General Terms and Conditions

1. Services

1.1 Type of Service: TOWNER COMMUNICATIONS agrees to provide Services (as defined in Proposal, attached hereto and incorporated by reference herein) with respect to the System(s) as defined in Proposal. If Customer desires TOWNER COMMUNICATIONS to provide any additional service other than as set forth herein, then any such additional services shall only be furnished pursuant to a separate agreement.

1.2 Service Limitations: If service is requested beyond proposal scope of work, service will be provided at TOWNER COMMUNICATIONS’ per call rates and terms then in effect. Some examples include: unauthorized attempts by other than TOWNER COMMUNICATIONS personnel to move, alter, tamper with, repair, maintain or modify the System or its component parts; catastrophe; failure of equipment not maintained by TOWNER COMMUNICATIONS or of equipment not covered by this Agreement; fault or negligence of Customer; operator error, improper use or misuse of the equipment; improper use of expendable items which do not meet the manufacturer’s specifications; causes external to the equipment such as, but not limited to, transportation of fluctuations of humidity, temperature, power surges and lightning. Service does not include (i) operating supplies, accessories, cleaning supplies or other expendable items necessary for customer preventative maintenance; (ii)paint (or refinishing the equipment) or furnishing materials for this purpose; (iii) electrical work external to the machines or maintenance of accessories; (iv) batteries or lamps; (v) alterations, attachments or other devices not furnished by TOWNER COMMUNICATIONS unless specifically noted herein; (vi) moves, adds, or changes of software and/or system hardware not related to maintenance of the system; (vii) or foreign connections, including fiber connection, network connections and telephone connections not described in Proposal.

1.3 Customer’s Responsibilities: During the term of this Agreement, Customer shall (i) furnish to TOWNER COMMUNICATIONS in writing and on a continuing basis a list of names and telephone numbers of persons authorized to place service requests on behalf of the Customers and/or from whom TOWNER COMMUNICATIONS representatives should obtain authorization in performing service on the System, provided that if no such list is furnished or the Customer does not require such contacts to be the exclusive authorized contacts as provided by this Agreement, TOWNER COMMUNICATIONS may accept service or other requests from any Customer representative; (ii) Customer will not tamper with, disturb, injure, misuse, abuse, remove or otherwise interfere with the system, nor permit the same to be done, and shall indemnify and party to TOWNER COMMUNICATIONS the cost of repair or replacement of any loss or damage to the system, including but not limited to loss by fire, earthquake, riot, vandalism, flood or other damage or destruction; (iii) maintain, repair, service, and/or assure the operation of any other property, system or any device of Customer or of others to which the system may be attached or connected, including, by way of example but not limited to, internet service, customer provided equipment and/or software; (iv) to provide uninterrupted 120 volt A.C. power at locations through customer’s electrical and at customer’s expense; (v) to notify TOWNER COMMUNICATIONS immediately of equipment failure and allow TOWNER COMMUNICATIONS escorted access to the equipment. Waiver of liability or other restrictions shall not be imposed by customer as a site access requirement. Also, customer shall allow TOWNER COMMUNICATIONS to use necessary machines, communications facilities, features and other equipment (except as normally supplied by TOWNER COMMUNICATIONS) at no charge; (vi) control site environmental conditions by maintaining temperature and humidity levels appropriate for all computer portions of the system. Customer shall maintain (a) a temperature of 65 degrees to 75 degrees and humidity of 40% to 60% (non-condensing); (vii) notify TOWNER COMMUNICATIONS of any alterations, remodeling, fixture or structural changes, and to bear the cost of changes in the system required as a result which are authorized by the customer; (viii) unless otherwise provided on an Extended Warranty Quote, provide TOWNER COMMUNICATIONS with extension ladders, powered lifts or scaffolding where required for service of system equipment. Customer shall move, at its own expense, any heavy equipment or obstacles which TOWNER COMMUNICATIONS indicates must be moved to permit inspection and/or service of the system; (ix) have a representative on Customer’s premises during Towner Communications’ performance of services; (x) to facilitate Towner Communications’ performance of services, provide reasonable facilities such as, but not limited to, secure storage space, a designated work area with adequate heat and light and access to a local telephone line, with such facilities to be provided upon request and at no charge to TOWNER COMMUNICATIONS; (xi) pay all charges for service caused by telephone line problems, taxes, fees and charges imposed by any Vendor supplying such service on or relating to the system; (xii) arrange, at its own expense, for telephone line and telephone interface or interconnection to be installed by the telephone company in accordance with standard procedures; (xiii) secure, at its own cost and expense, whatever permission, permits, or licenses that may be necessary from the required authorities (including utility companies) for installation, monitoring and/or repair of the system. Customer shall pay or reimburse TOWNER COMMUNICATIONS for all taxes, fees or charges, including sales/use tax, personal property tax, licenses and permit fees imposed by any governmental authority (including utility companies) relating to the services provided; (xiv) provide TOWNER COMMUNICATIONS with access to and use of customer’s local area or wide area network, including all passwords as necessary to enable such access; (xv) obtain and maintain passwords and other network security adequate to ensure protection against loss of information or data network operations. Customer acknowledges and agrees that if customer ties the system, or any part thereof, with its computer network, TOWNER COMMUNICATIONS shall not be responsible for any viruses, data corruption, hacking or other breaches of network security; (xvi) any system components that require interface with customer’s local area or wide area network must comply with the specifications provided by the system’s manufacturer. It is customer’s responsibility to ensure that such compatibility is maintained while the system is covered under this Agreement. In the event that system experiences problems that are suspected to arise from compatibility issues and/or if needed repairs or modifications to customer’s local area or wide area network, or for any other reason, customer may choose to either give authorization to pay TOWNER COMMUNICATIONS on a time and material basis at its current service rates to continue troubleshooting and repairs or may hire a third party to make the required repairs and/or modifications to the local area or wide area network at its own expense. If such written authorization is not granted to TOWNER COMMUNICATIONS within a time period specified in writing by TOWNER COMMUNICATIONS to customer, or if customer fails to take the corrective actions required to make its local area network or wide area network compatible with the system, this agreement shall terminate automatically and customer shall pay TOWNER COMMUNICATIONS for all of its cost.

