WELCOME TO ENCO WATER DETECTION MONITORING
TERMS OF SERVICE
Customer’s water detection monitoring services (the “Monitoring Services”) are provided by Enco Electronics Systems, LLC (“ENCO”). By using the Monitoring Services, Customer has agreed to the Terms of Service contained in this agreement as well as the terms and conditions in the Commercial Services Agreement.
For customer service or questions concerning the Monitoring Services, please contact ENCO at: 800-393-3973.
ENCO may change or modify these Terms of Service from time--to--time and will provide written notice to the Customer. The amended terms and conditions will automatically be effective 60 days after Customer is given notice. If Customer does not wish to be bound by the amended terms and conditions customer must give notice prior to the amended terms and conditions becoming effective. By using the Monitoring Services, you agree to be bound by the amended terms and conditions contained in the Terms of Service.
Customer has granted to ENCO and its successors and assigns a perpetual, non-exclusive easement in gross across the condominium property, including both land and improvements, common areas and in all condominium units(collectively, the “Property”), for the installation, location, relocation, maintenance, repair, replacement, upgrading, monitoring, operation, and removal of its monitoring system equipment.
EQUIPMENT AND SOFTWARE.
ENCO shall install, program and monitor the building wide monitoring system, consisting of water detection equipment and software, as selected by Customer in in the Commercial Service Agreement. This equipment may include: water leak detection devices, water temperature sensing devices, water flow detection devices, automatic shutoff valves, controllers, monitors, modems, software radio, cellular and/or internet connection devices connected to ENCO's monitoring system.
All monitoring system equipment, software, network and transmission facilities used by ENCO to provide the Monitoring Services are the sole and exclusive property of ENCO, and shall not be considered a fixture, or an addition to, alteration, conversion, improvement, modernization, remodeling, repair or replacement of any part of the Property. Monitoring software is part of the instrument panel programmed to transmit a signal. The passcode to CPU software remains property of ENCO.
Customer agrees that it shall not create or permit to be created any liens or encumbrances on the monitoring system equipment. Customer, for itself (and its employees and agents) and on behalf of the condominium owners, shall use the monitoring system equipment only for the purpose of receiving the Monitoring Services offered by ENCO and shall not modify or relocate the monitoring system equipment without ENCO's prior written consent. Customer shall not permit tampering, altering, or repair of the monitoring system equipment by any person other than ENCO's authorized personnel. Customer shall, at the expiration or termination of the Commercial Services Agreement, allow ENCO to retrieve the monitoring system equipment in good condition, ordinary wear and tear excepted within thirty (30) days of the expiration or termination.
For monitoring system equipment installed at the Property, ENCO at its own expense shall provide any repairs, component parts and labor to the monitoring system made necessary as a result of ordinary wear and tear to, or defective materials contained within the monitoring system. All other repairs or replacements of the monitoring system, including, but not limited to, (i) any repairs or replacements of or to the monitoring system made necessary because of abuse or misuse of the monitoring system equipment or software, or use by unauthorized persons, (ii) any repairs or replacements of or to the monitoring system made necessary because of attempted or unauthorized repair service, modification, or alteration of the monitoring system equipment or software, or use by unauthorized persons, or (iii) if for any other reason ENCO determines that the monitoring system is not operating properly as a result of causes other than ordinary wear and tear or defective materials, shall be made by ENCO at Customer's cost and expense and shall be billed to Customer at ENCO's then-prevailing retail rates. ENCO reserves the right to substitute, change, or rearrange equipment used to provide the Monitoring Services so long as the quality or type of Monitoring Service is not impaired or degraded.
SUSPENSION AND TERMINATION OF MONITORING SERVICES
ENCO may suspend the Monitoring Services immediately upon notice to Customer if: (a) Customer is in breach of the Commercial Services Agreement; (b) Customer or any condominium owner or occupant is in breach of this Terms of Service agreement; (c) Customer’s use of the Monitoring Services may subject ENCO or any third party to liability, (d) Customer’s or a condominium owner’s or occupant’s use of the Monitoring Services may be abusive; or (e) Customer or a condominium owner or occupant is violating ENCO’s trademarks, service marks, trade names, or logos other than as expressly permitted by ENCO in writing. If ENCO suspends the Monitoring Services, Customer will not be entitled to any compensation for any period of suspension. ENCO’s right to suspend Customer’s and condominium owner’s and occupant’s Monitoring Services is in addition to ENCO’s right to terminate the Monitoring Services.
