WTC Communications, a Kansas Corporation ("we", "us", or "our") will provide you ("you", "your", or the "Customer") with the system and any related accessories delivered to you (collectively, the "System"), along with any related control and self-monitoring services (collectively, the "Services") for the address where the System was delivered to you as identified in the account information you provided during Account setup (the “Premises”) in accordance with the terms of this Terms and Conditions for Automation Services and Control (this "Agreement"). The Services may be provided to you directly by us, through any affiliate of ours, and/or by any third party acting on our behalf. For purposes of this Agreement, an "affiliate" means any entity that controls, is controlled by or is under common control with us.
1. Acceptance of this Agreement:
a) You will have accepted this Agreement and be bound by its terms upon the earlier of (i) your acknowledgement or acceptance of this Agreement electronically, or (ii) your use of the Services. Additionally, you specifically agree or represent as follows:
b) You represent to us that the email address you are using will be available for receiving electronic records from us in reference to this transaction. This Agreement shall be effective as of your acceptance and shall continue until the date set forth below in Paragraph 2 below or until terminated by either party in accordance with the terms hereof. The System requires you to perform installation of components and hardware for use of the Services. You agree that you will not sell or convey the System to any other party or use the System for any other purpose. The Services will begin no later than the day of installation and activation of the "Hub".
c) YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT, ESPECIALLY THOSE PARAGRAPHS RELATING TO YOUR INDEMNIFICATION OF US AND OUR AFFILIATES, AND OUR AND THEIR AGENTS, REPRESENTATIVES, SUPPLIERS, SERVICE PROVIDERS, CONTRACTORS AND SUBCONTRACTORS ("COMPANY RELATED PARTIES"), OUR AND OUR RELATED PARTIES' LIMITED LIABILITY, AND OUR WARRANTY.
2. Billing and Duration: Invoices are received by customers on the 1st and due by the 10th. A late fee equal to 3% of any delinquent balance will be applied monthly.
3. System; Access to the Services:
a) The System. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE SYSTEM IS NOT A SECURITY SYSTEM AND THAT WE WILL NOT MONITOR SIGNALS FROM THE SYSTEM AT ANY TIME. WE DO NOT MONITOR THE SYSTEM FOR SIGNALS AND WILL NOT DISPATCH EMERGENCY AUTHORITIES OR PROVIDE NOTIFICATION OR OTHER VERIFICATION SERVICES COMMONLY PROVIDED WITH SECURITY ALARM SYSTEMS IN CASES OF EMERGENCY. THE SYSTEM MAY NOT BE USED FOR ANY "LIFE SAFTEY PURPOSE OR EXPECTATION".
b) Permits: You agree to comply with all permitting requirements under applicable law with respect to the operation of the System and our provision of the Services, and to provide us with permit numbers and/or such other information as we may request from time to time.
c) Internet Connection: YOU UNDERSTAND AND ACKNOWLEDGE THAT IT IS SOLELY YOUR RESPONSIBILITY TO MAINTAIN AT YOUR OWN COST, A HIGH-SPEED INTERNET CONNECTION. The Services may include certain remote viewing, access and control features and functionality. The ability for those features and functionality to work with the System and Services will be dependent upon a variety of factors outside our control, including, but not limited to, faulty equipment, faulty transmission systems, limitations inherent in wireless services, power outages, and other factors. We intend that such features and functionality will interoperate with the System and Services, but shall not be liable in the event they fail to do so. Access to the Services via wireless device is dependent upon the capabilities of your wireless device and network. We shall not be liable for issues arising from your access to the Services via wireless device. Your access to the Services from your wireless device is subject to your agreement with your wireless carrier.
