PROTOS Remote Video Guard Terms & Conditions CONTRACT

Important: 

This page will allow you to complete and submit the Protos Security Remote Video Guard Terms & Conditions Contract. Read the items on this page and complete the form at the bottom.

1.  DEFINITIONS.  Unless otherwise expressly set forth herein, capitalized terms used in this Agreement shall have the meanings ascribed to them in this Section 1 and in any Order Form entered into by the Parties pursuant to the Agreement.

1.1. “Business Hours” means from 8:30 am until 5:30 pm Eastern Time (U.S.), Monday through Friday, excluding Federal holidays.

1.2. “Confidential Information” means non-public information including, without limitation (a) business or technical information of a Party, including, without limitation, information relating to a Party’s software, documentation, source code, object code, modifications to the foregoing, (b) designs, costs, finances, marketing plans, business opportunities, personnel, research, development, know-how; (c) any information designated “confidential” or “proprietary” or which should reasonably have been understood to be confidential, proprietary or trade secret information of the Disclosing Party, and (d) the terms and conditions of this Agreement. “Confidential Information” does not include information the receiving Party can prove (w) is in the public domain or is generally publicly known through no improper action or inaction by the receiving Party; (x) was rightfully in the receiving Party’s possession or known by it prior to receipt from the Disclosing Party; (y) is rightfully disclosed without restriction by a third party; or (z) is independently developed by the receiving Party, or for the receiving Party by third parties, without use of the Confidential Information of the Disclosing Party.

1.3. “Hardware” means the third party manufactured hardware identified on an Order Form to be purchased by Customer.

1.4. “Services” means the various services to be provided by Protos RVG which may include, without limitation, hosting, Maintenance Services, video monitoring services, training, and consulting services, as more particularly described in an applicable Order Form.

1.5. “Software” means Protos RVG’s software identified in an Order Form.

1.6.  “User” means any individuals to whom Customer expressly authorizes access to and use of the Software and to whom Protos RVG issues a user ID and password therefor.

2.  FEES AND PAYMENT

2.1.  Fees.  Customer shall pay Protos RVG the fees set forth in the Order Form for the Services, in accordance with the payment terms set forth herein and/or in the Order Form; provided, that Protos RVG may increase such rates for the continued performance of the Services under an existing Order Form during a Force Majeure Event. 

2.2. Travel and Related Expenses.  Customer shall pay or reimburse Protos RVG for any reasonable out-of-pocket expenses incurred in connection with any travel required in connection with any Services provided hereunder. (Alternate language: Any approved reimbursable travel and related expenses shall be set forth in the applicable Order Form.)

2.3. Taxes.  Except as otherwise provided in this Section 2.4, the fees payable by Customer under this Agreement do not include any taxes and fees levied by any duly constituted taxing authority against the fees payable by Customer to Protos RVG.  Customer will be responsible for and will reimburse and indemnify Protos RVG for all taxes or similar charges (including penalties and interest), including without limitation withholding taxes, which are related to this Agreement, other than taxes imposed on the net income of Protos RVG.  All payments due to Protos RVG under this Agreement shall be made free and clear of any taxes. If Customer provides certification of tax exemption in a form acceptable to Protos RVG, Protos RVG will honor said exemption.

2.4. Invoicing; Late Fees.  Unless provided otherwise in the applicable Order Form, all invoices are due and payable in full upon receipt, without reduction for any offset, withholding or other claims.  Customer shall pay a late charge of 1.5% per month or the maximum rate permitted by applicable law, whichever is less, on any fees not paid within thirty (30) days of the due date.  If any payment due Protos RVG is collected at law or through an attorney at law or under advice therefrom or through a collection agency, Customer shall pay all costs of collection, including, without limitation, court or arbitration costs and reasonable attorneys’ fees and expenses.

2.5.  Fee Increases.  

2.5.1. No more than once in any twelve (12) consecutive month period, Protos RVG may increase the fees charged hereunder upon at least thirty (30) days prior written notice to Customer. The amount of such fee increases will not exceed the applicable prior period’s fees by more than five percent (5%). Fee increases are effective as of the commencement of the next fee due date after such thirty (30) day notice period.

2.5.2. Notwithstanding anything to the contrary herein, in the event that any laws, rules or regulations are adopted in the United States, or any state, city, county, municipality, or other territory or jurisdiction where Services are provided under this Agreement that result in an increase in the costs and expenses of Protos RVG in providing the Services (including, for example, an increase in legally required minimum hourly wages or an increase in state unemployment insurance rates), the Parties agree that any pricing pursuant to this Agreement or set forth in any attachment, Order Form, work order or in any other price quotation from Protos RVG shall be increased by the same percentage as the percentage increase of such costs and expenses insurance rates.

