MOBILE APPLICATION AGREEMENT

This Mobile Application Agreement (this “Agreement”) is between the person or entity agreeing to these terms (“Subscriber”), Subscriber’s alarm service company (“ASC”) and Alula, located at 13110 Southwest Fwy, Sugar Land, TX 77478 (“Alula”). Subscriber acknowledges that it has purchased security and/or home automation product(s) and service(s) connected to Subscriber’s alarm system (the “System”) from an independently owned and operated ASC. Subscriber and ASC have executed an installation agreement which includes Alula’s proprietary product(s) or services (“Products”) which may include, but are not limited to security system control, alarm monitoring signal relay, two-way voice, cellular telemetry, HVAC thermostat control, lighting control, internet portal, video services, and access to certain applications through smartphone technologies.  The type(s) of Products Subscriber has chosen shall be detailed within the agreement between the Subscriber and ASC (“ASC Agreement”).

  1. EQUIPMENT, INSTALLATION AND SERVICE: ASC shall provide to Subscriber Alula’s Products under the terms of the ASC Agreement. Subscriber agrees to the terms of the ASC Agreement, together with the additional terms and conditions of this Agreement. The ASC Agreement shall set forth the type(s) of Products and type(s) of Products required from Alula. ASC shall provide Alula with the data and programming in connection with the specific types of Products required and subscribed to by the Subscriber.
  2. BROADBAND INTERNET SERVICE REQUIRED: Subscriber agrees to furnish the System and all other Alula equipment with the proper communication broadband Internet service that is “always on” to enable signals to be transmitted. The System shall consist of 120 volt AC power (uninterrupted) to be supplied by Subscriber. While Alula and ASC recommend that Subscriber obtain an uninterruptible power supply (UPS) to power the internet modem, router, and any other critical device so that alarm transmissions and other Products are not interrupted by a power failure, and maintain a fully functional rechargeable battery(ies) in the alarm system control panel, ASC and Alula shall have no liability to Subscriber in the event that Subscriber does not follow such recommendations. Subscriber acknowledges that: this service involves use of a non-supervised telephone, cable, or satellite facilities; the System utilizes Subscriber’s broadband internet services that are wholly beyond the supervision and control of ASC and/or Alula, and are maintained and serviced by the applicable telephone, cable, satellite provider; in the event Subscriber’s telephone line or cable fails or is cut, or satellite service is interrupted, the System will not communicate alarms to ASC’s and/or Alula relay monitoring facility, and at an additional cost, a cellular radio device may be used in addition to Product to increase the level of monitoring integrity. Subscriber also acknowledges that in some state and local jurisdictions, fire alarm signal monitoring must be performed by UL or FM listed equipment and/or alarm monitoring stations, and that the Product is not listed for this purpose, and should be used only in addition to listed equipment as an auxiliary device, when allowed by law or code, and the ASC and Alula shall have no liability to Subscriber in connection with such use.
  3. MONITORED ALARM SIGNALS: Subscriber acknowledges that Alula is a “Common Carrier,” and upon receipt at Alula’s data facility of an alarm signal data from the Subscriber’s premises, Alula shall use commercially reasonable efforts to retransmit the alarm signals promptly through electronic means, pursuant to the programming instruction data within Alula’s website portal. Programming instruction data shall be entered by ASC and the Subscriber and may be amended from time to time by the Subscriber. If Subscriber elects some or all signals to report to an alarm monitoring station, a response to an alarm system will be handled by ASC’s monitoring facility and Alula shall have no liability to Subscriber in connection therewith. In addition, some or all signals may be programmed to be relayed directly to Subscriber and/or Subscriber’s representatives listed in the website portal, as such signals may be emailed or transmitted by text messaging to a cell phone, and/or by electronic voice messaging to a telephone number (“Notifications”). Notifications directly to governmental authorities are prohibited in most jurisdictions, and Alula and ASC shall have no liability to Subscriber for sending such Notifications to governmental authorities in such jurisdictions. Programming of Notifications shall be the sole responsibility of Subscriber, and Subscriber agrees to update the website portal as it deems necessary and to RELEASE ALULA AND ASC FROM ANY AND ALL LIABILITY ARISING OUT OF OR IN CONNECTION WITH SUBSCRIBER’S FAILURE TO PROGRAM OR UPDATE ITS NOTIFICATIONS.