1.4 Movement of Equipment: To permit continuity of service, customer shall give TOWNER COMMUNICATIONS 30 days prior written notice of its intent to move any equipment comprising part of the system. TOWNER COMMUNICATIONS personnel shall supervise the dismantling and packing/unpacking of the equipment and shall inspect and reinstall the equipment at the new locations and charge customer for all such labor and materials provided at its current rates. TOWNER COMMUNICATIONS shall be under no obligation to furnish continued services (preventative or remedial) under this agreement if any part of the System is moved from its location of initial installation and/or reinstalled without the prior written approval of TOWNER COMMUNICATIONS.

1.5 Authorization of TOWNER COMMUNICATIONS: Customer hereby authorizes and empowers TOWNER COMMUNICATIONS, its agents or assigns, if required by this Agreement to: (i) perform any necessary Services as require by TOWNER COMMUNICATIONS hereunder; and (ii) enter Customer’s premises in the event of an emergency occurring during periods of Customer’s apparent or actual absence for the purpose of making emergency repairs to the System but only if Customer has furnished TOWNER COMMUNICATIONS with a key to its premises. TOWNER COMMUNICATIONS assumes no liability for any delay, however caused, in the installation of the system or interruption of services due to strikes, fires, power failures, interruptions or unavailability of telephone service, acts of nature, or any other cause beyond the control of TOWNER COMMUNICATIONS. Notwithstanding the foregoing, TOWNER COMMUNICATIONS shall have no obligation to enter customer’s premises without being asked to do so by the customer.

2.Payment Terms:

2.1 Fees; Payment: Customer agrees to pay TOWNER COMMUNICATIONS as per arrangements authorized in Proposal, plus any taxes and fees incurred.

