Last updated: February 2022
This is an Agreement (the "Agreement") between you ("you" or the "Subscriber") and Rocky Mountain Smart Solutions, Ltd. Also dba SimpleSensor ("we" or "RMSS"). In this Agreement, "System" means the products you have purchased from RMSS; "Services" mean the services you have selected to receive from RMSS, including Account Management Services (as described in Section 20 below), the Application, defined as the software or subscription services that may be downloaded to your smartphone, tablet or other connected device (or any related or connected third-party mobile devices or product peripherals that control or connect to any of the foregoing) to access Services remotely and the customer support Services provided by RMSS in support of any of the foregoing; "Premises" means the premises at which the System is located. The term “you,” as used in this Agreement, means any person or entity who accesses or uses the Services and any person or entity who creates an account and accepts this Agreement and accesses or uses the Services, including any person granted access to the Services by you.
Please read these terms and conditions carefully. These are the terms and conditions under which we are willing to provide you the Services. This Agreement contains important disclaimers, limitations of liability and indemnity obligations applicable to the Services and requires the use of binding arbitration to resolve disputes rather than jury trials or class actions (as described in Section 39 below). By clicking the "Submit" button below or using any of the Services, you agree that you have read this Agreement and are legally bound by this Agreement, including the disclaimers, limitations of liability and indemnity obligations below. The RMSS Privacy Policy at LINK is incorporated by reference into this Agreement. You may print this Agreement by clicking the print button on your Internet browser.
1. Services, Eligibility, and Your Account.
(a) RMSS will provide you the Services subject to the terms of this Agreement.
(b) Only individuals age 18 and older are permitted to subscribe for the Services and register for an Account.
(c) To use the Services, you must register for an account (“Account”) and provide certain information about yourself as prompted by the registration form. All information related to your Account is subject to the terms of this Agreement and the RMSS Privacy Policy. You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Account, and to maintain your password securely to prevent others from gaining access without your permission. You agree to immediately notify RMSS of any unauthorized use, or suspected unauthorized use, of your Account
(d) We may offer the option to log into your Account through the Application using
Touch IDTM.
or any other breach of security. RMSS is not liable for any loss or damage arising from your failure to comply with the above requirements.
You can activate or deactivate this feature by toggling on or off the “Touch ID Authentication” controls on the Settings screen and following the instructions. RMSS does not have access to your fingerprint information. You acknowledge that by enabling Touch IDTM, you will allow anyone who has a fingerprint stored on your device to access your Account through the Application on your device. We caution you against storing the fingerprints of others on your device, but if you do, please make sure the individuals who have fingerprints stored on your device are authorized to access the personal and Services information available through the Application. Touch IDTM can only be associated with one RMSS Account at a time on a device. For information on how Apple uses and stores your fingerprint data, please see Apple’s Privacy Policy and iOS Security Guide.
(e) If you contact RMSS’s customer service, you hereby consent to the means by which such contact was initiated. You similarly consent to RMSS contacting you through any of the means that RMSS makes available utilizing the contact information identified in your Account. This may include one-way or two-way video-enabled customer service communication methods, whether made available via your mobile device, through the Application or any other mobile or web interface now existing or later developed. Except as otherwise expressly agreed by you under a separate services agreement, RMSS will not charge you any additional fees to deliver, or for you to receive, such customer support Services; however, your wireless service provider may charge a fee for air-time or data usage associated therewith. Check with your wireless carrier if you have questions about your wireless plan.
