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FutureChalk Software Inc., GalleryGuard End User Agreement

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE PURCHASING OR USING FUTURECHALK SOFTWARE INC'S GALLERYGUARD’S SECURITY PRODUCTS OR SOFTWARE. 

The following are the terms and conditions for use of FutureChalk Software Inc's ("FCSI") GalleryGuard product. Please read these terms and conditions carefully. The term "User" or "You" in this User Agreement refers to any person or entity that uses the GalleryGuard product while "We", "Us" and "Our" refers to FCSI or its affiliated companies or agents. 'Product' includes any hardware or software supplied by FCSI or its affiliated companies or agents.

By proceeding to use FCSI's products, including GalleryGuard, you, the customer, agree to be bound by all of the terms and conditions of this User Agreement that govern the relationship between you and FCSI and its affiliated companies or agents. If you do not agree to the terms and conditions of this User Agreement, then either do not use the GalleryGuard system or promptly return the GalleryGuard system in its original packaging with your sales receipt to your point of purchase for a full refund.

1. WE ARE NOT AN INSURER. WE ARE NOT AN INSURER AND YOU WILL NEED TO OBTAIN FROM AN INSURER ANY INSURANCE YOU DESIRE. THE AMOUNT YOU PAY US IS BASED UPON THE PRODUCT AND SERVICES WE PROVIDE AND PERFORM AND THE LIMITED LIABILITY WE ASSUME UNDER THIS CONTRACT IS UNRELATED TO THE VALUE OF YOUR PROPERTY OR THE PROPERTY OF OTHERS LOCATED IN YOUR PREMISES. IN THE EVENT OF ANY LOSS OR INJURY TO ANY PERSONS OR PROPERTY, YOU AGREE TO LOOK EXCLUSIVELY TO YOUR INSURER TO RECOVER DAMAGES. YOU WAVE ALL SUBROGATION AND OTHER RIGHTS OF RECOVERY AGAINST US THAT ANY INSURER OR OTHER PERSON MAY HAVE AS A RESULT OF PAYING ANY CLAIM FOR LOSS OR INJURY TO ANY OTHER PERSON.

2. NO LIABILITY; LIMITED LIABILITY. YOU AGREE THAT WE AND OUR ASSIGNEES, AGENTS, EMPLOYEES, SUBSIDIARIES, AFFILIATES AND PARENT COMPANIES ARE EXEMPT FROM LIABILITY FOR ANY LOSS, DAMAGE, INJURY OR OTHER CONSEQUENCE ARISING DIRECTLY OR INDIRECTLY FROM THE SERVICES (INCLUDING INTERNET/WEBSITE SERVICES) WE PERFORM OR THE SYSTEMS WE PROVIDE UNDER THIS CONTRACT. IF IT IS DETERMINED THAT WE OR ANY OF OUR ASSIGNEES, AGENTS, EMPLOYEES, SUBSIDIARIES, AFFILIATES OR PARENT COMPANIES ARE DIRECTLY OR INDIRECTLY RESPONSIBLE FOR ANY SUCH LOSS, DAMAGE, INJURY OR OTHER CONSEQUENCE, YOU AGREE THAT DAMAGES SHALL BE LIMITED, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, INDEMNITY, CONTRIBUTION, OR OTHERWISE, TO THE PURCHASE PRICE OF THE ORIGINAL PRODUCT AND/OR SERVICE CHARGES. THESE AGREED UPON DAMAGES ARE NOT A PENALTY. THEY ARE YOUR SOLE REMEDY NO MATTER HOW THE LOSS, DAMAGE, INJURY OR OTHER CONSEQUENCE IS CAUSED, EVEN IF CAUSED BY OUR NEGLIGENCE, GROSS NEGLIGENCE, FAILURE TO PERFORM DUTIES UNDER THIS CONTRACT, STRICT LIABILITY, FAILURE TO COMPLY WITH ANY APPLICABLE LAW, OR OTHER FAULT. AT YOUR REQUEST, WE MAY ASSUME ADDITIONAL LIABILITY BY ATTACHING AN AMENDMENT TO THIS CONTRACT STATING THE EXTENT OF OUR ADDITIONAL LIABILITY AND THE ADDITIONAL COST TO YOU. YOU AGREE THAT WE ARE NOT AN INSURER EVEN IF WE ENTER INTO ANY SUCH AMENDMENT.

