Customer Terms

1.0 Provision of Systems.

A. Order and Customer Terms. The “Order” is set forth in the applicable “Order Form” referencing these Customer Agreement Terms and Conditions (the “Customer Terms”) and any “Order Addendums” (as defined in the Order Form). The Customer Terms include and incorporate by reference any agreements, addendums, policies, or other documents referenced herein as available at www.sensormatic.com/techterms. The Order and the Customer Terms are collectively referred to as the “Agreement” with “Sensormatic” and “Customer” identified in the Order Form.  Hereinafter, Sensormatic and Customer may individually be referred to a “Party” and collectively as “Parties.”

B.  Provision of Systems.  Subject to the terms and conditions of these Customer Terms and a valid Order, Sensormatic shall provide Customer with Systems including one or more of the following: (A) Equipment as set forth in the Order; (B) a license to use Installed Software as set forth in the Order; (C) subscriptions to Software Services as set forth in the Order; and (D) Professional Services as set forth in the Order.  Equipment, Installed Software, Software Services, and Professional Services being referred to collectively in the Order and these Customer Terms as the “Systems”.  Equipment, Installed Software, Software Services, and Professional Services shall only be provided subject to an Order agreed to and executed by both Parties. 

C. Order of Precedence.  In the event of a conflict, inconsistent, or additional terms and conditions in the documents comprising this Agreement, the following order of precedence will apply: (i) the terms and conditions of a written amendment signed by both Parties; (ii) the terms and conditions of the Order Form and any Order Addendum(s); (iii) the terms and conditions of the Customer Terms; and (iv) the terms and conditions of any agreements, addendums, policies, or other documents referenced herein as available at www.sensormatic.com/techterms.

D. Order Details.  Details related to the Equipment, the Installed Software, the Software Services, and the Professional Services, including Customer Sites, Authorized Users, Subscription Metrics, activation date, subscription term, pricing, and statements of work for Professional Services, (collectively the “Order Details) are provided in the applicable Order as Order Addendums to the Order Form.

2.0 Equipment and Installed Software.

A.  Identification of Equipment and Customer Site.  The Order identifies any Sensormatic equipment being purchased by Customer (the “Equipment”), the customer location(s) where that Equipment will be installed (each a “Customer Site”), and other Order Details.

B. Delivery of Equipment.  All Equipment delivered pursuant to this Agreement will be suitably packed for shipment in Sensormatic’s standard shipping cartons, marked for shipment, and delivered to Customer.  At Sensormatic’s election, (i) Equipment will be delivered to the Customer or its carrier agent EXW Sensormatic’s facility at which time risk of loss and title will pass to Customer or (ii) delivered by Sensormatic with title and risk of loss for Equipment passing to Customer upon installation at the Customer Site, if delivery and installation are included in Professional Services provided by Sensormatic to Customer. Customer will pay all freight, insurance, and other shipping expenses, as well as any special packing expense.  Customer will also bear all applicable taxes, duties and similar charges that may be assessed against the Equipment after delivery to the carrier at Sensormatic’s facilities.  As used in this Agreement, the term “EXW” will be construed in accordance with the International Chamber of Commerce Incoterms 2000.

C.  Definition of Installed Software.  “Installed Software” means any Sensormatic software included with the Equipment set forth in the Order (including any firmware pre-installed on the Equipment) and any other Sensormatic software provided for installation on premises at a Customer Site.  “Installed Software” does not include any Third Party Software or Software Services.

D. Software License.  Subject to the terms and conditions of the Order, the Customer Terms, and Sensormatic’s End User License Agreement available at www.sensormatic.com/techterms (the “EULA”) and any applicable supplemental terms available at www.sensormatic.com/techterms (the “Supplemental Terms”), Sensormatic hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use the Installed Software subject to the Order for the purposes of using, operating, and maintaining the System.  No software license is granted to Customer under this Section if Customer does not agree to the terms of the EULA.

E. Deployment of Installed Software.  Except for Installed Software embedded in Equipment, Customer is solely responsible for the deployment of the Installed Software for operation, including installation, configuration, integration, and testing, unless Customer has contracted to have Sensormatic perform such deployment services as Professional Services.