4. Notification Service; Text Messaging Carriers: The Services are not certified services for emergency response and may not be linked to any emergency service contact numbers. It is your responsibility to ensure that the appropriate event messages can be relayed to you and your designated contacts. It is also your responsibility to determine the appropriate response to all events and you accept that, upon receiving a notification, you are entirely responsible for your response and that of your designated contacts. Should such a response incur costs, you accept full liability for those costs. You acknowledge that the equipment may experience signal transmission failures or delays for any number of reasons. You acknowledge that the System employs a number of measures to help reduce occurrences of false notifications (including, without limitation, the implementation of default settings and various procedures to determine when and how to respond, if at all, to certain events) and you accept our use of these measures. You acknowledge that the System has not been designed or programmed pursuant to any law, code or rule that may be applicable to your particular premises, including, but not limited to, any code provisions of the National Fire Protection Association or the International Residential Code, or National Electric Code. We do not provide any guarantee that messaging will operate on any carrier. See your plan with your carrier for any charges related to text messaging or data usage relating to your use of the System. Charges associated with Text Messaging may be applied if the number of texts sent by the System exceeds 150 in any given month.
5. Changes to Services: Subject to applicable law, we have the right to change the Services, the System or equipment, at any time with thirty (30) days email notice. We also may rearrange, delete, add to, or otherwise change programming or features or offerings contained in the Services, including, but not limited to, content, functionality, hours of availability and your equipment requirements. Notice of a change may be provided in an e-mail, in a newspaper or other communication permitted under applicable law. If you find any material change in the Services, or the terms of this Agreement unacceptable, you have the right to cancel your Services within thirty (30) days of receipt of notice of such change. However, your continued receipt of the Services after such thirty (30) day period will constitute your acceptance of the change.
6. Breach of Terms and Conditions: If you breach any of these Terms and Conditions, we may immediately disconnect your equipment from the platform and terminate your Services without any notification or compensation or liability to you. You agree we may terminate your Services, at our sole discretion, for actual, suspected, or alleged use, abuse, or misuse of Services, products, or compatible products contrary to any law or regulation or right of any third party. In the event you breach or default on this Agreement in any respect, we retain the right to exercise all remedies at law and equity.
a) Battery-Powered Devices: Most compatible devices are battery powered motion detectors, thermostats, door and window contact transmitters, and other detection sensors and are not connected to the electrical system of the Premises. Such detection sensors require batteries to operate. THESE BATTERY POWERED DEVICES WILL NOT OPERATE IF THE BATTERIES ARE LOW OR DEAD. You are responsible for maintaining and replacing the batteries in these battery-powered devices and you should regularly inspect such devices for dirt and dust buildup and test them weekly to help maintain continued operation. WE STRONGLY RECOMMEND THAT YOU READ THE OWNER'S MANUAL FOR ALL EQUIPMENT. THE OWNER'S MANUAL CONTAINS VERY IMPORTANT INFORMATION SUCH AS OPERATING INSTRUCTIONS AND EQUIPMENT TESTING AND MAINTENANCE INFORMATION. YOU SHOULD ALSO READ ALL INSTRUCTIONS, WARNINGS AND OTHER INFORMATION ON THE EQUIPMENT ITSELF.
b) Hub Devices: The System includes a Hub Device ("Hub") which MUST BE CONNECTED TO AN "ALWAYS ON" INTERNET CONNECTION TO PROVIDE PROPER OPERATION AND REMOTE CONTROL FUNITONALITY OF THE SYSTEM. We may remotely activate or disable features or applications on the Hub as they become available or are discontinued.
a) Warranties: EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR PROHIBITED BY LAW, WE EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AS TO SERVICES, INCLUDING DIRECTORY SERVICES, OR RELATED EQUIPMENT. TO THE EXTENT PERMITTED BY THE MANUFACTURER, WE HEREBY ASSIGN TO YOU ANY MANUFACTURER’S WARRANTIES FOR YOUR EQUIPMENT. YOUR SOLE AND EXCLUSIVE REMEDY FOR CLAIMS RELATED TO YOUR EQUIPMENT SHALL BE TO PROVIDE US WITH THE DEFECTIVE EQUIPMENT AND WE WILL SUBMIT THE DEFECTIVE EQUIPMENT TO THE APPROPRIATE MANUFACTURER FOR HANDLING. GENERALLY, ANY DEFECTIVE EQUIPMENT WILL BE REPAIRED OR REPLACED DURING THE WARRANTY PERIOD AT THE MANUFACTURER’S SOLE DISRECTION. OUR SOLE PURPOSE IN THIS PROCESS IS TO ACT AS A CONDUIT BETWEEN THE CUSTOMER AND THE MANUFACTURER AND NO LIABILITY WILL ACCRUE TO US THERE TO.