2.2 Fee Increase: TOWNER COMMUNICATIONS shall have the right to increase the recurring service charges set forth in Section 2, upon written notice to Customer, at any time or times after the date service is operative under this Agreement. Customer agrees to notify TOWNER COMMUNICATIONS of any objection to such increase in writing within 20 days after the date of the notice of increase, failing which it shall be conclusively presumed that Customer has agreed to such increase. In the event Customer objects to such increase, TOWNER COMMUNICATIONS may elect, at its option to (i) continue this Agreement under the terms and conditions in effect immediately prior to such increase, without notice to Customer, or (ii) terminate the Agreement upon 15 days written notice to Customer.

2.3 Expansion of System: If, during the term of this agreement, customer expands the system, TOWNER COMMUNICATIONS may, in its sole discretion, increase the Warranty service charge commensurate with the expansion of the system, in which case TOWNER COMMUNICATIONS shall send customer an additional invoice with such fee prorated over the remaining term of this agreement. Customer agrees to pay such fee, as increased hereunder, for the remainder of the term of this agreement.

2.4 Additional Charges to Customer: Customer acknowledges and agrees that Customer is responsible for the following additional costs: (i) for discontinued or obsolete hardware and software. In the event the hardware and/or software components on the system are discontinued or rendered obsolete by the manufacturer, then the customer agrees to pay the additional costs to modify and/or purchase the replacement hardware and/or software necessary for the system to function properly as reasonably determined by TOWNER COMMUNICATIONS; (ii) increased service charges of software of System manufacturer. In the event that the manufacturer increases service charges to TOWNER COMMUNICATIONS after the effective date of this agreement, customer agrees to pay the additional costs; (iii) charges may be imposed at the discretion of TOWNER COMMUNICATIONS, in the event that the customer’s software is not maintained at the current manufacturer’s software version; (iv) any taxes or fees imposed by local ordinances on the system or the Extended Warranty thereof; (v) costs to maintain all customer provided hardware and software in order to maintain compatibility with the system as the system hardware and/or software is upgraded throughout the term of this agreement; (vi) service fees and costs in connection with curing an Event of Default pursuant to Section 7.1. In such cases, TOWNER COMMUNICATIONS reserves the right to add a special processing fee. All such additional charges shall be payable in accordance with the terms of Towner Communications’ invoice for same.

2.5 RMA and Return Policy: TOWNER COMMUNICATIONS does not accept returns and all sales are final. In the event of an out of box failure or warrantied failure, Towner Communications will provide a Return Merchandise Authorization (RMA) to the customer. The RMA will allow the customer to return the product for repair or replacement in accordance with the manufacturer’s warranty. It is important to note that the customer must obtain the RMA before returning the product. Restocking fees and shipping fees will be billable. Towner Communications reserves the right to refuse any returns that do not have a valid RMA.

2.6 Refunds and Credits: Any refund requests must be submitted in writing to our customer support team at service@townerkc.com. TOWNER COMMUNICATIONS reserves the right to evaluate each refund request on a case-by-case basis and may, at its discretion, issue a credit instead of a refund. (i) In instances where a refund is approved, TOWNER COMMUICATIONS will issue a credit to the customer’s account. (ii) Credits are non-transferable and can only be applied to future services provided by TOWNER COMMUNICATIONS (iii) The credit amount will be equal to the refunded amount and will be valid for a period of 12 months] from the date of issuance (iv) TOWNER COMMUNICATIONS does not provide cash refunds under any circumstances. Refunds will not be issued in the form of checks or any other monetary instrument. All approved refunds will be applied to the customer’s account as a credit for future services. (v) Customers can use their account credits towards any future services provided by TOWNER COMMUNICATIONS. Credits cannot be redeemed for cash or transferred to other individuals or entities. The use of credits is subject to the terms and conditions of the specific services being purchased. (vi) Customers will be notified via email of any credits issued to their account. The email notification will include details of the credited amount, the reason for the credit, and instructions on how to apply the credit to future services. TOWNER COMMUNICATIONS reserves the right to modify, amend, or update this refund and credits policy at any time without prior notice. Customers are encouraged to review this policy periodically to stay informed of any changes. By using our services, you acknowledge and agree to the terms outlined in this Refunds and Credits Policy. If you have any questions or concerns, please contact our customer support team at accounting@townerkc.com.