2.6. Invoice Disputes.  If Customer has a good faith dispute regarding any invoice received by Customer from Protos RVG hereunder, Customer must submit, in writing, the details and nature of the dispute within thirty (30) days after Customer’s receipt of the disputed invoice.  If Protos RVG determines that certain billing inaccuracies are attributable to Protos RVG, they will issue a corrected invoice to Customer.  All invoices with respect to which no written notice of dispute has been provided to Protos RVG by Customer are final after such thirty (30) day period.

2.7.  Suspension of Services. Protos RVG shall have the right to suspend Customer’s access to the Software or the performance of any Services, as applicable, if (i) Customer fails to comply with the terms of this Agreement (including, if Customer is delinquent in its payment obligations hereunder after Protos RVG has given Customer ten (10) days’ prior written notice of nonpayment); (ii) Protos RVG reasonably determines that (A) there is a threat or attack on any of the Software or Services, as applicable, (B) Customer’s or any User’s use of the Software or Services, as applicable, disrupts or poses a security risk to the Software or Services, as applicable, or to any other customer or vendor of Protos RVG, (C) Customer, or any User, is using the Software or Services, as applicable, for fraudulent or illegal activities, or (D) Protos RVG’ provision of the Services to Customer or any User is prohibited by applicable law (each, a “Service Suspension”). Protos RVG will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any User may incur as a result of a Service Suspension. 

3. TERM AND TERMINATION

3.1. Agreement Term.  This Agreement shall commence on the Effective Date and shall continue until terminated in accordance with the Agreement (“Term”).

3.2. Order Form Term. Protos RVG will provide access to the Software and/or provide the Services, as applicable, described in an Order Form for the term set forth in the applicable Order Form(s) (each, the “Initial Order Form Term”), unless earlier terminated in accordance with this Section 3.  Upon the expiration of the Initial Order Form Term (or then current Order Form Renewal Term), the applicable Order Form shall automatically renew for terms of ninety (90) days (each, an “Order Form Renewal Term”) unless either Party provides the other Party with written notice of its election not to renew the relevant Order Form at least sixty (60) days prior to the expiration of the Initial Order Form Term or then-current Order Form Renewal Term, as applicable.  Each Initial Order Form Term together with each Order Form Renewal Term shall be collectively referred to as the “Order Form Term”.  

3.3.  Termination for Cause.

3.3.1. Either Party may terminate this Agreement or any Order Form by written notice to the other Party if the other Party commits a material breach of the Agreement or such Order Form (other than Customer’s failure to make timely payments of any amounts due hereunder), and such breach is not cured within fifteen (15) days after written notice of the breach.

3.3.2. If Customer fails to make timely payment of any amounts due hereunder, then, in addition to the Service Suspension set forth in Section 2.7, Protos RVG may declare this Agreement and/or the affected Order Form terminated and neither Party shall be under any further obligation hereunder or thereunder (except as otherwise expressly set forth herein); provided, however, that Protos RVG provides Customer with ten (10) days’ prior written notice of nonpayment and opportunity to cure such failure to make payment prior to termination.

3.3.3. Notwithstanding the foregoing, Protos RVG may terminate this Agreement immediately upon notice if Customer (i) is liquidated, dissolved, or adjudged to be in a state of bankruptcy or receivership, (ii) is insolvent, unable to pay its debts as they become due, or makes an assignment to or for the benefit of its creditors, or (iii) ceases to conduct business for any reason on an on-going basis leaving no successor in interest.

3.4. Termination for Convenience.  Protos RVG may terminate this Agreement or an Order Form for convenience by providing Customer at least sixty (60) days written notice of its intent to so terminate this Agreement.

3.5. Effect of Termination.  Upon the termination of this Agreement, all Order Forms shall terminate, and all license(s) and other rights granted to Customer shall immediately terminate. Upon the termination or expiration of any Order Forms, all rights and licenses granted to Customer and its Users under said Order Forms will terminate, and Customer shall immediately and permanently cease all use of the Software and related Services. Protos RVG may suspend access to the Software and Services to ensure compliance with the foregoing.  Termination of this Agreement and/or any Order Form(s) in accordance with the terms hereof shall be without prejudice to any other remedy to which either Party may be entitled at law, in equity or under otherwise under this Agreement.

3.6. Payments Upon Termination.  Upon expiration or termination of this Agreement or any Order Form(s) for any reason, Customer shall pay all amounts due Protos RVG hereunder, which amounts shall become immediately due and payable. In no event shall any amount paid to Protos RVG hereunder be refunded in the event of a termination of this Agreement or any Order Form(s).

