THIS SECURITY ALARM MONITORING SUBSCRIBER AGREEMENT (the “Agreement”) is entered into as of the Effective Date (as defined herein) by and between Quail Valley Telecom, LLC, a Texas limited liability company, d/b/a “frog” (“Provider”), and
the Customer who is the owner in fee simple or has a leasehold interest in and to the real property
located at the Property.
1. DESCRIPTION OF SERVICES:
(a) Provider either has or will install and/or program a security alarm system at the Property (the “Security System”)
(b) Provider agrees to provide monitoring service as hereinafter set forth for the Security System owned by Customer.
(c) Provider will provide one (1) security alarm monitoring account for the Property at the rates set forth above.
2. NOTIFICATION OF ACTIVATION OF SERVICE:
(a) Customer acknowledges that Provider's monitoring services will not be operational until Customer has received written
notification that activation has taken place from an officer of Provider.
3. PAYMENT:
(a) Customer agrees to pay to Provider, its successors or assigns, for alarm monitoring services, according to the monthly charges
set forth above payable a month in advance. The first payment (together with any amounts which may be due and payable for the
installation of the Security System by Provider) shall be paid upon execution of this Agreement.
(b) Customer agrees to pay Provider, its successors or assigns, for repair services and selected optional services in accordance with
the rates set forth above. Payment for repair services is due upon receipt of invoice.
4. TERMS:
(a) This Agreement shall be for an initial term of two (2) years. After the initial term if neither party has cancelled this Agreement,
the Agreement shall automatically renew each year for an additional term of one (1) year until terminated by either party. Either party may cancel
this Agreement with thirty (30) days advance written notice.
5. PROVIDER AND SUBCONTRACTOR ARE NOT INSURERS; LIMITATION OF LIABILITY:
(a) It is understood and agreed: That Provider and Subcontractor (defined in Section 15b below) are not an insurer, that insurance, if
any, shall be obtained by Customer, that the payments provided for herein are based solely on the value of the services as set forth herein under
the conditions herein; that Provider and Subcontractor make no guaranty or warranty, including any implied warranty of merchantability or fitness
that the equipment or services supplied will avert or prevent occurrences or the consequences there from which the system or service is designed
to detect or avert. Customer acknowledges that it is impractical and extremely difficult to fix the actual damages, if any, which may proximately
result from a failure to perform any of the obligations herein, including, but not limited to, monitoring, inspection or repair or the failure of the system
to properly operate with resulting loss to Customer because of, among other things:
(i) The uncertain amount or value of Customer's property or the property of others kept on the premises which may be lost,
stolen, destroyed, damaged or otherwise affected by occurrences which the system or service is designed to detect or avert;
(ii) The uncertainty of the response time of the appropriate emergency response department, or others (“Responders”), should the
Responders be dispatched as a result of a signal being received;
(iii) The inability to ascertain what portion, if any, of any loss would be proximately caused by Provider’s failure to perform
or by its equipment to operate;
(iv) The uncertain nature or occurrences which might cause injury or death to Customer or any other person which the system
is designed to detect or avert;
(v) The nature of the services to be performed by Provider.
