no form of monitoring is error-free due to network outages, faulty equipment, faulty transmission, power outages, or other interruptions in power or communication services, systems that have been tampered with or any damage or destruction to equipment. Customer is responsible for testing the equipment regularly and ensuring it is in full working order.
8. INSURANCE; LIMITATION OF LIABILITY; INDEMNITY: COMPANY IS NOT AN INSURER. Customer understands that Company is not an insurer of Customer’s property or the personal safety of persons in Customer’s premises. 1) Company’s services do not replace insurance. Customer is responsible to provide insurance of the kind, and in such amounts, as may be determined by Customer to be adequate for risks of loss to persons, property, for liability and otherwise. Company does not provide or maintain insurance of any kind providing coverage to Customer or its property. Customer will maintain, at its sole cost and expense, all risk insurance in amounts reasonably acceptable to Company, for damage or loss of Video Surveillance Services equipment, supplies, and materials of every kind and nature provided by Company for use by Customer. Company shall be named as an additional insured on such policies of risk insurance, and, upon the request of Company, Customer shall provide a certificate of insurance evidencing such coverage. In the event of loss or damage to Company’s equipment, materials or supplies used under this Agreement, Customer agrees to pay Company the reasonable value thereof or the cost of repair, at the election of Company. 2) Customer’s payments are based solely on the value of the services set forth herein and are unrelated to the value Customer’s property or property located on the site; 3) Company makes no guaranty or warranty, including any implied warranty of merchantability of fitness that the equipment or services supplied will avert or prevent occurrences or the consequences thereof which the system or service is designed to detect or avert. Customer acknowledges that it is impractical and extremely difficult to fix the amount of damages if any that may result from a failure by Company to perform any of the obligations herein, or the failure of any equipment or system provided by Company. Accordingly, Customer understands and agrees that if Company should be found liable for loss or damage due to failure of Company to perform any of the obligations herein, including but not limited to installation, maintenance, monitoring or service, or the failure of any system or equipment, regardless of cause, Company’s liability shall be limited to all monitoring payments made by Customer during the 90 days preceding the event prompting the claim (the “Liquidated Damages Amount”). Such amount represents liquidated damages and shall be Customer’s exclusive remedy for any such breach or failure. Such limitation of damages shall apply to all losses, claims, damages, and injuries to Customer and third persons (“Losses”), irrespective of the cause of such Losses or the amount or nature of such Losses.4) Customer agrees to and shall indemnify, defend and hold harmless Company, its employees, agents, and contractors from and against all claims, actions, suits, and proceedings against Company commenced or asserted by any party other than Customer. This provision shall apply to all claims regardless of cause, including Company’s performance or failure to perform and including installation, inspections, tests, repair service, or non-operation of the System, whether based upon active, passive or gross negligence, contribution, indemnification, warranty, or strict or product liability on the part of Company, its employees, agents or contractors. 5) Customer hereby releases, discharges and agrees to hold Company harmless from any and all claims, liabilities, damages, losses or expenses, arising from or caused by any hazard covered by insurance in or on Customer’s premises whether said claims are made by Customer, its agents, or insurance company or other parties claiming under or through Customer. 6) Customer agrees to indemnify Company against, and defend and hold Company harmless from, any action for subrogation which may be brought against Company by any insurer or insurance company or its agents or assigns including payment of all damages, expenses, costs and attorney’s fees. 7) Company makes no express or implied warranties as to any matter whatsoever, including, without limitation, the condition of the equipment, its merchantability or its fitness for any particular use. THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED WHICH ARE SPECIFICALLY EXCLUDED, INCLUDING WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL COMPANY BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW. 8) The parties agree that any and all disputes or controversies of any nature between them arising out of this Agreement shall be determined by binding arbitration rules of the State of Oklahoma.