3.7. Return of Managed Servers. To the extent applicable, if any computer servers containing the Software (“Server(s)”) are located at Customer location(s), upon termination of the Agreement or any Order Form pursuant to which Customer elected to have such Server(s) located at Customer location(s), Customer shall promptly pack such Server(s) for return to Protos RVG.  Protos RVG shall provide packing materials and return labels for the return of the Server(s).  Customer shall be responsible for any damage to the Server(s) so returned, reasonable wear and tear accepted.

3.8. Survival.  Customer’s payment obligations under Section 2, and the provisions contained in Sections 3.5, 3.6, 3.7, 3.8, 4, 5, 6.3, 7 and 10 shall survive the expiration or termination of this Agreement for any reason.

4. CONFIDENTIALITY

4.1.  Use of Confidential Information.  As a result of this Agreement, each Party (the “Recipient”) may gain access to the other Party’s (the “Disclosing Party”) Confidential Information.  Each Party shall: (a) use the other Party’s Confidential only as required to perform its obligations hereunder; (b) exercise the same degree of care and protection with respect to the other Party’s Confidential Information that it exercises with respect to its own Confidential Information, and no less than a reasonable degree of care; and (c) not directly or indirectly disclose, copy, distribute, republish, or allow access to any Confidential Information of the other Party to a third party.  Notwithstanding the above, either Party may disclose the other Party’s Confidential Information to its employees and contractors who have a need to know in order to further the Services and who have entered into confidentiality agreements with the receiving Party no less protective than the terms of this Section. The Recipient shall restrict its employee’s and contractor’s use of the Confidential Information to be solely in relation to the provision of the Services. The Recipient shall be responsible for the failure of any of its employees to comply with the terms of this Section 4 hereof and shall use commercially reasonable efforts to cause its third-party vendors to comply with the terms and conditions of this Section 4.

4.2. Equitable Remedies.  Either Party may suffer irreparable harm if the provisions of this Section 4 are not specifically enforced, and such Party may not have an adequate remedy at law in the event of an actual or threatened violation by the other Party of its obligations under the provisions of this Section 4.  The Parties agree, therefore, that such harmed Party may be entitled, in addition to other available remedies, to seek an injunction restraining any actual, threatened, or further breaches of the other Party’s obligations under this Section 4 or any other appropriate equitable order or decree.

4.3. Duration.  The foregoing commitments of each Party shall continue for a period of five (5) years following the expiration or termination of this Agreement for any reason.  Notwithstanding the foregoing, if any Confidential Information rises to the level of a “trade secret” under applicable law, then the covenants of confidentiality and non-use set forth in this Agreement must be maintained for the greater of such three-year period or the period the information retains its status as a trade secret.

4.4. Required Disclosure.  If Recipient receives a subpoena or other validly issued administrative or judicial demand requiring it to disclose Disclosing Party’s Confidential Information (each being a “Demand”), Recipient shall, unless prohibited by law, provide prompt written notice to Disclosing Party of such Demand in order to permit Disclosing Party to seek a protective order.  So long as Recipient gives notice as provided herein, Recipient shall be entitled to comply with such Demand to the extent required by law; provided, however, that Recipient will (a) disclose only that portion of the Confidential Information which is legally required to be disclosed and (b) reasonably cooperate with Disclosing Party’s efforts, at Disclosing Party’s expense, to obtain reliable assurance that confidential treatment will be accorded to the Confidential Information required to be disclosed.  Customer shall pay all of Protos RVG’s costs and expenses for complying with any subpoena or other validly issued administrative or judicial demand in accordance with this Section 4.4. Should Customer request that Protos RVG contest a Demand requiring it to disclose Customer’s Confidential Information, Customer shall (y) at Protos RVG’s option, either retain counsel for Protos RVG or reimburse Protos RVG for counsel retained by Protos RVG and (z) compensate Protos RVG for the time Protos RVG’s employees expend in contesting the Demand or complying with this Section 4.4 in accordance with, at Protos RVG’s option, the fees set forth on the applicable Order Form or Protos RVG’s then prevailing hourly rates.