2. Term and Termination. The term of this Agreement will continue until this Agreement is terminated pursuant to this section. RMSS or Subscriber may terminate this Agreement for any reason or no reason following notice sent to the other as set forth in this section. Subscriber shall provide notice of termination to RMSS by (1) regular mail, postage prepaid, or overnight delivery, by a reputable, national overnight delivery service, to RMSS's then current principal place of business or (2) emailing info@rockymountainsmart.com and following the instructions provided. Such notice by Subscriber shall be effective upon RMSS's receipt thereof. RMSS shall provide notice of termination to Subscriber by e-mail sent to the email address on file with RMSS for your current online account. RMSS's termination shall be effective when RMSS sends the e- mail notice. If you do not provide RMSS an e-mail address, then RMSS may send you written notice of the termination by regular mail, postage pre-paid and any such notice shall be effective upon four (4) days following the day on which RMSS sent the notice. Upon termination of the Agreement, RMSS shall have no further obligation to Subscriber and Subscriber shall have no further obligation to RMSS other than (i) the obligation respecting the payment of any monies due to RMSS for services rendered; and (ii) the obligations set forth in Sections 3-8, inclusive, 13-19, inclusive, and 24-41, inclusive. Notwithstanding the foregoing, RMSS shall refund any unearned service
charges with respect to any full calendar month following any termination. RMSS shall not refund any unearned service charges with respect to any partial calendar month following any termination. There are no termination fees.
3. Payment for Services. Subscriber shall pay RMSS the periodic service charge in advance. You authorize RMSS to charge your credit/debit card for the periodic (e.g., monthly, quarterly or annually) service charge when due. If charges are declined, RMSS shall resubmit the charges for approval and notify you of the declined charges by e-mail.
4. INSURANCE. RMSS'S SERVICE CHARGES ARE BASED SOLELY ON THE VALUE OF SERVICES PROVIDED AND ARE NOT INSURANCE PREMIUMS AND ARE NOT RELATED TO THE VALUE OF PROPERTY LOCATED ON OR NEAR THE PREMISES. YOU ACKNOWLEDGE AND AGREE THAT RMSS IS NOT AN INSURER AND SHALL NOT PROVIDE INSURANCE COVERAGE AGAINST ANY LOSSES, AS DEFINED BELOW. TO THE EXTENT YOU WISH TO HAVE ANY INSURANCE COVERAGE FOR LOSSES, AS DEFINED BELOW, IT IS YOUR RESPONSIBILITY TO PROCURE AND MAINTAIN SEPARATE INSURANCE POLICIES FROM AN INSURANCE COMPANY OR COMPANIES, SOLELY AT YOUR COST AND EXPENSE, COVERING ALL LOSS, DAMAGE OR EXPENSE (COLLECTIVELY, "LOSSES"), INCLUDING ALL PROPERTY DAMAGE, PERSONAL INJURY (INCLUDING DEATH), ECONOMIC LOSSES OR ANY OTHER FORM OF LOSS, DAMAGE OR EXPENSE, ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY (I) THIS AGREEMENT, INCLUDING ANY BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR OBLIGATION ARISING HEREUNDER (II) THE SYSTEM, (III) THE SERVICES (INCLUDING Third- Party Products and Services), (IV) THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF YOU OR ANY RMSS PARTY (AS DEFINED IN SECTION 5), (V) THE IMPROPER OPERATION OR NON- OPERATION OF THE SYSTEM, (VI) BREACH OF CONTRACT, EXPRESS OR IMPLIED, WHICH OCCURS BEFORE OR AFTER THE SIGNING OF THIS AGREEMENT (VII) BREACH OF WARRANTY, EXPRESS OR IMPLIED, (VIII) PRODUCT OR STRICT LIABILITY (IX) THE LOSS OR DAMAGE TO OR MALFUNCTION OF FACILITIES NECESSARY TO OPERATE THE SYSTEM, TRANSMIT ANY SIGNAL TO OR RECEIVE SIGNALS AT ANY MONITORING FACILITY, (X) A CLAIM FOR SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, (XI) A VIOLATION OF ANY APPLICABLE CONSUMER PROTECTION LAW OR ANY OTHER THEORY OF LIABILITY OR ALLEGED FAULT ON THE PART OF ANY RMSS PARTY, (XII) A VIOLATION OF ANY LAW PROHIBITING THE INTERCEPTION OF ORAL COMMUNICATIONS BY ELECTRONIC MEANS, (XIII) THE ACTIONS OF ANY THIRD PARTY IN RESPONDING TO A SIGNAL FROM THE SYSTEM, OR (XIV) ANY UNAUTHORIZED ACCESS, USE OR DISCLOSURE OF YOUR PERSONAL INFORMATION (COLLECTIVELY, THE "COVERED CLAIMS"). RECOVERY FOR ANY LOSSES, AS DEFINED IN THIS SECTION 4, SHALL BE LIMITED TO THE INSURANCE YOU PURCHASE SEPARATELY FROM AN INSURANCE COMPANY, IF ANY.
