MASTER SUBSCRIPTION AGREEMENT
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Services Definition Guide” means the online guide describing the available Services, and Service Level Agreements accessible HERE as updated from time to time. You acknowledge that You have had the opportunity to review the Service Definition Guide and that You are familiar with the capabilities and limitations of the Services.
“Services” means the products and services that are ordered by You with a Subscription Order Form made available by Us.
“Order Form” means the documents for placing orders hereunder, including Quotes, Proposals, and/or Work Orders, and addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
“Your Users” means individuals who are authorized by You to order or use the Services, and who have been supplied user identifications and passwords by You (or by Us at Your request). Your Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us” or “Our” means Cornet, Inc., a Virginia C Corporation located at 13996 Parkeast Circle; Suite 104, Chantilly, VA 20151.
“You” or “Your” means the Subscriber and Affiliates of the Subscriber.
SUBSCRIPTION FEES. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified here in or in an Order Form, (i) fees are based on Services purchased and not actual usage or delivery of Services, (ii) payment obligations are non-cancelable and all fees paid are non-refundable.
TERM. This Agreement commences on the date You accept it (Initial Term) and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated. At the conclusion of the Initial Term, this Agreement shall automatically extend for successive Terms equal to the Initial Term, each and together a “Term” of this Agreement, including any associated increase in prices, unless either party gives written notice to the other party at least ninety (90) days prior to the end of the then-current term.
PRICING. Pricing will be set forth in the Order Form presented to the Subscriber for approval, and is based on a specific Scope of Work or Services to be performed as set forth in this Agreement. We may increase prices upon notice to You, or 3% annually to reflect increases in material and labor costs. You agree to pay all taxes, permits, and other charges, including but not limited to state and local sales and excise taxes, installation and alarm permits, false alarm assessments, or any charges imposed by any government body, however designated, levied or based on service charges pursuant to this Agreement. Your failure to make payment when due is a material breach of this Agreement.
SCHEDULING. Subscriber has selected the service level desired after considering and balancing various levels of protection afforded, and their related costs. All work to be performed by Company will be performed during normal working hours of normal working days (8:00 a.m. – 5:00 p.m.), Monday through Friday, excluding Company holidays, as defined by Company, unless additional times are specifically described in this Agreement. All work performed unscheduled unless otherwise specified in this Agreement. Appointments scheduled for four-hour window. Additional charges may apply for special scheduling requests, e.g. working around equipment shutdowns, after hours work.
PAYMENT. Payments shall be invoiced and due in accordance with the terms and conditions set forth in the Order Form. Work performed on a time and material basis shall be invoiced at the rates defined in the Order Form or at the then-prevailing Company rate for material, labor, and related items in effect at the time they are supplied under this Agreement.
SERVICES. We shall make the Services available to You pursuant to this Agreement and the relevant Order Form during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any functionality or features not currently represented by the Service Definition Guide, nor dependent on any oral or written comments made by Us regarding any functionality or features.
SCOPE OF INSPECTION. The inspection and testing services provided are designed to determine the functionality of the inspected systems at the time of inspection/test. The Scope of Inspection does not include: maintenance, repairs, alterations, or replacement of parts or any other field adjustments; daily, weekly, or monthly inspection requirements and/or maintenance per NFPA 25, NFPA 72, and/or NFPA 10; obstruction investigation or prevention, fire pump maintenance; testing of fire hoses’ freeze plug inspection; or internal pipe inspection unless specifically listed in the Order Form.
RESPONSIBILITY OF OWNER, MANAGER, OR OCCUPANT. The responsibility for properly maintaining a water-based fire protection sprinkler system, fire alarm system, and/or portable fire extinguishers shall be that of the owner of the property. This agreement is limited to inspection, testing and services at the time of the visit only and does not eliminate the owner’s responsibility for maintaining the systems, such as, CHECKING AND DRAINING LOW POINTS, MAINTAINING ADEQUATE HEAT, PROPER LEVELS OF LUBRICANT, ETC. or include maintenance alterations, repairs or replacement of faulty system components. Subscriber shall regularly test the System(s) in accordance with applicable law and manufacturers’ and Company’s recommendations. Subscriber shall promptly notify Company of any malfunction in the Covered System(s) which comes to Subscriber’s attention. This Agreement assumes any existing system(s) are in operational and maintainable condition as of the Agreement date. If, upon inspection, Company determines that repairs are recommended, repair charges will be submitted for approval by Subscriber’s on-site representative prior to work. Should such repair work be declined, Company shall be relieved from any and all liability arising therefrom
The owner, manager, or occupant shall:
- Promptly correct or repair deficiencies, damaged parts, or impairments found while performing the inspection & testing of this system. Corrections and repairs shall be performed by qualified personnel or a qualified contractor.