4.5. Destruction of Confidential Information.  Any Confidential Information, materials or documents of Disclosing Party which are furnished to Recipient hereunder, and all copies thereof, promptly after the Disclosing Party’s written request therefor, will either be returned to Disclosing Party or destroyed (with Recipient providing written confirmation of such destruction upon the Disclosing Party’s request), and all notes and memoranda prepared by Recipient containing Confidential Information shall be destroyed; provided that Recipient shall not be required to return or destroy anything that may be stored in back up media or other electronic storage systems, latent data and metadata or any archival copies to be used only to demonstrate compliance with this Agreement, or as required by applicable law. Any Confidential Information retained by Recipient in accordance with this paragraph shall remain subject to the confidentiality provisions of this Agreement.  Notwithstanding the foregoing, Recipient may retain one (1) copy of the Confidential Information for use as legal evidence or to satisfy regulatory requirements under applicable law.  Notwithstanding the return or destruction of the Confidential Information, the Recipient will continue to be bound by the obligations of confidentiality and other obligations under this Section 4.

5.  INTELLECTUAL PROPERTY

5.1. Proprietary Rights.  Customer acknowledges Protos RVG’s proprietary rights in the Software and associated documentation and shall protect the proprietary nature of the Software and associated documentation.  Protos RVG retains all right, title and interest in and to the Software and associated documentation (including, without limitation, all intellectual property and proprietary rights therein and thereto), subject only to licenses expressly granted under this Agreement.  As between Protos RVG and Customer, all trademarks, service marks and logos appearing on or within the Software or used in connection with the Services belong to and shall inure to the benefit of Protos RVG. If Customer suggests any new features, functionality or performance for the Software that Protos RVG subsequently incorporates into the Software, Customer hereby acknowledges that (a) Protos RVG shall own, and has all rights to use and incorporate, such suggestions and the Software incorporating such new features, functionality, or performance shall be the sole and exclusive property of Protos RVG; and (b) all such suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon Protos RVG.

6. LIMITED WARRANTY

6.1. Limited Services Warranty.  Protos RVG warrants to Customer that for a period of thirty (30) days after performance of Maintenance Services pursuant to an Order Form (“Warranty Period”), the Maintenance Services provided pursuant to the Order Form were performed in a good and workmanlike manner consistent with industry standards.  PROTOS RVG’S SOLE AND EXCLUSIVE OBLIGATION, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR BREACH OF THE MAINTENANCE SERVICES WARRANTY PROVIDED IN THIS SECTION 6.1 SHALL BE FOR PROTOS RVG TO RE-PERFORM (TO THE EXTENT FEASIBLE), AT NO ADDITIONAL CHARGE TO CUSTOMER, THE DEFECTIVE SERVICES OF WHICH CUSTOMER NOTIFIES PROTOS RVG IN WRITING WITHIN THE APPLICABLE WARRANTY PERIOD.

6.2. Hardware Warranty.  PROTOS RVG MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY HARDWARE PROVIDED PURSUANT TO AN ORDER FORM.  PROTOS RVG WILL PASS THROUGH TO CUSTOMER ANY AND ALL MANUFACTURER PROVIDED WARRANTIES PERTAINING TO SUCH HARDWARE TO THE EXTENT PERMISSIBLE UNDER THE TERMS AND CONDITIONS FOR SUCH WARRANTIES.

6.3. Disclaimer of Implied Warranties.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6 OR AN APPLICABLE SCHEDULE, NEITHER PROTOS RVG, ITS AFFILIATES NOR THEIR RESPECTIVE SERVICE PROVIDERS, SUPPLIERS OR LICENSORS MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES, SOFTWARE, HARDWARE OR ANY RELATED INFORMATION OR DATA PROVIDED OR MADE AVAILABLE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, (A) ANY WARRANTY AS TO CONDITION, QUALITY, AVAILABILITY, PERFORMANCE, ACCURACY, COMPLETENESS, CURRENCY OR RELIABILITY, (B) ANY WARRANTY THAT THE SERVICES, SOFTWARE, OR ANY RELATED INFORMATION OR DATA WILL BE PROVIDED OR MADE AVAILABLE IN A SECURE, CONTINUOUS, ERROR-FREE OR UNINTERRUPTED MANNER, OR THAT ANY DEFECTS IN THE SOFTWARE WILL BE CORRECTED, OR (C) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND PROTOS RVG, ITS AFFILIATES AND THEIR RESPECTIVE SERVICE PROVIDERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM THE SAME.

7. INDEMNIFICATION; DISCLAIMER OF DAMAGES; LIMITATION OF LIABILITY

7.1. Indemnification.  Customer agrees to indemnify, defend and hold harmless Protos RVG from and against any and all claims, lawsuits and losses (including the payment of all damages, expenses, costs, and attorney fees incurred by Protos RVG, its employees and agents) arising out of the failure of the Services in any respect, whether due or alleged to be due to a malfunction or nonfunctioning of the Services, or by the negligence, active or passive, of Protos RVG, its employees or agents.