5. LIMITATIONS OF LIABILITY AND RELEASE. BY AGREEING TO THESE TERMS, YOU ARE RELEASING RMSS, ITS AFFILIATES, DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, SUBCONTRACTORS, AGENTS AND REPRESENTATIVES (COLLECTIVELY, THE "RMSS PARTIES"), TOGETHER WITH ANY PROVIDERS OF Third-Party Products and Services (AS HEREINAFTER DEFINED), ON YOUR BEHALF AND ON BEHALF OF ALL OTHERS WHO MAKE CLAIMS UNDER THIS AGREEMENT FROM ALL LIABILITY ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY ANY COVERED CLAIM, AS DEFINED IN SECTION 4. UNDER NO CIRCUMSTANCES WILL RMSS BE RESPONSIBLE OR LIABLE TO YOU FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, DEATH OR DAMAGES TO PROPERTY. NOTWITHSTANDING THE FOREGOING, EVEN IF ANY RMSS PARTY IS FOUND LIABLE FOR ANY LOSSES, AS DEFINED IN SECTION 4, ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY ANY COVERED CLAIM, AS DEFINED IN SECTION 4, ANY SUCH LIABILITY SHALL BE LIMITED TO THE MAXIMUM SUM OF $1,000.00. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. RMSS DISCLAIMS ALL LIABILITY OF ANY KIND OF RMSS’S LICENSORS AND SUPPLIERS. RMSS AND YOU ACKNOWLEDGE AND AGREE IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO DETERMINE THE ACTUAL DAMAGES, IF ANY, THAT MAY RESULT FROM A FAILURE BY RMSS TO PERFORM ANY OF ITS OBLIGATIONS. THIS AGREED-UPON AMOUNT IS NOT A PENALTY, AND IS THE SOLE REMEDY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
6. NO WARRANTIES. THE SERVICES ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE”, AND RMSS AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT.
7. Release of Insured Losses; Waiver of Subrogation. You release RMSS for all Losses covered by your insurance policies and for all insurance deductibles. You also waive and release any subrogation and other rights you or your insurance company may have against RMSS for money paid to you or on your behalf.
8. INDEMNIFICATION. IF ANYONE OTHER THAN YOU (INCLUDING YOUR INSURANCE COMPANY) ASKS ANY RMSS PARTY TO PAY FOR ANY LOSSES, AS DEFINED IN SECTION 4, INCLUDING ATTORNEYS' FEES, ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY ANY COVERED CLAIM, AS DEFINED IN SECTION 4, INCLUDING THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF YOU OR ANY RMSS PARTY, YOU SHALL INDEMNIFY, DEFEND AND HOLD SUCH
which may include
RMSS PARTY HARMLESS (WITHOUT ANY CONDITION THAT ANY OF THEM FIRST PAY), FOR ALL LOSSES, AS DEFINED IN SECTION 4, INCLUDING ATTORNEYS' FEES, ASSERTED AGAINST OR INCURRED BY SUCH RMSS PARTY. THE FOREGOING INDEMNIFICATION OBLIGATIONS MAY NOT BE ENFORCEABLE IN SOME STATES, SO SUCH OBLIGATIONS MAY NOT APPLY TO YOU.
