Effective Date: December 2011
Additional Disclaimer and Limitation of Liability for Remote Notification and Location Console
and Similar Products (collectively, “Assistance Products”)
In addition to and supplementing the foregoing general terms and conditions for AMCi products
and product components, AMCi further applies the following terms and conditions, including but
not limited, to the AMCi Assistance Products.
1.
Monitoring. Monitoring consists solely of monitoring by users via Assistance Products
for the purpose of alerting the persons or entities (“Responders”) having an interest in the
location (historical and present) and status of an asset upon receipt of data or other
communication from the Assistance Products reporting conditions that require assistance (a
“Response Condition”). Customer understands, acknowledges and agrees that the selection of
Responders and the selection of Response Conditions are the sole responsibility of Customer;
and at the sole discretion of Customer; and AMCi assumes no responsibility or liability for such
Customer selection in connection with any monitoring utilizing AMCi’s Assistance Product.
2.
Customer Acknowledgments. Customer understands, acknowledges and agrees as
follows:
2.1
The Assistance Product requires a reliable power source, a reliable and/or
redundant data communication network system, including Internet service connections and
communication links, and a direct line of sight for satellite signals in order to consistently
communicate with Customer’s monitoring facility. As a result, Customer assumes responsibility
for pursuing actions including, but not limited to, testing and compatibility verification, which
validate such power and communication needs for monitoring in connection with utilizing the
Assistance Product.
2.2
Recommendations for the Customer are that the Customer must test the
Assistance Product at least daily to ensure that the power source is active, data communication
and Internet service communications are working and direct line of sight is present for satellite
communication. Also, any time improvements, alterations, changes, relocations, or
modifications are made to the Assistance Product, testing and validation is recommended.
2.3
The Assistance Product uses satellite signals to communicate between accessories
(e.g., between the modem located on the asset and the alert button on the Assistance Product);
and as a result, satellite line of sight must be reviewed and verified. Further, satellite signals and
transmissions may be subject to irregularities and interferences for a variety of reasons, such as
the physical presence of certain objects and the transmission of satellite signals from other
sources and as a result, the foregoing reasons can affect the asset monitoring function and also,
can result in malfunctions of the Assistance Product.
2.4
The Assistance Product uses data communication transmissions and exchanges
between accessories (e.g., notifications via the Internet to a designated website utilized for
reporting activity in connection with one or more assets and software functionality responsive to
reports to generate alerts); and as a result, data and/or Internet connections and communications
must be reviewed and verified. Further, data communications and Internet transmissions may be
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subject to irregularities and interferences for a variety of reasons, such as service provider
unscheduled maintenance or hacker invasions into the network; and as a result, the foregoing
reasons can affect the asset monitoring function and also, can result in malfunctions of the
Assistance Product.
2.5
The Assistance Product will not communicate with Customer’s monitoring
facility if monitoring system is down.
2.6
Customer should have other alternative or back-up communication services or
alert or assistance capability available in addition to the Assistance Product. Customer assumes
the entire risk of liability and responsibility for solely utilizing and relying on the Assistance
Product. Customer acknowledges that the Assistance Product is not infallible and the
transmission and receipt of communications from the Assistance Product may be interrupted,
irregular, inconsistent, corrupted or even circumvented by a variety of factors, reasons or events;
and, as a result, the Assistance Product should not be the sole transmitting device and Customer
shall not rely on the Assistance Product as the sole alert device from or to the asset where
Customer deems such alert or assistance to be a critical life-threatening or property-threatening
concern or factor.
2.7
Customer understands, acknowledges and agrees that certain laws, rules,
regulations and ordinances of local or federal governmental authorities, utilities, businesses,
homeowners associations and other entities or organizations may affect Customer’s ability to
engage in monitoring. AMCi assumes no liability for complying with the foregoing. Customer
agrees to obtain and maintain all licenses, permits and other authorizations or consents necessary
for the installation and use of the Assistance Product including, without limitation, providing
alerts to Responders based on Response Conditions.