(b) CUSTOMER AGREES THAT CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY PROVIDER OR SUBCONTRACTOR
LIABILITY ARE PROVIDED IN THIS SECTION. EXCEPT AS PROVIDED IN THIS SECTION, PROVIDER AND SUBCONTRACTOR SHALL NOT BE LIABLE FOR ANY INJURY, LOSS OR OTHER CONSEQUENCE ARISING DIRECTLY OR INDIRECTLY FROM THE
FAILURE OF SERVICES OR SYSTEM TO WORK AS INTENDED; MARKETING, ADVERTISING, SALE, DESIGN, INSTALLATION,
MAINTENANCE OR SERVICE OF SYSTEM; OR TRANSMITTERS. IF PROVIDER AND/OR SUBCONTRACTOR ARE DETERMINED
TO BE RESPONSIBLE FOR ANY INJURY, LOSS OR OTHER CONSEQUENCE, ALL CLAIMS AGAINST, AND THE TOTAL LIABILITY
OF, PROVIDER AND/OR SUBCONTRATOR SHALL BE LIMITED TO ONE-THOUSAND ($1,000) USD. THIS AMOUNT IS
CUSTOMER’S EXCLUSIVE REMEDY, NO MATTER HOW THE INJURY. LOSS OR OTHER CONSEQUENCE IS CAUSED, EVEN IF
CAUSED BY PROVIDER’S OR SUBCONTRACTOR’S NEGLIGENCE, BREACH OF CONTRACT, STRICT LIABILITY, FAILURE TO
COMPLY WITH APPLICABLE LAW, OR OTHER FAULT. CUSTOMER AGREES THAT SUCH LIABILITY LIMIT IS A MATERIAL
INDUCEMENT FOR PROVIDER OR SUBCONTRACTOR TO PERFORM SERVICES, AND THAT WERE PROVIDER OR
SUBCONTRACTOR TO HAVE LIABILITY GREATER THAN THAT STATED IN THIS SECTION PROVIDER OR SUBCONTRACTOR
WOULD NOT PERFORM SERVICES. CUSTOMER AGREES TO ACCEPT SUCH $1,000 IN COMPLETE SATISFACTION, DISCHARGE
AND RELEASE OF PROVIDER AND/OR SUBCONTRACOR. IN NO EVENT, WHETHER ARISING BEFORE OR AFTER COMPLETION
OF THE OBLIGATIONS UNDER THIS CONTRACT, SHALL PROVIDER OR SUBCONTRACTOR BE LIABLE TO CUSTOMER OR
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ANY OTHER PERSON FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND
(INCLUDING BUT NOT LIMITED TO LOSS OF USE, PROFIT, EARNINGS, SUPPORT, SERVICES, COMPANIONSHIP, MENTAL PAIN
OR SUFFERING, OR CLAIMS OF THIRD PARTIES.
6. PROVIDER’S & SUBCONTRACTOR'S LIABILITY/DISCLAIMER OF WARRANTIES:
(a) Provider and Subcontractor make no representation or warranty that the alarm system cannot be compromised or circumvented;
or that the system or service will prevent any loss by security, or otherwise; or that the system or service will in all cases provide the protection for
which it is installed or intended. Customer acknowledges and agrees that (a) the service fees are based solely on the deterrence and other value of
the monitoring services and the limited liability provided Provider and Subcontractor herein, and are unrelated to the value of persons or property,
or the likelihood, potential extent or severity of injury thereto, including death, bodily or personal injury, or any other injury, loss, damage or
other consequence, (b) the monitoring services may not always work as intended for various reasons, including Customer’s, Provider’s,
Subcontractor’s, or other third parties’ negligence or other fault, and neither Customer nor Provider or Subcontractor can predict the potential
amount, extent or severity of injury, loss, damage or other consequence that may be incurred that may be due to the failure of the services to
work as intended. Customer acknowledges and agrees that Provider and Subcontractor have made no representations or warranties, express or
implied, as to any matter whatsoever, including without limitation the condition of the equipment, its merchantability or its fitness for any particular
purpose. Customer further acknowledges and agrees that Provider and Subcontractor are not insurers; that Customer assumes all risk of loss or damage
to Customer's premises or to the contents thereof. Customer further covenant and agrees that (a) it is Customer’s sole responsibility to obtain
adequate insurance, including property, casualty, life, medical and disability, covering persons and property against injury; (b) limitations of
liability of Provider and Subcontractor, and waivers and indemnities, set forth herein are a fair allocation of risks and liabilities between Customer
Provider, and Subcontractor (c) Customer will look exclusively to its insurer for financial protection from any injury, loss, cause of action,
expense or consequence, and (d) Customer waives all rights and remedies against Provider and Subcontractor, including rights of subrogation,
that Customer, any insurer or any person may have due to any injury, loss, cause of action, expense or consequence.