7.2. Use of Internet.  Customer understands and agrees that use of or connection to the Internet is inherently insecure and that connection to the Internet provides opportunity for unauthorized access by third parties to Customer’s or Protos RVG’s computer systems, networks, and any and all information stored therein.  PROTOS RVG DOES NOT GUARANTEE THE PRIVACY, SECURITY, AUTHENTICITY, OR NON-CORRUPTION OF ANY INFORMATION SO TRANSMITTED, OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET.  PROTOS RVG SHALL NOT BE RESPONSIBLE FOR ANY ADVERSE CONSEQUENCES WHATSOEVER ARISING AS A RESULT OF CUSTOMER’S CONNECTION TO OR USE OF THE INTERNET.

7.3. Disclaimer of Liability.  In no event shall either Party be liable hereunder for any loss of profits, or any incidental, indirect, exemplary, special, consequential, punitive or other similar damages arising out of any claim of whatever nature relating to this Agreement regardless of whether such damages were foreseeable and whether or not the liable Party was advised of the possibility of such damages. This limitation of liability shall be applicable only to the extent permitted by law.

7.4. Limitation of LiabilityThe cumulative liability of Protos RVG to Customer for all claims related to the Agreement, including, without limitation, any cause of action sounding in contract, tort, strict liability or otherwise, shall not exceed the total of all amounts actually paid to Protos RVG for Services rendered by Protos RVG on behalf of Customer at the location at which event(s) giving rise to Customer’s losses occurred in the twelve (12) months immediately preceding the events giving rise to the claim. This limitation of liability shall be applicable only to the extent permitted by law. Claims not made within six (6) months after the first event giving rise to the claim shall be deemed waived.

8. MISCELLANEOUS

8.1. Publicity.  Neither Party shall use the name of the other Party or its affiliates in publicity releases or similar activities without the written consent of the other Party.

8.2. Force Majeure.  Except for a Party’s payment obligations hereunder, neither Party shall be liable for any default or delay in the performance of its obligations hereunder if and to the extent such default or delay is caused, directly or indirectly, by electrical or communication line failure, blackout, fire, flood, explosion, earthquake, elements of nature or acts of God, acts of war, invasion, terrorism, riots, civil disorders, governmental order or law, actions, embargoes or blockades in effect on or after the date of this Agreement, action by any governmental authority, national or regional emergency, threatened or imminent, strikes, lockouts, or labor difficulties,  epidemic, pandemics or other public health emergencies, or any other similar cause beyond the reasonable control of such Party (each, a “Force Majeure Event”).  Customer acknowledges that the performance of certain of Protos RVG’s obligations may require the cooperation of third parties designated by Customer and outside the control of Protos RVG; in the event such third parties fail to cooperate with Protos RVG in a manner that reasonably permits Protos RVG to perform its obligations, such failures shall be consider as causes beyond the control of the Protos RVG for the purposes of this paragraph and shall not be the basis for a determination that Protos RVG is in breach of any of its obligations under this Agreement or is otherwise liable.  

8.3. Assignment.  Except as set forth herein, neither Party shall assign this Agreement by operation of law or otherwise without the prior express written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed, and any attempt to assign any rights, duties, or obligations arising under this Agreement without such consent will be void.  Notwithstanding the foregoing, Protos RVG may assign this Agreement upon notice to Customer to any parent, subsidiary, or affiliate of Protos RVG or to a successor pursuant to a merger, corporate reorganization, or sale of all or substantially all of the assets of Protos RVG.

8.4. Notice.  Any consent, notice, or report required or permitted to be given or made under this Agreement by one of the Parties to the other Party will be in writing and will be delivered as follows, with notice deemed given as indicated (a) by personal delivery, when delivered personally, (b) by overnight courier, upon written verification of receipt, (c) by facsimile, email or other means of electronic transmission when sent if sent by during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day (provided, however, that email shall not be sufficient for notices of termination or an indemnifiable claim), or (d) by certified or registered mail, return receipt requested, upon verification of receipt.  Such consent, notice, or report will be addressed to the other Party at its address indicated below, or to such other address as the Party will have last furnished in writing  in accordance with the requirements of this Section 8.4, and will be effective upon receipt by the addressee.

If to Customer:

At the address provided by customer.                            

If to Protos RVG:

Security Services Holdings LLC
383 Main Ave., Suite 505
Norwalk, CT 06851

E-mail: aescamilla@protossecurity.com
Attn: Anthony Escamilla, Chief Financial Officer

8.5. Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without reference to any principles of conflicts of law. Both Parties hereby waive any right to a trial by jury.