3.
Assistance Product Acknowledgements. BASED ON THE FOREGOING,
CUSTOMER ACKNOWLEDGES THAT AMCi DOES NOT REPRESENT OR WARRANT
THAT THE ASSISTANCE PRODUCT WILL PREVENT LOSS OF OR DESTRUCTION OF
AN ASSET OR ANY INJURY OR HARM TO ANY PERSON OR PROPERTY IN
CONNECTION WITH THE ASSET, OR ANY OCCURRENCE OF DEATH, BODILY OR
PERSONAL INJURY, OR ANY OTHER INJURY OR DAMAGE TO CUSTOMER OR
OTHERS, WHO USE OR RELY ON THE ASSISTANCE PRODUCT, OR WHO BENEFIT,
DIRECTLY OR INDIRECTLY, BY THE PERFORMANCE OF THE ASSISTANCE
PRODUCT. AMCi MAKES NO REPRESENTATION OR WARRANTY AS TO THE
PROMPTNESS OF RESPONSE BY A RESPONDER, AND AMCi HAS NO CONTROL
OVER THE RESPONSE TIME OF THE RESPONDER OR THE CAPABILITY OF THE
RESPONDER, WHO MAY BE NOTIFIED AS A RESULT OF THE ASSISTANCE
PRODUCT OPERATING IN RESPONSE TO A RESPONSE CONDITION. CUSTOMER
FURTHER UNDERSTANDS THAT THE RESPONDER MAY BE NEGLIGENT IN
PROVIDING THE RESPONSE, AND MAY FAIL TO PROPERLY RESPOND TO THE
RECEIPT OF A RESPONSE CONDITION FROM THE ASSISTANCE PRODUCT. AMCi
ASSUMES NO LIABILITY THEREFOR. FURTHER, THE ASSISTANCE PRODUCT MAY
FAIL TO FUNCTION PROPERLY EVEN IF A RESPONSE CONDITION OCCURS.
CUSTOMER ACKNOWLEDGES THAT INTERRUPTIONS OR IRREGULARITIES IN
SATELLITE TRANSMISSIONS OR IN DATA COMMUNICATIONS OR INTERNET
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CONNECTIONS COULD RESULT IN SUBSTANTIAL HARM OR DAMAGE AND SUCH
HARM OR DAMAGE IS SPECULATIVE IN NATURE AND AS A RESULT, AMCi CAN
NOT BE HELD RESPONSIBLE OR LIABLE. AS A RESULT, CUSTOMER AGREES THAT
IF AMCi WERE TO HAVE ANY LIABILITY GREATER THAN THAT AGREED TO BY
CUSTOMER PURSUANT TO THE TERMS AND CONDITIONS RECITED HEREIN, AMCi
COULD NOT AND WOULD NOT PROVIDE THE ASSISTANCE PRODUCT TO
CUSTOMER OR FACILITATE ANY MONITORING FUNCTION DERIVED FROM THE
PERFORMANCE OF THE PRODUCT. CUSTOMER ACKNOWLEDGES AND AGREES
THAT CUSTOMER WILL CONTINUOUSLY MAINTAIN PROPERTY, LIFE, MEDICAL,
DISABILITY, LONG TERM CARE, AND OTHER INSURANCE, AS APPROPRIATE, FOR
THE PROTECTION OF CUSTOMER AND OTHERS, AS WELL AS PROTECTION FOR
PROPERTY AND ASSETS THAT RELATES TO THE ASSISTANCE PRODUCT.
CUSTOMER UNDERSTANDS THAT THERE ARE ALTERNATIVES AVAILABLE TO
CUSTOMER FOR ANY ALERT OR ASSISTANCE MONITORING FUNCTIONS, SUCH AS
911 EMERGENCY TELEPHONE SERVICE; AND CUSTOMER HAS SELECTED THIS
ASSISTANCE PRODUCT WITH A FULL UNDERSTANDING OF ITS LIMITATIONS, AND
THE LIMITATION OF AMCi’S LIABILITY THEREFOR.