3. EXCLUSIVE DAMAGES REMEDY. YOUR EXCLUSIVE DAMAGE AND LIABILITY REMEDIES ARE SET FORTH IN PARAGRAPH 2 ABOVE. WE ARE NOT LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES.

4. HOLD HARMLESS. IN THE EVENT THAT ANY LAWSUIT OR OTHER CLAIM IS FILED BY ANY OTHER PARTY AGAINST US OR OUR ASSIGNEES, AGENTS, EMPLOYEES, SUBSIDIARIES, AFFILIATES OR PARENT COMPANIES ARISING OUT OF THE SERVICES WE PERFORM OR THE SYSTEMS WE PROVIDE UNDER THIS CONTRACT, YOU AGREE TO BE SOLELY RESPONSIBLE FOR, AND TO INDEMNIFY AND HOLD US COMPLETELY HARMLESS FROM, SUCH LAWSUIT OR OTHER CLAIM INCLUDING YOUR PAYMENT OF ALL DAMAGES, EXPENSES, COSTS AND ATTORNEYS' FEES. THESE OBLIGATIONS WILL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS CONTRACT. THESE OBLIGATIONS WILL APPLY EVEN IF SUCH LAWSUIT OR OTHER CLAIM ARISES OUT OF OUR NEGLIGENCE, GROSS NEGLIGENCE, FAILURE TO PERFORM DUTIES UNDER THIS CONTRACT, STRICT LIABILITY, FAILURE TO COMPLY WITH ANY APPLICABLE LAW, OR OTHER FAULT.

5. OTHER PARTY'S LIMITATION. IF YOU PURCHASED OUR SERVICES OR SYSTEMS THROUGH ANOTHER BUSINESS OR PERSON, OR FROM US THROUGH A REFERRAL FROM ANOTHER BUSINESS OR PERSON, YOU AGREE THAT SUCH OTHER BUSINESS OR PERSON ACTS SOLELY AS AN INDEPENDENT RESELLER. SUCH BUSINESS OR PERSON SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO YOU FOR THE PERFORMANCE OR NONPERFORMANCE OF THE GALLERYGUARD SYSTEM OR SERVICES WE PROVIDE UNDER THIS CONTRACT. WITHOUT LIMITING THE ABOVE, YOU AGREE THAT THE LIABILTY OF SUCH OTHER BUSINESS OR PERSON IS, IN ANY EVENT, LIMITED IN ACCORDANCE WITH THE PROVISIONS OF THIS CONTRACT, INCLUDING BUT NOT LIMITED TO PARAGRAPHS 2, 3 and 4. YOU AGREE THAT SUCH BUSINESS OR PERSON AND ITS ASSIGNEES, AGENTS, EMPLOYEES, SUBSIDIARIES, AFFILIATES AND PARENT COMPANIES MAY INVOKE ALL OF OUR RIGHTS UNDER THESE PARAGRAPHS.

6. TIME TO FILE LAWSUIT OR OTHER ACTION. YOU AGREE TO FILE ANY LAWSUIT OR OTHER ACTION YOU MAY HAVE AGAINST US OR OUR ASSIGNEES, AGENTS, EMPLOYEES, SUBSIDIARIES, AFFILLIATES OR PARENT COMPANIES WITHIN ONE (1) YEAR FROM THE DATE OF THE EVENT THAT CAUSED THE LOSS, DAMAGE OR LIABILITY.

7. LIMITED WARRANTY. During the first year from the date of purchase, we will repair or, at our option, replace any defective part of the system's hardware. Hardware is defined as physical components of the system. WE PROVIDE NO WARRANTY FOR SOFTWARE FUNCTIONALITY. At our discretion we may or may not replace your system with a new one. We provide these services at no charge to you. We will use new or functionally operative parts for replacements. This limited warranty is for your benefit only, and may not be enforced by any other person. This limited warranty gives you specific legal rights. The laws of the state where this Contract was signed may also give you additional rights. For service please see our website for contact information.
Additionally, we agree to provide a three (3) year warranty on the battery life of the motion sensors. This assumes normal operation of no more than 2 hours per day of constant movement and storage at room temperature of 25 degrees Celsius. Assuming the user follows normal operation of motion sensors, and one or more fails due to battery failure within the three year period, we will replace the affected sensors free of charge. If the sensors stop functioning due to other means than battery failure, such as physical damage, this warranty no longer applies.