  4. LIMITED WARRANTY: Unless stated otherwise in the ASC Agreement, ASC, at its sole cost and expense, shall repair or replace, in its discretion, any defective Product provided by ASC for one (1) year from the date of original purchase, for reasons of failure from normal wear and tear or mechanical malfunction (other than as a result of misuse, intentional damage, acts of God, or alteration or repair by the Subscriber or any third-party); and at all other times, Subscriber agrees to pay ASC for all repairs of the Product and/or equipment replacement, at ASC’s then prevailing rate for such services.  SUBSCRIBER AND ASC ACKNOWLEDGE AND AGREE THAT ALULA SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO SUBSCRIBER IN CONNECTION WITH THIS SECTION 4.
  5. TERM: This Agreement shall continue in effect on a month to month basis, and service under this Agreement may be terminated by ASC or Alula at any time. Termination shall not affect the term of the ASC Agreement or any Master Agreement (as such term is defined below).
  6. SUBSCRIBER’S RESPONSIBILITY: Subscriber agrees to pay ASC the charges listed in the ASC Agreement for such services.  Subscriber agrees to operate Subscriber’s System according to the procedure prescribed by the equipment manufacturer(s), which will help ensure maximum effectiveness of the System. Because Subscriber may not become aware of any defects in the System unless it is periodically tested, Subscriber agrees to test the System weekly, in accordance with applicable instructions. Subscriber agrees to notify ASC promptly in the event Subscriber needs additional instruction on testing or use of the System. In the event any defect in the operation of the System develops, Subscriber agrees to notify ASC of such defective condition as soon as reasonably possible. Subscriber acknowledges that in some local areas it is a requirement to obtain a permit or license to install and/or operate an alarm system. Subscriber agrees pay all costs to secure any permit or license that might be required.
  7. ASC’S AND ALULA’S LIABILITY AND DISCLAIMER OF WARRANTIES: TO THE FULLEST EXTENT PERMITTED BY LAW, ASC AND ALULA MAKE NO EXPRESS OR IMPLIED WARRANTIES AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION THE CONDITION OF THE SYSTEM, EQUIPMENT, OR PRODUCTS, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. ASC AND ALULA DO NOT REPRESENT OR WARRANT THAT THE EQUIPMENT OR PRODUCTS, THE SYSTEM, AND/OR INTERACTIVE SERVICES (“CUSTOMER’S EQUIPMENT”) HEREIN DESCRIBED CANNOT OR MAY NOT BE COMPROMISED OR CIRCUMVENTED; THAT CUSTOMER’S EQUIPMENT WILL PREVENT ANY LOSS BY BURGLARY, HOLD UP, FIRE, PHYSICAL INJURY, MEDICAL CONDITION OR ILLNESS, OR OTHERWISE; OR THAT CUSTOMER’S EQUIPMENT WILL IN ALL CASES PROVIDE THE DETECTION OR RESPONSE FOR WHICH IT IS INTENDED.  SUBSCRIBER ASSUMES ALL RISK OF LOSS AND/OR DAMAGE TO SUBSCRIBER’S PREMISES AND THE CONTENTS THEREOF, OR INJURY OR DEATH TO ANY PERSON. SUBSCRIBER UNDERSTANDS AND AGREES THAT ASC AND ALULA ARE NOT INSURERS; THAT INSURANCE, IF ANY, SHALL BE THE SOLE RESPONSIBILITY OF SUBSCRIBER; THAT THE PAYMENTS PROVIDED FOR THE SERVICES TO BE PROVIDED HEREUNDER ARE BASED SOLELY ON THE VALUE OF THE SERVICES SET FORTH HEREIN AND ARE UNRELATED TO THE VALUE OF SUBSCRIBER’S PREMISES OR PROPERTY LOCATED ON SUCH PREMISES. SUBSCRIBER REPRESENTS THAT SUBSCRIBER HAS NOT RELIED ON ANY STATEMENT, REPRESENTATION, ACTION, OR OTHER CONDUCT BY ASC OR ALULA IN ELECTING TO ENTER INTO THIS AGREEMENT, AND UNDERSTANDS THAT, ABSENT THIS REPRESENTATION, ASC AND ALULA WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. SUBSCRIBER AGREES THAT ANY AFFIRMATION OF FACT OR PURPORTED PROMISE MADE BY ASC OR ALULA SHALL NOT BE DEEMED TO CREATE AN EXPRESS OR IMPLIED WARRANTY; THAT SUBSCRIBER IS NOT RELYING ON ASC’S OR ALULA’S SKILL OR JUDGMENT IN SELECTING OR FURNISHING A SYSTEM SUITABLE FOR ANY PARTICULAR PURPOSE; AND THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE CONTAINED IN THIS AGREEMENT.

