Revision Date: 3/04/2025
These Monitoring Services Terms and Conditions (these “Terms”), together with the Service Order Form which is incorporated herein by reference, are a binding agreement (collectively, this “Agreement”) between Blue Eye Corporation, a Delaware corporation, with its principal place of business at 15 W South Temple, Suite 800, Salt Lake City, UT 84101 (“Blue Eye”), and the person, company, or other entity identified as Customer on the Service Order Form (“Customer”). Blue Eye and Customer may be referred to herein individually as a “Party” and collectively as the “Parties.”
These Terms set forth the terms and conditions pursuant to which Blue Eye agrees to provide and Customer may use such Monitoring Services to Customer. If Customer does not accept these Terms, Customer is not authorized to and may not use the Monitoring Services.
1. Definitions.
(a) “Affiliate” means an entity in which a Party owns or controls, directly or indirectly, more than fifty percent (50%) of such entity’s voting securities.
(b) “Blue Eye Parties” means, collectively, Blue Eye and its subcontractors, assignees, agents, employees, subsidiaries and Affiliates. Each of the foregoing Blue Eye Parties may be referred to individually as a “Blue Eye Party.”
(c) “Equipment” means security cameras and related equipment required or used in connection with the Monitoring Services.
(d) “Monitoring Schedule” means the days and times during which Blue Eye will provide monitoring services at a Site, as set forth in the Service Order Form.
(e) “Monitoring Services” means remote monitoring of Security Feeds. Monitoring Services may be “Exterior,” “Interior,” or “Mobile.”
(i) “Exterior” services are Monitoring Services provided with respect to Security Feeds from Equipment permanently installed on the exterior of a building.
(ii) “Interior” services are Monitoring Services provided with respect to Security Feeds from Equipment permanently installed on the interior of a building.
(iii) “Mobile” services are Monitoring Services provided with respect to Security Feeds from Equipment temporarily installed at the Site; for example, on trailers.
(f) “Response Protocols” means the response protocols Blue Eye will follow in response to alerts and other triggering events at a Site, as set forth in the Service Order Form, including but not limited to efforts to notify the proper authorities or other persons.
(g) “Revision Date” means the Revision Date set forth above.
(h) “Security Feed” means live security camera footage captured by Equipment and transmitted to Blue Eye.
(i) “Service Order Form” means the Remote Video Monitoring Service Order Form, which must be filled out and submitted by Customer and accepted by Blue Eye.
(j) “Service Term” has the meaning set forth in Section 1.
(k) “Site” means a building or property owned or controlled by Customer and at which Blue Eye provides Monitoring Services, as set forth in the Service Order Form.
2. Services. Subject to the terms and conditions of this Agreement, Blue Eye shall use commercially reasonable efforts to provide the Monitoring Services set forth in the Service Order Form.
2.1. Customer acknowledges that the Monitoring Services are subject to the influence of external events which are not within the control of Blue Eye and which may trigger Response Protocols, even if no event has occurred which threatens the security of a Site. Such occurrences shall not be construed as improper provision of the Monitoring Services, nor shall any or all of such occurrences excuse any of the obligations of Customer as set forth in this Agreement.
2.2. Customer acknowledges that Blue Eye employees and contractors (“personnel”) engaged in providing video incident triage services and other Monitoring Services may be located outside of the United States, in countries including but not limited to Cambodia. Customer hereby consents to Blue Eye’s engagement of such personnel, including any cross-border transfers of Security Feeds and other information necessary for such engagement.
3. Equipment.
3.1. Customer shall provide all Equipment necessary for Blue Eye to provide the Monitoring Services, and shall ensure such Equipment meets the minimum specifications established by Blue Eye. Customer shall provide high-speed internet and shall transmit Security Feeds to Blue Eye. Transmissions of Security Feeds and maintenance of Equipment, internet service and other equipment located on the Site shall be the sole responsibility of Customer. Blue Eye will use commercially reasonable efforts to notify Customer promptly if Blue Eye detects a problem with the Security Feeds or Equipment, but Blue will not be liable for any failure to detect any such problem.
3.2. Customer shall maintain Equipment in proper working order at all times and, except for reasonable routine maintenance, not tamper with, disturb, move, remove, or otherwise interfere with Equipment or Security Feeds, or allow any third party to do the same. Blue Eye shall not be obligated to furnish maintenance or repair services nor be liable under this Agreement for repairs to, replacement of, or additions to Equipment.