9. Communications Equipment and Services. The System is designed to transmit signals to a monitoring facility through certain communications equipment and services,
DSL, broadband, cellular, wireless and/or landline telephone equipment and services (collectively, the "Communications Equipment and Services"). Regardless of the form of Communications Equipment and Services used, you understand that the Communications Equipment and Services may be interrupted, circumvented, unavailable (for a limited or extended time period) or otherwise compromised, including as a result of equipment designed or used by a third party for the purpose of causing false alarms or gaining unauthorized access to or otherwise affecting or controlling the Communications Equipment and Services. If the Communications Equipment and Services are inoperative or interrupted by any cause, there will be no indication of such at the monitoring facility and the monitoring facility will not receive a signal from your system. You must test the System's data transmission with the monitoring facility at least monthly and immediately after the installation, modification or repair of any Communications Equipment or Service. (If DSL, VOIP or other form of broadband telephone equipment and services are used, such equipment and services should be installed on a telephone line and number that is not used by the System to transmit data to the monitoring facility). If you are using the optional telephone backup for the System, you will need some other means of communications to make a phone call if and when the System transmits data by telephone. You must confirm that the Communications Equipment and Services are compatible with the System, including when you make any changes to the Communications Equipment and Services. Your access to, and availability of the Application is dependent on (i) your computer, mobile device, home wiring, home Wi-Fi network, Bluetooth connection, and other related equipment, (ii) your Internet service provider, and (iii) your mobile device carrier. You shall immediately repair (or caused to be repaired) any (i) problems with the Communications Equipment and Services; or (ii) problems with the System. Consult the Owner's Manual for your System for further important safety information for your System and the transmission of signals from your System.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOU HAVE NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING WIRELESS SERVICE PROVIDER (THE “UNDERLYING CARRIER”) OR ITS AFFILIATES OR CONTRACTORS AND THAT YOU ARE NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN RMSS AND THE UNDERLYING CARRIER. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT THE UNDERLYING CARRIER AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO YOU AND YOU HEREBY WAIVE ANY AND ALL CLAIMS OR DEMANDS THEREFOR.
10. Additional Equipment or Services. You have selected the System based on your personal considerations (i.e., cost, the condition of the Premises, insurance requirements, etc.). Additional equipment or services, at additional cost, may provide increased detection. You agree that any additional equipment or services provided by RMSS shall be subject to this Agreement. We will honor any such request provided that we have previously agreed in writing to do so. You also agree to pay RMSS for such additional equipment or services. Your municipality may require a license or permit or the payment of taxes in connection with the installation, use or monitoring of the System. You are solely responsible for complying with such obligations and providing RMSS with any then current license or permit number. You understand that RMSS does not provide any installation or repair services for the System. You shall provide and maintain adequate power for all equipment relating to the System.
11. False Alarms; Suspension of Service and Shut-Down. You agree to prevent false alarms and be solely liable for false alarms. You must pay (or reimburse RMSS) any fines, fees, costs, expenses and penalties relating to the System or Services assessed against you, RMSS by any person or entity, including any court or governmental agency or any person or entity acting on the behalf of such court or agency. If (i) you default under this Agreement, (ii) this Agreement or the Services are terminated by either party for any reason, (iii) the System becomes a "runaway" system or excessively signals without apparent reason, or (iv) in the opinion of monitoring facility personnel, the System otherwise becomes a “problem account,” we may suspend the Services and you authorize RMSS to disconnect the System from the monitoring facility. The exercise of any such rights shall not be deemed a waiver of Company's right to damages.
12. Increase in Charges. RMSS may increase periodic recurring charges at any time under this Agreement by sending the notice to you by email to the email address on file with RMSS for your current online account.
13. Default. If you default under this Agreement you shall pay RMSS for all Losses in enforcing its rights under this Agreement.
14. Binding Agreement. This Agreement shall become binding on RMSS only after the commencement of any Services. This Agreement is binding on the parties' heirs, executors, administrators, successors and permitted assigns.
15. Applicable Law. This Agreement shall be governed by and construed according to the laws of Massachusetts without reference to its conflicts of law rules. The interpretation of this Agreement shall not be construed against the drafter.
16. Assignment. You may not assign this Agreement. RMSS may assign all or any portion of this Agreement.
17. Finance and Late Charges. Invoices are due upon receipt. You agree to pay a finance charge of the lesser of (i) one and one-half (1-1/2%) percent per month (eighteen percent (18%) per year) or (ii) the maximum rate permitted under applicable
law, for all charges not paid within thirty (30) days of the invoice date. In addition, you shall pay an administrative fee (late charge) of 5% of any invoice not paid (as agreed upon damages and not a penalty) within thirty (30) days of the invoice date, provided the imposition of such fee (together with the finance charge listed above) is permitted and not deemed to exceed the maximum charge permitted under applicable law.