8. WARRANTY EXCLUSIONS. We perform warranty services only during our normal working hours. IF YOU REQUEST US TO PERFORM WARRANTY SERVICES OUTSIDE OUR NORMAL WORKING HOURS, YOU WILL BE REQUIRED TO PAY US FOR THE SERVICES AT OUR THEN APPLICABLE RATES FOR LABOR AND PARTS.

9. NO OTHER WARRANTIES. OTHER THAN THE LIMITED WARRANTY, WE MAKE NO GUARANTEE OR WARRANTY OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABLITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES WE PERFORM OR THE SYSTEMS WE PROVIDE UNDER THIS CONTRACT. YOUR EXCLUSIVE WARRANTY REMEDY IS SET FORTH ABOVE. WE ARE NOT LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES. SOME STATES/PROVINCES MAY NOT ALLOW US TO LIMIT THE LENGTH OF AN IMPLIED WARRANTY OR TO EXCLUDE OR LIMIT INCIDENTAL OR CONSEQUENTIAL DAMAGES. THE LAWS OF THE STATE/PROVINCE WHERE THESE TERMS AND CONDITIONS WERE AGREED UPON WILL DETERMINE WHETHER THESE LIMITATIONS AND EXCLUSIONS APPLY.

10. DISCLAIMER OF WARRANTY
10.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE GALLERYGUARD SYSTEM, HARDWARE AND SOFTWARE INCLUDED, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE GALLERYGUARD SYSTEM IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. FCSI AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE GALLERYGUARD SYSTEM, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. FCSI DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE GALLERYGUARD SYSTEM, THAT THE FUNCTIONS CONTAINED IN THE GALLERYGUARD SYSTEM WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE GALLERYGUARD SYSTEM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE AND GALLERYGUARD SYSTEM WILL BE ACCURATE OR RELIABLE, THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIALS PROVIDED OR OBTAINED BY YOU THROUGH FCSI WILL MEET YOUR EXPECTATIONS, OR THAT THE ERRORS OR DEFECTS IN THE GALLERYGUARD SYSTEM WILL BE CORRECTED. NO FCSI/GALLERYGUARD DEALER, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATION, EXTENSION, OR ADDITION TO THIS DISCLAIMER OF WARRANTY. Some jurisdictions do not allow exclusions of implied warranties or limitations on applicable statutory rights of consumers, so the above exclusions and limitations may not apply to you.

10.2. FCSI DOES NOT WARRANT THAT THE GALLERYGUARD SYSTEM WILL PROTECT AGAINST INTRUSION, LOSS OF OR DAMAGE TO PROPERTY, PERSONAL INJURY OR LOSS OF LIFE. FCSI DISCLAIMS ANY LIABILITY THAT MAY ARISE FROM THE USE OR INABILITY TO USE THE GALLERYGUARD SYSTEM OR ITS ASSOCIATED PRODUCTS. FCSI will not be liable for any failure or non-performance of its products, software or services due to causes beyond its control, including but not limited to power outages, computer failure, user error, unavailability of the internet, errors, or disruption of services or outages by third party providers such as ISPs, mobile phone carriers and data centers. The above limitations will not apply in case of personal injury where and to the extent that applicable law requires such liability. The provisions of this paragraph survive any termination of this agreement.
YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 10, THE TERMS "FCSI" AND "GALLERYGUARD" INCLUDE FUTURECHALK SOFTWARE INC, and any of its affiliated companies' OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND RESELLERS.

11. REPAIRS AND PARTS REPLACEMENT. At your request we will repair or replace the equipment we provided at our current prices after the Limited Warranty expires. At your request we will also repair or replace anything excluded from the Limited Warranty at our current prices.