9. GENERAL CONDITIONS: 1) All title to, ownership of, and all rights in patents, copyrights, trade secrets and any other intellectual property rights in all products provided by the Company shall remain the Company’s Property 2) Customer acknowledges that power fluctuations and failure is a common problem and that Company is not liable for any equipment (sometimes referred to as the “System”) or service failure due to any utility outage. Customer shall promptly report any System problems to Company. 3) Customer acknowledges and agrees that Company is not liable for any interruption due to utility or service provider failure or the central station should be destroyed or becomes inoperable due to fire or other cause. 4) Services performed under this Agreement shall be deemed accepted by Customer unless written proof of claim is made to Company no later than ten (10) days after services are completed. 5) Provided Customer’s account is current, Company will use its reasonable commercial efforts to carry out service/repairs within 14 business days, but shall not be responsible for delays or failure to respond by reason of power or connection failures, failures due to weather or other conditions, or otherwise for any conditions beyond the control of Company, including but not limited to, terrorism, work stoppages, fires, civil disobedience, riots, rebellions, acts of God and similar occurrences. 6) Customer may not assign this Agreement without Company’s prior written consent. 7) Without the Company’s prior written consent, Customer may not assign, sell, or sublease Company provided equipment or this Agreement without Company’s written consent. Customer will not damage, encumber, or dispose of System or permit the System to be damaged, encumbered, taken from the site, tampered with, repaired or utilized by anyone other than authorized agents of Company. 8) In the event Customer is not the site owner, Customer hereby warrants that Customer has secured the written consent of the owner for the installation and removal of the System. 9) This Agreement shall be governed by the laws of the State of Oklahoma. It constitutes the entire agreement between the parties regarding its subject matter. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force and effect. Both parties hereby agree that no suit or action that relates in any way to this Agreement (whether based upon contract, negligence or any other legal theory) shall be brought more than one (1) year after the accrual of the cause of action thereof. 10) No waivers or modifications shall be valid unless the same are provided in writing and executed by the parties hereto. 11) These Standard Terms & Conditions supersede any additional, different, or conflicting terms on Customer’s printed forms, or conflicts implied dealings or trade usage and integrate and replace all prior representations of Company. This transaction is expressly conditioned upon Customer’s assent to these Standard Terms & Conditions.
10. ASSIGNMENT: This Agreement and all rights, duties, and obligations hereunder are personal to the parties and may not be assigned, sublicensed, encumbered, or otherwise transferred, in whole or in part, by either party without the prior written consent of the other party, except that either party may, without the consent of the other party, assign its rights and obligations under this Agreement to a) any purchaser of all or substantially all of the assets of such party, b) any purchaser of all or substantially all of the equity ownership interests in a party or in such party’s direct or indirect parent company, c) any successor to such party business by merger, d) a parent company, affiliate or subsidiary of such party, whether or not in existence at the time of the execution of this Agreement, e) in the case of Company, any purchaser of a single location or group of locations. This Agreement will be binding upon and inure to the benefit of the successors and assigns of the parties.
11. FORCE MAJEURE: Each party will be excused from performance and will not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the reasonable control of that party, including but not limited to, war (whether an actual declaration thereof is made), sabotage, insurrection, riot or other act of civil disobedience, actual or threatened act of terrorism or of any other public enemy, failure or delay in transportation, act of any government or agency or subdivision thereof affecting the terms of this contract or otherwise, judicial action, labor dispute, machinery or technical or yield failures. A Force Majeure Event does not include, whether directly or indirectly, economic hardship, changes in market conditions, or insufficiency of funds.
12. PERSONAL INFORMATION: Customer consents to Company’s use of Customer information provided by Customer for the purpose of monitoring, setting up and administering the security services including but not limited to invoicing, collections and providing services requested by the Customer. Customer authorizes and gives consent to the Company to collect, use, disclose, and transfer Customerr information to third party affiliates of the Company who serve as affiliates, subsidiaries and successor corporations, partners, any subcontractors or assignees of this Agreement only to the extent necessary to perform services requested by the Customer under this Agreement.
13. PRIVACY AGREEMENT: Each party expressly agrees that they are subject to and will comply with any and all applicable laws and regulations related to the use of monitoring services including, without limitation, wiretapping, eavesdropping, privacy, voyeurism, child pornography or other similar laws, and that Customer’s use of the monitoring services is at the Customer’s own risk. Customer is solely responsible, and Company will have no liability whatsoever, for any and all pictures, audio, video or other data that Customer upload, download, monitor, record, store, post, email, transmit, disclose or otherwise make available using cameras or monitoring services. Customer agrees that if any selections or settings are made as part of the monitoring services that involve monitoring, recording, storing or disclosing oral communications made by Customer and third parties, Customer consents to such monitoring, recording, storage and disclosure of any legal purpose. Customer acknowledges that Company may be required by applicable law to disclose communications and records stored by Company including communications related to Customers use of the monitoring services to government agencies and law enforcement. Customer consent to such disclosure. Customer agrees that Company may subcontract any portion of the services it provides to Customer to a third party on the condition that Company ensures that the third party is obligated to confidentiality obligations at least as restrictive as those set for herein.