(b) Customer has discussed the amounts set forth in Section 5 with Provider's agent, which sets forth Provider's and Subcontractor’s
maximum liability in the event of any loss or damage to Customer or anyone else.
(c) This Agreement shall not be binding upon Provider unless executed by an officer of Provider. In the event of non-approval, the
sole liability of Provider shall be to refund to Customer the amount that has been paid to Provider by Customer upon the signing of this Agreement.
7. MONITORING SERVICES:
(a) Signals of the Security Systems at the Property shall be monitored by Provider. If in the opinion of Provider, use of the Security
System by Customer adversely affects the use of the signal receiving equipment, this Agreement may be terminated ten (10) days following written
notice to Customer.
8. RESPONSE TO ALARMS:
(a) Upon receipt of a security alarm signal, Provider shall notify Customer or his designated representatives by calling the telephone
number(s) supplied to Provider in writing by Customer initially identified below (the “Contacts”). If Provider is unable to reach the Contacts, it will
dispatch an alarm to the applicable Responders and then continue to try to reach the Contacts. Customer initially designates the persons identified above as First Contact and Second Contact
to receive notice from the security department.
9. TRANSMISSION LINES:
(a) Customer shall pay all charges made by any communications service company or other utility for installation, leasing and service
charges of telephone lines connecting Customer's Property to Provider's monitoring station. Customer acknowledges that if Provider utilizes a
digital communicator for the purposes of transmitting alarm signals from Customer's Property to Provider's monitoring station that the signals from
Customer's alarm system are transmitted over Customer's communications service to Provider's monitoring station and in the event Customer's
communications service is out of order, disconnected, placed on vacation or otherwise interrupted, signals from Customer's alarm system will not be
received in Provider's monitoring station during any such interruption in communications service and the interruption will not be known to Provider.
Customer further acknowledges and agrees that signals which are transmitted over communications company lines which are wholly beyond the
control and jurisdiction of Provider and are maintained and served by the applicable communications company or utility provider, at its option,
may utilize a radio frequency system for transmitting alarm signals from Customer's Property to Provider's monitoring station. Customer
acknowledges that the use of radio frequencies are controlled by the Federal Communications Commission and changes in rules, regulations, and
policies may necessitate the discontinuing use of such transmission facilities by Provider at Provider's sole option. Customer further acknowledges
that radio frequency transmissions may be impaired or interrupted by atmospheric conditions, including electrical storms, power failures, or other
conditions and events beyond the control of Provider.
10. PROVIDER'S OBLIGATION:
(a) Customer and Provider agree that Provider's sole and only obligation under this Agreement shall be to monitor signals received
by means of the Security System and respond thereto as set forth in Section 8 of this Agreement.
11. FALSE ALARMS:
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(a) In the event an excessive number of false alarms are caused by Customer's carelessness, malicious action, or accidental use of
the alarm system, Provider may in its sole discretion deem same to be a material breach of contract on the part of Customer and, at its option, in
addition to all other legal remedies set forth below, be excused from further performance, upon the giving of ten (10) days written notice to Customer.
Provider's excuse from performance shall not affect its right to recover damages from Customer.
(b) In the event of fine, penalty or fee is assessed against Provider by any governmental or municipal agency as result of any alarm
originating from Customer's Property; Customer agrees to reimburse Provider within five (5) days after receipt of a written invoice therefor.
(c) Customer represents that Customer fully understands that the equipment, because of its sensitivity and nature, is subject to the
influence of external events which are not within the control of Provider and which may cause the alarm to activate. Any and all such alarms
which may occur shall not be construed as improper operation of the equipment nor as malfunction thereof, nor shall any or all of such alarms
excuse any of the obligations of Customer as set forth in this Agreement.