F. Third Party Software.  To the extent any software licensed from third parties, including open source software, (collectively, “Third Party Software”) is provided with or incorporated into the Installed Software, Customer will comply with the terms and conditions of the applicable third party licenses associated with the Third Party Software, in addition to the terms and restrictions contained in this Agreement.  By using the Software, Customer is also agreeing to be bound to the terms of such third party licenses. If provided for in the applicable third party license, Customer may have a right to reverse engineer such open source software or receive open source code for such open source software for use and distribution in any program that Customer creates, so long as Customer in turn agrees to be bound to the terms of the applicable third party license, and Customer’s programs are distributed under the terms of that license.  If applicable, a copy of such open source code may be obtained free of charge by contacting a Sensormatic representative.

3.0 Software Services.

A. Identification of Software Services and Customer Sites.  The Order identifies any Sensormatic software-as-a-service offerings or other Sensormatic-hosted software offerings (the “Software Services”) to be provided by Sensormatic to Customer subject to the applicable Order Details. 

B.  Definition of Authorized User.  “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Software Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Software Services has been purchased hereunder.

C. Provision of Access to Software Services.  Subject to the terms and conditions of the Order, the Customer Terms, and Sensormatic’s Terms of Service available at www.sensormatic.com/techterms (the “TOS”) and any applicable Supplemental Terms, Sensormatic hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Software Services set forth in the Order during the applicable subscription term set forth in the Order Details, solely for use according to the applicable subscription metric, which may be Authorized Users, monitored data points in the System, volume of data processed, or other metric for identifying use of the Software Services by Customer (each a “Subscription Metric”).  Such use is limited to Customer’s internal use.

D. Subscriptions.  The Order sets forth the specifics of Customer’s right to access and use the Software Services (each a “Subscription”) and will set forth a Subscription Metric for the Subscription.  Sensormatic shall provide to Customer the necessary passwords and network links or connections to provide access to the Software Services.  A Subscription shall commence and continue in effect as set forth in the applicable Order Details.    

E. Customer Data and Personal Data.  Sensormatic’s collection, processing, and use of Customer Data (as defined in the TOS) is governed by the terms and conditions of the TOS and the terms of any available data processing addendum available at www.sensormatic.com/techterms (the “DPA”) shall apply to the extent Customer Data includes Personal Data (as defined in the DPA).

F.  Feedback. Customer grants to Sensormatic and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into any System or component of a System any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the operation of any System of component of a System. 

4.0 Professional Services.

A.  Identification of Professional Services.  The Order identifies any Professional Services being provided by Sensormatic to Customer and the Order Details applicable to such Professional Services. 

B.  Definition of Professional Services.  “Professional Services” means installation of Equipment, site surveying a Customer Site or potential Customer Site, data services, hardware and network services, portal services, and other professional services to be provided by Sensormatic to Customer agreed to by the Parties and set forth as Order Details.

C. Provision of Professional Services. Subject to the terms and conditions of the Order, the Customer Terms, and Sensormatic’s Professional Services Agreement available at www.sensormatic.com/techterms (the “PSA”), Sensormatic will perform Professional Services for Customer as agreed to by the Parties in the applicable Order and Order Details.

5.0 Location of Customer Sites and Country Specific Terms.  The Order shall identify the country or other jurisdiction in which the Customer Sites are located as either within the United States of America or outside of the United States of America (a “Foreign Jurisdiction”).  Country specific terms for Foreign Jurisdictions are available at www.sensormatic.com/techterms (the “Country Specific Terms”), are incorporated by reference herein, and shall replace, modify, or add to the terms of this Agreement for the Foreign Jurisdiction(s) identified in the Order. Changes to the terms of this Agreement set forth in the Country Specific Terms are limited to those required for the parties to perform in the Foreign Jurisdiction identified in the Order. 

