BARGLANCE, LLC CUSTOMER AGREEMENT
BARGLANCE, LLC STANDARD TERMS AND CONDITIONS
THIS AGREEMENT REQUIRES WRITTEN APPROVAL BY A BARGLANCE, LLC AUTHORIZED MANAGER. WITHOUT SUCH WRITTEN APPROVAL, BARGLANCE, LLC’S ONLY LIABILITY WILL BE TO REFUND ANY AMOUNT CUSTOMER PAID BARGLANCE, LLC UPON SIGNING THIS AGREEMENT.
- Customer agrees to pay the Sum of $(see BARGLANCE, LLC proposal) (“Installation Charge”) upon acceptance of this Agreement (“Installation Charge”) plus any applicable “Fees” and sales taxes as a precondition to activation of System and connection to BARGLANCE, LLC’s Central Video Server(s) (“CVS”) or any other Service(s). For the Service(s) provided as indicated above, Customer agrees to pay service charges in the amount of $(see BARGLANCE, LLC proposal) per month (the “Monthly Service Charge”), payable in advance (monthly/annually) plus applicable state and/or local tax(es) for three (3) month(s) (the “Initial Term”) effective from the date such Service is operative under this Agreement. After the Initial Term this Agreement shall automatically renew on a three (3) month basis (Agreement Term) unless terminated by either party upon written notice at least 30 days prior to the expiration of the current Agreement Term. BARGLANCE, LLC shall have the right to increase Monthly Service Charge(s) after the Initial Term. For termination prior to the end of the Initial Term, Customer agrees to pay, in addition to any outstanding Fees and charges for Service(s) rendered prior to termination, 90% of the Annual Service Charge(s) remaining to be paid for the unexpired Agreement Term of the Agreement as liquidated damages but not as a penalty. Additionally, Customer agrees to pay any assessments, taxes, fees or charges imposed by any governmental body, internet, communication, or signal transmission company relating to the installed Equipment and/or Service(s) provided under this Agreement (collectively, “Fees”).
- Failure to pay amounts when due shall give BARGLANCE, LLC, in addition to any other available remedies, the right to terminate this Agreement and to charge interest at the highest legal rate on delinquent amounts. Customer agrees to pay all costs, expenses and fees of BARGLANCE, LLC’s enforcement of this Agreement, including collection expenses, court costs, and attorneys’ fees.
- In addition to any other remedies available to BARGLANCE, LLC, BARGLANCE, LLC may terminate this Agreement and discontinue any Service(s) at any time if (a) BARGLANCE, LLC’s CVS, Facilities or any other part of BARGLANCE, LLC’s Network Infrastructure is substantially damaged by fire or catastrophe or if BARGLANCE, LLC is unable to obtain any connections or privileges required to receive signals between the Customer’s premises, BARGLANCE, LLC’s CVS, Facilities or Network Infrastructure; (b) in BARGLANCE, LLC’s sole opinion, the premises in which the System is installed are unsafe, unsuitable, or so modified or altered after installation as to render continuation of Service(s) impractical or impossible; or (c) for breach, including Customer’s failure to make payments when due; and BARGLANCE, LLC will not be liable for any damages or subject to any penalty as a result of any such termination.
- BARGLANCE, LLC may remove or upon written notice to the Customer, abandon in whole or in part, all BARGLANCE, LLC Owned Equipment, and other materials associated with the system, upon termination of this agreement, without obligation to repair or redecorate any portion of the Customer’s premises upon such removal, and the removal or abandonment of such Equipment or materials shall not be held to constitute a waiver of the right of BARGLANCE, LLC to collect any charges which have been accrued or may be accrued hereunder.
- Customer acknowledges that: (a) Customer owns the premises in which the equipment is being installed or has the authority to engage BARGLANCE, LLC to carry out the installation in the premises; and (b) Customer will comply with all laws, codes and regulations pertaining to the use of the Equipment/Service(s).
