1. Customer may terminate any or all Services upon sixty (60) days advance written notice to Reign. With advance notice to Customer, where practicable, Reign’s obligation to provide the Services may be terminated by Reign, if: (a) Reign’s monitoring center (“MC”) is substantially damaged by a catastrophic event or otherwise rendered inoperable; or (b) it becomes impractical or impossible for Reign to support technologies or communication facilities required to provide the Services, or to obtain and/or maintain any connections or privileges required to transmit signals between the Customer’s RM System and Reign’s MC. Reign will not be liable for any damages or subject to any penalties as a result of any such termination.
2. Customer shall allow Reign access to its facilities for purposes of carrying out the Services, and access upon reasonable advance notice to its personnel for purposes of addressing issues relating to the Services.
3. In the event of any dispute arising from the Services the parties shall first attempt in good faith to resolve such dispute by negotiation between themselves. In the event that any such dispute is not resolved on an informal basis within thirty (30) days thereafter either party may, by written notice to the other party, require the dispute to be submitted to a mediation service. The parties will cooperate and mutually agree to the mediation service by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the parties. If the parties are unable to resolve such dispute by mediation, either party may file suit in a court of competent jurisdiction.
4. The parties understand and agree that Reign is not an insurer and that insurance, if any, shall be obtained by Customer and that amounts payable to Reign hereunder are based on the value of the Services and scope of liability as herein set forth and are unrelated to the value of any Customer’s property, any property of others located in or at Customer’s premises, or the risk of loss associated with such premises. REIGN MAKES NO GUARANTY OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE MONITORING SERVICES SUPPLIED WILL AVERT OR PREVENT OCCURRENCES, OR THE CONSEQUENCES ARISING THEREFROM, WHICH THE RM SYSTEMS AND/OR REIGN’S SERVICE IS INTENDED TO DETECT OR PREVENT (such occurrences, including without limitation high or low tank levels, power supply failures, temperature changes, equipment failures and similar events hereinafter referred to as a “Detection Event”). Reign does not assume the risk of injury or loss to which Customers’ persons or property, or the persons or property of others, may be subject if a Detection Event occurs and the allocation of such risk remains with Customer, not Reign. Accordingly, Customer agrees that Reign shall have no liability for loss, damage or injury due directly or indirectly to Detection Events, or the consequences therefrom, and Customer releases and waives for itself and their respective insurers all subrogation and other rights to recover from Reign as a result of paying any claim for loss, damage or injury arising from or due to a Detection Event. If notwithstanding the foregoing, Reign is found liable for loss, damage or injury under any legal theory due to any failure of the Service with respect to a Detection Event, its liability shall be limited to a sum equal to $2,500 as agreed upon damages and sole remedy, and not as a penalty. It is mutually acknowledged and agreed this will be the sole remedy because it is impractical and difficult to determine the actual damages, if any, which may result from Reign’s failure to perform any of its obligations and the provisions hereof shall apply no matter how the loss, damage or injury or other consequence occurs, even if due to Reign’s performance or nonperformance of its obligations or from negligence, active or otherwise, strict liability, violation of any applicable law or any other alleged fault on the part of Reign, its contractors, agents and/or employees. If any other person, including Customer’s subrogating insurer, makes any claim or files any lawsuit against Reign in any way relating to the Services, then the Customer shall indemnify, defend and hold Reign harmless from any and all such claims and lawsuits including the payment of all damages, expenses, costs and reasonable legal fees. No suit or action shall be brought against Reign more than one (1) year after the accrual of the cause of action thereof.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS) ARISING OUT OF ANY PERFORMANCE OR NON-PERFORMANCE, WHETHER SUCH CLAIM FOR DAMAGES IS BASED ON TORT, STRICT LIABILITY, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Reign’s maximum liability to the Customer for direct damages, excluding liability for Detection Events, shall be the aggregate sum of fees paid to Reign.
Reign represents and warrants that the Services will be provided in a professional manner, in compliance with applicable law, and in conformity with generally prevailing industry standards. Reign makes no guarantee or warranty that the RM Systems cannot be compromised, circumvented or otherwise defeated. THE FOREGOING WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE DATE OF ENGAGEMENT.
5. Any controversies or legal issues arising between the parties shall be submitted to the applicable court having jurisdiction located in the Duval County Circuit Court or United States District Court of the Middle District of Florida. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED HEREBY.
6. Nothing hereunder, express or implied, is intended to or shall confer on any person, other than the parties and their respective successors or assigns, any rights (including third-party beneficiary rights), remedies, obligations or liabilities under or by reason of the relationship between the parties.
7. Each party shall be excused from performance hereunder, other than the payment of money for services already rendered, for any period to the extent that it is prevented from performing any service as a result of an act of God, war, civil disturbance, labor dispute or other cause beyond its reasonable control and such non-performance shall not be a default hereunder.