6.0 Prices and Payment Terms.  Customer will pay Sensormatic as follows.

A.  General.  Prices and payment terms for the System shall be specified in the Order and may include procedures or mechanisms for pricing increases.  If Sensormatic provides Customer with a proposal for particular Systems or Customer Sites, prices included in the applicable Order will reflect those stated in the Sensormatic proposal plus applicable taxes. Unless specified differently in the Order, following each anniversary of the Effective Date of the Order, the pricing set forth on the Order (or subsequent annual increase) shall be increased annually by the Consumer Price Index for Urban Wage Earners (“CPI-W”), All Items, U.S. City Average for the prior twelve (12) month period or three percent (3%), whichever is greater.  The Parties agree to make such adjustments using the most recent CPI-W data that is published just prior to the anniversary of the Effective Date of the Order.  Sensormatic may also raise fees effective upon 90 days prior written notice. 

B. Exchange Rates. For an Order identifying a Foreign Jurisdiction, the Order will indicate the currency for payment and unless otherwise specified in the applicable Order, invoices will be issued in the local currency of the Foreign Jurisdiction using the US Dollar pricing set forth in the Order and the exchange rate at the Effective Date of the Order (as published by OANDA), subject to the below conditions. The exchange rate at the Effective Date of the Order will be used as the Contracted Exchange Rate for invoicing for a period of one year beginning on the Effective Date of the Order and will be reviewed on an annual basis (such rate, “Contracted Exchange Rate”) and if, during the review period, (i) the new OANDA published exchange rate is within the fluctuation threshold of +/- 5% of the previous Contract Exchange Rate, no adjustments to the Contracted Exchange Rate will be made for the following year or (ii) the new published exchange rate is outside of the fluctuation threshold of +/- 5%, the Contracted Exchange Rate will be adjusted to the new OANDA published exchange rate.

C.  Invoices.  Fees will be invoiced in advance and otherwise in accordance with the relevant Order.  Unless otherwise stated in the Order, fees are due net 30 days from the invoice date.  Invoices will be issued in the Customer’s name and mailed to the address indicated in the Order.  Customer is responsible for providing complete and accurate billing and contact information to Sensormatic and notifying Sensormatic of any changes to such information

D. Overdue Charges.  If any invoiced amount is not received by Sensormatic by the due date, then without limiting Sensormatic’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.  If Sensormatic is required to take action to collect any amount due, then Customer agrees that Customer shall pay Sensormatic all costs Sensormatic incurs in collecting any amounts hereunder, including, but not limited to, reasonable attorneys’ fees and costs.  Sensormatic shall not exercise its rights for such overdue charges if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute, and provided that Customer pays any and all undisputed portions of the applicable fees in a timely manner.

D.  Taxes.  Sensormatic's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”).  Customer is responsible for paying all Taxes associated with its purchases hereunder.  If Sensormatic has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Sensormatic will invoice Customer and Customer will pay that amount unless Customer provides Sensormatic with a valid tax exemption certificate authorized by the appropriate taxing authority.  For clarity, Sensormatic is solely responsible for taxes assessable against it based on its income, property, and employees.

E.  Shipping.  In addition to the prices specified in the applicable Order, Customer agrees to pay any costs of shipping the System to Customer’s site.

F. Manner of Payment.  Unless set forth differently in the applicable Order, all payments shall be made electronically through the Automated Clearing House network or other payment method identified in writing to Customer by Sensormatic.

7.0 Term of Agreement.  The initial term of this Agreement shall continue from the Effective Date of the Order to the Expires on date set forth in the Order Form (the “Initial Term”).  After the Initial Term, this Agreement will automatically renew for additional one (1) year periods (each a “Renewal Term,” and all Renewal Terms together with the Initial Term, the “Term”), unless either Party provides written notice of nonrenewal to the other Party at least ninety (90) days prior to the expiration of the then-current term.