- In signing this Agreement, Customer agrees to the terms and conditions below. It is understood that the terms and conditions in the Agreement shall prevail over any variation in terms and conditions on any purchase order or other document that the Customer may issue.
TERMS AND CONDITIONS
- VIDEO RECEIVING AND TRANSMITTING SERVICE– shall be provided by BARGLANCE, LLC. Upon completion of installation of the Equipment/System and activation of System and connection to BARGLANCE, LLC’s Central Video Server(s) BARGLANCE, LLC shall endeavor to publish a live video feed from BARGLANCE, LLC-owned camera(s) installed Customer’s premise and installed in location(s) agreed upon by the Customer, via the Mobile Application provided by BARGLANCE, LLC (“The APP”).
(a) Internet Service. Customer will provide a high speed internet connection as may be required to operate the BARGLANCE, LLC System, Equipment or to provide the Service. Customer will provide necessary log in credentials such as a user name and password for any Router or other device which may have an internet firewall. Customer understands and agrees that in order to provide Service, BARGLANCE, LLC may need to make modifications to the Network, security, or firewall settings. Customer may need to notify Customer’s Internet Service Provider (“Customer ISP”) and give authority to BARGLANCE, LLC to communicate with Customer ISP in order to make necessary changes to network settings. BARGLANCE, LLC shall not be responsible for the setup, operation, or maintenance of the Network or Network performance, security or compatibility issues. BARGLANCE, LLC may assess additional charges, if BARGLANCE, LLC is unable to connect to the Network or if any additional Equipment is required to facilitate connectivity between the Network and the Equipment.
(b) BARGLANCE, LLC’s receipt of video, images, or data (collectively, “data”) from the equipment or system installed in Customer’s premises is dependent upon proper transmission of such data. BARGLANCE, LLC’s CVS cannot receive data when the Customer’s internet service is not operating, interfered with or is otherwise damaged or if the system is unable to acquire, transmit or maintain data over customer’s communication for any reason including network outage or other network problems such as congestion or downtime, routing problems, or instability of signal quality. Customer understands that Barglance, LLC will only review the initial compatibility of the system with customer’s internet service at the time of initial installation and that changes in the internet service’s data format after Barglance, LLC’s initial review of compatibility could make the internet service unable to transmit data to Barglance, LLC’s CVS. Customer assumes sole and complete responsibility for establishing and maintaining access to and use of internet service for connection to the Barglance, LLC system.
- “REAL-TIME” SELF-SERVICE ADVERTISING AND LISTING ANALYTICS – Customer agrees to follow all applicable laws in the use of BARGLANCE, LLC’s “REAL-TIME” SELF-SERVICE ADVERTISING AND LISTING ANALYTICS. Customer understands and agrees that unavoidable network latency and delays may prevent changes to Customer’s Listing submitted through the Web Interface from being available up to several minutes after submission. Customer further understands and agrees that such delays are inevitable and unavoidable and as such BARGLANCE, LLC assumes no liability for such delays.
- EQUIPMENT – Any and all equipment, including software, provided to the Customer by BARGLANCE, LLC in connection with the provision of the Service will remain at all times the property of BARGLANCE, LLC. Any charges for Installation are to cover labor costs. Equipment may only be used exclusively for provision of the Service by BARGLANCE, LLC. Use by the Customer of any of the Equipment for any other purpose, directly or indirectly, whatsoever shall render any obligations of BARGLANCE, LLC under this Contract voidable by BARGLANCE, LLC, and may give rise to cancellation by BARGLANCE, LLC of the Service.
- WARRANTY -Any part of the System, including the wiring, installed under this Agreement which proves to be defective in material or workmanship during the term of this agreement will be repaired or replaced at BARGLANCE, LLC’s option with a new or functionally operative part. Labor and material required to repair or replace such defective components will be free of charge. This Warranty does not apply to the “Conditions Not Covered by Warranty” listed below (the “Conditions”) and if Customer calls BARGLANCE, LLC for service under the Warranty and upon inspection by BARGLANCE, LLC’s representative it is found that one of these Conditions has led to the inoperability or apparent inoperability of the system, a charge will be made for the service call of BARGLANCE, LLC’s representative whether or not he actually works on the system. Should it actually be necessary to make repairs to the system due to one of the Conditions, a charge will be made for such work at BARGLANCE, LLC’s then applicable rates for labor and material. Service will be furnished by BARGLANCE, LLC during BARGLANCE, LLC’s normal working hours of 8:00 A.M. to 4:30 P.M. Monday through Friday, except holidays.