3.3. Blue Eye shall not be responsible for the transmission of Security Feeds from Equipment and, without limiting the foregoing, does not represent or warrant that transmissions of Security Feeds from a Site or Equipment will not be interrupted, circumvented, or compromised. Blue Eye shall not be liable and does not assume any liability for delay or operation of Equipment, internet service, cellular and/or radio frequency, or other potential methods communication methods, regardless of the reason.
3.4. CUSTOMER ACKNOWLEDGES THAT IF EQUIPMENT, INTERNET SERVICE, TELEPHONE SERVICE, OR OTHER TRANSMISSION SERVICE IS INTERRUPTED, DISCONNECTED, MODIFIED, OR OTHERWISE NOT PROPERLY FUNCTIONING FOR ANY REASON, OR IF EQUIPMENT DOES NOT OR IS UNABLE TO SEND SECURITY FEEDS FOR ANY REASON, BLUE EYE (OR ITS CONTRACTORS) WILL NOT BE ABLE TO PROVIDE THE MONITORING SERVICES AND WILL NOT BE HELD RESPONSIBLE FOR ANY RESULTING FAILURE TO PERFORM THE MONITORING SERVICES. Customer acknowledges and agrees that Blue Eye shall not be liable for the activation, interruption, operation, or non-operation of Equipment, internet service, telephone or cellular transmissions, equipment or service, or any other similar matter.
4. Payment.
4.1. Fees; Taxes.
4.1.1. Customer shall pay Blue Eye the monthly fee and any additional costs and fees set forth in the Service Order Form (collectively, “Fees”). Accrual of Fees shall commence on the date set forth in the Service Order Form, or, if no such date is specified, on the day that the Monitoring Services commence. Blue Eye may increase the Fees upon renewal of the Service Term by providing Customer written notice at least ninety (90) days before the expiration of the then-current Service Term.
4.1.2. Customer shall pay all directly and indirectly imposed sales tax or other taxes incurred in connection with the Monitoring Services, and any other fees required under any applicable laws or regulations in order to provide the Monitoring Services, excluding only taxes based solely on Blue Eye’s net income. Blue Eye may invoice Customer for the foregoing and similar or related charges. Customer shall hold Blue Eye harmless from all claims and liability arising from Customer’s failure to support or pay any such taxes or fees.
4.2. Invoices; Payment.
Blue Eye will issue invoices to Customer in advance for all Fees, taxes, and other amounts due hereunder. Blue Eye will issue invoices monthly or annually, as set forth in the Service Order Form. Customer shall pay all amounts within thirty (30) days of the date of the applicable invoice. Late payments will incur a late charge of $25.00 plus one and one-half percent (1.5%) per month, or the highest rate allowable by law, whichever is lower. All Fees and other amounts paid hereunder are non-refundable and shall be paid in U.S. currency.
4.3. Expenses, Penalties, and Other Charges.
4.3.1. All expenses, penalties, or similar charges (including, without limitation, false alarm fees) arising out of or relating to Monitoring Services and assessed against Customer and/or Blue Eye by any court or local, state or federal governmental agency shall be the sole responsibility of Customer and shall be paid by Customer immediately. Without limiting the foregoing, if the Response Protocols involve contacting municipal or other public service authorities, Customer shall be responsible for any false alarms and the consequences thereof.
4.3.2. Blue Eye specifically disclaims any responsibility for services associated with or arising out of notifications to or dispatching of third-party service providers, including but not limited to paramedics, doctors, and/or ambulance services. Any charges incurred as a result of any such notification or services shall be the responsibility of Customer, whether or not Customer requested such notification or services and whether or Blue Eye correctly or incorrectly notified the applicable third-party service provider(s).
4.3.3. Customer shall promptly reimburse Blue Eye for fees and other charges assessed against Blue Eye as a result of an emergency call originating from a Site. If a fine, penalty, or fee is assessed against Blue Eye by a governmental or municipal agency in connection with the Monitoring Services, Customer shall promptly reimburse Blue Eye for the same.
4.4. Termination; Suspension.
In addition to any rights set forth in Section 11 and all other remedies available under this Agreement or at law (which Blue Eye does not waive by the exercise of any rights hereunder):
4.4.1. Blue Eye may suspend its provision of the Monitoring Services if Customer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof. If Blue Eye suspends the Monitoring Services because of Customer’s failure to pay any amount when due, Customer shall be required to pay a reconnection charge at Blue Eye’s then-prevailing rate upon reactivation of the Monitoring Services.