18. No Waiver of Breach. Waiver of your breach of this Agreement shall not be a waiver of any subsequent breach. RMSS's rights under this Agreement shall be cumulative, may be exercised concurrently or consecutively and shall include all remedies available even if not referred to in this Agreement.
19. RMSS-Provided Interface to Third-Party Products, Applications and Services. From time to time, RMSS may provide the opportunity for you to interface the RMSS System, Services, Application, Account, website or other RMSS product, service, functionality or service element (collectively, the “RMSS Platform”) to one or more third-party products, services or applications (including their respective mobile applications (if any) or any related or connected third-party mobile devices or product peripherals that control or connect to any of the foregoing, collectively, “Third-Party Products and Services”), through and using the RMSS Platform, for example the RMSS Amazon Alexa Skill, Apple Watch or Google Assistant (as and when each is introduced). You decide whether and with which Third-Party Products and Services you want to interface. Your explicit consent and authorization is required for this interface, which may be revoked or disabled by you at any time. Notwithstanding the foregoing, and to the maximum extent permitted under applicable law, by (i) downloading and installing the RMSS mobile application on these Third-Party Products and Services and/or any related or connected third-party mobile devices or product peripherals, and/or (ii) enabling or authorizing RMSS notifications or other information to be transmitted to them, your consent and authorization to the corresponding/underlying Third-Party Products and Services, related interfaces and data exchange may be deemed to have been provided. Once your consent is given for a particular Third-Party Product and Service, you agree that RMSS may exchange information and control data regarding you and your products, including your personal information, in order to enable the interface to the Third-Party Products and Services you have authorized. Once this information is shared with the particular Third-Party Product and Service, its use will be governed by the third party's privacy policy and not by RMSS’s Privacy Policy. You acknowledge and agree that RMSS makes no representation or warranty about the quality or safety of any Third- Party Products or Services or the interface with Product and Services and that the use or performance of the Third-Party Products or Services shall be subject to the third party’s terms of service or like terms. Accordingly, RMSS is not responsible for your use of any Third-Party Product or Service or any personal injury, death, property damage (including, without limitation, to your home), or other harm or losses arising from or relating to your use of any Third-Party Products or Services. You should contact the third party with any questions about their Third-Party Products and Services.
20. End User License and Intellectual Property. Subject to the terms and conditions of this Agreement, RMSS grants you a non-exclusive, non-transferable license to access
and use the Services by (i) use the Application in connection with, and solely for the purpose of, controlling and monitoring the Services you are authorized to receive and/or control or monitor, and (ii) install and use the Application solely on your own handheld mobile device (e.g., iPhone, iPad, or Android smartphone or other tablet device) and solely for the purposes set forth in this Agreement. There is a risk that unauthorized persons may gain access to the Application and data thereon and you agree to assume such risk. You consent to our posting alarm event and other status reports in connection with the Service on the Application. You will keep confidential all information available on the Application and all passwords relating to the Application or access thereto. This license will continue and be co-extensive with the term of this Agreement except for your (i) failure to keep confidential all information available on the Application and all passwords or access codes relating to the Application or access thereto, (ii) use of the license or the information in any manner that negatively affects us, (iii) use of the license or the information for any illegal purpose, (iv) breach of this Agreement or (v) violation of any applicable law. You will be solely responsible for information you deliver, delete or modify. Upon termination of this Agreement or termination or suspension of the license by us, we may immediately, and without notice, disable your access to the Application and cancel all passwords or other access codes. You will not (a) disclose or make available to third parties any portion of the technology associated with the Services or the Application without our prior written consent, (b) copy, decompile, dissemble, reverse engineer, manipulate, modify, or make derivative works of any technology incorporated in the Services or the Application. RMSS may from time to time develop patches, updates, upgrades or other modifications (“Updates”) to improve the performance of the Services or the Application. These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your Account and stop using the Services or the Application. You acknowledge that you may be required to install Updates to use the Services and you agree to promptly install any Updates that RMSS provides. IF YOU FAIL TO INSTALL ANY UPDATES PROVIDED BY RMSS, YOUR ACCESS TO THE APPLICATION AND THE SERVICES MAY BE TERMINATED.