BECAUSE IT IS IMPRACTICAL AND DIFFICULT TO FIX ACTUAL DAMAGES, IF ANY, WHICH MAY RESULT FROM ASC’S AND/OR ALULA’S FAILURE TO PERFORM ANY OF THEIR RESPECTIVE OBLIGATIONS HEREIN (INCLUDING, WITHOUT LIMITATION, RELATED TO THE EQUIPMENT, PRODUCTS, MONITORING, OR INTERACTIVE SERVICES), OR THE FAILURE OF  CUSTOMER’S EQUIPMENT IN ANY RESPECT WHATSOEVER, OR THE FAILURE OF ANY SYSTEM, SERVICE, PERSON, OR ENTITY TO RESPOND TO A SIGNAL OR TO NOTIFY ANY PERSON OR ORGANIZATION, DUE TO, AMONG OTHER THINGS, (I) THE NATURE OF THE SERVICES TO BE PROVIDED HEREUNDER, (II) THE UNCERTAIN VALUE OF SUBSCRIBER’S PREMISES OR PROPERTY KEPT ON SUCH PREMISES, (III) THE UNCERTAINTY OF THE RESPONSE TIME OF ANY PERSON OR ENTITY RECEIVING A SIGNAL OR MESSAGE, AND (IV) THE DIFFICULTY OF ESTABLISHING A CAUSAL CONNECTION BETWEEN ANY FAILURE AND ANY DAMAGES, IF, NOTWITHSTANDING ANY OTHER PROVISIONS HEREOF, ANY LIABILITY IS IMPOSED ON ASC AND/OR ALULA, SUBSCRIBER AGREES THAT ASC’S AND ALULA’S COMBINED LIABILITY SHALL BE LIMITED TO A SUM EQUAL TO TEN PERCENT (10%) OF THE ANNUAL INTERACTIVE SERVICE CHARGE OR FIVE HUNDRED DOLLARS ($500.00), WHICHEVER IS GREATER. THIS LIABILITY SHALL BE THE EXCLUSIVE REMEDY OF SUBSCRIBER, AND THE PROVISIONS OF THIS SECTION SHALL APPLY TO LOSS OR DAMAGE, IRRESPECTIVE OF CAUSE OR ORIGIN, RESULTING DIRECTLY OR INDIRECTLY TO PERSONS OR PROPERTY, FROM PERFORMANCE OR NONPERFORMANCE OF THE OBLIGATIONS IMPOSED BY THIS AGREEMENT, OR, TO THE EXTENT PERMITTED BY LAW, FROM NEGLIGENCE, ACTIVE OR OTHERWISE, OF ASC AND/OR ALULA, OR THEIR RESPECTIVE AGENTS, ASSIGNS, OR EMPLOYEES. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT IN THE EVENT OF ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT, ALL OF THE LIMITATIONS AND DISCLAIMERS HEREIN RELATING TO THE ASC AND ALULA LIABILITIES SHALL SURVIVE SUCH TERMINATION. IF SUBSCRIBER DESIRES THAT ALULA AND ASC ASSUME LIABILITY IN AN AMOUNT GREATER THAN PROVIDED FOR HEREIN, SUBSCRIBER MAY PURCHASE FROM ASC AND ALULA A HIGHER LIMIT BY PAYING A HIGHER SERVICE FEE HERUNDER.  IF SUBSCRIBER ELECTS TO EXERCISE THIS OPTION, A RIDER SHALL BE ATTACHED TO THIS AGREEMENT, SETTING FORTH THE HIGHER LIMIT AND ADDITIONAL COST, BUT THE RIDER SHALL IN NO WAY BE INTERPRETED TO HOLD ASC AND/OR ALULA LIABLE FOR ANY LIABILITY OVER AND ABOVE THE AMOUNT AGREED TO IN THE RIDER.

NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL ALULA OR ASC BE LIABLE OR RESPONSIBLE TO SUBSCRIBER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGE OF ANY TYPE WHATSOEVER SUFFERED OR CLAIMED BY SUBSCRIBER ARISING OUT OF THE SERVICES HEREUNDER OR THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY INCREASED OPERATING EXPENSE, LOSS OF ANTICIPATED REVENUE OR PROFIT, LOSS OF GOODWILL, OR LOSS OF USE OF ANY FACILITY.