4.
Disclaimer of Warranties and Limitation of Remedies. Customer acknowledges and
agrees that AMCi does not control satellite transmissions and does not control data network or
Internet communications or transmissions, and except as limited by law, hereby disclaims all
representations and warranties, direct or indirect, express or implied, written or oral, in
connection with the satellite service or data network or Internet services (whether purchased or
leased by Customer from AMCi or another authorized party), including but not limited to any
and all express and implied warranties of suitability, durability, merchantability, and fitness for a
particular purpose. AMCi, to the extent permitted by law, assigns to Customer any and all
warranties relating to the satellite services or data network or Internet services furnished to the
Customer, and Customer acknowledges receipt of any and all such warranties. Customer
acknowledges and agrees that its sole and exclusive remedy in connection with any defects in the
satellite services or data network or Internet services, including transmission interruptions or
irregularities, shall be against the satellite services or data network or Internet services provider
under their warranties; and that AMCi shall have no liability to Customer for any event that
results in any loss, damage, injury, or expense of any kind or nature related, directly or
indirectly, to the satellite services or data network or Internet services that operates in connection
with the Assistance Product provided hereunder. Without limiting the above, AMCi, further,
shall have no liability or obligation to Customer, in either contract or tort or under any other legal
theory, for special, incidental, or consequential damages of any kind incurred by Customer, such
as, but not limited to, claims for damages for personal injury, wrongful death, loss of use of an
asset, loss of anticipated profits, or other incidental or consequential damages or economic losses
of any kind incurred by Customer, directly or indirectly, resulting from or related to any satellite
services or data network or Internet services in connection with the operation of the Assistance
Product, irrespective of whether AMCi has been notified of the possibility of such damages,
whether or not caused by AMCi’s negligence, to the full extent the same may be disclaimed by
law. Some states do not allow the exclusion or limitation of incidental or consequential damages
so the above exclusion may not apply to Customer. Customer may also have other legal rights
which vary from state to state. Customer agrees that except as limited by law, AMCi’s sole
liability for loss or damage arising out of mistakes, omissions, interruptions, delays, errors, or
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defects in the Assurance Product or for losses or damages arising out of the failure of any thirdparty satellite or data network or Internet services transmission provider to maintain proper
standards of maintenance and operation shall be limited to the amounts of damages recited
herein. AMCi shall assume no liability for: (a) damages and/or loss arising out of mistakes,
omissions, interruptions, delays, errors and defects in transmissions from or to the Assistance
Product, or failures or defects in the Assistance Product furnished by AMCi, whether or not
caused by the negligence of the Customer; and (b) any related consequential or incidental
damages irrespective of whether AMCi has been notified of the possibility of such damages
because of such mistakes, omissions, interruption, delay, error, failure, or defects in
transmission. AMCi is not liable for acts or omissions of another service or equipment or
component provider in connection with the use of the Assistance Product. AMCi has no liability
for causes beyond AMCi’s reasonable control. AMCi is not liable for satellite or data network or
Internet service outages, or for any related limitations or interruptions. AMCi’s liability and the
liability of any underlying service carrier for any failure or mistake shall in no event exceed the
monetary limit of liability recited herein. AMCi is not liable for any losses, damage, personal
injury or death due to lost, modified, missed, deleted or undelivered Response Conditions.
5.
Further Disclaimer of Warranties. AMCi makes no representations or warranties,
express or implied, including, to the extent permitted by applicable law, any implied warranty of
merchantability or fitness for a particular purpose, in connection with the Assistance Product, or
any applications therefor. AMCi does not warrant that the Assistance Product will work at all, or
work perfectly, or will not need occasional upgrades or modifications, or that it will not be
negatively affected by environmental factors, network-related modifications, upgrades or thirdparty components, services, software, Internet service capability or functionality or applications.