CENTRAL OFFICE MONITORING.
Upon receipt of a signal from the monitoring system, or its designee central office shall make every reasonable effort to notify Customer and/or the designated condominium property manager or responsible party. Customer acknowledges that signals transmitted from Customer's Property directly to the central office are not necessarily monitored by personnel of or 's designee central office and does not assume any responsibility for the manner in which such signals are monitored or the response, if any, to such signals. Customer acknowledges that signals which are transmitted over telephone lines, wire, air waves, internet, VOIP, radio or cellular, or other modes of monitoring pass through monitoring networks wholly beyond the control of and are not maintained by except may own the radio network, and shall not be responsible for any failure which prevents transmission signals from reaching the central office monitoring center or damages arising therefrom, or for data corruption, theft or viruses to Customer's computers if connected to the monitoring system.
Customer agrees to furnish with a written Call List of names and telephone numbers of those persons Customer wishes to receive notification of monitoring signals. Unless otherwise provided in the Call List, will make a reasonable effort to contact the first person reached or notified on the list either via telephone call, text or email message. No more than one call to the list shall be required and any form of notification provided for herein, including leaving a message on an answering machine, shall be deemed reasonable compliance with 's notification obligation. All changes and revisions shall be supplied toin writing.
SERVICE AND TESTING.
The Monitoring Services includes all equipment, parts, and labor. shall service and periodically test the monitoring system installed at the Property between the hours of 9 a.m. and 5 p.m. Monday through Friday, within reasonable time after receiving notice from Customer that service is required, exclusive of Saturdays, Sundays and legal holidays. All repairs, replacement or alteration to the monitoring system made by reason of alteration to the Property, or caused by unauthorized intrusion, misuse, lightning or electrical surge, or caused by any means other than normal usage, wear and tear, shall be made at the cost of Customer. No apparatus or device shall be attached to or connect with the monitoring system as originally installed without 's written consent.
MONITORING AND COLLECTION OF DATA
ENCO collects and generates information and records from the monitoring sensors at the same time we are providing the Monitoring Services. Customer, for itself and for the condominium owners, consent to our collecting and using the information to assess and improve our Monitoring Services, for marketing purposes, and to prepare reports for both internal purposes and for Customer.
LIMITATION ON LIABILITY.
ENCO at its own expense, shall, during the term of the Commercial Services Agreement, provide any repairs, component parts and labor to the monitoring system made necessary as a result of ordinary wear and tear to, or defective materials contained within the monitoring system. reserves the option to either replace or repair the monitoring system equipment or software, and reserves the right to substitute materials of equal quality at time of replacement, or to use reconditioned parts in fulfillment of this limited equipment warranty. EXCEPT AS SET FORTH IN THIS TERMS OF SERVICE AGREEMENT AND THE COMMERCIAL SERVICES AGREEMENT, THERE ARE NO OTHER AGREEMENTS, WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THE MONITORING SERVICES. IS NOT AN INSURER. THE AMOUNTS CHARGES CUSTOMER ARE NOT INSURANCE PREMIUMS. SUCH CHARGES ARE BASED UPON THE VALUE OF THE SERVICES, SYSTEM AND EQUIPMENT PROVIDES AND ARE UNRELATED TO THE VALUE OF THE PROPERTY, ANY PROPERTY OF THE CONDOMINIUM UNITS OR OTHERS LOCATED IN OR ON THE PROPERTY, OR ANY RISK OF LOSS ON THE PROPERTY. THE MONITORING SERVICES PROVIDED ARE A BEST EFFORTS SERVICE AND DOES NOT WARRANT THAT THE SERVICES, EQUIPMENT OR SOFTWARE SHALL BE ERROR-FREE OR WITHOUT INTERRUPTION. DOES NOT REPRESENT NOR WARRANT THAT THE MONITORING SYSTEM MAY NOT BE COMPROMISED OR CIRCUMVENTED, OR THAT THE SYSTEM WILL PREVENT ANY LOSS DUE TO WATER