14. ENTIRE AGREEMENT: This agreement constitutes the entire agreement between the parties. The parties are not bound by any representation, promise, condition, inducement or warranty, expressed or implied, that is not included in writing in this agreement. The terms and conditions of this agreement shall control and govern even if there are other documents with inconsistent or additional term and conditions. Customer agrees that this agreement is performed in the State of Oklahoma where the Company is headquartered and shall be governed by the laws of that State.
15. SEVERABILITY OF AGREEMENT PROVISIONS: If a court determines that any provision of this agreement is invalid or unenforceable, that provision shall be deemed amended and enforced to the maximum extent permitted by law. Each and every other provision of this agreement shall continue to be valid and enforceable.
16. LIMITED RECOURSE: The parties agree that any remedy or recourse available under or related to this agreement is strictly limited to the parties to this agreement. No past, present or future director, officer, employee, incorporator, member, partner, stockholder, subsidiary, affiliate, controlling party, entity under common control, ownership or management, vendor, service provider, agent, attorney or representative of Company or any of its parents, subsidiaries or affiliates shall have any liability for any obligations or liabilities of Company under this agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby and thereby.
17. WAIVER: Any waiver by a party of any right under this agreement or failure to enforce any of the terms or conditions of this agreement at any time shall not in any way affect, limit or waive such party’s right thereafter to enforce strict compliance with every term and condition thereof.
18. CONFIDENTIALITY: During the activities contemplated by this agreement, Company may become acquainted with the non-public information of the Customer, including but not limited to, the agreement, technical information, designs, procedures, processes, configurations, formulas, discoveries, inventions, improvements, concepts, ideas, new product, program, and promotional ideas, research and development, proprietary research data, techniques, know-how, instruction manuals, training materials, business plans an proposals, financial information, recipes, marketing plans an studies, pricing and sales information, the identity of and information concerning actual or potential customers, or other commercial information (“Confidential Information”) through written, oral or visual means. Confidential Information shall also include any and all agreements between the Customer and the Company and anything contained in or discussed regarding any such agreements. Company agrees and acknowledges that all such Confidential Information is confidential to Customer and shall not use the Confidential Information, except as required to fulfill its obligations under any agreements between the Customer and the Company and shall not disclose the Confidential Information to any third parties, including any parent or affiliated company except as required to fulfill its obligations except as required to fulfill its obligations under this or any agreements. Company shall also limit access to Confidential Information within its own organization only to those employees or third parties who need to know such Confidential Information to in order t implement this agreement and who are expressly obligated to maintain such Confidential Information in confidence and in accordance with restrictions set for herein. These obligations shall not apply to any Confidential Information received by the Company which the Company can reasonably demonstrate a) was in the public domain at the time of receipt by the Company, b) entered the public domain after receipt by the Company, but through no fault of the Company, c) was known by the Company prior to its receipt, d) is lawfully disclosed to the Company by a third party, e) with the Company is compelled to disclose by law or legal process, provided the Customer is given prompt written notice of any such requirement and an opportunity to contest such disclosure. This confidentiality provision shall survive the expiration or earlier termination of any agreements between the Customer and the Company for a period of (3) years.