8.6. Controlling Documents.  This Agreement, the Order Forms, Schedules and Attachments that are referenced herein, constitutes the entire agreement between the Parties pertaining to the subject matter hereof, and supersedes all prior and contemporaneous agreements, proposals, sales literature and marketing materials, or any other communication, written or oral, not set forth herein, pertaining to the subject matter hereof.  In the event of a conflict of terms and conditions contained in these Terms and Conditions and any Order Form, the terms and conditions contained in these Terms and Conditions shall control.  In the event of a conflict of terms and conditions contained in these Terms and Conditions and any Schedule, the terms and conditions contained in the Schedule shall control with respect to the subject matter of the Schedule.  

8.7. Independent Contractor.  Protos RVG shall perform all of its obligations under this Agreement as an independent contractor.  Protos RVG will withhold and pay all applicable income and payroll taxes with respect to its employees and is solely responsible for the compensation of employees assigned to perform services hereunder, and payment of workers’ compensation, disability and other similar benefits, unemployment and other similar insurance, for withholding income and payroll taxes and for verifying the work eligibility of each person performing services hereunder.

8.8. Subcontractors.  Protos RVG may use subcontractors to perform any of the Services to be provided to Customer hereunder; provided Protos RVG remains responsible for the actions or omissions of any such subcontractors in breach of this Agreement. If Customer is not reasonably satisfied with any such subcontractor, Customer shall notify Protos RVG of such dissatisfaction in writing and the Parties shall coordinate reasonably in replacing such subcontractor to the extent that a suitable replacement subcontractor is available at rates substantially similar to the rates of the original subcontractor; provided, however, both Parties agree that such removal and replacement shall not be based in whole or in part on any reason which would result in a violation of anti-discrimination or equal employment opportunity laws by either Party.  

8.9. Counterparts. This Agreement may be executed in counterparts and all counterparts so executed shall for all purposes constitute one agreement, binding on all the Parties hereto, notwithstanding that all Parties shall not have executed the same counterparts.  A facsimile or electronic copy of this Agreement showing the signatures of each of the Parties, or, when taken together, multiple facsimile or electronic copies of this Agreement showing the signatures of each of the Parties, respectively, where such signatures do not appear on the same copy, will constitute an original copy of this Agreement requiring no further execution.

8.10. Miscellaneous.  This Agreement becomes binding upon the Parties when executed by authorized representatives of each Party.  No modification of this Agreement shall be binding unless in writing and signed by an authorized representative of each Party.  No consent by either Party to, or waiver of, a breach of this Agreement by the other Party, whether express or implied, shall constitute a consent to, waiver of, or excuse for any other different, continuing, or subsequent breach.  If any provision of this Agreement (or any portion thereof) that is not essential to the commercial purpose hereof shall be held to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remainder of this Agreement shall not in any way be affected or impaired thereby.  The headings contained in this Agreement are intended for convenience of reference and shall not affect its interpretation.

9. Maintenance Services

9.1   For so long as Customer is current in the payment of the applicable fees, Protos RVG shall provide to Customer the following Maintenance Services: 

9.1.1 Software Management.  The Software may reside on a server either located at Customer’s site or at a Protos RVG controlled facility.  Protos RVG shall implement commercially reasonable procedures for Software management, load balancing, and file and disk space utilization.  Protos RVG will provide Software error corrections in the event the Software fails to conform in all material respects with the corresponding documentation.  Protos RVG will provide prompt notification of offline cameras and connection interruptions.  From time to time during the Term, Protos RVG may upgrade the Software to add new features or functionalities.  Protos RVG will notify Customer of any corresponding changes to the applicable requirements and specifications.  Protos RVG will provide Software Services technical support by telephone during Business Hours.    

9.1.2  Protos RVG shall have no obligation to provide Software management services if Customer fails to pay the applicable fees hereunder or is otherwise in breach of this Agreement.  Protos RVG shall have no obligation to provide Software management services for any Software in the event that: (a) Customer modifies the Software; (b) any error is caused in whole or in part by persons other than Protos RVG, including without limitation, Customer’s failure to properly enter data; or (c) any error is caused in whole or in part by Customer’s installation or use of the Software in association with operating environments and platforms other than those specified by Protos RVG.  Customer agrees to provide Protos RVG with access to such facilities and equipment as are reasonably necessary for Protos RVG to perform its obligations hereunder, including remote access to the Software.  