LEAKS, EXCESSIVE WATER TEMPERATURES, EXCESSIVE WATER FLOWS, OR THAT THE MONITORING SYSTEM WILL IN ALL CASES PROVIDE THE DETECTION OR PROTECTION FOR WHICH IT IS INSTALLED. SHALL NOT BE LIABLE FOR DAMAGE TO PROPERTY OR FOR INJURY TO ANY PERSON ARISING FROM THE INSTALLATION, OPERATION, OR REMOVAL OF THE MONITORING SYSTEM UNLESS CAUSED BY THE NEGLIGENCE OF . UNDER NO CIRCUMSTANCES WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, ARISING FROM THIS TERMS OF SERVICE AGREEMENT, THE COMMERCIAL SERVICES AGREEMENT, OR ITS PROVISION OF THE MONITORING SERVICE. CUSTOMER ACKNOWLEDGES THAT ANY AFFIRMATION OF FACT OR PROMISE MADE BY SHALL NOT BE DEEMED TO CREATE AN EXPRESS WARRANTY UNLESS INCLUDED IN THE COMMERCIAL SERVICES AGREEMENT AND IN THIS TERMS OF SERVICE AGREEMENT IN WRITING. CUSTOMER'S EXCLUSIVE REMEDY FOR 'S BREACH OF THIS TERMS OF SERVICE AGREEMENT OR THE COMMERCIAL SERVICES AGREEMENT OR NEGLIGENCE TO ANY DEGREE UNDER THESE AGREEMENTS IS TO REQUIRE TO REPAIR OR REPLACE, AT 'S OPTION, ANY MONITORING SYSTEM EQUIPMENT WHICH IS NON-OPERATIONAL.
DELAY IN INSTALLATION.
ENCO shall use reasonable efforts to make the Monitoring Services available by the estimated service date. The estimated date work is to be substantially completed is not a definite completion date and time is not of the essence. shall not be liable for any damage or loss sustained by Customer or any condominium unit owner as a result of delay in installation of the monitoring system.
CARE OF MONITORING SYSTEM.
Customer, for itself (and its agents and employees) and on behalf of the condominium units, agrees not to tamper with, remove or otherwise interfere with the monitoring system which shall remain in the same location as installed and Customer agrees to bear the cost of repairs or replacement made necessary as a result of any theft, damage, including but not limited to damage caused by unauthorized intrusion to the Property, lightning or electrical surge, except for ordinary wear and tear, in which event repair or replacement to the monitoring system shall be made by without additional charge.
ALTERATION OF PROPERTY FOR INSTALLATION.
ENCO is authorized to make preparations to the Property such as drilling holes, driving nails, making attachments or doing any other thing necessary in 's sole discretion for the installation and service of the monitoring system, and shall not be responsible for any condition created thereby as a result of such installation, service, or removal of the monitoring system, and Customer represents that the condominium unit owners authorize the installation of the monitoring system under the terms of this Terms of Service agreement.
CUSTOMER'S DUTY TO SUPPLY ELECTRIC AND TELEPHONE SERVICE.
Customer agrees, at its expense, that there will be sufficient 110 Volt AC power, electrical outlets, ARC Type circuit breaker and dedicated receptacle, internet connection, high speed broadband cable or DSL and IP Address, telephone hook-ups, RJ31x Block or equivalent, as deemed necessary byfor the monitoring system equipment and services.
ENCO or any subcontractor engaged by to perform the work or furnish material who is not paid may have a claim against the Property, Customer, or the condominium units.
INDEMNITY/WAIVER OF SUBROGATION RIGHTS.
Customer agrees to indemnify and hold harmless , its employees, agents and subcontractors, from and against all claims, lawsuits, attorneys fees and costs, brought by any non-signing party to the Commercial Services Agreement, including Customer's or a condominium unit owner’s SUBROGATION insurer, asserted against and alleged to be caused by 's performance, negligence or failure to perform any obligation under the Commercial Services Agreement or this Terms of Service agreement. Customer on its behalf and any insurance carrier waives any right of subrogation Customer's insurance carrier may otherwise have againstor 's subcontractors arising out of the Commercial Services Agreement or this Terms of Service agreement or the relation of the parties hereto. Customer shall not be permitted to assign the Commercial Services Agreement or this Terms of Service agreement without written consent of . shall have the right to assign the Commercial Services Agreement or this Terms of Service agreement and shall be relieved of any obligations herein upon such assignment.