19. ARBITRATION: Except for claims for injunctive relief, all agreements and disputes between Customer, and/or its affiliates, officers, directors and employees, on the one hand and the Company, and/or the Company’s affiliates, officers, directors and employees, on the other hand, relating to this or any other agreement between the Customer and the Company will be resolved by arbitration. The arbitration proceeding shall be conducted by one arbitrator and according to the then-current Commercial Arbitration Rules of the American Arbitration Association (the “AAA”). All arbitration proceedings will be held at AAA’s offices or other suitable offices that the Company selects in the metropolitan area wherein which the Company’s principal place of business is then located The Customer or arbitrator shall have no authority to select a different hearing locale. All matters relating to the arbitration will be governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.). Notwithstanding the foregoing, disputes that relate to the ownership or validity of any Customers intellectual property, including, but not limited to, Company’s logos, trademarks, trade secrets, and other proprietary information shall not be resolved by arbitration, unless consented to by the Customer. The arbitration shall be administered by the parties and the arbitrator and not the AAA. A demand for arbitration shall be made in writing and delivered to the other party. The party serving a demand for arbitration must assert in the demand all claims then known to that party on which arbitration is permitted to be demanded. The award rendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. The arbitrator shall be selected pursuant to the AAA “Arbitrator Select: List and Appointment” process, or if unavailable, a similar process offered by any other nationally recognized alternative dispute resolution organization. During pre-hearing discovery, a party shall be entitled to take no more than two (2) fact depositions for disputes less than $1,000,000.00 and four (4) fact dispositions for disputes of $1,000,000.00 or more, any of which may be (7) hours or less. There shall be no written discovery requests, except a party may serve document request, except a party may serve document requests not to exceed twenty-five (25) in number, including subparts. Where a party intends to rely upon the testimony of an expert on an issue for which the party bears the burden of proof, the expert(s) must be disclosed at least sixty (60) days before the arbitration hearing. The arbitrator shall exclude or give no weight to any expert not disclosed strictly in accordance herewith. The arbitrator shall explain in writing the factual and/or legal basis for the decision. The arbitrator shall award the prevailing party its reasonable costs an attorney’s fees.
20. INDEPENDENT CONTRACTOR: Nothing in this agreement shall create any partnership, limited partnership, agency or joint venture relationship between the parties. The parties are acting as independent contractors with respect to each other and none of the employees of either party will be deemed to be employees of the other party for any purpose. Each party agrees that it is not, and will not hold itself out as a representative, affiliate or agent of the other party for any purpose. Neither party has any right or authority to assume or to create any obligation or responsibility on behalf of the other party for any purpose. Each party will pay and be solely responsible for all contributions, taxes, and premiums payable under any and all applicable laws, rules or regulation with respect to employees.
21. SURVIVAL: All sections of this agreement that by their express terms or very nature should survive termination or expiration will survive. Without limiting the foregoing,
Software Terms and Conditions
“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICE (DEFINED BELOW). LIVE-GUARD, LLC (“LIVE-GUARD” IS WILLING TO PROVIDE YOU, AS THE AUTHORIZED USER OF THE SERVICE (“YOU” OR “YOUR”), ACCESS TO AND USE OF THE SERVICE ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT. THIS AGREEMENT IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND LIVE-GUARD. BY ACCESSING OR USING THE SERVICE, YOU AFFIRM THAT THIS AGREEMENT CONSTITUTES A WRITING, AND THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE INDIVIDUAL WHO CLICKS “I ACCEPT” IS ACCEPTING AND AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF A CORPORATION, LIMITED LIABILITY COMPANY, PARTNERSHIP OR OTHER LEGAL ENTITY, SUCH AS FOR EXAMPLE HIS OR HER EMPLOYER, SUCH INDIVIDUAL REPRESENTS AND WARRANTS TO LIVE-GUARD THAT HE OR SHE IS AUTHORIZED TO ENTER INTO THIS AGREEMENT AND ACCEPT THESE TERMS ON BEHALF OF SUCH ENTITY. IF YOU DO NOT
AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK “I DO NOT
ACCEPT” OR “CANCEL” OR OTHERWISE INDICATE REFUSAL, AND DO NOT ACCESS OR USE
“Live-Guard, LLC Website” means Live-Guard’s website located at http://www.live-guard.com or any successor or alternate website designated in writing by Live-Guard from time to time. “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the Customer Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information (except for Customer Data) will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure
by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party. “Customer Data” means all electronic data, records or information submitted by You to the Service.
“Documentation” means any written online documentation, manuals or guides for the Service published by Live-Guard, LLC and supplied to You by Live-Guard, LLC or an authorized Live-Guard, as updated from time to time in Live-Guard, LLC’s sole discretion, available at the Live-Guard website.
