RemoteLock Installation Services Agreement
Last updated on December 9, 2022.
This Installation Services Agreement (the “Agreement”) is between RemoteLock, Inc. (“RemoteLock”), and the individual or entity (the “Customer”) signing or otherwise accepting any order form or similar document (“Order Form”) that references this Agreement and describes the installation services to be performed (the “Installation Services”). This Agreement is effective as of Customer’s execution and RemoteLock’s acceptance of the Order Form referencing this Agreement (the “Effective Date”). If the individual accepting this Agreement is accepting on behalf of a legal entity, such individual represents that they have the authority to bind such entity and its affiliates to this Agreement, in which case the term “Customer” shall refer to the entity and its affiliates.
Installation Services.
The Installation Services will be provided on a time and materials basis unless otherwise set forth in the Order Form. Customer shall reimburse RemoteLock for approved expenses reasonably incurred in the performance of Installation Services. RemoteLock shall provide reasonable documentation of such expenses upon Customer’s request. RemoteLock may provide the Installation Services through its third-party subcontractors but, in all such cases, RemoteLock will remain responsible for such subcontractors’ performance. For the avoidance of doubt, all of Customer’s duties and obligations set forth herein with respect to the actual performance of the Installation Services, including, without limitation, duties and obligations relating to safety and cooperation shall also apply with respect to subcontractors to the extent subcontractors perform the Installation Services. The parties may make changes to the scope and/or cost of the Installation Services by executing a “Change Order” setting forth such changes. For the avoidance of doubt, this Agreement is limited to Installation Services and does not convey any right to any other RemoteLock services and/or products, including the RemoteLock Access Control Services. Customer acknowledges that Customer’s obligations set forth herein are not contingent on the provision and/or availability of other RemoteLock services and/or products or the features thereof.
The Installation Services shall be performed at the location identified in the Order Form (the “Premises”). Customer shall be solely responsible for obtaining the authorization and/or rights for Installation Services to be performed at any Premises.
The Installation Services do not include the disposal of existing access control equipment previously installed and replaced. RemoteLock may be required to drill holes, insert nails, screws, brackets or cut into walls, ceilings and other building materials in a reasonable manner to perform the Installation Services and Customer agrees that RemoteLock may do so. RemoteLock shall clean construction messes or debris but is not responsible for repairing or restoring any damage reasonably incurred in connection with the Installation Services, or repainting or redecorating the Premises. RemoteLock installers are not aware of hidden pipes, wires or other objects within walls, floors, ceilings, or other concealed spaces and, therefore, Customer must advise RemoteLock of such hidden objects before the start of Installation Services. At all times during the performance of Installation Services, it is Customer’s responsibility to make the Premises available to RemoteLock, including notifying and making appropriate plans with any owner, landlord, tenant or other persons. RemoteLock may require the non-technical assistance of one or more staff member(s) of Customer to perform the Installation Services (for such purposes as moving furniture, personal items of Customer, providing access, etc.), and Customer agrees to provide staff member(s) as so required.
Reliance on Customer Information.
To the extent that Customer has provided information to RemoteLock to help determine the cost, feasibility, scope, timeline or any other aspect of the Installation Services, Customer hereby represents that such information is accurate and complete. To the extent that such information is inaccurate and/or additional information that RemoteLock could not have reasonably discovered before the Effective Date is discovered and such inaccuracy or new information materially impacts the cost, feasibility, scope, timeline or any other aspect of the Installation Services, the parties agree to negotiate in good faith to execute a Change Order to address such material impact. If the parties are unable to agree upon such Change Order within a reasonable amount of time, which shall be determined in RemoteLock’s sole discretion, RemoteLock may terminate this Agreement and Customer shall owe RemoteLock the Fees for work performed as of the date of termination.
Customer Cooperation.
Customer will reasonably cooperate with RemoteLock to facilitate the performance of the Installation Services which shall include, but not be limited to, the following: (i) assigning a project manager with the requisite skills and training to serve as Customer’s primary point of contact; (ii) allocating sufficient resources to ensure Customer’s ability to meet its obligations; and (iii) providing RemoteLock with, or access to, such facilities, equipment and support as are reasonably necessary for RemoteLock to provide the Installation Services. RemoteLock shall have no liability in connection with the Installation Services to the extent Customer fails to fully comply with this Section.
Hazardous Conditions.