Notwithstanding the foregoing, software embedded within any RMSS System may contain, include, or be provided together with third-party software components, including software made available under an “open source” or similar licenses (“Third-Party Components”). Additional information regarding the Third-Party Components can be found in the software documentation or the applicable help, notices, about or source files. Copyrights to the open source software are held by the respective copyright holders indicated therein. To the extent required by the license covering any Third-Party Component, the terms of such license will apply to such Third-Party Component instead of the terms of this Agreement. To the extent the license applicable to any Third-Party Component prohibits any of the restrictions herein with respect to such Third-Party Component, such restrictions will not apply to such Third-Party Component. To the extent the terms of the license applicable to any Third-Party Component requires RMSS to make an offer to provide source code or related information in connection with such Third-Party Component, such offer is hereby made. Any request for source code or
related information should be directed only to: info@rockymountainsmart.com . All rights with respect to such software not licensed to you hereunder are fully reserved by RMSS and/or its licensors.
21. Suspension of Service. RMSS's obligations under this Agreement are waived automatically without notice and you release RMSS for all Losses following any default or breach of this Agreement by you or if the monitoring facility, or Communications Equipment and Services are destroyed, damaged, inoperable or malfunction for any reason whatsoever, for the duration of such interruption of service, and you shall be entitled to a credit of the unearned charges paid for the period of interruption on your request, which credit shall not exceed more than one month's service charge and shall be the limit of RMSS's liability. If this Agreement is terminated or the Services are suspended or terminated for any reason, you shall immediately disconnect the System from all Communications Equipment and Services (e.g., telephone line, radio transmitter, cellular transmitter, etc.). Upon termination of this Agreement or if the Services are suspended or terminated for any reason we may, in our sole discretion, without notice, and without any liability, remotely disable, disconnect or block the System and data from the System from communicating with the monitoring facility.
22. Time Limitation on Actions. All claims, actions or proceedings against RMSS must be commenced in court within one (1) year after the cause of action has accrued, without judicial extension of time, or such claim, action or proceeding is barred. The time period in this Section must be complied with strictly.
23. Integrated Agreement. This Agreement and any document made a part of this Agreement contains the entire agreement between the parties respecting the transactions described in such documents and supersedes all prior or current negotiations, commitments, contracts (express or implied) warranties (express or implied) statements and representations, whether written or oral, pertaining to such transactions, all of which shall be deemed merged into this Agreement. NEITHER PARTY HAS MADE ANY REPRESENTATION, TERM, PROMISE, CONDITION, STATEMENT, WARRANTY, OR INDUCEMENT (COLLECTIVELY, "INDUCEMENT") NOT EXPRESSED IN THIS AGREEMENT RESPECTING THE TRANSACTIONS DESCRIBED IN THIS AGREEMENT AND ANY DOCUMENT MADE A PART OF THIS AGREEMENT AND, IN ENTERING INTO THIS AGREEMENT, NEITHER PARTY IS RELYING ON ANY INDUCEMENT WHICH IS NOT SET FORTH IN THIS AGREEMENT.
24. Valid Agreement. Should any provision of this Agreement (or portion of this Agreement), or its application to any circumstances, be held illegal, invalid or unenforceable to any extent, the validity and enforceability of the remainder of the provision and this Agreement, or of such provisions as applied to any other circumstances, shall not be affected thereby, and shall remain in full force and effect as valid, binding and continuing.
25. Modifications. Additions, amendments, modifications or deletions to these terms shall not become part of the Agreement unless agreed to in writing by the parties; provided that RMSS may add, amend, modify or delete the terms of this Agreement by providing prior written notice of such addition, amendment, modification or deletion on its websites and/or via a notice delivered pursuant to Section 40 (ii), which amended terms shall be binding upon the parties.
26. RMSS may, in its sole discretion, subcontract for the provision of any of the Services under this Agreement. The provisions of this Agreement inure to the benefit of and are applicable to (i) any subcontractors engaged to provide any of the Services to you, including any monitoring facility and any Third Party Responder; and (ii) each of the RMSS Parties (and any providers of Third-Party Products and Services, if any and solely as applicable), and bind you to all such persons or entities listed in the foregoing subsection (i) or (ii) with the same force and effect as they bind you to RMSS. Any subcontractor we engage is an independent contractor and not our partner or joint venturer. You authorize us to act as your agent for purposes of working with, or providing any directions to, any subcontractors with respect to the provision of the Services. You authorize us to share your personal information with our subcontractors or Third Parties for the purpose of providing Services under this Agreement.