12. INTERRUPTION OR CANCELLATION OF SERVICE:
(a) Provider assumes no liability for interruption of monitoring service due to strikes, riots, floods, storms, earthquakes, fire, power
failures, insurrection, interruption or unavailability of telephone service, acts of God, or for any other cause beyond the control of Provider and will
not be required to supply monitoring service to Customer while interruption of service due to any such cause may continue. This Agreement may be
suspended or canceled, without notice at the option of Provider, if Provider's monitoring station or Customer's Property or equipment are destroyed
by fire or other catastrophe, or so substantially damaged that it is impractical to continue service or in the event Provider is unable to render service
as a result of any action by any governmental authority.
13. CUSTOMER'S DUTIES:
(a) The Customer shall carefully and properly test, inspect and maintain the Security System in accordance with industry standards
and regulations. Customer shall immediately report to Provider any claimed inadequacy in or failure of the system or service. Customer agrees to
furnish Provider with all changes, revisions, and modifications to Customer's information in writing. Customer shall have sole responsibility for
silencing any audible device. In the event Provider is called upon by Customer, governmental authority, or others to silence Customer's audible
device, Customer agrees to pay for each such service call at Provider's then prevailing rate as with a one-hour minimum charge.
(b) Customer shall obtain, pay for, and keep in full force and effect, all necessary licenses, permits and other agreements required by
local governmental authorities for the installation and use of the alarm system during the original and any renewal term of this Agreement.
(c) Customer shall provide written notice to Provider of any transfer in ownership of the subject property, within three (3) days of
such transfer. Customer shall provide any such transferee with a copy of this Agreement. Provider shall owe no duties to the transferee until a
written assignment of this Agreement has been executed and Provider has accepted the assignment in writing. Customer shall defend, indemnify and
hold harmless Provider from any claims by any such transferee arising prior to Provider's acceptance of the assignment.
(d) It is Customer's obligation to timely notify Provider of any defects in monitoring, inspection or repair services.
14. INSPECTIONS AND REPAIRS:
(a) During the period of this Agreement or any renewal thereof, Customer shall not allow any repair or alteration to the Security System
by any party other than Provider. During the period of this Agreement, Provider shall charge and be paid for all repair work in accordance with its then prevailing rates. Said charges will be billed separately from all monitoring charges and payment shall be due upon receipt of
the invoice.
15. ASSIGNEES/SUBCONTRACTORS OF PROVIDER:
(a) Provider shall have the right to assign this Agreement to any other person, firm or corporation without notice to Customer and
shall have the further right to subcontract any monitoring or other services which it may perform. Customer acknowledges that the terms and
provisions of this Agreement including, without limitation, those sections relating to Provider's maximum liability, liquidated damages, limitation
on actions, force majeure and third party indemnification's, inure to the benefit of and are applicable to any assignees and/or subcontractors of
Provider, and that they bind Customer with respect to said assignees and/or subcontractors with the same force and effect as they bind Customer
to Provider.
(b) Provider may subcontract performance of monitoring services to anyone (“Subcontractor”); however, Provider is Customer’s
exclusive agent for all purposes hereunder, including receiving notification of signals; adding, changing, suspending and cancelling the services;
investigating and resolving all actual and potential issues related to the Security System; and maintaining Customer account data. Subcontractor’s
obligations are to Provider only—it is Provider’s sole responsibility to provide the services to Customer. Provider may disclose to Subcontractor
all information necessary for performance of the services, and Subcontractor may retain and use such information. No Security System or
telecommunication or other service or equipment used to transmit signals (the “Transmitters”) are Subcontractor property and Subcontractor
accepts no responsibility for them. Subcontractor has no obligation to detect or report the Security System information, including malfunction,
to anyone, including Customer. Termination of Subcontractor’s performance is not a breach by Subcontractor of any direct or implied duty or
obligation of Subcontractor to Customer. Subcontractor may record telephone calls.