CONDITIONS: (a) Damage or extra service time resulting from accidents, acts of God, lightning, strikes, riots, floods, terrorism, acts of War, alteration, misuse, vandalism, tampering or abuse, adjustments, repairs or maintenance not done by BARGLANCE, LLC, or from parts, accessories, attachments or other devices not furnished by BARGLANCE, LLC; (b) Customer’s improper operation per instructions; (c) Adjustments necessitated by Video camera misalignment, or inadequate lighting on viewing area; (d) System changes requested by Customer.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE PURCHASER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY AND ALL LOSSES OR DAMAGES RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING BARGLANCE, LLC’S NEGLIGENCE, SHALL BE REPAIR OR REPLACEMENT AS SPECIFIED ABOVE. BARGLANCE, LLC SHALL IN NO EVENT BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY NATURE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY OR DAMAGES TO PROPERTY, AND HOWEVER OCCASIONED, WHETHER ALLEGED AS RESULTING FROM BREACH OF WARRANTY OR CONTRACT BY BARGLANCE, LLC OR NEGLIGENCE OF BARGLANCE, LLC OR OTHERWISE.
- HAZARDOUS MATERIALS -Customer represents and warrants that to the best of Customer’s knowledge the work site is free of any hazardous materials. The term “hazardous materials” shall include but not be limited to asbestos, asbestos-containing material, polychlorinated biphenyl (“PCB”), formaldehyde or other potentially toxic or otherwise hazardous material. If any such substance is discovered on the work site, BARGLANCE, LLC will not be required to install or service the Equipment at such site unless and until Customer certifies the removal or safe containment of such hazardous materials. Customer shall indemnify, defend, and hold BARGLANCE, LLC, its officers, directors, and agents harmless from any damages, claims, injuries, liabilities resulting from the exposure of BARGLANCE, LLC’s employees, contractors, or subcontractors to hazardous materials at the work site; provided, however, that the foregoing provision will not apply when it has been determined that such hazardous materials were brought to the work site by BARGLANCE, LLC.
- BARGLANCE, LLC ASSUMES NO LIABILITY FOR DELAYS IN INSTALLATION OF THE EQUIPMENT OR FOR THE CONSEQUENCES THEREFROM, HOWEVER CAUSED, OR FOR INTERRUPTIONS OF SERVICE OR FOR THE CONSEQUENCES THEREFROM DUE TO STRIKES, RIOTS, FLOODS, ACTS OF GOD OR ANY CAUSES BEYOND THE CONTROL OF BARGLANCE, LLC, AND WILL NOT BE REQUIRED TO SUPPLY SERVICE TO THE CUSTOMER WHILE INTERRUPTION OF SERVICE DUE TO ANY SUCH CAUSE SHALL CONTINUE.
- ASSIGNMENT; ENFORCEABILITY– This Agreement is not assignable by the Customer except upon written consent of BARGLANCE, LLC first being obtained. BARGLANCE, LLC shall have the right to assign this Agreement or to subcontract any of its obligations under this Agreement without notice to Customer. If any of the provisions of this Agreement shall be determined to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
- AMENDMENTS AND MODIFICATIONS – This Agreement may only be modified, altered or amended by BARGLANCE, LLC with written notice to Customer. Upon receipt of such written notice, Customer may object, in writing, to the modifications, alterations, or amendments within thirty (30) days of receiving notice of such written notice, and if BARGLANCE, LLC does not waive the modifications, alterations, or amendments, then Customer may terminate this Agreement effective thirty (30) days after BARGLANCE, LLC’s receipt of Customer’s written notice of objection.
