1. GOVERNING PROVISIONS: This document is an offer or counteroffer by J&K SECURITY SOLUTIONS, INC. (hereinafter referred to as “J&K”) to perform certain services (“Work”) and/or to sell certain products (“Products”), in each case, as further described in the accompanying bid, proposal, quote, invoice, service order, confirmation, or other document provided by J&K to Customer herewith (the “J&K Document”) in accordance with these terms and conditions (these “Terms”), and is not a confirmation or acceptance of any offer made by customer (“Customer”); and acceptance of this offer is expressly made conditional on assent to these Terms and the other provisions contained in the J&K Document. J&K hereby objects to any additional or different terms contained in any of Customer’s purchase order, acknowledgement, request for proposal, or in any other correspondence (including any “clicks to accept” or other click through agreement) from Customer. No such additional or different terms will be of any force or effect. These Terms and any consistent terms in the J&K Document (together, the “Agreement”) collectively constitutes the entire agreement between the parties on the subject of any Products to be sold and any Work to be rendered or performed by J&K to Customer, superseding all prior written and oral communications and negotiations. This offer expires fourteen (14) calendar days after its date or upon prior written notification thereof to Customer.
2. PERFORMANCE: J&K shall provide the Products and the Work to Customer in accordance with these Terms and as supplemented by the J&K Document. J&K shall use commercially reasonable efforts to meet any performance or delivery dates specified in the J&K Document, and any such dates shall be estimates only. Work pursuant to any J&K Document includes all standard and customary equipment, tools and labor. J&K shall perform any Work at Customer’s premises at the time(s) determined by J&K after consultation with Customer between the hours of 7 a.m. and 5 p.m. Monday through Friday, excluding Saturdays, Sundays, and federal or state holidays (collectively, “Business Days”). Except as otherwise provided in the J&K Document, Products will be shipped F.C.A. J&K’s facility. Title and risk of loss pass to Customer upon transfer of the Products to the carrier. J&K shall not be liable for any delays, loss, or damage in transit.
3. CUSTOMER OBLIGATIONS: Customer shall, at Customer’s sole expense: (a) cooperate with J&K in all matters relating to the Work and the Products and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably by requested by J&K, for the purposes of performing the Work and providing and the Products, if applicable; (b) respond promptly to any J&K request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for J&K to perform Work or provide the Products in accordance with the requirements of the Agreement; (c) provide such Customer materials or information as J&K may reasonably request to carry out the Work or provide the Products in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and (d) obtain and maintain all necessary licenses, permits (including, for the avoidance of doubt, alarm permits), and consents and comply with all applicable laws in relation to the Work and the Products before the earlier of the date on which the Work is to start or the date such Products will be delivered to Customer.
4. CUSTOMER’S ACTS OR OMISSIONS: If J&K’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, J&K shall not be deemed in breach of its obligations under the Agreement or otherwise be liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
5. FEES AND EXPENSES; TAXES; PAYMENT TERMS; INTEREST ON LATE PAYMENTS: In consideration of the provision of the Work and/or supply of the Products by J&K and the rights granted to Customer under the Agreement, Customer shall pay the fees set forth in the J&K Document. Except as set forth on the J&K Document, Customer shall be responsible for all shipping and handling charges, provided that if J&K incurs any related costs or expenses, Customer shall reimburse J&K for such costs and expenses as promptly as practicable (and no later than thirty (30) days) after receipt of an invoice from J&K for such costs and expenses. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, tariffs, duties, and charges of any kind imposed by a federal, state, or local government entity on any amounts payable by Customer hereunder. Except as otherwise provided in the J&K Document, Customer shall pay all invoiced amounts due to J&K within thirty (30) days from the date of J&K’s invoice. Customer shall make all payments hereunder in U.S. Dollars by ACH credit card, wire transfer, check, or cash. In the event payments are not received by J&K within seven (7) days after becoming due, J&K may (a) charge interest on any such unpaid amounts at a rate of eighteen percent (18%) per annum or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and (b) suspend performance for all Work, delivery of any Products, or other services performed or to be performed by J&K for Customer until payment has been made in full. Customer may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with J&K, or otherwise.
6. CHANGE ORDERS:If either party wishes to change the scope or performance of the Work or the Products being sold, it shall submit details of the requested change to the other party in writing; except no such changes to any orders for Products may occur once the order has been shipped. J&K may, but is not obligated to, provide a written estimate to Customer of: (a) the likely time required to implement the change; (b) any necessary variations to the fees and other charges for the Work or the Products arising from the change; (c) the likely effect of the change on the Work or the Products; and (d) any other impact the change might have on the performance of the Agreement. Promptly after receipt of the written estimate, the parties shall negotiate in good faith and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing. Notwithstanding anything in this Section to the contrary, J&K may, from time to time change the Work and/or the Products without any notice to or consent from Customer provided that such changes do not materially affect the nature or scope of the Work, the type of such Products, the fees, or any performance dates set forth in the J&K Document. In addition, J&K may, change the Work, the Products, or the materials needed for such Work, from time to time without any notice to or consent from Customer in the event of any change in applicable law enacted after the date such J&K Document was agreed.