9.1.3 Service Availability.  Protos RVG agrees to use commercially reasonable efforts to make the Software available 24 hours per day and for at least 98% of the time (measured monthly), other than for interruptions due to failures/problems caused by Customer’s equipment, software, systems, or Internet connectivity, or their respective configurations, acts or omissions by Customer or its Users, system maintenance and upgrades, system back-up and recovery, outages/degradations of performance due to any Internet infrastructure; Customer’s failure to implement workaround or configuration changes recommended by Protos RVG, and force majeure events and other causes beyond Protos RVG’s control.  To the extent practicable, all scheduled maintenance and planned outages shall occur during Business Hours.  Evidence Gathering.  Protos RVG will work with Customer and police authorities with respect to Software related evidence gathering.  The first one-half hour of such evidence gathering services shall be at no charge to Customer.  Thereafter, such evidence gathering services shall be at Protos RVG’s then current standard rates.  Maintenance Services do not include video monitoring. 

10. Managed/Cloud Video Services Terms and Conditions

10.1 SOFTWARE LICENSE. In consideration of Customer’s payment of all sums due hereunder, and subject to Customer’s compliance with all of the terms and conditions hereof, Protos RVG hereby grants to Customer a personal, limited, non-transferable (except in accordance with Section 8.3), non-assignable (except in accordance with Section 8.3), revocable and non-exclusive license to access and use the Software during the applicable Order Form Term only in object code form and only in the United States of America and Canada.  Customer agrees to use the Software only in conjunction with Customer’s normal internal business operations and not on behalf of, or for the benefit of, any third party.  Customer shall not permit any third party to access and/or use the Software without the express prior written consent of Protos RVG.  Customer shall not: (a) resell, lease, rent, distribute in any way (whether for commercial gain or otherwise), assign and/or otherwise dispose of the Software or a derivative of the Software; (b) copy, modify, alter, translate, decompile, disassemble, or reverse engineer the Software, or attempt to determine the source code of the Software, or create any derivative works of any of the Software; or (c) remove any proprietary notices from the Software.  Customer agrees to use the Software only as specified in this Agreement, and to use the Software only in connection with up to the number of cameras specified in the applicable Order Form.  Nothing in this Agreement shall be construed as expressly or impliedly granting to Customer any other or further rights not expressly set forth herein. In the event of any breach of this Section 2, Customer agrees that Protos RVG would suffer irreparable harm and shall therefore be entitled to obtain injunctive relief against Customer.

10.2 CUSTOMER RESPONSIBILITIES. 

10.2.1 Customer Provided Hardware, Software and Internet Access.  Customer is responsible for providing the necessary environment to access and use the Software and receive the Services via the Internet, including, without limitation, (a) computer hardware, system software and Internet browser software; (b) telecommunications hardware and service; and (c) Internet access.

10.2.2 Customer Data.  Customer is responsible for the accuracy of any data and information supplied by Customer and its Users for use in conjunction with the Software and Services.

10.2.3 Use of User IDs and Passwords.  Customer is responsible for keeping all user ID’s and passwords assigned to it and its Users secret and confidential.  Customer is solely responsible for any communications or other uses of the Software and/or Services that are made using its or its Users’ user IDs and passwords and for any obligations which may result from such use.  Customer shall notify Protos RVG immediately of any unauthorized use of any user ID or password or any other suspected breach of security.  Customer is responsible for changing its password or any User’s password if it believes that any such password has been stolen or might otherwise be misused.

10.2.4 User Compliance.  Customer is responsible for ensuring that all Users comply with the terms and conditions of this Agreement.

11. Remote Video Monitoring Service Terms and Conditions

11.1. MONITORING SERVICE. In the performance of the monitoring, Protos RVG will: (a) remotely monitor the video originating from Customer’s selected covered premises for video monitoring; (b) notify Customer and/or police authorities of activity that Protos RVG deems suspicious; (c) notify Customer of unauthorized, after hours, access to areas of Customer’s monitored premises of which Customer has provided Protos RVG the authorized access hours to such areas (e.g. pool area); and (d) maintain reports of suspicious activities of which Customer and/or the police authorities are notified (collectively, the “Monitoring Service”). Customer shall provide Protos RVG with information regarding local police authorities contact information, contact information for individuals that Customer has identified for reporting issue, and other information as Protos RVG may reasonably require from Customer to perform the Monitoring Service (“Customer Information Form”).  The Monitoring Service will not begin, and Protos RVG will have no obligation to notify the police, or any individuals identified in the Customer Information Form until: (1) Protos RVG has received and processed a fully executed copy of the Agreement; and (2) a successful test of the Monitoring Service for Customer has been achieved.  In the event the Monitoring Service does not successfully complete the test, Protos RVG’s only obligation is to refund to Customer any advance payment Customer has paid to Protos RVG for the Monitoring Service.  The Monitoring Service may be provided from Protos RVG’s monitoring center or an independent monitoring facility Protos RVG selects (either monitoring facility is herein referred to as the “Center”). 