Customer represents that there is no (i) Permit Confined Spaces as defined by OSHA which RemoteLock will be required to access or enter; (ii) elevated risk of infectious disease anywhere within the Premises where work will be performed by RemoteLock; (iii) need for air monitoring, respiratory protection, or other medical risk, or (iv) asbestos containing material, formaldehyde or other potentially toxic or hazardous material contained in, on or around the surface of the floors, walls, ceilings, insulation or other structural components where work will be performed by RemoteLock (“Hazardous Conditions”). If Hazardous Conditions are encountered, RemoteLock shall have no obligation to perform work in an affected area until the area has been made safe by Customer, and Customer shall pay reasonable disruption and re-mobilization costs and expenses as reasonably determined by RemoteLock. Customer agrees to indemnify, defend and hold RemoteLock and its contractors harmless for any and all damages resulting from exposure of workers to Hazardous Conditions, including bodily injury and property damage, reasonable attorneys’ fees, court costs and expert fees, except to the extent that any such damages are exacerbated by the gross negligence or willful misconduct of RemoteLock. Notwithstanding anything to the contrary in the Agreement, Customer’s foregoing obligation to indemnify in connection with Hazardous Conditions shall not be subject to any limitation of liability. Under no circumstances shall RemoteLock, be responsible for the removal or disposal of any hazardous materials.
Failed Order.
Customer shall reimburse RemoteLock for all expenses incurred and pay RemoteLock its then-applicable failed order fee for any order for which RemoteLock personnel is dispatched but which is impracticable or impossible to commence and/or complete due to any reason other than RemoteLock’s failure to fulfill its obligations.
Term and Termination.
Term. This Agreement shall commence on the Effective Date and shall continue until the Installation Services are completed and all Fees are paid and/or as this Agreement is otherwise terminated and/or expires according to the terms herein.
Termination. Notwithstanding anything to the contrary in this Agreement, this Agreement may be terminated under the following circumstances. RemoteLock may terminate this Agreement or suspend the Installation Services immediately and without notice for Customer’s material breach of this Agreement. In the event of a termination pursuant to the foregoing sentence, Customer shall not be entitled to any refund of Fees paid, including any amounts paid for Installation Services that are not yet completed. If RemoteLock materially breaches this Agreement, Customer may terminate this Agreement “for cause” by providing thirty (30) days’ prior written notice to RemoteLock detailing such material breach, provided that, such termination shall be void if RemoteLock cures its breach within the thirty (30) day period. If Customer terminates “for cause” RemoteLock will refund any Fees prepaid for Installation Services not yet performed.
Customer may also terminate this Agreement “for convenience” at any time by providing written notice to RemoteLock, however, Customer agrees that all Fees shall remain due to RemoteLock if Customer terminates for convenience. Provisions that by their nature, should survive termination of this Agreement shall survive termination. By way of example, the following will survive termination: any obligation Customer has to pay, indemnification obligations, any limitation of liability and terms regarding disputes.
Fees.
Payment. Customer agrees that RemoteLock may charge Customer for all applicable fees for the Installation Services (“Fees”). Fees may be calculated on a time and materials or fixed fee basis. If Fees are on a time and materials basis, the hourly rate shall be RemoteLock’s then applicable standard hourly rates for the Installation Services unless otherwise set forth in the Order Form. If Fees are on a fixed fee basis, the applicable fixed fee shall be set forth in the Order Form. All quoted Fees will be exclusive of taxes, duties and the like, which may be charged by RemoteLock and will be paid by Customer (exclusive of taxes based on RemoteLock’s net income). If Customer has provided a credit and/or debit card for payment, Customer agrees that fixed fees may be charged immediately and that hourly fees may be charged according to RemoteLock’s then applicable policy. If any payment is not received, is returned unpaid or if any credit card or similar transaction is rejected, denied, challenged or reversed, RemoteLock may suspend the Installation Services until payment is made or terminate this Agreement for material breach.
If the Order Form indicates that Fees shall be invoiced, Fees shall be due within thirty (30) days of invoice date. Invoices for fixed fees may be sent immediately and invoices for hourly fees may be sent according to RemoteLock’s then applicable policy. Customer agrees that RemoteLock may send invoices to any address that is set forth on the Order Form. RemoteLock shall not be required to use Customer’s payment system to submit an invoice, and Customer hereby represents that Customer does not require a purchase order to issue before invoicing. If Customer fails to pay the Fees on time, RemoteLock may charge the lesser of 1% interest per month or the maximum allowable under applicable law on overdue amounts.
Limited Warranty and Warranty Disclaimer.
Limited Warranty.
RemoteLock warrants the Installation Services to be free from defects in workmanship from the date the Installation Services are completed, or, with respect to warranty work, from the date the warranty work is performed, for a period of sixty (60) days; provided that Customer’s sole and exclusive remedy for any breach of this warranty will be, at RemoteLock’s option, re-performance of the Installation Services or termination of the applicable Order Form and return of the portion of the Fees paid to RemoteLock by Customer for the nonconforming portion of the Installation Services. This workmanship warranty does not include any damages or defects in hardware except to the extent solely caused by RemoteLock’s installation of the hardware.
Warranty Disclaimer.
EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH HEREIN CUSTOMER AGREES THAT REMOTELOCK AND ANY SUBCONTRACTORS PROVIDE THE INSTALLATION SERVICES ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTIES OR REPRESENTATIONS. NEITHER REMOTELOCK NOR ITS SUBCONTRACTORS MAKE ANY WARRANTIES WITH RESPECT TO THE PERFORMANCE OF THE INSTALLATION SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND REMOTELOCK ON BEHALF OF ITSELF AND ITS CONTRACTORS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability.
CUSTOMER AGREES THAT IN NO EVENT SHALL REMOTELOCK OR ITS PARENTS, AFFILIATES, RELATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, LICENSORS OR SUPPLIERS (COLLECTIVELY, REMOTELOCK AND THE OTHER ENTITIES, THE “REMOTELOCK ENTITIES”) BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND RELATING TO THIS AGREEMENT OR THE INSTALLATION SERVICES, INCLUDING BUT NOT LIMITED TO UNAUTHORIZED ACCESS TO CUSTOMER’S PROPERTY OR PROPERTY DAMAGE, EVEN IF THE REMOTELOCK ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. ADDITIONALLY, IN NO EVENT SHALL THE REMOTELOCK ENTITIES AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF THE AMOUNT PAID BY CUSTOMER TO REMOTELOCK IN CONNECTION WITH THIS AGREEMENT OR ONE HUNDRED DOLLARS (US$100.00). THE LIMITATIONS OF THIS SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE LIMITATION OF LIABILITY.
Indemnification.
Customer agrees to defend, indemnify and hold harmless the RemoteLock Entities from and against any claims, suits or other actions brought by third parties, including, without limitation, associated losses, damages, liabilities, penalties, fines, costs, and expenses (including reasonable attorneys’ fees) resulting from or relating to (i) any breach by Customer of Customer’s representations, obligations, duties, or responsibilities under this Agreement; or (ii) any negligent actions or omissions on the part of Customer.
Choice of Law and Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, excluding its conflict of law provisions. The parties agree that the Uniform Computer Information Transactions Act (UCITA) is hereby excluded from application to this Agreement and the parties agree that the United Nations Convention for the International Sale of Goods is excluded in its entirety from this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in a federal or state court in Denver, Colorado, U.S.A., and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding.
General.
Electronic Communications. Customer consents to receiving electronic communications from RemoteLock. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Installation Services. These electronic communications are part of Customer’s relationship with RemoteLock and Customer receives them as part of Customer’s agreement with RemoteLock. Customer agrees that any notices, agreements, disclosures or other communications that RemoteLock sends to Customer electronically will satisfy any legal communication requirements, including that such communications be in writing.
Entire Agreement. Unless Customer has entered into a separate agreement or ordering document with RemoteLock that contains additional terms (a “Master Agreement”), this Agreement represents the entire understanding between Customer and RemoteLock relating to Customer’s purchase and/or use of the Installation Services set forth in the Order Form. For the avoidance of doubt, a Customer purchase order or similar document shall not be considered a Master Agreement and the terms of any such document shall not apply. If a Master Agreements applies to the Installation Services, the terms of the Master Agreement and this Agreement shall apply to the Installation Services unless otherwise set forth in the Master Agreement. In the event of a conflict between the Master Agreement and this Agreement, the Master Agreement shall control. For the avoidance of doubt, other than as set forth in the foregoing sentence, this Agreement prevails over any other communications between Customer, or on Customer’s behalf, and RemoteLock, including any prior version of this Agreement.
Assignment. Customer may not assign this Agreement other than to an entity acquiring substantially all of Customer’s assets, provided that such assignee is not a RemoteLock competitor, as may be determined in RemoteLock’s reasonable discretion, and such assignee agrees in writing to assume all obligations under this Agreement. Except as set forth above, Customer may not assign any of Customer’s rights or delegate any of Customer’s obligations under this Agreement to any party without the express written consent of RemoteLock. Any attempted assignment in violation of the foregoing shall be void and of no effect. Subject to the above, this Agreement shall be binding upon and inure to the benefit of Customer’s successors and assigns.
Notice. Any notice hereunder shall be in writing and shall be given by certified mail or by email. Notice to Customer shall be to any physical and/or email address that is provided by Customer (or on Customer’s behalf) to RemoteLock. Notice to RemoteLock shall be provided by email to legalnotice@remotelock.com. Notices shall be deemed given when received.
Force Majeure
Neither party shall be liable for any breach of the Agreement or for any delay or failure of performance resulting from any cause beyond such party’s reasonable control, including but not limited to the weather, civil disturbances, acts of civil or military authorities, pandemics or acts of God.
Other Provisions.
No waiver, amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by the party against whom such waiver, amendment or modification is sought to be enforced.
No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided herein, shall be deemed as a waiver of any such right, power or remedy.
If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.
The parties’ relationship shall be solely that of independent contractor and nothing contained in this Agreement shall be construed to make either party an agent, partner, joint venturer or representative of the other for any purpose.