3. Software Sublicense:

3.1 Right to Distribute & Sublicense: Restrictions: TOWNER COMMUNICATIONS has acquired from one or more Third Parties (each a “Third Party”) the right to distribute and sublicense certain Third Party software (the “Software”) for use in conjunction with the system. TOWNER COMMUNICATIONS hereby grants to the customer a non-exclusive, non-transferable sublicense to use the Software in the system. Customer acknowledges that TOWNER COMMUNICATIONS is only a licensed distributor and not a creator, owner or manufacturer of the Software. TOWNER COMMUNICATIONS shall assign to the customer all of its rights and interests in and to any warranty or indemnity offered in connection with the Third Party Software that are assignable by TOWNER COMMUNICATIONS.

3.2 Third Party Software Terms and Conditions: Customer shall comply with all Third Party terms and conditions applicable to the Extended Warranty of the Software, including but not limited to any requirement to enter into a separate software support and/or Extended Warranty agreement with the applicable Third Party manufacturer, creator or owner and paying all associated Extended Warranty and/or service fees associated therewith. In the event the customer fails to comply with any provisions of the Third Party Extended Warranty terms and conditions, then (i) TOWNER COMMUNICATIONS may terminate this agreement immediately and (ii) any additional services provided by TOWNER COMMUNICATIONS that are requested by the customer shall be on a time and materials basis at Towner Communications’ current service rates.

3.3 Third Party Beneficiary: Customer acknowledges that the provisions contained in this Section 3 are intended to protect the Third Party manufacturers, creators and/or owners of the Software; accordingly, each Third Party shall be deemed a third party beneficiary with respect to this Section 3 and shall have the right to enforce this Section as appropriate against Customer.

3.4 Software Release Levels: Customer shall, at customer’s sole cost and expense, maintain the Software at the current version or no more than two releases back; otherwise (i) Customer may not be eligible to receive services hereunder, (ii) TOWNER COMMUNICATIONS may terminate this agreement immediately and (iii) any additional services provided by TOWNER COMMUNICATIONS that are requested by the customer shall be on a time and materials basis at Towner Communications’ current rates.

4. Term and Termination

This Agreement shall begin on the date of Towner Communications’ execution of this Agreement, and shall continue for the defined period. Notwithstanding the foregoing, this Agreement may be terminated pursuant to Sections 1.3 (xvi), 2.2, 3.2, 3.4 and 7.2 of this Agreement.

5. Warranties and Indemnification

5.1 General Warranty: TOWNER COMMUNICATIONS warrants that any goods furnished hereunder will be free from defects and that any services performed will be done in a professional manner. If any failure to conform to this warranty to be found within 30 days from the date such goods are installed, TOWNER COMMUNICATIONS will correct such nonconformity by replacement of defective material and parts or by making other suitable repairs. All other warranties, express or implied, including warranties of merchantability and fitness for a particular purpose, are excluded and disclaimed by TOWNER COMMUNICATIONS. TOWNER COMMUNICATIONS does not represent or warrant that customer’s fire, alarm, security, telephone and/or other communications system will not be compromised or circumvented, that the system will prevent any loss by burglary, hold-up, fire or otherwise, or that the system will in all cases provide the protection for which it is installed or intended or protect Customer from all losses. Customer acknowledges that (i) Customer assumes all risks for loss or damage to customer’s premises and to its contents, (ii) TOWNER COMMUNICATIONS has made no representation or warranties nor has customer relied on any representations or warranties, express or implied, except as set forth herein and (iii) Customer has read and understands this entire agreement, Section 1 and Section 6 setting forth Towner Communications’ obligations and maximum liability in the event of any loss or damage to the Customer. Customer acknowledges and agrees that TOWNER COMMUNICATIONS is not an insurer and that this agreement is not intended to be an insurance policy or a substitute for an insurance policy. Insurance, if any, will be maintained by customer. Towner Communications’ charges are based solely upon the value of the service provided and are unrelated to the value of customer’s property or the property of others located on Customer’s premises.