4.4.2. IF CUSTOMER FAILS TO OBTAIN, MAINTAIN, PROVIDE, AND/OR UPDATE ANY REQUIRED LICENSE OR PERMIT, BLUE EYE MAY TERMINATE THE THIS AGREEMENT AND THE MONITORING SERVICES IMMEDIATELY AND WITHOUT NOTICE TO CUSTOMER.
4.4.3. If Blue Eye determines, in its sole discretion, that it has received an excessive number of false alarms, or that Customer caused any false alarm intentionally or through its gross negligence, recklessness, or willful misconduct, Blue Eye may terminate this Agreement immediately upon written notice to Customer.
Blue Eye’s suspension or termination of Monitoring Services pursuant to this Section 4.4 or any other provision of this Agreement shall not affect Blue Eye’s right to recover damages from Customer, or any other remedy available to Blue Eye at law or equity.
5. Limitation of Liability.
5.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER BLUE EYE NOR ANY OTHER BLUE EYE PARTY IS AN INSURER. INSURANCE, IF ANY, SHALL BE OBTAINED BY AND SHALL BE THE SOLE RESPONSIBILITY OF CUSTOMER. THE AMOUNTS PAYABLE TO BLUE EYE HEREUNDER ARE BASED UPON THE VALUE OF THE MONITORING SERVICES AND ARE NOT RELATED TO THE VALUE OF CUSTOMER’S PROPERTY OR PROPERTY OF OTHERS LOCATED IN OR AT CUSTOMER’S SITE(S). CUSTOMER SHALL LOOK EXCLUSIVELY TO CUSTOMER’S INSURER TO RECOVER FOR INJURY OR DAMAGE IN THE EVENT OF ANY LOSS OR INJURY AND RELEASES AND WAIVES, ON BEHALF OF ITSELF AND ITS INSURER, ALL RIGHT OF RECOVERY AGAINST BLUE EYE ARISING BY WAY OF SUBROGATION.
5.2. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO DETERMINE THE ACTUAL DAMAGES, IF ANY, WHICH MAY PROXIMATELY RESULT FROM FAILURE ON THE PART OF BLUE EYE TO PERFORM ANY OF ITS OBLIGATIONS HEREUNDER. CUSTOMER THEREFORE AGREES THAT IF BLUE EYE SHOULD BE FOUND LIABLE FOR LOSS, DAMAGE, OR INJURY DUE TO A FAILURE OF THE MONITORING SERVICES OR ANY OTHER SERVICES IN ANY RESPECT, BLUE EYE’S LIABILITY SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE FEES ACTUALLY PAID BY CUSTOMER WITH RESPECT TO THE MONITORING SERVICES PROVIDED BY BLUE EYE DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LOSS, DAMAGE, OR INJURY.
5.3. THIS SECTION 5 SHALL APPLY TO ANY LOSS, DAMAGE, OR INJURY, IRRESPECTIVE OF CAUSE OR ORIGIN, WHICH RESULTS DIRECTLY OR INDIRECTLY TO ANY PERSON OR PROPERTY FROM PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS IMPOSED BY THIS AGREEMENT OR FROM THE NEGLIGENCE, ACTIVE, PASSIVE OR OTHERWISE, STRICT LIABILITY, BREACH OF WARRANTY OR ANY OTHER ALLEGED FAULT ON THE PART OF BLUE EYE OR ITS SUBCONTRACTORS.
6. Indemnification.
Customer shall indemnify, defend and hold the Blue Eye Parties harmless from any claims, actions, losses, liabilities, damages and expenses (including attorney’s fees and court costs) made, assessed or awarded against any Blue Eye Party: (a) arising out of or in connection Customer’s use of any of Equipment or the Monitoring Services; or (b) arising out of or in connection with a breach of any of Customer’s representations, warranties or other obligations set forth in this Agreement. Further, in the event any person not a party to this Agreement shall make any claim or file any lawsuit against any Blue Eye Party, in any way relating to Equipment or the Monitoring Services, including for failure of the Monitoring Services in any respect, Customer agrees to defend, indemnify and hold such Blue Eye Party harmless from any and all such claims and lawsuits including the payment of all damages, expenses, costs, and attorneys’ fees. These obligations shall survive the expiration or termination of this Agreement and shall apply even if such claim or lawsuit arises out of negligence, gross negligence, failure to perform, strict liability, breach of warranty, failure to comply with any applicable law or other fault. Customer hereby releases, discharges and agrees to hold the Blue Eye Parties harmless from any and all claims, liabilities, damages, losses or expenses, arising from or caused by any hazard covered by insurance in or on the Site whether said claims are made by Customer, its agents or insurance company or other parties claiming under or through Customer. Customer agrees to defend and hold the Blue Eye Parties harmless from, and indemnify the Blue Eye Parties against, any action or subrogation which may be brought against any Blue Eye Party by any insurer or insurance company or its agents or assigns including the payment of all damages, expenses, costs and attorney’s fees. Customer shall notify its insurance carrier of the terms of this provision.