12. ADDITIONAL CHARGES AND OFFSET RIGHTS. You agree to pay all directly or indirectly imposed false alarm assessments, taxes, fees or other charges of any police or fire department, or any other governmental body. You agree to pay all telephone, internet or signal transmission company charges for any transmissions sent or received, on purpose or otherwise. YOU UNDERSTAND THAT MESSAGE OR DATA CHARGES FOR EMAIL AND SMS ALERTS MAY APPLY. You agree to pay to us any increases in our cost for facilities used for transmitting alarm signals under this Agreement. You agree to pay a service charge if our representative responds to a service call or alarm at your premises because you improperly followed operating instructions, failed to properly mount a sensor, failed to calibrate the software to minimize false alerts, or improperly setup the monitoring software

13. POWER LOSS, ALERTS AND OTHER WARNINGS. The GalleryGuard system is designed to be connected to an electrical power source. THIS SYSTEM WILL NOT OPERATE, THE ALARM WILL NOT SOUND (if applicable), AND THE ALARM SIGNAL WILL NOT BE TRANSMITTED, IF THE ELECTRICITY IS CUT OFF AND THE BACKUP BATTERY, IF PART OF THE SYSTEM, IS LOW OR DEAD. If there is any fire, the electricity may cut off before the alarm can function and the alarm will not sound, and the alarm signal will not be transmitted. Connecting the system to a backup battery source can help increase its reliability. Moreover, any phone, SMS, E-mail, or network based warnings are reliant upon a variety of parties cooperating, including ISPs, utility companies, and Telecom Service providers. In order for the remote alerts to function properly these parties must work in tandem with the GalleryGuard system. It is possible that somewhere during the processing of a remote alert, the alert is lost and is not received by the owner. While this is unexpected it is possible and you agree and understand that if your alarm system is connected to the Internet there may be times when the system is unable to acquire, transmit or maintain an alarm signal or alert. As a result you agree that receiving a remote alert is not guaranteed. WE STRONGLY RECOMMEND THAT YOU CAREFULLY READ THE USER'S GUIDE. THE USER'S GUIDE CONTAINS VERY IMPORTANT INFORMATION SUCH AS OPERATION INSTRUCTIONS AND EQUIPMENT TESTING AND MAINTENANCE PROCEDURES. YOU SHOULD ALSO READ ALL INSTRUCTIONS, WARNINGS AND OTHER INFORMATION ON THE EQUIPMENT ITSELF.

14. DELAYS. WE HAVE NO RESPONSIBILITY OR LIABILITY TO YOU OR ANY OTHER PERSON FOR DELAYS IN THE INSTALLATION OR REPAIR OF THE SYSTEM OR THE PERFORMANCE OF OUR SERVICES, REGARDLESS OF THE REASON, OR FOR ANY RESULTING CONSEQUENCES. WE HAVE NO RESPONSIBILITY OR LIABILITY FOR INTERRUPTIONS OF SERVICE, OR ANY RESULTING CONSEQUENCES, WHETHER DUE TO STRIKE, RIOT, FLOOD, FIRE, TERRORISM, ACT OF GOD, OR ANY OTHER CAUSE BEYOND OUR CONTROL. DURING ANY SUCH SERVICE INTERRUPTION, WE HAVE NO OBLIGATION TO SUPPLY YOU SUBSTITUTE SERVICES.

15. TESTING: It is your responsibility to test the equipment weekly.

16. LIMITED LICENSE. We grant you a limited license to use the software included with the GalleryGuard system. All other rights are reserved. In particular, and without limiting the foregoing, you agree not to reverse engineer, decompile, disassemble, alter, duplicate, backup, make copies, create derivative works from, distribute or provide others with the software included in the FCSI system.

17. CONTROLLING LAW AND SEVERABILITY. This agreement will be exclusively governed by and construed in accordance with the laws of Canada and the province of British Columbia, without regard to or application of its choice of law rules or principles You irrevocably submit to the exclusive jurisdiction of the Courts of the Province of British Columbia for the determination of disputes arising under this contract. If for any reason a court of competent jurisdiction finds any provision of this agreement, or portion thereof, to be unenforceable, that provision of the agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this agreement will continue in full force and effect.

18. COMPLETE AGREEMENT; GOVERNING LANGUAGE. This agreement constitutes the entire agreement between the parties with respect to the use of the GalleryGuard product and supersedes all prior or contemporaneous understandings, communications or agreements, written or oral, regarding such subject matter. No amendment to or modification of this agreement will be binding unless in writing and signed by FCSI. The waiver by either party of any default or breach of this User Agreement shall not constitute a waiver of any other or subsequent default or breach. Any translation of this agreement is done for local requirements and in the event of a dispute between the English and any non-English version, the English version of this agreement will govern.

©Copyright 2011 FCSI, Inc.