(c) Subcontractor is subject to applicable laws and industry standards designed to, among other things, reduce false alarms. These
may result in practices and procedures that delay or modify Customer and/or Provider-requested notification or verification instructions. Despite
such instructions, Subcontractor may, in its sole discretion, attempt to contact the monitored premises or Customer to verify that a signal is not a
false alarm. IF SUBCONTRACTOR BELIEVES, IN ITS SOLE DISCRETION, THAT NO EMERGENCY CONDITION EXISTS,
SUBCONTRACTOR MAY CHOSE NOT TO FOLLOW CUSTOMER’S AND/OR PROVIDER’S INSTRUCTIONS. Subcontractor may,
without prior notice, in response to applicable law or insurance requirements, revise, replace, discontinue or rescind its response policies and
procedures. Further, if a
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Security System relays or records three (3) or more false alarms within a twenty-four (24) hour period, Subcontractor may place the Security
System in test status. It is Provider’s obligation to determine if the Security System is functioning properly and make all adjustments and repairs
necessary to ensure that it is. THROUGHOUT THE DURATION OF ANY TEST STATUS PERIOD, FOR ANY REASON AND AT THE
REQUEST OF ANY PERSON OR ENTITY, SUBCONTRACTOR HAS NO OBLIGATION TO PERFORM SERVICES.
16. DEFAULT BY CUSTOMER:
(a) If Customer fails to pay any amount herein provided within ten (10) days after the same is due and payable, or if Customer fails
to perform any other provisions hereof within ten (10) days after Provider shall have requested in writing performance thereof, Provider shall have
the right but shall not be obligated to exercise any one or more of the following remedies: (a) recover the existing amounts due from Customer and
continue to monitor the system, in which case Provider shall be entitled to recover, in addition, the monthly charge due under this Agreement for said
services: or (b) recover from Customer all sums Provider may be entitled to under the law, and (c) terminate all services and pursue and remedies
available at law and in equity.
17. DELINQUENCY; RECONNECT CHARGES:
(a) In the event any payment due hereunder is more than ten (10) days delinquent, Provider may impose and collect a late charge on the
amount of the delinquency at the maximum rate permitted by Texas law, but not greater than eighteen (18%) percent per annum. If the Security System
is deactivated because of Customer's past due balance, and if Customer desires to have the system reactivated, Customer agrees to pay in advance to
Provider a reconnect charge to be fixed by Provider in a reasonable amount.
18. TERMINATION:
(a) Upon termination of this Agreement for any reason, Customer shall permit Provider or its agent to enter Customer's Property
and disconnect the Transmitters or communicator from Provider's monitoring network.
19. HOLD HARMLESS & THIRD PARTY INDEMNIFICATION:
(a) IF A PERSON FILES A CLAIM OR LEGAL ACTION AGAINST PROVIDER OR SUBCONTRACTOR, CUSTOMER
WILL INDEMNIFY AND HOLD HARMLESS PROVIDER OR SUBCONTRACTOR FROM AND AGAINST SUCH CLAIM, SUIT,
DEMAND, ACTION, CAUSE OF ACTION AND PROCEEDING, WHETHER ADMINISTRATIVE, CIVIL, CRIMINAL OR OTHERWISE,
INCLUDING ALL DAMAGES, LIABILITIES, LOSSES, FINES, FEES, COSTS AND EXPENSES, INCLUDING JUDGMENTS, COURT
COSTS, SETTLEMENT COSTS, ATTORNEYS’ FEES, INVESTIGATORS’ FEES AND WITNESS’ FEES, FOR BOTH TRIAL AND
APPEAL, PROVIDER OR SUBCONTRACTOR MAY INCUR OR BECOME RESPONSIBLE FOR, DIRECTLY OR INDIRECTLY, WHICH
ARISE OUT OF OR RELATE TO THIS CONTRACT, SERVICES OR SYSTEMS (“CLAIM"). CUSTOMER’S OBLIGATIONS HEREIN
APPLY EVEN IF CLAIM(S) ARISES OUT OF OR IS CAUSED BY PROVIDER OR SUBCONTRACTOR NEGLIGENCE, BREACH OF
CONTRACT, STRICT LIABILITY, FAILURE TO COMPLY WITH APPLICABLE LAW, OR OTHER FAULT, SUBJECT ONLY TO
SECTION “LIMITATION OF LIABILITY”.