  1. AUTHORIZED PERSONNEL: Subscriber shall authorize certain persons to have access to programming and alarm records by establishing a unique username and password to the website portal. Maintaining and updating data for such relay of alarm signals to ASC’s alarm monitoring facility and electronic Notifications, Subscriber telephone contacts, email addresses, and text services, shall be the sole responsibility of the Subscriber. All Notifications, including updates, shall be provided by Subscriber utilizing the website portal. Subscriber acknowledges that changes made in the website portal do not change any alarm dispatch information contained within ASC’s monitoring station, which must be changed or modified independently.
  2. FALSE REPORTS AND ALARMS: If any fine, penalty or fee is assessed against ASC and/or Alula by any governmental agency as a result of any false alarm or violation originating from Subscriber’s premises, Subscriber agrees to reimburse ASC and/or Alula for payment of the fine, penalty or fee. In addition, in the event a false alarm originates from Subscriber’s premises and  Subscriber (or any person at Subscriber’s premises) intentionally, knowingly or negligently activated the System when no emergency condition existed, or the applicable instructions for operating and maintaining the System were not followed, such action shall be considered a material breach of Agreement by Subscriber, and Subscriber shall indemnify, defend and hold ASC and/or Alula harmless for any claims, losses, costs or expenses incurred by ASC and/or Alula, directly or indirectly, as a result of such false report.
  3. EVENTS OUTSIDE ASC’S AND/OR ALULA’s REASONABLE CONTROL: ASC and/or Alula shall not be liable for failure to perform their respective obligations hereunder or for any interruption of service at any time due to strikes, riots, floods, storms, earthquakes, fires, power failures, insurrection, interruption of or unavailability of telephone or internet service, equipment, or Products, acts of God, or any other cause beyond the reasonable control of ASC and/or Alula, including without limitation (i) ASC’s or Alula’s monitoring facility, connecting wires, radio repeater facilities, Products, or other equipment, malfunctioning, having been damaged or destroyed by fire or other catastrophe or by any other means or (ii) ASC and/or Alula being unable to either secure or retain the connections, licenses or privileges necessary for the transmission of signals between Subscriber’s premises and Alula, or Alula and ASC’s monitoring facility or between ASC’s monitoring facility and any persons or entities listed by Subscriber on Alula’s website portal.  ASC and/or Alula shall have no liability to Subscriber and will not be required to supply service to Subscriber while any interruption of service due to any such cause shall continue.
  4. ASC’S AND ALULA’s OBLIGATION: ASC’s and/or Alula’s obligations hereunder, following Subscriber’s successful installation of the Product and other equipment by ASC to Subscriber’s System, relate solely (i) to the alarm signal relay monitoring and other Products of the specified System and (ii) to attempting to retransmit any alarm signal received from Subscriber’s System to the persons or entities listed by the Subscriber on the website portal most recently received. ASC and/or Alula are not obligated to maintain, repair, or assure operation of any property or any devices of Subscriber or of others to which the System may be attached, nor to repair or redecorate any portion of Subscriber’s premises upon removal of all or part of the System. Subscriber understands that ASC and/or Alula will not send any personnel to Subscriber’s premises in response to any alarm signal received and that ASC and/or Alula do not represent or warrant that anyone contacted through the Notification system by ASC and/or Alula will respond to such contact. SUBSCRIBER RELEASES ASC AND ALULA FROM ANY RESPONSIBILITY OR LIABILITY FOR ANY FAILURE OR DELAY IN THE RELAY OF SUCH SIGNALS OR THE RESPONSE (OR FAILURE TO RESPOND) OF ANY PERSON. Subscriber acknowledges that the persons or entities listed by the Subscriber from time to time on the website portal (including without limitation third-party entities, private patrol, and/or guard services) are not the employees or contractors of ASC or Alula, and neither ASC nor Alula has any control over the policies of any such persons or entities, and neither ASC nor Alula warrants there will be a response or warrants the quality any response by any such person or entity. Subscriber understands and acknowledges that alarm companies and equipment suppliers offer several levels of alarm systems, from which the Products selected to be used in conjunction with the System have been chosen by Subscriber after considering and balancing many factors, including the levels of detection and other equipment afforded by various types of systems and related costs.  Neither ASC nor Alula shall have any liability or responsibility to Subscriber in connection with Subscriber’s System choices.