“Excused Downtime” means any period of unavailability or inoperability caused by a Force Majeure Event. “Force Majeure Event” means any circumstance or occurrence beyond the reasonable control of Live-Guard, LLC, including, without limitation, acts or omissions by a public authority, acts of God, strikes, blockades, acts of terrorism, riots, storms, earthquakes, explosions, fires, floods, Internet or telecommunications failures/outages/delays, third-party hosting facility failures, denial of service attacks, or other similar occurrences.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses. “Scheduled Maintenance” means any period during which the Service is unavailable for maintenance, including the implementation of any updates, enhancements, patches, fixes, or error corrections.
“Service” means the online, Web-based hosted software service made available by Live-Guard, LLC via the Live-Guard, LLC Website under the name Live-Guard, LLC Corporation (or such other name(s) as may be designated by Live-Guard, LLC from time to time), including associated offline components, as described by the Documentation.
“Subscription Term” means Your initial subscription term for the Service and any renewals or extensions thereof agreed to by Live-Guard, LLC or an authorized Live-Guard, LLC reseller, as set forth in a written agreement between You and Live-Guard, LLC or the applicable authorized Live-Guard, LLC reseller.
“Users” means individuals who are authorized by You to use the Service and who have been supplied
user identifications and passwords by You (or by an authorized Live-Guard, LLC reseller). Users may include but are not limited to Your employees, consultants, contractors and agents.
Live-Guard, LLC will make the Service available to You and Your Users pursuant to this Agreement during the applicable Subscription Term. You agree that Your purchase of the subscription to the Service is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Live-Guard, LLC with respect to future functionality or features. You acknowledge that: (i) payment terms for the Service must be established separately and independently between You and Live-Guard, LLC (ii) this Agreement and any order form or other written agreement between You and Live-Guard, LLC establishing payment terms between You and Live-Guard, LLC constitutes the entire agreement between You and Live-Guard, LLC regarding the provision by Live-Guard, LLC, and the access and use by You and Your Users, of the Service and controls as to any terms; (iii) the terms and conditions of any purchase order
or other agreement between You and the applicable authorized Live-Guard, LLC reseller are not binding on Live-Guard, LLC; (iv) Your non-payment of any amount owed to Live-Guard, LLC relating to this Agreement will constitute a basis for Live-Guard, LLC’s termination of this Agreement. You further acknowledge and agree that You are responsible for providing and maintaining the hardware, operating system software and
Internet connection necessary to access and use the Service, and that Live-Guard, LLC makes no representation or warranty with regard to any services provided by any third party, including, without limitation, Any technical support services relating to the Service.
3. Use of the Service
Live-Guard, LLC will use commercially reasonable efforts to: (i) maintain the security and integrity of the Service and the Customer Data and (ii) make the Service available 24 hours a day, 7 days a week, except for: (a) Scheduled Maintenance and (b) Excused Downtime. Live-Guard, LLC will use commercially reasonable efforts to provide at least 8 hours’ notice of Scheduled Maintenance, which notice may be provided through the Service. You are responsible for Your Users’ compliance with this Agreement and the Documentation. You
will: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and will ensure that all instructions given to Live-Guard, LLC in respect of the Customer Data will be in compliance with applicable data protection laws; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Live-Guard, LLC promptly following Your discovery of any such unauthorized access or use; and (iii) comply with all applicable local, state, federal and foreign laws in using the Service, including without limitation all applicable data protection laws and regulations. You may use the Service solely for Your internal business purposes as contemplated by this
Agreement and the Documentation and You may not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than to Users as contemplated by this Agreement; (ii) record, transmit or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy rights; (iii) send or store Malicious Code; (iv) intentionally interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
4. Proprietary Rights
Subject to the limited rights expressly granted hereunder, Live-Guard, LLC reserves all of Live-Guard, LLC’s and its licensors’ rights, title and interest in and to the Service and all portions thereof, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. You will not: (i) modify, copy or create derivative works based on the Service or any portion thereof; (ii) frame or mirror any content forming part of the Service; (iii) reverse engineer the Service or any portion thereof (to the extent such restriction is permitted by law); or (iv) access the Service in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Service. As between Live-Guard, LLC and You, Live-Guard, LLC acknowledges and agrees that You exclusively own all rights, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information under this Agreement. You grant Live-Guard, LLC and its Affiliates a worldwide license to host, have hosted, copy, transmit, access, use and display Your Customer Data as necessary for Live-Guard, LLC to provide the Service in accordance with this Agreement.