- SURVIVAL – The following sections of this Agreement will survive any expiration or termination of this Agreement:
- 1. BARGLANCE, LLC ASSUMES NO RESPONSIBILITY FOR ANY POSSIBLE CLAIMS FOR LOSS, DAMAGE OR INJURY BY ANY PARTY PREDICATED UPON THE TRANSMISSION OF VIDEO AND/OR AUDIO DATA FROM THE PREMISES OF A CUSTOMER OR THE CONTENT OF SAID TRANSMISSION, INCLUDING BUT NOT LIMITED TO PRIVACY, COPYRIGHT, TRADEMARK, INDECENCY, OR ANY OTHER LEGAL GROUNDS OR LEGAL THEORY.
- IT SHALL BE THE EXCLUSIVE RESPONSIBILITY OF THE CUSTOMER TO POST NOTICE TO ITS PATRONS THAT EQUIPMENT EXISTS ON THE PREMISES OF THE CUSTOMER FOR THE TRANSMISSION OF VIDEO AND/OR AUDIO DATA.
- BARGLANCE, LLC ASSUMES NO RESPONSIBILITY FOR ANY POSSIBLE CLAIMS FOR LOSS, DAMAGE OR INJURY BY ANY PARTY PREDICATED UPON THE CUSTOMER’S USE OR MISUSE OF THE EQUIPMENT OR SERVICES PROVIDED BY BARLGANCE, LLC, INCLUDING BUT NOT LIMITED TO FALSE ADVERTISING, PROFANE OR OBSCENE LANGUAGE, OR ANY ILLEGAL CONTENT.
4 BARGLANCE, LLC ASSUMES NO LIABILITY FOR ANY BUSINESS DECISION MADE BY CUSTOMER, BASED IN FULL OR IN PART, ON ANY INTERPRETATION OF ANY DATA OR REPORT PROVIDED BY BARGLANCE, LLC.
- IF NOTWITHSTANDING THE PROVISIONS OF THIS SECTION J, BARGLANCE, LLC IS FOUND LIABLE FOR LOSS, DAMAGE OR INJURY UNDER ANY LEGAL THEORY DUE TO THE OPERATION OF, OR A FAILURE OF THE SERVICES, SYSTEM OR EQUIPMENT IN ANY RESPECT, ITS LIABILITY SHALL BE LIMITED TO A SUM EQUAL TO 10% OF THE ANNUAL SERVICE CHARGE OR $1,000, WHICHEVER IS GREATER, AS AGREED UPON DAMAGES AND NOT AS A PENALTY, AS CUSTOMER’S SOLE REMEDY. THIS WILL BE THE SOLE REMEDY BECAUSE IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO DETERMINE THE ACTUAL DAMAGES, IF ANY, WHICH MAY RESULT FROM BARGLANCE, LLC’S FAILURE TO PERFORM ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT.
5. THE PROVISIONS OF THIS SECTION J SHALL APPLY NO MATTER HOW THE LOSS, DAMAGE OR INJURY OR OTHER CONSEQUENCE OCCURS, EVEN IF DUE TO BARGLANCE, LLC’S PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR FROM NEGLIGENCE, ACTIVE OR OTHERWISE, STRICT LIABILITY, VIOLATION OF ANY APPLICABLE CONSUMER PROTECTION LAW OR ANY OTHER ALLEGED FAULT ON THE PART OF BARGLANCE, LLC, ITS AGENTS OR EMPLOYEES. IF ANY OTHER PERSON, INCLUDING CUSTOMER’S SUBROGATING INSURER, MAKES ANY CLAIM OR FILES ANY LAWSUIT AGAINST BARGLANCE, LLC IN ANY WAY RELATING TO THE SERVICES, SYSTEM OR EQUIPMENT THAT ARE THE SUBJECTS OF THIS AGREEMENT, THEN CUSTOMER SHALL INDEMNIFY AND HOLD BARGLANCE, LLC HARMLESS FROM ANY AND ALL SUCH CLAIMS AND LAWSUITS INCLUDING THE PAYMENT OF ALL DAMAGES, EXPENSES, COSTS AND ATTORNEYS’ FEES.
6. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST BARGLANCE, LLC OR ITS AGENTS, EMPLOYEES, SUBSIDIARIES, AFFILIATES OR PARENTS (BOTH DIRECT AND INDIRECT) MORE THAN ONE YEAR AFTER THE INCIDENT THAT RESULTED IN THE LOSS, INJURY OR DAMAGE OCCURRED, OR THE SHORTEST DURATION PERMITTED UNDER APPLICABLE LAW IF SUCH PERIOD IS GREATER THAN ONE YEAR.
7. THE PROVISIONS OF THIS SECTION J SHALL APPLY TO AND BENEFIT BARGLANCE, LLC AND ITS AGENTS, EMPLOYEES, CONTRACTORS, SUBSIDIARIES, AFFILIATES, PARENTS (BOTH DIRECT AND INDIRECT) AND AFFINTIY MARKETERS.
- GOVERNING LAW AND JURISDICTION -This Agreement shall in all respects be subject to, governed by and construed in accordance with the laws of the United States of America, in the State of South Carolina without reference to the principles of conflicts of laws thereof. Customer understands and agrees that any suit for enforcement of or relating to this Agreement shall be brought in the Circuit Court for the Ninth (9th) Judicial Circuit and consent to the exclusive jurisdiction of such Court and to service of process in any such suit being made upon BARGLANCE, LLC and Client at the addresses specified in Section 15 of this Agreement. The parties hereby waive any objection that he may now or hereinafter have to the venue of such suit or any such Court or that such suit was brought in any inconvenient Court.
- THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE CUSTOMER AND BARGLANCE, LLC. IN EXECUTING THIS AGREEMENT, CUSTOMER IS NOT RELYING ON ANY ADVICE OR ADVERTISEMENT OF BARGLANCE, LLC. CUSTOMER AGREES THAT ANY REPRESENTATION, PROMISE, CONDITION, INDUCEMENT OR WARRANTY, EXPRESS OR IMPLIED, NOT INCLUDED IN WRITING IN THIS AGREEMENT SHALL NOT BE BINDING UPON ANY PARTY, AND THAT THE TERMS AND CONDITIONS HEREOF APPLY AS PRINTED WITHOUT ALTERATION OR QUALIFICATION, EXCEPT AS SPECIFICALLY MODIFIED IN WRITING. THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL GOVERN NOTWITHSTANDING ANY INCONSISTENT OR ADDITIONAL TERMS AND CONDITIONS OR ANY PURCHASE ORDER OR OTHER DOCUMENT SUBMITTED BY THE CUSTOMER.
- ELECTRONIC MEDIA– BARGLANCE, LLC may scan, fax, email, image, or otherwise convert this Agreement into an electronic format of any type or form, now known or developed in the future. Any unaltered or unadulterated copy of this Agreement produced from such an electronic format will be legally binding upon the parities and equivalent to the original for all purposes, including litigation. BARGLANCE, LLC may rely upon Customer’s assent to the terms and conditions of this Agreement if Customer has signed this Agreement or demonstrated its intent to be bound electronically or otherwise.
- PERSONAL INFORMATION– Customer represents and warrants that Customer has obtained all required consents and has the right to (a) disclose to BARGLANCE, LLC all personal information disclosed hereunder concerning individuals/employees including all information contained in Customer’s ACL, and (b) authorize BARGLANCE, LLC to use such personal information to administer the relationship between Customer and BARGLANCE, LLC, including the administration of this Agreement. Customer acknowledges and agrees that BARGLANCE, LLC may share all such information with its parents, subsidiaries, affiliates and its/their successor corporations or any subcontractor or assignee, within and outside the country in which the Customer is located and thereby subject such information to the laws of such countries.