  5. INDEMNIFICATION: SUBSCRIBER HEREBY RELEASES AND SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS ALULA, ASC AND THEIR RESPECTIVE EQUITY HOLDERS, AFFILIATES, PARENT COMPANIES, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS (AND THEIR RESPECTIVE EQUITY HOLDERS, PARENT COMPANIES, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, AND AGENTS) (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) FROM AND AGAINST ANY  AND ALL CLAIMS, SUITS, ACTIONS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, JUDGMENTS, FINES, PENALTIES, LOSSES, DAMAGES, COSTS AND EXPENSES OF ANY KIND OR CHARACTER, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’ FEES , EXPERT WITNESS FEES AND COURT COSTS RELATING TO THE DESIGN, INSTALLATION OR OPERATION OF THE PRODUCT AND/OR SYSTEM, THE PERFORMANCE OF SIGNAL RELAY MONITORING OF THE SYSTEM AND ANY RISKS, LOSSES, DAMAGES, INJURIES, DEATH OR OTHER EFFECTS OF ANY HAZARD OR EVENT THAT THE SYSTEM IS INTENDED TO DETECT.

TO THE FULLEST EXTENT ALLOWED BY LAW, THIS RELEASE AND DUTY OF INDEMNIFICATION INCLUDES, BUT IS NOT LIMITED TO, CLAIMS RELATING TO OR ARISING OUT OF NEGLIGENCE, BREACH OF CONTRACT, DEATH, PERSONAL INJURY, PROPERTY DAMAGE OR LOSS OR PROPERTY, ANY THEORY OF STRICT LIABILITY, AND ANY CIVIL OR CRIMINAL FINES OR PENALTIES RELATING TO OR ARISING IN CONNECTION WITH SUCH INDEMNIFICATION OBLIGATION.  THE FOREGOING INDEMNITY SHALL INCLUDE WITHOUT LIMITATION ALL CLAIMS THAT ARE THE RESULT OF THE NEGLIGENCE OF ANY ONE OR MORE OF THE INDEMNIFIED PARTIES, UNLESS SUCH LOSSES ARE THE RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ONE OR MORE OF THE INDEMNIFIED PARTIES. SUBSCRIBER HEREBY WAIVES ANY RIGHT TO SUBROGATION, AND AGREES NOT TO PARTICIPATE WITH ANY INSURANCE COMPANY OR ANY OTHER THIRD PARTY IN ANY SUBROGATION CLAIM OR SUIT AGAINST ASC OR ALULA.

  1. ATTORNEYS’ FEES: In the event it shall become necessary for ASC and/or Alula to institute legal proceedings related to or arising out of any breach of this Agreement or other legal matter, then and in such proceedings, the unsuccessful party shall pay to the successful party reasonable attorneys’ fees permitted by law.
  2. ASSIGNABILITY; SUBCONTRACT: This Agreement may not be assigned by Subscriber without first obtaining the prior written consent of ASC and Alula.  ASC and/or Alula have the exclusive right to subcontract any portion of this Agreement or to assign their rights and/or obligations hereunder, in whole or in part, including but not limited to, installation, service, maintenance, monitoring or otherwise. Subscriber acknowledges and agrees that any subcontractor hired by ASC and/or Alula shall have the same rights afforded ASC and/or Alula under this Agreement.
  3. PARTIAL INVALIDITY; PERFORMANCE AND VENUE; GOVERNING LAW: If any provision of this Agreement is determined to be invalid or unenforceable, such determination will not affect the enforceability of the remainder of this Agreement. This Agreement is performable in Harris County, Texas, and venue for any matter relating to this Agreement shall be exclusively in Harris County, Texas. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas, without giving effect to the choice of law provisions of such jurisdiction.
  4. NOTICES: All notices required under this Agreement shall be in writing, signed, dated and sent by certified U.S. Mail, postage prepaid, return receipt requested, to Subscriber, ASC, and/or Alula at each parties’ last known address.
  5. COMPLETE AGREEMENT: Any representation, promise, condition, inducement or warranty, express or implied, unless contained in writing in this Agreement, shall not bind any of the parties, and the terms and conditions of this Agreement apply as printed without alterations or qualifications except as specifically agreed to in writing by all parties to this Agreement. Except as provided in the following sentence, it is understood and agreed by the parties that if there is any conflict between this Agreement and any other document, this Agreement will govern, regardless of whether the other document is prior to or subsequent to this Agreement.
  6.  LIABILITY OF ALULA:  Subscriber acknowledges and agrees that any obligations or responsibilities of ASC that are not also specifically described as obligations or responsibilities of Alula shall not be the responsibility of Alula and Alula shall have no liability or duty to Subscriber regarding those obligations or responsibilities and Subscriber shall look solely to ASC in connection with the enforcement of such obligations or responsibilities.