If you download or use third-party applications, services or software provided by AMCi or any
third parties, such functionality may work differently than indicated by the Assistance Product
specifications. AMCi generally knows the location of Customer’s Assistance Product when it is
outdoors and turned on. By using various technologies to locate Customer’s Assistance Product,
AMCi acknowledges that Assistance Product monitoring could be used as an alternative to
emergency 911 services even where local government entities have installed the equipment
necessary to provide such services, but the election to do so is solely at Customer’s discretion.
Environmental factors (such as structures, buildings, weather, geography, landscape, and
topography) can significantly impact the ability to access Customer’s location information and
use of location-sensitive services as provided by the Assistance Product. If any satellite services
or any data network or Internet services on Customer’s account uses a location-sensitive service,
Customer (the account holder) authorizes the end user to download, access and use locationsensitive services and agrees to clearly and regularly notify the end user of Customer’s satellite
services or data network or Internet services that his or her location may be tracked or
discovered. In certain circumstances, if Customer’s Assistance Product is indoors or for some
other reason cannot acquire satellite signal or data network or Internet services, Customer may
not be located and as a result, AMCi is not responsible for failures to connect to satellite signals
or data network or Internet services communication capability or functionality.
6.
Release. Customer agrees to and hereby does release AMCi, its shareholders, officers,
directors, agents, contractors, consultants and employees (“AMCi Releasees”), to the full extent
permitted by law from and against any and all claims, damages, liabilities and expenses,
including legal and attorneys’ fees, of any nature arising, directly or indirectly, out of the terms
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hereunder or in connection with the Assistance Product, including, without limitation, claims for
asset or property damages, personal injury or wrongful death to Customer, users or beneficiaries
of the Assistance Products, or any third parties that arise by operation of law, including without
limitation, claims based upon strict products liability doctrine, to the extent such claims are not
based on the grossly negligent acts or omissions of AMCi, its agents or employees. This release
shall apply to the extent stated above even where AMCi is found to have been substantially at
fault or to have actively engaged in conduct which substantially contributed to the injury or
damage suffered by Customer, and AMCi’s assertion of this release as a whole or partial defense
to any claim by Customer shall not be barred by fault or active negligence on the part of AMCi.
7.
Limitation of Liability. CUSTOMER UNDERSTANDS, ACKNOWLEDGES AND
AGREES THAT SHOULD THERE ARISE ANY LIABILITY ON THE PART OF AMCi OR
ITS OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS AND
EMPLOYEES (COLLECTIVELY, “REPRESENTATIVES”) FOR ANY DEATH, PERSONAL
INJURY, PROPERTY DESTRUCTION, LOSS, DAMAGE OR EXPENSE INCLUDING,
WITHOUT LIMITATION OR EXAMPLE, AMCi’s LIABILITY ARISING OUT OF OR
FROM CLAIMS IN CONNECTION WITH SUBROGATION, CONTRIBUTION OR
INDEMNIFICATION, DUE TO ANY REASON INCLUDING, WITHOUT LIMITATION OR
EXAMPLE, AMCi’S OR REPRESENTATIVES’ ACTIVE OR PASSIVE SOLE, JOINT OR
SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE THAT OCCURS BEFORE OR
AFTER THE PURCHASE OF THE ASSISTANCE PRODUCT, ALL SUCH LIABILITY
SHALL BE LIMITED TO THE MAXIMUM SUM OF THE TOTAL AMOUNT PAID FOR
THE AMCI ASSISTANCE PRODUCT COLLECTIVELY FOR AMCi AND
REPRESENTATIVES. AGREEING TO THE LIMITATION OF LIABILITY DOES NOT
MEAN THAT AMCi IS AN INSURER. CUSTOMER WAIVES ANY RIGHTS
CUSTOMER’S INSURANCE COMPANY MAY HAVE TO BE REIMBURSED BY AMCI
OR AMCI REPRESENTATIVES FOR MONEY PAID TO CUSTOMER OR ON
CUSTOMER’S BEHALF. IN NO EVENT WILL AMCi BE LIABLE FOR ANY INDIRECT,
SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING,
BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS
INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, LOSS OF PROFITS AND
SAVINGS AND THE LIKE), OR ANY OTHER DAMAGES INCLUDING PROPERTY,
PERSONAL INJURY OR DEATH ARISING OUT OF THE UNAVAILABILITY, USE,
RELIANCE ON, INABILITY TO UTILIZE OR IMPROPER USE OF THE ASSISTANCE
PRODUCT, WHETHER PROVIDED BY AMCi OR BY THIRD PARTY, EVEN IF ADVISED
OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT, TORT, OR OTHERWISE. THE CUSTOMER ASSUMES ALL
RESPONSIBILITY FOR PROPERLY CONFIGURING THE ASSISTANCE PRODUCT.