The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission or as required by law. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it will provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. Notwithstanding the foregoing, You acknowledge and agree that Live-Guard, LLC may anonymize data You upload to and/or store via the Service, aggregate such
anonymized data with anonymized data of other users of the Service, and use or disclose such data to
third-party service providers. Live-Guard, LLC does not share personally identifiable information provided by You, except to the extent required to provide the Services at your direction. Under no circumstances will Live-Guard, LLC sell or rent personally identifiable information You provide. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party will have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
6. Limited Warranties & Disclaimers
Live-Guard, LLC warrants that: (i) the Service will perform substantially in accordance with the Documentation; (ii) the functionality of the Service will not be materially decreased during a Subscription Term; and (iii) the Service will not introduce Malicious Code into Your systems. You represent and warrant that the collection and processing of Your Customer Data as contemplated by this Agreement complies in all respects with applicable data protection laws and regulations.
THE ABOVE LIMITED WARRANTIES ARE THE ONLY WARRANTIES PROVIDED BY LIVE-GUARD, LLC REGARDING THE SERVICE. EXCEPT FOR THE LIMITED WARRANTIES ABOVE, THE SERVICE IS PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
LIVE-GUARD, LLC DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR NEEDS, OR THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, OR THAT THE SERVICE WILL BE ERROR-FREE, OR THAT ANY DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED.
7. Disclaimer of Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF
WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT
WILL LIVE-GUARD, LLC OR ITS DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS OR AGENTS BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR EXEMPLARY OR SIMILAR DAMAGES, ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOST DATA, PERSONAL INJURY AND COMPUTER FAILURE OR MALFUNCTION, EVEN IF LIVE-GUARD, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH SUCH CLAIM IS BASED. IN NO CASE WILL LIVE-GUARD, LLC’S OR ITS LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE SUBSCRIPTION FEES THAT YOU PAID FOR THE SERVICE IN THE EIGHTEEN MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
You will defend, indemnify and hold Live-Guard, LLC and its owners, directors, managers, officers, employees and agents (each a “Live-Guard, LLC Indemnified Party”) harmless against any loss, liability, damage, cost or expense (including reasonable attorneys’ fees) suffered or incurred by any Live-Guard, LLC Indemnified Party in connection with claims, demands, suits, or proceedings made or brought against any Live-Guard, LLC Indemnified Party by a third party alleging (i) a breach by You or Your Users of Your obligations under applicable local, state, federal and foreign laws, including, without limitation, applicable data protection laws and regulations; or (ii) that the Customer Data, or Yours or Your Users’ use of the Service in breach of this Agreement, infringes or breaches the intellectual property rights, of, or has otherwise harmed, a third party; or (iii) a breach by You or Your Users of Section 5 (Confidentiality).
9. Term & Termination
Subject to the terms and conditions of this Agreement, the Subscription Term will begin on the date of Your acceptance of this Agreement, and unless sooner terminated for cause as provided below, will continue until the Subscription Term expiration date as set forth in a written agreement between You and Live-Guard, LLC or the applicable authorized Live-Guard, LLC reseller from whom You acquired Your subscription to the Service. Your access to and use of the Service will automatically terminate at the end of the Subscription Term. Live-Guard, LLC may terminate this Agreement for cause upon written notice to You if: (i) You breach any material term or condition of this Agreement; (ii) You fail to pay when due any amount owed to Live-Guard, LLC or an authorized Live-Guard, LLC reseller relating to this Agreement; or (iii) if You become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon termination of this Agreement, Your Subscription Term will automatically terminate. Upon termination of the Subscription Term, You must cease all access to and use of the Service. You may terminate this Agreement for cause upon written notice to Live-Guard, LLC if Live-Guard, LLC breaches any material term or condition of this Agreement and fails to cure such breach within 30 days of receipt of written notice of such breach, which notice must be delivered in accordance with the notice delivery provisions of Section 10 below. Upon termination of this Agreement for any reason, Your Subscription Term will automatically terminate. Upon termination of the Subscription Term, You must cease all access to and use of the Service. Upon request by You made within 30 days after the effective date of termination, Live-Guard, LLC will promptly make available to You for download a file of Customer Data in pipe delimited (CSV) format for data and original format for photos, at Live-Guard, LLC’s then-current standard charges therefor. After such 30-day period, provided that Live-Guard, LLC has complied with its obligations to make available to You the aforementioned Customer Data file promptly upon a request by You made within 30 days after the effective date of termination, Live-Guard, LLC will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession. The provisions of Sections 4 through 10 of this Agreement will survive any termination or expiration of this Agreement.