8.0 Updates; Availability of Features and Functions Sensormatic may, at any time and in its sole discretion, modify, deprecate, upgrade, or release a new version of the Installed Software or Software Services, or any portion of their features and functions.  Unless otherwise expressly and separately agreed to by Sensormatic, any modification or new version of any Installed Software or Software Services provided to Customer will be subject to the terms of this Agreement. Certain features and functions of the Installed Software or Software Services may be made available based on specific configuration of products and may not be available to Customer without payment of additional fees. Sensormatic will notify Customer of any material change to or discontinuation of the Installed Software or Software Services subject to a valid Order. If Customer establishes that a change made by Sensormatic pursuant to this Section has a materially adverse effect on Customer’s authorized use of the Installed Software or Software Services under an applicable Order, Customer may notify Sensormatic in writing, and Sensormatic may propose resolutions or work-arounds. If Sensormatic is unable to provide Customer with a resolution or work-around reasonably satisfactory to Customer, then notwithstanding anything to the contrary, Customer may terminate this Agreement upon written notice to Sensormatic and receive a refund for any prepaid license or subscription fees for use of Installed Software or Software Services after the termination date.

9.0 Service and Support.  Sensormatic will provide service and support for Equipment, Installed Software, Software Services, and Professional Services as set forth in the applicable Order Details or in a service and support policy for a particular offering made available at www.sensormatic.com/techterms and identified by the offering’s name. 

10.0 Confidentiality. Use and Disclosure of Confidential Information. Sensormatic and Customer agree to maintain the confidentiality of each other’s information and to use each other’s information only for the intended purposes.  Confidential information all information does not include (i) information in the public domain, (ii) information acquired from other sources without breach of confidentiality or (iii) information developed independently without reference to such confidential information.  If disclosure of confidential information is legally required, the Parties will cooperate to minimize the disclosure and the effects of the disclosure.  This Confidentiality provision may be specifically enforced. Notwithstanding the foregoing, Sensormatic may use data as permitted by the EULA and the TOS.

11.0 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under, this Agreement; (iii) the execution of this Agreement by its representative whose signature is set forth on the Order has been duly authorized by all necessary corporate or organizational action of such party; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

12.0 Limited Warranty.

A. Subject to the terms and conditions provided in the Agreement, Sensormatic may provide a limited warranty for: (i) Equipment as set forth in a written warranty for a particular Equipment product provided with the particular Equipment product or in the applicable Order Details; (ii) Installed Software as set forth in the EULA; (iii) Software Services as set forth in the TOS; and (iv) Professional Services as set forth in the PSA.

B. Sensormatic shall not be responsible for defects or conditions caused by (i) any acts of negligence by Customer or any third party; (ii) any failure by Customer to perform its obligations including the provision of persistent power to the Equipment; (iii) any use of the System by Customer for which it is not designed or intended; (iv) any modification, addition or alteration to the System without Sensormatic’s prior written approval; (v) harmful System environments such as outdoor installations, excessive moisture or excessive dust; or (vi) any Force Majeure Event.

13.0 Warranty Disclaimer.  EXCEPT FOR THOSE WARRANTIES SET FORTH IN SECTION 11.0 AND ANY APPLICABLE WARRANTIES IDENTIFIED IN SECTION 12.0, SENSORMATIC MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SENSORMATIC HEREBY EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR OF ERROR-FREE OR UNINTERRUPTED USE.  ANY BETA OR TRIAL OFFERINGS ARE PFOVIDED “AS IS” EXCLUSIVE OF ANY WARRANTY WHATSOEVER.

14.0 Indemnification; Limitation of Liability. 

A. Indemnification by Sensormatic. Sensormatic will indemnify the Customer as set forth in the EULA, the TOS, or the PSA as applicable depending on the source of the liability.

B.  Indemnification by CustomerIf, as a result of the Customer’s breach of this Agreement, a claim is made against Sensormatic by a third party arising from (i) the use of any data in connection with this Agreement and  (ii) Customer’s or any Authorized User’s (a) negligence or willful misconduct; (b) use of the Systems or component thereof in a manner not authorized by this Agreement; (c) use of the Systems or a component thereof in combination with data, software, hardware, equipment or technology not provided by Sensormatic or authorized by Sensormatic in writing; or (d) modifications to the Systems or a component thereof not made by Sensormatic, the Customer shall indemnify, defend and hold Sensormatic harmless against any and all losses, damages, liabilities, claims, demands, costs and/or expenses suffered or incurred by Sensormatic (including legal expenses reasonably and properly incurred) arising out of such claim (including any claim by a statutory or administrative body or authority). 