7. RESCHEDULING FEES: If, at no fault of J&K, Customer gives less than twenty-four (24) hours’ notice to J&K to reschedule any agreed upon appointment for Work, Customer shall owe J&K one thousand ($1,000) dollars for each Business Day that the Work is delayed. If, at no fault of J&K, installation Work is delayed for more than one (1) year from the original date of installation noted in the J&K Document, Customer shall owe J&K an additional five percent (5%) of the total contract price listed on the J&K Document. Any fees noted in this Section shall become due immediately upon demand by J&K.
8. INTELLECTUAL PROPERTY RIGHTS: All intellectual property rights, including copyrights, patents, trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Customer under the Agreement or prepared by or on behalf of J&K in the course of performing the Work or providing the Products, including any items identified as such in the J&K Document, shall belong to and remain vested in J&K. Nothing in this Agreement grants Customer any right, title, or interest in or to J&K’s Intellectual Property Rights.
9. CONFIDENTIAL INFORMATION: Any and all designs, sketches, drawings, schematics, specifications, processes, formulae, techniques, expertise, business methods, programs, software packages, machinery, technical know-how, methods and procedures of operations, business or marketing plans, proposals, licensed documentation, products or devices in development and plans for such developments, strategic plans, business and financial records, product pricing, product costs, part numbers, plans and projections, and other similar information, items, documents and materials made available by J&K or its affiliates (“Disclosing Party”) to Customer or its affiliates (“Receiving Party”), or otherwise acquired, obtained or developed by Receiving Party under or in connection with these this Agreement (collectively, the “Confidential Information”) are and at all times shall remain the exclusive property of Disclosing Party. “Confidential Information” shall not include any item of information that Receiving Party can demonstrate by documentary evidence: (a) is or has become public knowledge, whether by publication or otherwise, through no act, omission or fault of Receiving Party or any of its employees, officers, directors, agents or affiliates, (b) is lawfully known to Receiving Party before disclosure by Disclosing Party, or (c) is disclosed to Receiving Party by a third party who is in lawful, rightful possession of the information and who has the legal right to make disclosure thereof without confidentiality restrictions. During the Confidentiality Period, Receiving Party agrees that it shall not (i) make any use whatsoever of the Confidential Information except for the purpose(s) specified in this Agreement; or (ii) disclose the Confidential Information to any third party. The “Confidentiality Period” shall mean, for all Confidential Information that constitutes a “trade secret” under applicable law, the period beginning on the date of disclosure to Receiving Party and ending on the later of (A) the date such Confidential Information is no longer a trade secret under applicable law, or (B) the date that is five (5) years after the expiration or termination of this Agreement; and shall mean, for all other Confidential Information, the period beginning on the date of disclosure to Receiving Party and ending on the date that is five (5) years after the expiration or termination of this Agreement. All Confidential Information will remain Disclosing Party’s property and will, at the Disclosing Party’s option, be returned to the Disclosing Party or destroyed upon written demand by the Disclosing Party. The Receiving Party acknowledges and agrees that money damages for any and all breaches of the Receiving Party’s obligations under this Section 9 are both incalculable and insufficient and that any such breach would irreparably harm the Disclosing Party. Therefore, in the event of an actual or prospective breach of any such obligation, the Disclosing Party shall be entitled to seek a permanent and/or preliminary injunction to prevent or remedy such breach and shall have the right to specific enforcement of this Section 9 against the Receiving Party in addition to any other remedies to which the Disclosing Party may be entitled at law or in equity.
10. PASSCODE TO CPU SOFTWARE REMAINS PROPERTY OF J&K: Any passcodes necessary for access to the CPU software shall at all times remain the property of J&K. Upon termination of the Agreement, J&K shall at its option and in its sole discretion provide to Customer the passcode to the CPU software or change the passcode to the manufacturer’s default code, in each case, to be communicated to Customer in writing.
11. DESIGNS, EQUIPMENT, AND TOOLS: Any design work performed by J&K, and any dies, molds, jigs, equipment, or other tools that J&K manufactures or acquires, in connection with its performance hereunder will be and remain the sole property of J&K, notwithstanding any charges to Customer therefor. Any such charges convey to Customer the right to have the designs, dies, molds, jigs, equipment, and/or other tools used by J&K for performance hereunder, but do not convey title or right of possession or any other right. In addition, any equipment of J&K used to perform the Work, or needed to leave within the possession of Customer in order to effectuate the Work, shall remain the property of J&K and shall not be considered a fixture, or an addition to, alteration, conversion, improvement, modernization, remodeling, repair, or replacement of any part of the realty, and Customer shall not permit the attachment thereto of any apparatus not furnished by J&K.