7. Third Party Products and Services.
The Monitoring Services rely on, interoperate with and/or incorporate certain third-party products and services. These third-party products and services are beyond Blue Eye’s control, but their operation may impact or be impacted by the use and reliability of the Monitoring Services. Customer acknowledges and agrees that: (i) the use and availability of the Monitoring Services is dependent on third-party product vendors and service providers, (ii) these third-party products and services may not operate in a reliable manner and may impact the way that the Monitoring Services operate, or may be impacted by the Monitoring Services, and (iii) Blue Eye is not responsible for damages and losses arising from or related to these third-party products and services. BLUE EYE HEREBY DISCLAIMS AND CUSTOMER HEREBY DISCHARGES, WAIVES AND RELEASES BLUE EYE AND ITS LICENSORS AND SUPPLIERS FROM ANY PAST, PRESENT, AND FUTURE CLAIMS, LIABILITIES, AND DAMAGES, KNOWN OR UNKNOWN, ARISING OUT OF OR RELATING TO CUSTOMER’S INTERACTIONS WITH SUCH THIRD PARTIES AND THEIR PRODUCTS AND SERVICES.
8. Recording.
Customer acknowledges that Blue Eye will listen to and record video and/or audio related to monitored activity at each Site as well as conversations that Customer, its employees, invitees and/or any other person at each Site has with Blue Eye or its subcontractors or emergency services providers and law enforcement personnel. Customer agrees and consents for itself and its employees, agents, customers, guests, invitees and licensees to the aforementioned actions regarding video and communications and that Blue Eye shall have no liability pertaining thereto. Customer agrees to take all necessary actions to inform its employees, agents, customers, guests, invitees and licensees of the listening, viewing and recording of communications and video as aforementioned, and agrees to indemnify Blue Eye against any claims related to the listening, viewing or recording of communications and video. Customer understands that privacy cannot be guaranteed on telephone, cable and computer systems and that Blue Eye shall not be liable for any claims, loss, damages or costs which may result from any lack of privacy experienced. Customer consents to Blue Eye’s use of Customer’s information about Customer and the Site to administer the Monitoring Services and to provide such information to emergency services providers or law enforcement personnel.
9. Representations and Warranties.
Customer represents and warrants to Blue Eye that (a) Customer owns each Site and/or has authority to locate Equipment on the Site; (b) Customer will comply with all laws, codes and regulations pertaining to Equipment and the Monitoring Services; (c) this Agreement has been duly and validly executed and delivered by Customer and constitutes the legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms; (d) Customer is duly organized, validly existing and in good standing under the laws of the state of its incorporation/organization, and has full power and authority to execute, deliver and perform its obligations under this Agreement; (e) the execution, delivery and performance by Customer of this Agreement and the consummation by it of its obligations hereunder will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule or regulation to which Customer is subject, (ii) any order, judgment or decree applicable to Customer or binding upon its assets or properties, (iii) any provision of the charter or other organizational documents of Customer, or (iv) any agreement or other instrument applicable to Customer or binding upon its assets or properties; and (f) no consent, approval or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by Customer in connection with the execution, delivery and performance of this Agreement or the taking by Customer of any other action contemplated hereby.