This Agreement will be governed by and construed in accordance with the laws of the State of Oklahoma, United States of America. THE PARTIES AGREE THAT THE UNIFORM COMPUTER TRANSACTIONS ACT OR ANY VERSION THEREOF, ADOPTED BY ANY STATE, IN ANY FORM (“UCITA”), WILL NOT APPLY TO THIS AGREEMENT. TO THE EXTENT THAT UCITA IS APPLICABLE, THE PARTIES AGREE TO OPT OUT OF THE APPLICABILITY OF UCITA PURSUANT TO THE OPT-OUT PROVISION(S) CONTAINED THEREIN. Any suit, action or proceeding arising in connection with this Agreement will be brought in the state or federal courts sitting in the State of Oklahoma and You hereby expressly submit to the exclusive jurisdiction of such courts for the purpose of any such suit, action, or proceeding.
This Agreement is the entire agreement between You and Live-Guard, LLC relating to the Service and: (i) supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter and (ii) prevails over any conflicting or additional terms of any quote, order, acknowledgment, or similar communications between the parties. You acknowledge that in entering into this Agreement, You have not relied on any representations or warranties other than as expressly set forth in this Agreement. Certain other products and services offered by Live-Guard, LLC are subject to separate terms and
conditions established from time to time by Live-Guard, LLC. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this Agreement will continue in full force and effect. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Live-Guard, LLC reserves the right to change or discontinue the Service or change or remove features or functionality of the Service from time to time. Live-Guard, LLC will notify You in writing of any material change to or discontinuation of the Service. This Agreement may be amended from time to time by Live-Guard, LLC upon written notice to You. The then-current version of this Agreement is available to You at the Live-Guard, LLC Website. You acknowledge and agree that the posting of amendments to this Agreement at such web site, via the Service or by email message will constitute written notice to You of such amendments. By continuing to use the Service after the effective date of any amendments to this Agreement, You agree to be bound by the amended terms. Live-Guard, LLC will have no liability under this Agreement to the extent that it is delayed, prevented or hindered in performing any of its obligations under this Agreement as a result of a Force Majeure Event. You may not assign or transfer this Agreement or any of Your rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of Live-Guard, LLC, except that You may assign this Agreement in its entirety to Your successor in the event of a merger, corporate reorganization or a sale of all or substantially all of Your assets so
long as such successor is not a direct competitor of Live-Guard, LLC. Any attempt by You to assign this Agreement or any of Your rights or obligations hereunder in violation of this Section shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. You represent and warrant to Live-Guard, LLC that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Live-Guard, LLC’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Live-Guard, LLC in writing. The Service and, other technology Live-Guard, LLC makes available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. You represent that You are not named on any U.S. government denied-party list. You shall not permit Users to access or use the Service in a U.S. embargoed country or in violation of any U.S. export law or regulation. Live-Guard, LLC may provide any notice to You under this Agreement by posting a notice to the Live-Guard, LLC Website or otherwise within the Service or by sending a message to the email address then associated with Your account. Notice provided by posting to the
Live-Guard, LLC Website or within the Service will be effective upon posting and notices provided by email will be effective when Live-Guard, LLC sends the email. It is Your responsibility to keep Your account contact email address current. You will be deemed to have received any email sent to the email address then associated with Your account when Live-Guard, LLC sends the email, whether or not You actually receive it. Notices provided to Live-Guard, LLC by You under this Agreement must be sent either by: (i) facsimile transmission to 1-(918)-523-7121 or (ii) by personal delivery, overnight courier or registered or certified mail to Live-Guard, LLC, 7122 S. Sheridan, Tulsa, OK 74133. Live-Guard, LLC may update the fax number or address for notices by posting a notice on the Live-Guard, LLC Website. Notices sent by You to Live-Guard, LLC are effective upon receipt by Live-Guard, LLC
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