- Notify all parties that may be affected by alarms initiated during tests. This may include parties such as the building occupants, the fire alarm system monitoring company, and the public fire service.
- Implement any fire system impairment management program including the completion of impairment permits and the notification of parties that are to be made aware of fire system impairments. These parties may include the local fire department or insurance companies with insurable interests at the location.
- Manage and dispose of any water released during tests.
- Ensure that Company shall be admitted into all areas of said premises for the purpose of providing these services. Appropriate notice will be given.
- Have sprinkler system drawings available on site to assist the inspector to identify equipment components so that they can be properly located. Owner is responsible for identifying equipment locations.
- Any additional sprinkler systems relative to this Agreement added to the above premises after the date of contract acceptance shall be inspected by Company. Subscriber shall pay an additional price commensurate with the usual charges made by Company for inspecting such additional systems at a price agreed upon by both Company and Subscriber.
REPORTS. Where inspection and/or test services are selected, such inspection and/or test shall be completed on Company’s then current Report form, which shall be given to Subscriber, and, where applicable, Company may submit a copy thereof to the local authority having jurisdiction. The Report and recommendations by Company are only advisory in nature and are intended to assist Subscriber in reducing the risk of loss to property by indicating obvious defects or impairments noted to the system and equipment inspected and/or tested. They are not intended to imply that no other defects or hazards exist or that all aspects of the Covered System(s), equipment, and components are under control at the time of inspection. Final responsibility for the condition and operation of the Covered System(s) and equipment and components lies with Subscriber.
CONFINED SPACE. If access to confined space by Company is required for the performance of Services, Services shall be scheduled and performed in accordance with Company’s then-current hourly rate.
HAZARDOUS MATERIALS. Subscriber represents that, except to the extent that Company has been given written notice of the following hazards prior to the execution of this Agreement, to the best of Subscriber’s knowledge there is no:
- “Permit confined space,” as defined by OSHA,
- Risk of infectious disease,
- Need for air monitoring, respiratory protection, or other medical risk,
- Asbestos, asbestos-containing material, formaldehyde or other potentially toxic or otherwise hazardous material contained in or on the surface of the floors, walls, ceilings, insulation or other structural components of the area of any building where work is required to be performed under this Agreement.
All of the above are hereinafter referred to as “Hazardous Conditions”. Company shall have the right to rely on the representations listed above. If hazardous conditions are encountered by Company during the course of Company’s work, the discovery of such materials shall constitute an event beyond Company’s control and Company shall have no obligation to further perform in the area where the hazardous conditions exist until the area has been made safe by Subscriber as certified in writing by an independent testing agency, and Subscriber shall pay disruption expenses and re-mobilization expenses as determined by Company.
This Agreement does not provide for the cost of capture, containment or disposal of any hazardous waste materials, or hazardous materials, encountered in any of the Covered System(s) and/or during performance of the Services. Said materials shall at all times remain the responsibility and property of Subscriber. Company shall not be responsible for the testing, removal or disposal of such hazardous materials.
CODE COMPLIANCE. Company does not undertake an obligation to inspect for compliance with laws or regulations unless specifically stated in the Order Form. Subscriber acknowledges that the Authority Having Jurisdiction (e.g. Fire Marshal) may establish additional requirements for compliance with local codes. Any additional services or equipment required will be provided at an additional cost to Subscriber.