10. Disclaimer of Warranties.
TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS OTHERWISE UNAMBIGUOUSLY AND EXPRESSLY SET FORTH IN THIS AGREEMENT, BLUE EYE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT IN RELATION TO OR ARISING OUT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, AS TO THE MONITORING SERVICES. WITHOUT LIMITING THE FOREGOING, BLUE EYE SPECIFICALLY DISCLAIMS ANY WARRANTY THAT MONITORING SERVICES WILL BE UNINTERRUPTED, SECURE, COMPLETE, OR ERROR-FREE. CUSTOMER ACKNOWLEDGES THAT, WHILE BLUE EYE USES REASONABLE EFFORTS TO PROVIDE THE MONITORING SERVICES, THE PROVISION THEREOF INVOLVES THE POSSIBILITY OF HUMAN AND MACHINE ERRORS, DELAYS, INTERRUPTIONS, AND LOSSES. BLUE EYE DOES NOT MAKE ANY GUARANTY OR WARRANTY THAT THE MONITORING SERVICES WILL AVERT, DETECT OR PREVENT FIRE, BURGLARY, PROPERTY DAMAGE, BODILY INJURY, OR OTHER OCCURRENCES THE MONITORING SERVICES ARE DESIGNED TO DETECT.
11. Service Term; Termination.
11.1. Service Term The term of this Agreement shall begin on the date and continue for the term set forth in the Service Order Form, unless terminated earlier pursuant to Section 11.3 or Section 11.2.2 (the “Initial Term”). Thereafter, this Agreement shall renew automatically for additional terms of the same duration as the Initial Term (each, a “Renewal Term,” and together with the Initial Term, the “Service Term”) unless either Party gives the other Party written notice of its intent not to renew at least sixty (60) days prior to the end of the then-current Service Term.
11.2. Termination for Cause. Either Party may terminate this Agreement:
11.2.1. Immediately upon written notice to the other Party if the other Party materially breaches any provision hereof and such breach cannot be cured, or, if the breach can be cured, such breach continues uncured for a period of thirty (30) days after the non-breaching Party provides written notice of the breach to the breaching (or, if the cure reasonably takes longer than thirty (30) days, within such longer period as such cure reasonably requires, provided that the breaching Party promptly undertakes action to cure and diligently pursues the same until cured).
11.2.2. Immediately upon written notice to the other Party if the other Party: (i) makes a general assignment for the benefit of creditors; (ii) appoints or has appointed a receiver to take charge of all or part of its property; (iii) admits in writing its inability to pay its debts generally as they mature; (iv) commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it; (v) otherwise substantially ceases its business operations; (vi) takes any action for the purpose of effecting any of the foregoing; or (vii) commences proceedings for the appointment of a receiver, trustee, liquidator or custodian of the Party or of all or a substantial part of the property thereof, or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to the Party or the debts thereof under any bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced and an order for relief entered or such proceeding shall not be dismissed or discharged within sixty (60) days of commencement.
11.3. Termination for Convenience. Customer may terminate this Agreement without cause before the end of the applicable. Service Term by providing at least sixty (60) days’ prior written notice to Blue Eye. Upon termination of this Agreement pursuant to this Section 11.3:
11.3.1. If Customer has elected to pay Fees annually, Customer will neither be entitled to nor receive a refund of any Fees paid.
11.3.2. If Customer has elected to pay Fees monthly, Customer shall pay Blue Eye the lesser of (a) fifty percent (50%) of the monthly Fees payable over the remainder of the Service Term, or (b) three (3) times the monthly Fees payable under this Agreement.
11.4. Effect of Termination. Upon termination of this Agreement: (i) Blue Eye shall immediately cease providing the Monitoring Services; and (ii) Customer will immediately pay any and all outstanding Fees and charges owed to Blue Eye hereunder, including any amounts due pursuant to Section 11.3. Notwithstanding the expiration or termination of this Agreement, all rights and obligations that by their nature are intended to survive such expiration or earlier termination will survive.
12. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah without regard to its choice of law principles. The state and federal courts located in Salt Lake County, Utah shall have the sole and exclusive jurisdiction over any claims or actions arising out of or related to this Agreement, and Customer hereby consents to personal jurisdiction of such courts.
13. Assignment; Subcontractors; Successors and Assigns. This Agreement may not be transferred or assigned by Customer without the express written consent of Blue Eye. Any purported transfer or assignment in contravention of this Section 13 shall be null and void. Blue Eye shall have the right to assign this Agreement (in whole or in part) without notice to Customer or to any other person or entity. Blue Eye shall have the right to delegate any or all of its duties hereunder to subcontractors in its sole discretion. This Agreement shall inure to the benefit of and be binding on the Parties and their respective successors and permitted assigns. Other than Blue Eye and its Affiliates, which shall be intended third party beneficiaries of all of the rights of Blue Eye set forth herein, no person shall be a third-party beneficiary of this Agreement.
