PLEASE NOTE THAT OUR MASTER CUSTOMER AGREEMENT has changed effective January 1, 2016.
THIS MASTER CUSTOMER AGREEMENT (this "Agreement") is entered into effective as of the Effective Date (as defined in Section 2) by and between ACADEMY LOCK & KEY, INC., a Georgia corporation d/b/a Academy Systems Group ("Academy"), and any person or entity accepting Hardware or Services (each as defined below) from Academy ("Customer"). For purposes of this Agreement, Academy and Customer are sometimes referred to individually as a "Party" and collectively as the "Parties".
WHEREAS, Academy provides security hardware and security services to its customers; and WHEREAS, Customer desires to engage Academy to provide the Hardware and Services (each as defined below) on certain premises owned or leased by Customer (collectively, the "Premises"), and Academy desires to provide the Hardware and Services to Customer, each in accordance with the terms and conditions of this Agreement; NOW, THEREFORE, for and in consideration of the premises, the mutual covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows:
1. Hardware and Services. Academy shall provide and install the security hardware and security services, including, but not limited to, security monitoring services and hardware maintenance services, as specified in one or more proposals from Academy to Customer (such security hardware and security services being, respectively, the "Hardware" and the "Services", and each such proposal being a "Proposal").
2. Term; Termination. The term of this Agreement commences on the date Customer first accepts Hardware or Services from Academy (the "Effective Date") and shall continue until this Agreement is terminated in accordance with Section 3. The term of any Proposal is as set forth in such Proposal. This Agreement or any Proposal may be terminated: (a) by mutual written agreement of the Parties; or (b) by either Party if the other Party materially breaches its obligations hereunder and fails to cure such breach within thirty (30) days' written notice of such material breach.
3. Customer Obligations. Customer represents and warrants that Customer is either the owner of the Premises the Owner of the Premises agrees and consents to the installation of Hardware and provision of Services on the Premises. Customer shall permit Academy access to the Premises for any reason arising out of, or in connection with, Academy's rights or obligations under this Agreement. Customer shall be solely responsible for: (i) providing Academy with any and all information required to install Hardware and provide Services; and (ii) ensuring that the Premises have any and all utilities, including, but not limited to, power, water, internet, and phone, that are required or appropriate for the installation of the Hardware and the provision of the Services. The foregoing obligations of Customer are in addition to any and all other obligations of Customer arising under this Agreement.
4. Academy Not an Insurer. The Parties acknowledge and agree that: (a) Academy is providing the Hardware and Services to Customer because Customer desires to reduce the risk of loss only; (b) that payments from Customer to Academy are based solely on the value of the Hardware and Services and are unrelated to the value of any property located on the Premises; (c) that Academy is not liable for losses which may occur in cases of malfunction or nonfunction of any Hardware or Services provided by Academy; (d) that Academy is not liable for losses which may occur in the monitoring, repairing, signal handling or dispatching aspects of the service, even if due to Academy's negligence or failure of performance; (e) that Academy is not liable for losses resulting from failure to warn or inadequate training; (f) that Academy is not an insurer and that nothing in this Agreement shall be so construed; (g) that Customer must obtain and maintain insurance covering personal injury, property loss, and damage to and on the Premises; (h) that it is Customer’s duty to purchase such insurance should Customer elect to do so; (i) this Agreement confers no rights on the part of any person or entity that is not a Party hereto, whether as a third- party beneficiary or otherwise; and (j) Customer retains the sole responsibility for the life and safety of all persons in its Premises and for protecting against losses to Customer's property and the property of others located on the Premises.
5. Indemnification. To the fullest extent permitted by applicable law, Customer shall, and does hereby, indemnify, defend, and hold harmless Academy and its affiliates, each of their respective directors, officers, shareholders, managers, members, employees, and agents, and any other person or entity which furnishes, as a subcontractor of Academy or otherwise, any Hardware or any installation, monitoring or repair Services to Customer (collectively, the "Academy Parties") from and against any and all claims, losses, liabilities and damages (including, but not limited to, claims relating to property damage or bodily injury (including death) and reasonable attorney's fees and court costs, whether incurred at trial, on appeal or otherwise) (collectively, "Losses"), that the Academy Parties, or any of them, may suffer, pay or incur as a result of, arising out of or relating to: (i) the alleged improper operation of the Hardware, whether due to malfunctioning or nonfunctioning of such Hardware or due to the negligent performance or nonperformance by Academy of the installation, repair, monitoring, signal handling, or dispatching aspects of the Services; (ii) any unsafe materials or working conditions on Customer's Premises; (iii) any tampering, alteration, adjustment, addition to, disturbance, injury, movement, removal, or interference with Hardware; or (iv) any breach by Customer of any representation, warranty, covenant, obligation, or other term or condition of this Agreement.
6. Warranty. WITH THE EXCEPTION OF ANY SPECIFIC WARRANTIES SPECIFIED IN A PROPOSAL, ACADEMY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, THAT THE HARDWARE OR SERVICES SUPPLIED MAY NOT BE COMPROMISED, OR THAT THE HARDWARE OR SERVICES WILL IN ALL CASES PROVIDE THE PROTECTION FOR WHICH THEY ARE INTENDED. ACADEMY FURTHER MAKES NO WARRANTIES CONCERNING ANY EQUIPMENT OR DEVICES ATTACHED TO CUSTOMER'S HARDWARE UNLESS SUCH EQUIPMENT OR DEVICES WERE ORIGINALLY PURCHASED AND INSTALLED UNDER THIS AGREEMENT.