AMCi HEREBY DISCLAIMS ANY AND ALL LIABILITY ARISING FROM OR IN
CONNECTION WITH A CUSTOMER’S OR USER’S INABILITY TO REACH
EMERGENCY RESPONDERS OR THE INABILITY OF EMERGENCY RESPONDERS TO
IDENTIFY A CUSTOMER’S OR USER’S LOCATION. AMCi STRONGLY
RECOMMENDS THAT ALL CUSTOMERS VERIFY AND TEST CONFIGURATION OF
THE ASSISTANCE PRODUCT IMMEDIATELY FOLLOWING INITIAL
CONFIGURATION AND ON A PERIODIC BASIS (DAILY) THEREAFTER. AMCi
FURTHER RECOMMENDS THAT ALL CUSTOMERS PROVIDE ADEQUATE LINE OF
SIGHT TO ENSURE THAT SATELLITE PATHS ARE AVAILABLE. AMCi FURTHER
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RECOMMENDS THAT ALL CUSTOMERS VERIFY THAT NETWORK SYSTEM AND
INTERNET COMMUNICATION TRANSMISSION SERVICES ARE CONSISTENTLY
AVAILABLE. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE
ASSISTANCE PRODUCT, AND ASSOCIATED SERVICES AND ADD-ONS, IS ENTIRELY
BORNE BY CUSTOMER. THIS ASSISTANCE PRODUCT, AND ASSOCIATED
SERVICES AND/OR ADD-ONS, ARE NOT FAULT TOLERANT AND SHOULD NOT BE
USED IN ANY ENVIRONMENT WHICH REQUIRES THIS. CUSTOMER HEREBY
EXPRESSLY AGREES NOT TO USE OR RELY SOLELY ON THE ASSISTANCE
PRODUCT, AND ASSOCIATED SERVICES OR ADD-ONS, FOR ANY APPLICATIONS
THAT MAY RESULT IN ANY DAMAGE IF FAILED OR ANY OTHER MISSION
CRITICAL EVENTS OCCUR. THE SECURITY MECHANISMS IMPLEMENTED BY THE
ASSISTANCE PRODUCT, AND ASSOCIATED SERVICES AND ADD-ONS, HAVE
INHERENT LIMITATIONS, AND CUSTOMER MUST DETERMINE THAT THE
ASSISTANCE PRODUCT, AND ASSOCIATED SERVICES AND ADD-ONS,
SUFFICIENTLY MEET CUSTOMER’S REQUIREMENTS. THIS DISCLAIMER OF
WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TERMS IN
CONNECTION WITH THE ASSISTANCE PRODUCT, AND ASSOCIATED SERVICES OR
ADD-ONS.
8.