C. LIMITATION OF LIABILITY. The liability of Sensormatic under or in connection with this Agreement shall be limited to the amount paid by Customer to Sensormatic during the 12-month period preceding the claim under this Agreement.  Notwithstanding anything to the contrary in this Agreement, Sensormatic shall not be liable for indirect, incidental or consequential damages, including loss of profits, loss of earnings, data loss, loss of business or goodwill or business interruption, even if Sensormatic had notice of the possibility of Customer incurring such losses.

Sensormatic shall not be liable for events or conditions caused by (i) any use of the System for which it was not intended, (ii) modification of the System without Sensormatic’s written consent, (iii) installation of the System other than by Sensormatic, (iv) acts of the Customer or third parties which interfere with the functioning of the System or (v) acts of god or other Force Majeure Events. No suit or action shall be brought against Sensormatic more than one (1) year after the accrual of the cause of action therefore.

C.  The provisions of this Section 14.0 in its entirety shall apply to and benefit Sensormatic and its agents, employees, contractors, subsidiaries, affiliates and parents (both direct and indirect).

D.            NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS AND DATA LOSS) ARISING OUT OF ANY PERFORMANCE OR NON-PERFORMANCE UNDER this agreement, WHETHER SUCH CLAIM FOR DAMAGES IS BASED ON TORT, STRICT LIABILITY, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

15.0. Insurance.  Sensormatic agrees to maintain, directly or indirectly through its affiliates, insurance coverage customary for businesses similar to Sensormatic. 

16.0. Compliance, Export and Import, Anti-Bribery, and Anti-Corruption Controls.

In addition to any requirements under the applicable Order for Systems in a Foreign Jurisdiction, Customer agrees that it will not sell, reexport or transfer, directly or indirectly, any: (i) product or service provided under this Agreement; (ii) technical data; (iii) software; (iv) information; or (v) items acquired under this Agreement to any country for which the United States Government (or any agency thereof) requires an export license or other approval without first obtaining any licenses, consents or permits that may be required under the applicable laws of the U.S. or other foreign jurisdictions, including the Export Administration Act and Regulations and shall incorporate in all export shipping documents the applicable destination control statements.

Further, Customer agrees that it will not sell, reexport or transfer (including in-country transfers) any System or component thereof, including any technical information or services supplied under this Agreement or the applicable Order, except in full compliance with all applicable governmental requirements, including but not limited to applicable economic sanctions and constraints administered by the U.S. Treasury Department and applicable export control measures administered by the U.S. Department of Commerce and U.S. Department of State, any other U.S. government agencies, and measures administered by the European Union or the government agencies of any other countries.

The obligation of Sensormatic to provide Systems and components thereof, including technical information or services, under this Agreement or the applicable Order is subject to the ability of Sensormatic and any involved Sensormatic affiliate to supply such items consistent with the laws and regulations of the U.S. and other governments. Customer agrees that any such refusal or cancellation of any order, or termination of the Agreement or the applicable Order by Sensormatic will not constitute a breach of any of Sensormatic’s under this Agreement or the applicable Order, and Customer hereby waives any and all claims against Sensormatic or its affiliates.

Sensormatic and Customer intend that no payments or transfers of value will be made which have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion or kickbacks, or other unlawful or improper means of obtaining business. Customer will not, directly or indirectly, pay, offer, authorize or promise any monies or anything of value (such as gifts, contributions, travel, or entertainment) to any person or organization (including any employee or official of any governmental authority, government owned or controlled entity, public international organization or political party; any candidate for political office; or any employees of any of customer of Customer or Sensormatic for the purpose of improperly influencing their acts or decisions in violation of any anti-bribery or anti-corruption laws, including the United States Foreign Corrupt Practices Act, laws under the OECD Anti-Bribery Convention and local anti-corruption laws. Customer and Customer Affiliates will take appropriate actions to ensure that any person representing or acting under its instruction or control will also comply with this provision.