27. Section Headings; Interpretation. The section titles used herein are for convenience of the parties only and shall not be considered in construing the provisions of this Agreement. When used in this Agreement, (i) the word "including" shall mean "including, but not limited to;" and (ii) the term "sole discretion" shall mean "sole and absolute discretion without any liability."
28. Right to Notice and Cure. If RMSS breaches this Agreement, you shall provide RMSS written notice specifically identifying the nature of the breach and the provisions of this Agreement affected as a result of such breach. RMSS may cure the breach within five (5) business days following RMSS's receipt of the written notice or, if the breach cannot be reasonably cured within such period, may promptly commence to cure and diligently proceed until cured. If RMSS cures any such breach, this Agreement shall continue unabated and RMSS shall not be liable to you for any Losses arising out of or in connection with, due to or caused in whole or in part by any such breach.
39. Dispute Resolution and Arbitration. PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. Certain portions of this Section 39 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and RMSS agree that RMSS intends that this Section 39 satisfies the “writing” requirement of the Federal Arbitration Act.
a. In the event of any dispute or disagreement between the parties, or claim or question by a party, arising from or relating to this Agreement or the breach hereof (collectively, a “Dispute”), the parties hereto shall use their best efforts to settle the Dispute. To this effect, the parties shall consult and negotiate with each other in good faith and,
recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If the parties do not reach such solution within a period of 60 days then, upon notice by either party to the other, such Dispute shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Consumer Arbitration Rules. Once the Dispute is submitted to the AAA for arbitration, each party must pay the appropriate filing fees. All expenses of the arbitrator and any AAA expenses shall be borne by RMSS. The parties will remain individually responsible for their own attorney costs or other non-AAA required costs, including but not limited to the expenses of witnesses for either side, which shall be borne by the party producing such witnesses. If an in-person arbitration hearing is required, then it will be conducted at an American Arbitration Association office that is reasonably convenient for both parties. If the parties are unable to agree on a location, a determination on location shall be made by the Independent ADR Institution or the neutral arbitrator.
b. The arbitration will be heard and determined by a single neutral arbitrator selected by the AAA who is a retired judge or a lawyer with not less than 15 years of experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA’s Consumer Arbitration Rules. The arbitrator will apply applicable law and the provisions of this Agreement and will determine any Dispute according to the applicable law and facts based upon the record and no other basis. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
You can obtain the AAA procedures, rules, and fee information as follows: AAA: 800.778.7879
http://www.adr.org/
In arbitration, as with a court, the arbitrator must honor the terms of this Agreement and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. The parties agree that the arbitration shall be confidential. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing.
c. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION
40) WITHIN 1 YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