ENCO AND CUSTOMER, FOR ITSELF AND ON BEHALF OF THE CONDOMINIUM UNIT OWNERS, AGREE THAT ENCO IS NOT AN INSURER AND NO INSURANCE COVERAGE IS OFFERED HEREIN. THE MONITORING SYSTEM AND 'S SERVICES ARE DESIGNED TO REDUCE CERTAIN RISKS OF LOSS, THOUGH DOES NOT GUARANTEE THAT NO LOSS WILL OCCUR. ENCO IS NOT ASSUMING LIABILITY, AND, THEREFORE, SHALL NOT BE LIABLE TO CUSTOMER OR ANY OCCUPANT FOR ANY LOSS, DATA CORRUPTION, PERSONAL INJURY OR PROPERTY DAMAGE SUSTAINED BY CUSTOMER, A CONDOMINIUM UNIT OWNER, OR AN OCCUPANT AS A RESULT OF WATER, EQUIPMENT FAILURE, OR ANY OTHER CAUSE WHATSOEVER, REGARDLESS OF WHETHER OR NOT SUCH LOSS OR DAMAGE WAS CAUSED BY OR CONTRIBUTED TO BY ENCO'S NEGLIGENT PERFORMANCE TO ANY DEGREE IN FURTHERANCE OF THE COMMERCIAL SERVICES AGREEMENT OR THIS TERMS OF SERVICE AGREEMENT, ANY EXTRA CONTRACTUAL OR LEGAL DUTY, STRICT PRODUCTS LIABILITY, OR NEGLIGENT FAILURE TO PERFORM ANY OBLIGATION PURSUANT TO THE COMMERCIAL SERVICES AGREEMENT OR THIS TERMS OF SERVICE AGREEMENT OR ANY OTHER LEGAL DUTY. IN THE EVENT OF ANY LOSS OR INJURY TO ANY PERSON OR PROPERTY, CUSTOMER AGREES TO LOOK EXCLUSIVELY TO CUSTOMER'S INSURER, OR IF APPLICABLE TO THE OCCUPANT CONDOMINIUM OWNER’S INSURER, TO RECOVER DAMAGES. CUSTOMER, FOR ITSELF AND ALL OF THE CONDOMINIUM UNIT OWNERS AND THEIR OCCUPANTS, RELEASESFROM ANY CLAIMS FOR CONTRIBUTION, INDEMNITY OR SUBROGATION. IF, NOTWITHSTANDING THE ABOVE PROVISIONS, IS FOUND LIABLE FOR LOSS, DAMAGE OR INJURY UNDER ANY LEGAL THEORY DUE TO A FAILURE OF THE MONITORING SYSTEM SERVICES OR EQUIPMENT IN ANY RESPECT, THE PARTIES AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ANTICIPATE OR FIX ACTUAL DAMAGES. THEREFORE, CUSTOMER, FOR ITSELF AND ON BEHALF OF THE CONDOMINIUM UNIT OWNERS OR AND THEIR OCCUPANTS, AGREES THAT SHOULD THERE ARISE ANY LIABILITY ON THE PART OF , CUSTOMER AGREES TO ACCEPT THE SUM OF $250.00 OR 6 TIMES THE AGGREGATE OF MONTHLY PAYMENTS FOR SERVICES BEING PROVIDED AT TIME OF LOSS, WHICHEVER IS GREATER, AS LIQUIDATED DAMAGES IN COMPLETE SATISFACTION OF SUCH LIABILITY AND IS RELEASED AND DISCHARGED FROM ANY FURTHER LIABILITY. THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY NO MATTER HOW THE LOSS, DAMAGE OR INJURY OR OTHER CONSEQUENCE OCCURS, EVEN IF DUE TO 'S PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR FROM NEGLIGENCE (ACTIVE OR OTHERWISE), STRICT LIABILITY, VIOLATION OF ANY APPLICABLE CONSUMER.