LIMITATION OF LIABILITY; LIMITATION OF REMEDY. Subscriber understands that Company offers several levels of protection services and that the level described has been chosen by Subscriber after considering and balancing various levels of protection afforded and their related costs. It is understood and agreed by the Subscriber that Company is not an insurer and that insurance coverage, if any, shall be obtained by the Subscriber and that amounts payable to Company hereunder are based upon the value of the services and the scope of liability set forth in this Agreement and are unrelated to the value of the Subscriber’s property and the property of others located on the premises. Subscriber agrees to look exclusively to the Subscriber’s insurer to recover for injuries or damage in the event of any loss or injury and that Subscriber releases and waives all right of recovery against Company arising by way of subrogation. Company makes no guaranty or Warranty, including any implied warranty of merchantability or fitness for a particular purpose that equipment or services supplied by Company will detect or avert occurrences or the consequences therefrom that the equipment or service was designed to detect or avert. It is impractical and extremely difficult to fix the actual damages, if any, which may proximately result from failure on the part of Company to perform any of its obligations under this Agreement. Accordingly, Subscriber agrees that Company shall be exempt from liability for any loss, damage or injury arising directly or indirectly from occurrences, or the consequences therefrom, which the equipment or service was designed to detect or avert. Should Company be found liable for any loss, damage or injury arising from a failure of the equipment or service in any respect, Company’s liability for Services performed on site at Subscriber’s premises shall be limited to an amount equal to the Agreement price (as increased by the price for any additional work) or, where the time and material payment term is selected, Subscriber’s time and material payments to Company. Where this Agreement covers multiple sites, liability shall be limited to the amount of the payments allocable to the site where the incident occurred. Such sum shall be complete and exclusive. If Subscriber desires Company to assume greater liability, the parties shall amend this Agreement by attaching a rider setting forth the amount of additional liability and the additional amount payable by the Subscriber for the assumption by Company of such greater liability, provided however that such rider shall in no way be interpreted to hold Company as an insurer. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DAMAGE, LOSS, INJURY, OR ANY OTHER CLAIM ARISING FROM ANY SERVICING, ALTERATIONS, MODIFICATIONS, CHANGES, OR MOVEMENTS OF THE COVERED SYSTEM(S), AS HEREINAFTER DEFINED, OR ANY OF ITS COMPONENT PARTS BY THE SUBSCRIBER OR ANY THIRD PARTY. COMPANY SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DAMAGES ARISING FROM THE USE, LOSS OF THE USE, PERFORMANCE, OR FAILURE OF THE COVERED SYSTEM(S) TO PERFORM. The limitations of liability set forth in this Agreement shall inure to the benefit of all parents, subsidiaries and affiliates of Company, whether direct or indirect, Company’s employees, agents, officers and directors.
INDEMNITY. Subscriber agrees to indemnify, hold harmless and defend Company against any and all losses, damages, costs, including expert fees and costs, and expenses including reasonable defense costs, arising from any and all third party claims for personal injury, death, property damage or economic loss, arising in any way from any act or omission of Subscriber or Company relating in any way to this Agreement, including but not limited to the Services under this Agreement, whether such claims are based upon contract, warranty, tort (including but not limited to active or passive negligence), strict liability or otherwise. Company reserves the right to select counsel to represent it in any such action.
LIMITED WARRANTY. COMPANY WARRANTS THAT ITS WORKMANSHIP AND MATERIAL FURNISHED UNDER THIS AGREEMENT WILL BE FREE FROM DEFECTS FOR A PERIOD OF ONE (1) YEAR FROM THE DATE OF FURNISHING. Where Company provides product or equipment of others, Company will warrant the product or equipment only to the extent warranted by such third party. EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES PERFORMED OR THE PRODUCTS, SYSTEMS OR EQUIPMENT, IF ANY, SUPPORTED HEREUNDER.
TAXES, FEES, FINES, LICENSES, AND PERMITS. Subscriber agrees to pay all sales tax, use tax, property tax, utility tax and other taxes required in connection with the equipment and services listed, including telephone company line charges, if any. Subscriber shall comply with all laws and regulations relating to the equipment and its use and shall promptly pay when due all sales, use, property, excise and other taxes and all permit, license and registration fees now or hereafter imposed by any government body or agency upon the equipment or its use. Company may, without notice, obtain any required permit, license or registration for Subscriber at Subscriber’s expense and charge a fee for this service. If Subscriber fails to maintain any required licenses or permits, Company shall not be responsible for performing the services and may terminate the services without notice to Subscriber.
OUTSIDE CHARGES. Subscriber understands and accepts that Company specifically denies any responsibility for charges associated with the notification or dispatching of anyone, including but not limited to fire department, police department, paramedics, doctors, or any other emergency personnel, and if there are any charges incurred as a result of said notification or dispatch, said charges shall be the responsibility of Subscriber.
INSURANCE. Subscriber shall name Company, its officers, employees, agents, subcontractors, suppliers, and representatives as additional insureds on Subscriber’s general liability and auto liability policies.
WAIVER OF SUBROGATION. Subscriber does hereby for itself and all other parties claiming under it release and discharge Company from and against all hazards covered by Subscriber’s insurance, it being expressly agreed and understood that no insurance company or insurer will have any right of subrogation against Company.