Indemnification. TO THE FULLEST EXTENT ALLOWED BY LAW, CUSTOMER
HEREBY RELEASES, FULLY INDEMNIFIES (INCLUDING ATTORNEY’S FEES AND
LEGAL ADMINISTRATIVE COSTS), AGREES TO DEFEND, AT ITS EXPENSE, AND
HOLDS AMCI, AND ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES
AND AGENTS, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS,
INCLUDING CLAIMS ARISING IN WHOLE OR IN PART FROM ALLEGED
NEGLIGENCE OF AMCI, OR ANY VIOLATION OF THE TERMS HEREIN IN
CONNECTION WITH THE USE OR PERFORMANCE OF THE ASSISTANCE PRODUCT
BY CUSTOMER OR ON BEHALF OF OR FOR THE BENEFIT OF ANY THIRD-PARTY,
FOR ASSET DAMAGE, PROPERTY DAMAGE, DEATH AND PERSONAL INJURY, BY
ANY PERSON OR ENTITY FOR DAMAGES OF ANY NATURE ARISING IN ANY WAY
FROM OR RELATING TO, DIRECTLY OR INDIRECTLY, THE ASSISTANCE PRODUCT
OR ITS PERFORMANCE THAT IS PROVIDED, DIRECTLY OR INDIRECTLY, BY AMCI.
THIS OBLIGATION SHALL SURVIVE TERMINATION. AMCI IS NOT LIABLE TO
CUSTOMER FOR CHANGES IN OPERATION, EQUIPMENT OR TECHNOLOGY THAT
CAUSE THE ASSISTANCE PRODUCT TO BE RENDERED OBSOLETE OR REQUIRE
MODIFICATION. AMCI EXPLICITLY DISCLAIMS ANY RESPONSIBILITY FOR THE
ACCURACY, RELIABILITY OR QUALITY OF THE ASSISTANCE PRODUCT; AND
FURTHER DISCLAIMS LIABILITY FOR ANY AND ALL HARM THAT MIGHT RESULT
FROM THE USE OF THE ASSISTANCE PRODUCTS, OR ANY PERFORMANCE
THEREOF AND AS SUCH, CUSTOMER SHALL BE OBLIGATED TO IMDEMNIFY AS
PROVIDED HEREIN. ANY USE OF OR RELIANCE ON THE ASSISTANCE PRODUCT IS
AT CUSTOMER’S SOLE RISK AND LIABILITY. FURTHER, IF ANYONE OTHER THAN
CUSTOMER, INCLUDING, WITHOUT LIMITATION, CUSTOMER’S INSURANCE
COMPANY, MAKES A CLAIM OR INITIATES AN ACTION AGAINST AMCi OR
REPRESENTATIVES TO PAY FOR ANY LOSS, DAMAGE, COST OR EXPENSE
(INCLUDING, WITHOUT LIMITATION OR EXAMPLE, ECONOMIC LOSSES, ASSET OR
PROPERTY DAMAGE, PERSONAL INJURY, OR DEATH) DUE TO ANY REASON
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INCLUDING, WITHOUT LIMITATION OR EXAMPLE, THE ACTIVE OR PASSIVE SOLE,
JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF AMCi’S OR
REPRESENTATIVES, OR THERE IS A CLAIM FOR SUBROGATION,
INDEMNIFICATION OR CONTRIBUTION, CUSTOMER AGREES TO PAY (WITHOUT
ANY CONDITION THAT AMCi OR REPRESENTATIVES FIRST PAY) AND FULLY
INDEMNIFY ANY LEGAL ADMINISTRATIVE COSTS FOR ALL LOSSES, DAMAGES,
COSTS AND EXPENSES INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES,
WHICH MAY BE ASSERTED AGAINST OR INCURRED BY AMCi OR
REPRESENTATIVES IN CONNECTION WITH ANY AND ALL SUCH CLAIMS
RESULTING FROM THE ASSISTANCE PRODUCT, OR ITS PERFORMANCE.
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