b) No Warranty or Representation: Other than stated in Paragraph 8(a) above, we do not represent or warrant that the System may not be compromised or circumvented or that the System will prevent any personal injury, loss of life, or property loss or damage or that the System will in all cases provide the notification which is intended, and you have not relied upon any such representation or warranty. You acknowledge that any affirmation of fact or promise made by us or our agents, servants or employees, shall not be deemed to create an express warranty unless included in this Agreement in writing. EXCEPT AS PROHIBITED BY LAW WE, ON BEHALF OF OURSELVES AND OUR DIRECT AND INDIRECT SUPPLIERS, EXPRESSLY DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE AND OUR DIRECT AND INDIRECT SUPPLIERS MAKE NO REPRESENTATION THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
9. “Limitation of Technology”: You understand and agree that the Services rendered under this agreement rely on broadband (Internet) service. Inherent in this System is a failure when there is an interruption in your broadband service. In this event, the System’s dependence on your broadband service will likewise be interrupted. You understand and agree that we do not control or guarantee broadband service. You also understand and agree that broadband service at your location may be wireless and is dependent on what is commonly called wireless local area network. Anytime your wireless local area network is non-operational, the broadband portion of the System will likewise be non-operational. This acknowledgement applies to every term and condition of this agreement as if repeated in each term and conditions.
10. Delays and Failures: We assume no liability for delays in equipment installation, interruption of services due to strikes, riots, floods, fires, acts of God, mechanical or electrical equipment failures or any cause beyond our control. We may terminate this Agreement if we cannot maintain transmission privileges and we shall not be liable for any damages or penalties as a result of such termination. We may also cancel this Agreement, without previous notice, in the event our ability to provide service is lost by a catastrophe and it is impracticable to continue or restore service.
11. Release From Liability and Waiver of Subrogation: You hereby waive, release, discharge and agree to hold us, our directors, officers, employees, agents and assigns harmless from any and all claims, liabilities, damages, losses or expenses arising from or caused by any hazard covered by insurance whether said claim is made by you or by any other party claiming under or through you, including any insurer, by way of subrogation or otherwise.
12. Indemnification From Third Party Action: In the event any person not a party to this Agreement, including your insurance company, shall make any claim or file any lawsuit against us, our officers, employees, agents or assigns (“Indemnities”) for any reason whatsoever, including, but not limited to, the installation, maintenance, operation or non-operation of the System, you agree to indemnify, defend and hold the Indemnities harmless to the maximum extent allowed by law from any and all claims and lawsuits including the payment of all damages, expenses, costs and attorney’s fees whether these claims and lawsuits are based on alleged intentional conduct, active or passive negligence or strict or product liability on the part of our officers, employees, agents or assigns.
13. Limitation of Our Liability: It is understood that we are not an insurer of person, life, limb or property and that insurance covering personal injury, life and property loss shall be obtained by you. We are not assuming responsibility for any personal injury, loss of life, or property loss or damage which may occur even if due to our negligent performance or which may arise due to the faulty operation of the System, the failure of Services or the failure to perform said Services. You hereby agree that if, notwithstanding the above provisions, there should arise any liability whatsoever on our part or the part of our directors, officers, employees, agents or assigns, it is agreed that such liability shall be limited to two hindered fifty dollars ($250.00). This sum shall be complete and exclusive and shall be paid and received as an exclusive remedy and not as a penalty. In accepting these Terms and Conditions, you are acknowledging that the sole purpose of the Service is to provide a personal monitoring and control service for your property. We accept no liability for the failure of the System and you should not use the System in applications where any such failure could result in hazard, damage or losses of any description. You acknowledge that we are not insuring you against any losses that may result from any failure of the Services.