14. Publicity. Neither Party may use the other Party’s trademarks, service marks, trade names, logos or other commercial or product designations (collectively, “Marks”) in any publication, advertisement or public announcement without the other Party’s prior written consent. Notwithstanding the foregoing, Blue Eye may refer to Customer by name in Blue Eye’s customer listings. Blue Eye may also place Customer’s name and logo on Blue Eye’s web site and in marketing materials relating to Blue Eye’s products and services. Blue Eye may also request Customer’s permission to use Customer and agreed representatives of Customer as contactable references in Blue Eye’s negotiations with potential customers and other third parties, and Customer shall not unreasonably withhold or delay such permission.
15. Attorneys’ Fees, Costs, and Expenses. In any action, proceeding, or dispute, with or without litigation, arising out of this Agreement or the transactions contemplated hereby, the successful Party therein (regardless of whether the matter is pursued to judgment or is voluntarily dismissed) shall be entitled to recover from the other Party thereto the reasonable attorneys’ and paralegals’ fees, court costs, filing fees, publication costs and all other expenses incurred by the successful Party in connection therewith, at trial and all appellate proceedings, and in all bankruptcy, administrative, and similar proceedings.
16. Severability; Construction. If any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction: (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law; and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. This Agreement has been negotiated by the Parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either Party. The headings of the sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction hereof.
17. Remedies. The Parties agree that, notwithstanding any other provision of this Agreement, the non-breaching Party shall be entitled to seek equitable relief to protect its interests, including but not limited to preliminary and permanent injunctive relief, as well as money damages. Nothing stated herein shall be construed to limit any other remedies available to the Parties.
18. Force Majeure. Excluding payment obligations, neither Party shall be in breach or otherwise liable for events beyond the Party’s control (other than events that could have been avoided or prevented by commercially reasonable foresight, planning or implementation), including, but not limited to, an act of God, fire, earthquake, flood or other natural disasters, power failures, acts of government or acts of any third party. Each Party experiencing any of the foregoing shall promptly notify the other Party of the nature and expected duration thereof, if known.
19. No Waiver. The failure of either Party to enforce at any time any of the provisions of this Agreement shall not be deemed to be a waiver of the right of either Party thereafter to enforce any such provisions.
20. Need for Writing. No employee, agent, representative, or Affiliate of Blue Eye has authority to bind Blue Eye to any oral representation, warranty, covenant or other obligation concerning the Monitoring Services or any other matters related to this Agreement. Any such representation, warranty, covenant or other obligation not expressly contained in this Agreement will not be enforceable.
21. Independent Contractors. The Parties are independent contractors and nothing in this Agreement will be construed to create a joint venture, partnership or an agency relationship between the parties. Neither Party has the authority, without the other Party’s prior written approval, to bind or commit the other Party in any way.
22. Counterparts. This Agreement may be executed in any number of counterparts, including facsimile counterparts, each of which when so executed and delivered will be deemed an original, and such counterparts together will constitute one and the same instrument.
23. Entire Agreement. This Agreement contains the entire understanding of the Parties with respect to its subject matter and supersedes all previous agreements, understandings, discussions and negotiations between the parties with respect to such subject matter, whether written or oral. Both Parties acknowledge having read the terms and conditions set forth in this Agreement, understand all such terms and conditions, and agree to be bound thereby.
24. Amendment.
24.1. Except as otherwise provided herein, no modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by the party against whom it is to be enforced.
24.2. Customer acknowledges and agrees that Blue Eye has the right, in its sole discretion, to modify these Terms at the start of each Renewal Term, provided that Blue Eye will provide at least sixty (60) days’ advance written notice of any such modification. Any such modification become effective upon the start of the Renewal Term following Blue Eye’s notice. If Customer does not accept any such modification, Customer may provide Blue Eye with notice of non-renewal pursuant to Section 11.1, and Customer’s failure to do so will be deemed acceptance of the modified Terms.
24.3. If Blue Eye modifies these Terms, Blue Eye will update the Revision Date, and Blue Eye represents and warrants that these Terms have not been modified since the most recent Revision Date.
25. Jury Trial Waiver. BOTH PARTIES HEREBY WAIVE ANY RIGHTS TO A JURY TRIAL IN ANY JUDICIAL ACTION BROUGHT BY EITHER PARTY WHICH RELATES IN ANY WAY TO THIS AGREEMENT, WHETHER BASED UPON CONTRACT, NEGLIGENCE, OR OTHERWISE.