11.2. DISCLAIMER OF WARRANTIES. IT IS UNDERSTOOD AND AGREED BY AND BETWEEN THE PARTIES THAT PROTOS RVG IS NOT AN INSURER, AND THIS AGREEMENT IS NOT INTENDED TO BE AN INSURANCE POLICY OR A SUBSTITUTE FOR AN INSURANCE POLICY.  AS A RESULT, AND WITHOUT LIMITING THE DISCLAIMERS SET FORTH IN SCHEDULE 1 OF THIS AGREEMENT, PROTOS RVG EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE MONITORING SERVICE.  PROTOS RVG MAKES NO WARRANTY, EXPRESS OR IMPLIED, THAT MONITORING SERVICE PROVIDED HEREUNDER WILL PREVENT ANY LOSS, PERSONAL HARM OR WILL IN ALL CASES PROVIDE THE PROTECTION FOR WHICH IT IS INTENDED. 

11.3.  SIGNAL TRANSMISSION. The Monitoring Service includes a communication device that sends video signals from the covered premises to the Center over Customer’s regular Internet service.  Protos RVG relies on a continuous Internet connection to Customer’s devices to remotely view video.  The Internet may also be a source of connection problems.  Customer understands there may be problems out of Protos RVG’s control with respect to connections to Customer’s devices.  Should problems occur, Protos RVG will immediately make Customer aware.  

11.4. FALSE ALARMS. Customer agrees that Customer and others using the Monitoring Service, will use it carefully to avoid causing false alarms which can be caused by Customer’s misuse of the Monitoring Service or other reasons beyond Protos RVG’s control.  If Protos RVG receives more than two false alarms per week, Protos RVG may cancel the Monitoring Service.  If a false alarm fine or penalty is charged to Customer, Protos RVG or Protos RVG’s contractors by any governmental agency, Customer will pay the charge or repay Protos RVG for the charge.  DELIBERATELY ACTIVATING A FALSE ALARM WHICH RESULTS IN THE DISPATCH OF POLICE, FIRE OR OTHER PUBLIC PERSONAL MAY BE A CRIME.

11.5. CUSTOMER’S DUTIES. Customer will instruct all persons who may use the Monitoring Service on its proper use.  The Monitoring Service detects motion using Protos RVG’s surveillance software.  If a problem in the Monitoring Service occurs, Customer will notify Protos RVG immediately.  Customer will obtain and keep in effect all permits or licenses that may be required for the installation, operation, and monitoring of the Monitoring Service and will pay all usage fees or other assessments imposed by any governmental agency.  Customer will provide Protos RVG with the name and telephone number of each person Protos RVG may call in the event Protos RVG believes there is an emergency at Customer’s premises.  Customer will notify Protos RVG in writing of any changes in the information on this Agreement. Customer agrees that Protos RVG may provide the information on the Customer Information Form to any governmental authority having jurisdiction over Protos RVG or the Monitoring Service. The city or county in which Customer’s premise is located may require that Protos RVG obtain a permit for the use and monitoring of the Monitoring Service.  Local authorities may not respond to alarm notifications until Customer has obtained, at Customer’s expense, all necessary permits or licenses and provided Protos RVG with a license or permit number.

11.6. SUSPENSION OR CANCELLATION OF THIS AGREEMENT; DELINQUENCY CHARGE. Customer understands that Protos RVG may stop or suspend the Monitoring Service if: (a) Force Majeure Events beyond Protos RVG’s control, affect the operation of the Center or so severely damage Customer’s premises that continuing the Monitoring Service would be impractical; (b) there is an interruption or unavailability of Internet service between the Monitoring Service and the Center; (c) Customer does not pay the fees due to Protos RVG; (d) Protos RVG is unable to provide Monitoring Service because of some action or ruling by any governmental authority; or (e) Customer becomes a debtor in a bankruptcy proceeding.  Protos RVG may charge a re-connection fee if the Monitoring Service is suspended for non-payment. If the Monitoring Service is canceled, Protos RVG may without further notice, disable and disconnect the Monitoring Service’s monitoring function at the Center. If the Monitoring Service is suspended because Customer has failed to pay the monthly fees set forth in the Order Form, and Customer requests that Protos RVG reactivate the Monitoring Service, Customer will pay in advance, Protos RVG’s then prevailing reconnection fee.

RVG Terms & Conditions
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