14. Third Party Equipment and Services – Limitations of Liability: At our sole discretion, we may assign, subcontract, purchase or otherwise arrange other services called for under this Agreement to be provided by a third party. You agree and acknowledge that such third-party provider or providers of other services are not insurers. You also agree the provisions for RELEASE FROM LIABILITY AND WAIVER OF SUBROGATION, INDEMNIFICATION FROM THIRD PARTY ACTION and LIMITATION OF OUR LIABILITY in Paragraphs 11, 12 and 13 of this document shall apply for the benefit of such third parties, their directors, officers, employees and agents as fully as if they had been specifically named herein in place of us throughout. UNDER NO CIRCUMSTANCES WILL OUR DIRECT OR INDIRECT SUPPLIERS HAVE ANY LIABILITY TO YOU.
15. Jurisdiction and Arbitration: Parties agree this Agreement, in all respects, shall be governed and construed solely under the jurisdiction and laws of the State of Kansas.
16. Complete Agreement; Severability: This Agreement is the complete, final and exclusive statement of the terms of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. These terms and conditions control and take precedent over any purchase order, service order, or other writings leading to this agreement. No amendment to this agreement is effective unless in writing and signed by the parties. If any provision or part of this Agreement is held to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect as if such invalid or unenforceable provision had never appeared herein.
17. Assignment: It is specifically agreed that you shall not be permitted to assign this Agreement without our prior written consent and any assignment without such consent shall be without effect and shall be deemed a breach of this Agreement. We shall have the right to assign this Agreement to any other company engaged in a business similar to ours and upon such assignment shall be relieved of any obligations created herein.
18. Software Restrictions: You agree that you will not (i) decompile or reverse engineer the Touchstone software or take any other action to discover the source code or underlying ideas or algorithm of any components thereof (ii) copy the “Licensed Software” which is a part of the Services or System provided pursuant to this Agreement, (iii) post, publish or create derivative works based on the Licensed Software or (iv) remove any copyright notice, trade or service marks, brand names and the like from the Licensed Software, related documentation or packaging.
19. Lawful Use of the Service: Use of the System or Services for transmission, communications or storage of any information, data or material in violation of any U.S. federal, state or local regulation or law is prohibited. You agree not to use, or allow others to use, the Services for surreptitious surveillance purposes, or any other purpose that may impact the privacy rights of others, in violation of applicable law. You understand and agree that your use of the Services is at your own risk and that you are subject to all applicable laws and regulations, including without limitation, any state or federal wiretapping, eavesdropping, privacy, child pornography, or similar laws. You agree that we may report any unlawful use to appropriate authorities without any notice to you and without any liability to you.
20. Privacy Notice: We respect your concerns about privacy. This Privacy Notice applies to personal information we collect on the System.
We and our contractor, Comporium, and any other contractor of ours, are not liable to you for any lack of privacy you experience while using the Service. You hereby consent to our or Comporium’s disclosure of account information over the phone and the making of changes to the account to any person able to provide your name, address and account number. We and Comporium also may disclose information about your account to any carrier providing a service in relationship to Service.
When your System is connected and communicating, we will have the ability to collect and store data from your System. This data includes, but is not limited to, the following: (1) Electricity consumption and general usage data for certain devices, specifically any device connected to your System, and (2) Status information for certain devices connected to your System. The data is collected on the System and transmitted to our servers. We will collect and use this information in the following ways: (1) The data will be provided to you for use in accessing your energy data outside the home via smart phone or web portal, as such features become available; (2) We may analyze the data and provide energy profile recommendations to you to improve energy management in your home; (3) We may also analyze the data for market research purposes; (4) We may use energy data provided by the System to improve the products and services we provide; and (5) We also may use the data for internal purposes which include, but are not limited to, administration of our websites, data analytics and compliance with law or legal process and our policies and procedures.