Any violation by Customer of the applicable laws or regulations of the U.S. or any other government shall be deemed a material breach of this Agreement and the applicable Order and sufficient basis for Sensormatic to reject any or all orders or to terminate this Agreement or any Order.

Customer agrees to indemnify and hold harmless Sensormatic against any claim, demand, action, proceeding, judgment, penalty, fine, loss, liability, cost or expense (including reasonable attorney fees) suffered or incurred by Sensormatic and arising out of or relating to any violation by Customer or  any of its customers of any export control, anti-bribery, or anti-corruption laws or regulations.

17.0. Termination. 

A. Termination by Either Party. Either Party may terminate this Agreement for cause (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

B. Effect of Termination. Upon termination of this Agreement, the following shall apply (i) with respect to any leased Equipment, Customer shall immediately deliver to Sensormatic the applicable Equipment; and (ii) any termination effects set forth in the EULA, the TOS, the PSA, and any applicable Supplemental Terms.  

C. Refund or Payment upon Termination.  If this Agreement is terminated by Customer in accordance with Section 17.0.A, Sensormatic will refund Customer any prepaid fees covering the remainder of the term of the Agreement after the effective date of termination.  If this Agreement is terminated by Sensormatic in accordance with the Section 17.0.A above, Customer will pay any unpaid fees covering the remainder of the term of the Agreement.  In no event will termination relieve Customer of its obligation to pay any fees payable to Sensormatic for the period prior to the effective date of termination.

18.0 Governing Law and Dispute Resolution.

A. Governing Law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods...

B.  Foreign Domiciled Sensormatic Entities.  All matters with regard to dispute resolution related to a foreign domiciled entity identified as “Sensormatic” on the applicable Order Form will be determined as provided in the applicable Order.  An Order executed by a foreign domiciled Sensormatic entity will not be deemed or construed as consent by such foreign domiciled Sensormatic entity to the jurisdiction of the federal or state courts of the United States. Notwithstanding anything to the contrary in this Agreement, Customer irrevocably and unconditionally waives and releases all rights and claims they may now or hereafter have arising under this Agreement or an Order that any foreign domiciled Sensormatic entity is subject to the jurisdiction of the federal or state courts of the United States based solely on the transactions contemplated under this Agreement or the applicable Order; provided, however, that nothing in such waiver and release will affect the Customer’s’ rights to pursue a claim against any foreign domiciled Sensormatic entity in the courts of its domicile, subject to any County Specific Terms related to dispute resolution in the applicable Order.

C.  Arbitration; Waiver of Class Action.  Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by confidential and binding arbitration in the city of New York in the state of New York before a single arbitrator.  The language to be used in the arbitral proceedings shall be English.  The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules.  Judgment on the arbitrator’s award may be entered in any court having jurisdiction.  The Parties agree to keep all disputes arising under this Agreement confidential, except as necessary in connection with a judicial challenge to or enforcement of an award or unless otherwise required by law or judicial decision.  The arbitrator may issue orders to treat any information regarding such proceedings, including the award, as Confidential Information under this Agreement.  This Section shall not preclude either party from seeking equitable relief to protect its interests, including but not limited to injunctive relief, from a court of appropriate jurisdiction.  Customer and Sensormatic each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If, for any reason, a claim proceeds in court rather than in arbitration, Customer and Sensormatic each waive any right to a jury trial.

19.0. Other Terms.

A.  Definitions.  Defined terms will have the meanings stated in the relevant section of this Agreement, except as replaced, modified, or added to by any applicable Country Specific Terms stated in the applicable Order.

B.  Language.  The Order will be in English which will be the language controlling the interpretation of these Customer Terms, the Order, and any amendments to the Order.  If required by the law of a Foreign Jurisdiction identified in an Order, then the Customer Terms and the applicable Order will also be provided in the required second language and those second language versions shall only control the interpretation of these Customer Terms and the applicable Order only to the extent required by the law of the Foreign Jurisdiction.

C.  Amendments.  No change, modification, or amendment of these Customer Terms or the Order will be effective except by the Parties’ prior written agreement. 