7. Limitation of Liability. THE PARTIES AGREE THAT DETERMINING ACTUAL DAMAGES IN THE CASE OF A FAILURE OF THE HARDWARE AND/OR SERVICES IS DIFFICULT DUE TO THE UNCERTAINTY REGARDING VALUATION OF PROPERTY AND CAUSATION OF DAMAGES. THEREFORE, THE PARTIES FURTHER AGREE THAT THE AGGREGATE LIABILITY FOR THE ACADEMY PARTIES UNDER THIS AGREEMENT SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE ANNUAL SERVICE CHARGE FOR THE PREMISES INVOLVED OR $10,000 WHICHEVER IS LESS (IF THERE IS NO ANNUAL SERVICE CHARGE FOR THE PREMISES, ACADEMY'S LIABILITY SHALL BE LIMITED TO $500.00). THE PARTIES FURTHER AGREE THAT THIS LIABILITY LIMITATION IS A KEY INDUCEMENT TO ACADEMY TO ENTER INTO THIS AGREEMENT AND THAT THIS CLAUSE DOES NOT ESTABLISH AND SHALL NOT BE CONSTRUED TO ESTABLISH ACADEMY AS AN INSURER..
8. Limitation of Damages. IN NO EVENT SHALL THE ACADEMY PARTIES BE LIABLE HEREUNDER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST PROFITS, LOST SALES OR ANTICIPATED ORDERS, OR DAMAGES FOR LOSS OF DATA OR GOODWILL, EVEN IF THE ACADEMY PARTIES WERE INFORMED OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
9. Limitation of Claims. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST ACADEMY MORE THAN TWO (2) YEARS AFTER THE ACCRUAL OF THE CAUSE OF ACTION ARISES.
10. Assignment. This Agreement is not assignable by Customer, in whole or in part, without the prior written consent of Academy.
11. Waiver. The failure of Academy to insist on strict performance of any of the terms, conditions and covenants herein shall not be deemed to be a waiver of any right or remedy that Academy may have and shall not be deemed a waiver of any subsequent breach or default in the terms, conditions and covenants herein contained, except as may be expressly waived in writing.
12. Amendment. Any modification of this Agreement or additional obligation by either Party in connection with this Agreement shall be binding only if evidenced in writing, signed by each Party or an authorized representative of each Party.
13. Notices. All notices and other communications to the other Party under this Agreement shall be in writing in the English language and made to the following addresses: If to Academy: Academy Lock & Key, Inc. 323 West Spring Street Monroe, GA 30655 Attention: President If to Customer: To the Customer address specified in the Proposal or to such other addresses as either Party has notified the other Party in writing pursuant to this Section to be the appropriate address for the sending of notices under this Agreement. Notice shall be deemed given: (a) immediately upon hand delivery of such notice; (b) one (1) business day after depositing such notice for delivery, properly addressed, with a nationally-recognized overnight courier service; or (c) three (3) business days after depositing such notice, properly addressed, in the U.S. Mail, sent certified mail, return receipt requested.
14. No Agency. The Parties acknowledge and agree that Academy is an independent contractor for purposes of this Agreement and that neither the execution nor performance of this Agreement shall be construed to have established any agency, joint venture or partnership between Academy and Customer.
15. Force Majeure. Neither Party will be liable to the other Party for any delay or failure to perform such Party's obligations under this Agreement if such delay or failure results from an unforeseeable cause beyond its reasonable control.
16. Survival. Sections 4, 5, 6, 7, 8, 9, and all other Sections of this Agreement that by their nature must survive the expiration or termination of this Agreement to be effective, including, but not limited to, Sections relating to construction of this Agreement, governing law, and venue and jurisdiction, shall survive the expiration or termination of this Agreement.
17. Entire Agreement. This Agreement (including all Proposals incorporated herein by reference) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and terminates all prior agreements and understandings, either oral or in writing with respect to the subject matter hereto.
18. Severability. The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of the remaining provisions. In the event that any provision of this Agreement is held to be invalid pursuant to the law of any jurisdiction, the parties agree that such provision shall be stricken from this Agreement in such jurisdiction. The remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.
19. Venue and Jurisdiction. To the fullest extent permitted by law, all claims, disputes or controversies whatsoever arising out of or related to this Agreement in any way, shall be commenced, filed and litigated before a court of competent jurisdiction in Walton County, Georgia, or if the federal court has exclusive jurisdiction in any such claim, dispute or controversy, it shall be commenced, filed and litigated in the U.S. District Court for the Middle District of Georgia, Athens Division. Customer hereby submits to the personal jurisdiction of the state and federal courts as herein provided, and any courts of appeal therefrom, and waives any objection (on the grounds of lack of jurisdiction, or forum non conveniens, or otherwise) to the exercise of jurisdiction over it by any such courts.
20. Headings. The headings contained in this Agreement are inserted only as a matter of convenience and reference and in no way define, limit or describe the scope or intent of this Agreement and do not in any way affect its provisions.
21. Time. Time is of the essence of this Agreement.
22. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Georgia, without reference to conflicts of law principles.
23. Conflicts. In the event of a conflict between the terms of this Agreement and the terms of any Proposal, the terms of this Agreement shall govern and control in all respects.
24. Acceptance. Academy and Customer acknowledge and agree that, by acceptance of a Proposal, Customer acknowledges and agrees to the terms and conditions of this Agreement and agrees to be bound hereby, regardless of the form by which Customer accepts such Academy's Proposal.