Customer, and to the extent applicable each condominium unit owner, shall maintain a policy of public liability and property damage insurance. In the event of any loss or injury to any person or property caused by water or other perils intended to be detected by the monitoring system Customer for itself and for the condominium owners, agrees to look exclusively to Customer's insurer or the condominium unit owners’ insurer, if applicable, to recover damages. Customer and all those claiming rights under Customer waive all rights againstand its subcontractors for loss or damages caused by water or other perils intended to be detected by the security services or covered by insurance to be obtained by Customer, except such rights as they may have to the proceeds of insurance.
ENCO'S RIGHT TO SUBCONTRACT SPECIAL SERVICES.
Customer agrees thatis authorized and permitted to subcontract any services to be provided byto third parties who may be independent of , and thatshall not be liable for any loss or damage sustained by Customer by reason of water, fire, theft, burglary or any other cause whatsoever caused by the negligence of third parties, except thatshall not obligate Customer to make any payments to such third parties. Customer appointsto act as Customer's agent with respect to such third parties, except thatshall not obligate Customer to make any payments to such third parties. Customer acknowledges, that the Commercial Services Agreement and this Terms of Service agreement, and particularly those paragraphs relating to 's disclaimer of warranties, exemption from liability, even for its negligence, limitation of liability and third party indemnification, inure to the benefit of and are applicable to any assignee, subcontractors and central offices of .
Customer agrees that it will not solicit for employment for itself, or any other entity, or employ, in any capacity, any employee ofassigned byto perform any Monitoring Service for or on behalf of Customer for a period of two years afterhas completed providing service to Customer. In the event of Customer's violation of this provision, in addition to injunctive relief, shall recover from Customer an amount equal to such employee's salary based upon the average three months preceding employee's termination of employment with , times twelve, together with 's counsel and expert witness fees.
In compliance with the Fair Credit Reporting Act ("FCA"), Customer hereby authorizes to obtain a consumer credit report. Customer has the right, by contacting the provider of this information, to dispute the information on the report or request additional disclosures as provided under Section 606 of the FCA. Written request must be given from Customer to to request additional credit information. Customer releases all persons involved in the credit investigation from liability in connection with such investigation.
REPRESENTATIONS AND WARRANTIES OF CUSTOMER.
Customer represents and warrants toas follows: (i) Customer is duly authorized to enter into the Commercial Services Agreement and this Terms of Service agreement; (ii) is duly authorized to enter into each of the condominium units to install, service and monitor its monitoring system; (iii) Customer shall not be in violation of any agreement it has with a third-party relating to the Monitoring Services provided by ; (iii) Customer is a duly organized entity in Florida and is qualified and authorized to do business therein; and (iv) if any condominium unit owner or their occupant refuses to allowentry into their unit to install the monitoring system, thenwill not install the monitoring system in such unit, and such event will have no effect on Customer's remaining obligations under the Commercial Services Agreement or this Terms of Service agreement, including its payment obligations to .
ENCO owns all intellectual property rights in the Monitoring Services, including related equipment, software, written materials, logos, names and other support materials furnished with the Monitoring Services. No title to the intellectual property in the Monitoring Services, the equipment, software, documentation, magnetic media or any other material provided therewith is transferred to You by the Commercial Services Agreement or this Terms of Service agreement. All rights are reserved. All other names, trademarks and logos that appear in the Monitoring Services are the property of , the third party vendors, or the partnered internet service provider.
The rights and obligations of the parties hereunder shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Florida. No choice of law rules of any jurisdiction will apply. If any part of this Terms of Services or the Commercial Services Agreement are held by a court of law to be unenforceable, the remainder of these Terms of Service and the Commercial Services Agreement shall remain in full force and effect and the unenforceable provisions shall be interpreted as closely as reasonably possible to reflect the original intentions of the parties. The failure of a party to enforce any term, condition, or right under the Commercial Services Agreement or this Terms of Service agreement shall not be construed as a waiver or relinquishment of such term, condition, or right, continuing or future breach of the same, or of any other term, condition, or right. This Terms of Service agreement, as may be amended from time to time, and the Commercial Service Agreement constitute the entire agreement between the parties and supersede and nullify all prior understandings, promises or undertakings with respect to the Monitoring Service