d. NOTWITHSTANDING THE FOREGOING, THIS ARBITRATION AGREEMENT DOES NOT APPLY TO ANY CLAIM SEEKING DAMAGES IN TORT FOR BODILY INJURY, INCLUDING EMOTIONAL OR PSYCHOLOGICAL INJURY, OR PROPERTY DAMAGE OF ANY KIND, INCLUDING CLAIMS FOR LOSS OF USE OR DIMINUTION IN VALUE OF PROPERTY. IN ADDITION, THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS ACTION BASIS OR ON ANY BASIS INVOLVING ANY DISPUTE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC, OTHER PERSONS OR ENTITIES DOING BUSINESS WITH RMSS, OR OTHER PERSONS OR ENTITIES SIMILARLY SITUATED. FURTHERMORE, ANY DISPUTE BROUGHT BY OR AGAINST RMSS MAY NOT BE JOINED OR CONSOLIDATED IN THE ARBITRATION WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER RMSS SUBSCRIBER, UNLESS OTHERWISE AGREED BY THE PARTIES. FURTHER, THE PARTIES ACKNOWLEDGE THAT THEY WAIVE ANY RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY DISPUTE SUBJECT TO ARBITRATION. SUBSCRIBER SHALL HAVE THE RIGHT TO OPT OUT OF THIS AGREEMENT TO ARBITRATE BY PROVIDING WRITTEN NOTICE OF ITS INTENTION TO DO SO BY EMAILING INFO@ROCKYMOUNTAINSMART.COM WITHIN 60 DAYS OF THIS AGREEMENT BECOMING BINDING UPON SUBSCRIBER FOR THE FIRST TIME. OPTING OUT OF THIS AGREEMENT TO ARBITRATE HAS NO EFFECT ON ANY PREVIOUS, OTHER, OR FUTURE ARBITRATION AGREEMENT(S) THAT SUBSCRIBER MAY HAVE WITH RMSS. IF THIS AGREEMENT TO ARBITRATE BECOMES BINDING, SUBSCRIBER CAN NOT CHANGE, MODIFY OR REVOKE IT (INCLUDING BY ATTEMPTING TO OPT OUT IN CONNECTION WITH ANY CONFIRMATION OF THE THESE TERMS OF SERVICE, AS AMENDED FROM TIME TO TIME) WITHOUT AN AGREEMENT IN WRITING SIGNED BY RMSS. IN THE EVENT THAT THE SUBSCRIBER OPTS OUT OF THIS AGREEMENT TO ARBITRATE IN ACCORDANCE WITH THIS SECTION 39: EACH PARTY HEREBY IRREVOCABLY AGREES THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING ("SUIT") ARISING OUT OF OR IN CONNECTION WITH OR DUE TO ANY CLAIM OR DISPUTE THAT HAS ARISEN OR MAY ARISE BETWEEN THE PARTIES MUST BE RESOLVED EXCLUSIVELY BY A STATE OR FEDERAL COURT LOCATED IN BOSTON, MASSACHUSETTS; EACH PARTY CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE OF EACH SUCH COURT IN ANY SUCH SUIT AND WAIVES ANY OBJECTION THAT IT MAY HAVE TO JURISDICTION OR VENUE OF ANY SUCH SUIT; EACH PARTY CONSENTS TO SERVICE OF PROCESS IN ACCORDANCE WITH THE NOTICE PROVISIONS OF THIS AGREEMENT; AND EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY SUCH SUIT.
29. Notices. Unless otherwise expressly provided herein, (i) all notices required to be given to RMSS shall be deemed to have been duly given if in writing and mailed by regular mail, postage prepaid, or overnight delivery, by a reputable, national overnight
delivery service to RMSS's then current principal place of business and (ii) all notices required to be given to Subscriber shall be deemed to have been duly given if in writing and sent to the e-mail address on file with RMSS for your Account. Subscriber is responsible to provide RMSS with any changes to Subscriber's e-mail address pursuant to the foregoing sentence.
30. Severability. If any provision of this Agreement is found to be invalid, the remaining provisions are still effective.
31. Privacy Policy. Please refer to RMSS’s privacy policy at LINK for important information about RMSS’s collection, use and sharing of Customer’s personal information.
32. State Licensure.
For California Residents. Your self-installed System includes a base station and one or more temperature, water, and/or other sensors as selected by you, and may also include one or more yard signs or window decals as selected by you. Additional services, such as data and account-management services, may be provided in connection with the System. By agreeing to these Terms of Service and/or completing a purchase of a System, you consent to the use of electronic records and the right to receive information about your legal rights and duties electronically. You have the right to a paper copy of any electronic documents upon request.
33. Critical Product, Component and Software Updates & Replacements During Services
If, at the Company’s sole and reasonable discretion, certain critical Product, Component and/or Software updates or replacements are needed to maintain reliable performance of your system or any components thereof during your subscription for any Services, and the Company makes corresponding hardware or software updates available (collectively, “Critical Updates & Replacements), upon notice the Customer agrees to take reasonable steps and follow provided instructions to effectuate such Critical Updates & Replacements, and to cooperate as reasonably requested to help schedule, coordinate or arrange for such Critical Updates & Replacements to be installed, delivered or implemented. Such Critical Updates & Replacements can include updated labeling, replacements of batteries, replacement of wifi or cellular modules, and even replacements of discontinued products.