5.2 Disclaimer of Warranties as to Software: TOWNER COMMUNICATIONS makes, and customer receives, no warranty, express or implied, regarding any aspect of the software and all warranties of merchantability, fitness for a particular purpose, title and non-infringement are expressly excluded. Without limiting the generality of the foregoing, TOWNER COMMUNICATIONS makes no warranties, either express or implied, regarding the performance of the software or the results that may be obtained by using the software. Accordingly, with the exception of any warranties that TOWNER COMMUNICATIONS is authorized to pass through to the customer directly from the applicable third party, the software is licensed “as is” without any warranties of any kind. Customer assumes the entire risk as to the results and performance of the software.

5.3 Indemnification: Customer agrees to indemnify, defend and hold TOWNER COMMUNICATIONS harmless from any and all claims, demands and lawsuits arising from or relating to this agreement, including the payment of all damages, expenses, costs and attorney fees, whether these claims and lawsuits are based upon active or passive negligence, indemnification, contribution, or strict or product liability on the part of TOWNER COMMUNICATIONS, its agents or employees, except to the extent such claims, demands or lawsuits occur while an employee or agent of TOWNER COMMUNICATIONS is on customer’s premises and which damages, expense and other liability are solely and directly caused by the acts of said employee or agent for which TOWNER COMMUNICATIONS shall indemnify Customer.

6. Limitation of Liability:

The total liability of TOWNER COMMUNICATIONS hereunder or arising in connection with the provision of any services, whether based upon or arising out of negligence, strict liability, contract, tort, warranty, misrepresentation, patent infringement or other-wise, shall not exceed the actual amount paid by customer to TOWNER COMMUNICATIONS for such services, not to exceed 50% of one year’s recurring service charge (as set forth below). In no event shall TOWNER COMMUNICATIONS be liable to customer for consequential damages such as, but not limited to, loss of production, regardless of whether the claim for such consequential damages be based on warranty (express or implied), contract, tort or otherwise.

7. Default and Remedies

7.1 Default: The happening of any one of the following shall be an Event of Default under this agreement: (i) failure by Customer to pay any amount within 30 days after the same is due and payable; (ii) failure by the customer to observe, keep or perform any agreement required of it herein and to correct such breach within 10 days after written notice of same from TOWNER COMMUNICATIONS; (iii) abuse of the System; (iv) dissolution, termination of existence, discontinuance of the business, insolvency or business failure of the Customer; (v) initiation of bankruptcy, reorganization, assignment for the benefit of creditors, or like proceeding by or again the customer; (vi) excessive false alarms caused by the customer; or (vii) allow other vendors to work on the system during the term of this agreement.

7.2 Remedies: Upon the occurrence of an event of defaults, then at any time thereafter, TOWNER COMMUNICATIONS may pursue on or more of the following remedies: (i) by written notice to the Customer, declare the balance of all unpaid amounts due and to become due under this agreement to be immediately due and payable, provided that all past due amounts shall bear interest at the rate of 1.5% per month (18% per year) or the maximum rate permitted by law from the first occurring event of default; (ii) cure the event of default, in which case the customer shall pay Towner Communications’ service fees and costs incurred in effecting such cure; (iii) receive immediate possession of any TOWNER COMMUNICATIONS owned portion of the system, and for such purpose enter the customer’s premises and remove said portion of the system and the customer hereby waives any further rights to the TOWNER COMMUNICATIONS owned portion of the system and any claims resulting from said repossession, including any claim or restoration of the premises to its former condition; (iv) proceed at law or in equity to enforce performance by customer of the provisions of this agreement, or to recover damages for the breach of this agreement; (v) discontinue furnishing the services, including, without limitations, disabling communication software, hardware and/or firmware contained within the system from any monitoring facility, and terminate this agreement by written notice to the customer; (vi) recover any other costs TOWNER COMMUNICATIONS is required to bear in respect to the system and/or services provided under this agreement; and (vii) recover all costs of collection, including court costs, collection expenses, attorneys’ fees, reasonable costs of removal of TOWNER COMMUNICATIONS-owned portion of the system, and any other reasonable costs paid or incurred by TOWNER COMMUNICATIONS in enforcing or attempting to enforce the terms and conditions of this agreement. Furthermore, if there are any other agreements in effect between TOWNER COMMUNICATIONS and the customer, then TOWNER COMMUNICATIONS, at its option, may deem customer’s default under any other agreement to be a default under any or all the agreements and TOWNER COMMUNICATIONS shall be entitled to exercise any or all of its remedies upon default with respect to any or all of such agreements. The above remedies are cumulative and exercise of one does not preclude the exercise of another.