D.    Force Majeure.  Sensormatic assumes no liability for delays in its performance under this Agreement or for the consequences resulting from such delay, however caused, for interruptions or for the consequences resulting from such an interruption, due to strikes, riots, floods, acts of God, acts of governmental authorities or courts or any causes beyond the control of Sensormatic (each a “Force Majeure Event”), and will not be required to perform under this Agreement while any interruption due to any such Force Majeure Event continues.

E. Assignment and Subcontracting.  This Agreement will be binding upon and will inure to the benefit of the Parties hereto and their respective heirs, representatives, successors and permitted assignees.  This Agreement may not be assigned, transferred, shared or divided in whole or in part by Customer without Sensormatic’s prior written consent.  Sensormatic shall be entitled to subcontract any or all of its obligations under this Agreement to a subcontractor, without obtaining prior consent, but by doing so Sensormatic shall be responsible for the acts and omissions of the subcontractor to the same extent as if it had carried out the obligations itself pursuant to this Agreement.

F. Entire Agreement. These Customer Terms, the applicable Order agreed to in writing by the Parties, and any agreements, addendums, policies, or other documents referenced in this Agreement as available at www.sensormatic.com/techterms, all of which are incorporated into this Agreement by reference, constitute the entire agreement between the Parties relating to the subject matter hereof and supersedes any other business forms of each Party, and all prior agreements, correspondence, discussions, negotiations and understandings of the Parties relating to the subject matter hereof are merged herein, made a part hereof, and superseded hereby. No amendment, waiver, or modification of this Agreement shall be valid unless made in writing and signed by both Parties.  Sensormatic reserves the right to change the terms and conditions set forth in these Customer Terms and any other agreements, addendums, policies, or other documents referenced in this Agreement as available at www.sensormatic.com/techterms (collectively, the “Sensormatic Agreements”) by providing an updated version of such Sensormatic Agreement with a new version number and date at www.sensormatic.com/techterms. The version of a Sensormatic Agreement applicable to a particular Order is the version current as of the Effective Date of the Order.

G.  Severability.  If any provision of this Agreement is determined by a court to be invalid or unenforceable, that provision will be deemed amended and enforced to the maximum extent permitted by law; however, all other provisions of this Agreement will continue to be valid and enforceable.

H.  Interpretation.  The language of this Agreement will be construed in accordance with its fair meaning and not for or against any Party. The headings and captions in this Agreement are inserted for convenience and are not to be used in construing this Agreement

I.  Third Party Beneficiaries.  Except as otherwise expressly provided, this Agreement is for the sole and exclusive benefit of the Parties, and nothing herein, express or implied, shall give, or be construed to give, any person or entity, other than the Parties, any legal or equitable rights under this Agreement.

J. No Partnership. Nothing in this Agreement is intended to, or shall, operate to create a partnership or joint venture of any kind between Customer and Sensormatic; authorize either Party to act as agent for the other Party; authorize either Party to act in the name or on behalf of, or otherwise to bind, the other party in any way.

K. Survival.  Sections 1.0.C (Order of Precedence), 3.0.F (Feedback), 5.0 (Location of Customer Sites and Country Specific Terms), 10.0 (Confidentiality), 14.0 (Indemnification; Limitation of Liability), 16.0 (Compliance), 18.0 (Governing Law and Dispute Resolution), and 19.0 (Other Terms) will survive the expiration or termination of this Agreement, as will those provisions which by their sense are intended to survive.

L. Notices.  Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and shall be effective upon (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d), except for notices of termination or an indemnifiable claim (“Legal Notices”), the day of sending by email.  Notices and Legal Notices to Sensormatic shall be addressed to the attention of the Sensormatic Affiliate listed on the Order, with a copy to Legal Department, Johnson Controls, Inc., 507 E. Michigan St., Milwaukee, WI 53202.   Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer, and Legal Notices to Customer shall be addressed to Customer and be clearly identifiable as Legal Notices.  All other notices to Customer shall be addressed to the relevant Services system administrator designated by Customer.