FORCE MAJEURE, EXCLUSIONS. We shall not be responsible for delays, interruption or failure to render services due to causes beyond its control, including but not limited to material shortages, work stoppages, fires, civil disobedience or unrest, severe weather, fire or any other cause beyond the control of Company. This Agreement expressly excludes, without limitation, provision of fire watches; reloading of, upgrading, and maintaining computer software; making repairs or replacements necessitated by reason of negligence or misuse of components or equipment or changes to Subscriber’s premises; vandalism; power failure; current fluctuation; failure due to non-Company installation; lightning, electrical storm, or other severe weather; water; accident; fire; acts of God; testing inspection and repair of duct detectors, beam detectors, and UV/IR equipment; provision of fire watches; clearing of ice blockage; draining of improperly pitched piping; batteries; recharging of chemical suppression systems; reloading of, upgrading, and maintaining computer software; corrosion (including but not limited to micro-bacterially induced corrosion (“MIC”)); cartridges greater that 16 grams; gas valve installation; or any other cause external to the Covered System(s) and Company shall not be required to provide Service while interruption of service due to such causes shall continue. This Agreement does not cover and specifically excludes system upgrades and the replacement of obsolete systems, equipment, components or parts. All such services may be provided by Company at Company’s sole discretion at an additional charge. If Emergency Services are expressly included in a work order issued pursuant to this Agreement, the Agreement price does not include travel expenses.
DELAYS. We shall have no responsibility or liability to Subscriber or any other person for delays in the installation or repair of the System or the performance of our Services regardless of the reason, or for any resulting consequences.
TERMINATION. We may terminate this Agreement immediately at its sole discretion upon the occurrence of any Event of Default as hereinafter defined. Company may also terminate this Agreement at its sole discretion upon notice to Subscriber if Company’s performance of its obligations under this Agreement becomes impracticable due to obsolescence of equipment at Subscriber’s premises or unavailability of parts.
NO OPTION TO SOLICIT. You shall not, directly or indirectly, on its own behalf or on behalf of any other person, business, corporation or entity, solicit or employ any Company employee, or induce any Company employee to leave his or her employment with Company, for a period of two years after the termination of this Agreement.
DEFAULT. An Event of Default shall include 1) any full or partial termination of this Agreement by Subscriber before the expiration of the then-current Term, 2) failure of the Subscriber to pay any amount within ten (10) days after the amount is due and payable, 3) abuse of the System or the Equipment, 4) failure by Subscriber to observe, keep or perform any term of this Agreement; 5) dissolution, termination, discontinuance, insolvency or business failure of Subscriber. Upon the occurrence of an Event of Default, Company may pursue one or more of the following remedies, 1) discontinue furnishing Services, 2) by written notice to Subscriber declare the balance of unpaid amounts due and to become due under the this Agreement to be immediately due and payable, provided that all past due amounts shall bear interest at the rate of 1 ½% per month (18% per year) or the highest amount permitted by law, 3) receive immediate possession of any equipment for which Subscriber has not paid, 4) proceed at law or equity to enforce performance by Subscriber or recover damages for breach of this Agreement, and 5) recover all costs and expenses, including without limitation reasonable attorneys’ fees, in connection with enforcing or attempting to enforce this Agreement.
ONE-YEAR LIMITATION ON ACTIONS; CHOICE OF LAW. It is agreed that no suit, or cause of action or other proceeding shall be brought against either party more than one (1) year after the accrual of the cause of action or one (1) year after the claim arises, whichever is shorter, whether known or unknown when the claim arises or whether based on tort, Agreement, or any other legal theory. The laws of Virginia shall govern the validity, enforceability, and interpretation of this Agreement.
ASSIGNMENT. Subscriber may not assign this Agreement without Company’s prior written consent. Company may assign this Agreement without obtaining Subscriber’s consent.
ENTIRE AGREEMENT. The parties intend this Agreement, together with any attachments, riders or Statements of Work (collectively the “Agreement) to be the final, complete and exclusive expression of their Agreement and the terms and conditions thereof. This Agreement supersedes all prior representations, understandings or agreements between the parties, written or oral, and shall constitute the sole terms and conditions relating to the Services. No waiver, change, or modification of any terms or conditions of this Agreement shall be binding on Company unless made in writing and signed by an Authorized Representative of Company.
HEADINGS. The headings in this Agreement are for convenience only.
SEVERABILITY. If any provision of this Agreement is held by any court or other competent authority to be void or unenforceable in whole or in part, this Agreement will continue to be valid as to the other provisions and the remainder of the affected provision.
ELECTRONIC MEDIA. Subscriber agrees that Company may scan, image or otherwise convert this Agreement into an electronic format of any nature. Subscriber agrees that a copy of this Agreement produced from such electronic format is legally equivalent to the original for any and all purposes, including litigation. Subscriber agrees that Company’s receipt by fax of the Agreement signed by Subscriber legally binds Subscriber and such fax copy is legally equivalent to the original for any and all purposes, including litigation.
LEGAL FEES. Company shall be entitled to recover from the Subscriber all reasonable legal fees incurred in connection with Company enforcing the terms and conditions of this Agreement.