8. Miscellaneous provisions

8.1 Subcontracting: Assignment: TOWNER COMMUNICATIONS shall have the right to subcontract any of the services which it may be obligated to perform. This agreement and its benefits are not assignable by the customer except upon the prior written consent of TOWNER COMMUNICATIONS. The customer acknowledges that this agreement and particularly those sections relation to Towner Communications’ maximum liability and third party indemnification, insure to the benefit of, and are applicable to any assignees or subcontractors of TOWNER COMMUNICATIONS. TOWNER COMMUNICATIONS will notify customer should any part of this contract be assigned to another vendor.

8.2 Nonsolicitation: Neither party may solicit to hire, employ or otherwise receive the services of (except for services provided pursuant to this agreement), any individual who was employed by the other party at the time of such solicitation or employment or at any time during the one year period immediately preceding such solicitation or employment, without the prior written consent of the party employing the individual.

8.3 Force Majeure: TOWNER COMMUNICATIONS shall not be liable for nonperformance or delay in performance due wholly or partially to any cause beyond its control, including action or failure of the government to act where action is required, strikes or other labor troubles, riots, power failures, interruption or unavailability of telephone service, fire, flood, lightning, earthquakes, or other acts of God. Replacement of the system necessitated by any such event will be at the customer’s expense. This agreement may be suspended or terminated, at the option of TOWNER COMMUNICATIONS or the customer, if the customer’s premises or the system or any part thereof is destroyed by fire, lightning or other catastrophe or so substantially damaged that it is impractical to continue to provide services. Upon such suspension or termination, an equitable refund of the service charges paid, but not yet earned, shall be made. Notice of termination shall be given upon written notice given within ten days of such event.

8.4 Entire Agreement: Customer acknowledges receipt of a copy of this agreement. This agreement constitutes the entire agreement among the parties pertaining to the subject matter hereof and supersedes all prior agreements, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written. If there is any conflict between this agreement and the customer’s purchase order, or any other document or any oral agreements, this agreement will govern.

8.5 Amendments: This agreement may only be amended in a writing signed by both parties. No waiver of any of the terms and conditions contained herein shall be effective unless such waiver is in writing and signed by an authorized representative of the party waiving such condition.

8.6 Severability: In the event any of the terms and conditions of this agreement are declared invalid or inoperative, all of the remaining terms and conditions shall remain in full force and effect.

8.7 Governing Law: This agreement and the rights and obligations of the parties hereunder are to be governed by and construed and interpreted in accordance with the laws of the state of Missouri applicable to contracts made and to be performed wholly within Missouri, without regard to choice or conflict of laws rules.

8.8 Waiver of Jury trial: Each party hereto hereby waives any right to trial by jury of any claim, demand, action or cause of action arising under this agreement or in any way connected with or related or incidental to the dealings of the parties hereto or any of them in respect of this agreement or transactions related hereto, in each case whether now existing or hereafter arising, and whether sounding in contract or tort or otherwise. Each party hereto agrees and consents that any such claim, demand, action or cause of action will be decided by court trial without a jury.

8.9 Notices: Any notice provided pursuant to this agreement, if specified to be in writing, shall be in writing and shall be deemed given; (i) if by facsimile, hand delivery or by delivery service, upon receipt thereof; (ii) if mailed, three days after deposit in the US mail, postage prepaid; or (iii) if by electronic mail, upon receipt thereof. All notices shall be addressed to the parties at the addresses specified below or at such other addresses as either party may in the future specify in writing to the other.

8.10 Disclaimers and Waivers: This agreement contains certain exculpatory clauses, disclaimers and waivers to which the customer has agreed.