(b) When Customer in the ordinary course of business has the property of others in his custody, or the alarm system extends to
protect property of others, Customer agrees to and shall indemnify, defend and hold harmless Provider and Subcontractor, their employees and
agents for and against all claims brought by parties other than the parties to this Agreement. This provision shall apply to all claims regardless of
cause including Provider's and/or Subcontractor’s performance or failure to perform and including defects in products, design, installation,
maintenance, operation or non-operation of the system whether based upon negligence, active or passive, warranty, or strict or product liability on
the part of Provider and/or Subcontractor, their employees or agents, but this provision shall not apply to claims for loss or damage solely and
directly caused by an employee of Provider while on Customer's Property.
20. PURCHASE ORDERS:
(a) It is understood and agreed by and between the parties hereto, that if there is any conflict between this Agreement and
Customer's purchase order, or any other document, this Agreement will govern, whether such purchase order or other document is prior or
subsequent to this Agreement.
21. ATTORNEY'S FEES:
(a) Should any action be brought arising out of this Agreement, including, without limitation, any action for declaratory or
injunctive relief, or any action for the enforcement hereof, the predominantly prevailing party shall be entitled to reasonable attorneys’ fees and
costs and expenses of investigation, and costs of collection, all as actually incurred, including, without limitation, attorneys’ fees, costs, and
expenses of investigation incurred before, during or after trial or in any appellate proceedings or in any action or participation in, or in connection
with, any case or proceeding under the United States Bankruptcy Code, or any successor statutes. Any judgment or decree rendered in any such
actions or proceedings shall include the award of attorneys’ fees, costs, and expenses, as just described. The terms of this section shall survive
any termination of this Agreement.
22. INVALID PROVISIONS:
(a) In the event any of the terms or provisions of this Agreement shall be declared to be invalid or inoperative, all of the remaining
terms and provisions shall remain in full force and effect.
23. FORCE MAJEURE:
(a) Provider and Subcontractor are not responsible for any interruption of, delay in or failure to perform services caused by acts or
omissions beyond its control, including those of third parties (such as government, other services providers and Subscriber), Acts of God, fire,
labor slowdown and war. Provider and Subcontractor’s time for performance is extended for a period equal to the Force Majeure event duration.
Provider and Subcontractor are not obligated to perform substitute services during such period. Customer will not seek any damages in connection
therewith.
24. LIMITATION ON ACTIONS:
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(a) No action or other legal proceeding connected with Provider or Subcontractor will be brought or filed more than one (1) year
after the date of the incident giving rise to the claim. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY ACTION OR OTHER
LEGAL PROCEEDING RELATING TO PROVIDER OR SUBCONTRACTOR, WHETHER SOUNDING IN CONTRACT, TORT
OR OTHERWISE.
25. ENTIRE INTEGRATED AGREEMENT; MODIFICATIO’N; ALTERATION; WAIVER:
(a) This writing is intended by the parties as a final expression of their agreement as a complete and exclusive statement of the
terms thereof. This Agreement supersedes all prior representations, understandings or agreements of the parties and the parties rely only upon
the contents of this Agreement in executing it. This Agreement can only be modified by a writing signed by the parties or their duly authorized
agent. No waiver of a breach of any term or condition of this Agreement shall be construed to be a waiver of any succeeding breach. The parties
agree that this Agreement is to be performed in the State of Texas, and shall be governed by the laws of the State of Texas. This Agreement may
be executed in one or more counterparts each of which shall be deemed one and the same.
(b) The “Effective Date” of this Agreement shall be the last date that both parties have executed this Agreement.