12. CENTRAL OFFICE MONITORING: This Section 12 shall only apply in the event that alarm system Work is included in the J&K Document. Upon receipt of an alarm signal from Customer’s system, J&K or its designee central office shall make every commercially reasonable effort to notify Customer and the appropriate municipal police or fire department depending upon the type of signal received. Not all signals will require notification to the authorities and Customer may obtain a written response policy from J&K.  No response shall be required for supervisory, loss of communication pathway, trouble, or low battery signals. Customer acknowledges that signals transmitted from Customer’s premises directly to municipal police or fire departments are not monitored by personnel of J&K or J&K’s designee central office and J&K does not assume any responsibility for the manner in which such signals are monitored or the response, if any, to such signals.  Customer acknowledges that signals which are transmitted over telephone lines, wire, air waves, internet, VOIP, radio or cellular, or other modes of communication pass through communication networks wholly beyond the control of J&K and are not maintained by J&K except J&K may own the radio network, and J&K shall not be responsible for any failure which prevents transmission signals from reaching the central office monitoring center or damages arising therefrom, or for data corruption, theft or viruses to Customer’s computers if connected to the alarm communication equipment.  Customer agrees to furnish J&K with a written list of names and telephone numbers of those persons Customer wishes to receive notification of alarm signals (the “Call List”).  Unless otherwise provided in the Call List, J&K will make a reasonable effort to contact the first person reached or notified on the list either via telephone call, text, or email message.  No more than one call to the list shall be required and any form of notification provided for herein, including leaving a message on an answering machine, shall be deemed reasonable compliance with J&K’s notification obligation.  All changes and revisions shall be supplied to J&K in writing.  Customer authorizes J&K to access the control panel to input or delete data and programming.  If the equipment contains video or listening devices permitting central office to monitor video or sound, then upon receipt of an alarm signal central office shall monitor video or sound for so long as central office in its sole discretion deems appropriate to confirm an alarm condition.  If Customer requests J&K to remotely activate or deactivate the system, change combinations, openings or closings, or re-program system functions, J&K shall be entitled to charge Customer at least $90.00 for each such occurrence.  J&K may, without prior notice, suspend or terminate its services, in central office’s sole discretion, in event of central office facility or communication network is nonoperational or Customer’s alarm system is sending excessive false alarms. Central office is authorized to record and maintain audio and video transmissions, data, and communications from any and all J&K systems, and J&K shall be the exclusive owner of such property.  All Customer information and data shall be maintained confidentially by J&K.
13. REMOTE WORK ACCESS / EXCESSIVE DATA USAGE: This Section 13 shall only apply in the event that remote system Work is included in the J&K Document. If remote access and or remote viewing is included in the Work to be provided by J&K, any such equipment will transmit data via Customer’s high speed Internet, cellular or radio communication service from remote pendant supplied by J&K or Customer’s Internet or wireless connection device which is compatible with J&K’s remote Work. J&K will grant access to server permitting Customer to monitor the system, access the system to arm, disarm and bypass zones on the system, view the remote video camera(s) and control other remote automation devices that may be installed. The remote services server is provided either by J&K or a third party.  J&K shall install the camera(s) in a permissible legal location in Customer’s premises to permit Customer viewing.  J&K shall have no responsibility for failure of data transmission, corruption or unauthorized access and shall not monitor or view the camera data. J&K shall have no liability for excessive data usage expense incurred by Customer attributable to the equipment or services provided herein.  Electronic data may not be encrypted and wireless components of the system may not meet Advanced Encryption Standard specifications for encryption of electronic data established by the US National Institute of Standards and Technology and J&K shall have no liability for access to the alarm system by others.
14. LIMITED WARRANTY OF J&K:
    1. J&K warrants to Customer that it shall perform the Work in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
    2. J&K does not manufacture or control any of the Products. ACCORDINGLY, J&K DOES NOT PROVIDE ANY WARRANTIES WITH RESPECT TO THE PRODUCTS. However, the Products may be covered by the manufacturer’s warranty as detailed in the Product’s description either on J&K’s website or in the J&K Document, and any warranty information, if any, will be included with the Product upon delivery. If applicable, to obtain warranty service for any defective Products, Customer shall follow the instructions included in the manufacturer’s warranty. EXCEPT AS OTHERWISE AGREED TO IN WRITING BY J&K, NO PRODUCTS WILL BE ACCEPTED FOR RETURN, CREDIT OR REPLACEMENT THROUGH J&K.
    3. J&K shall not be liable for a breach of the warranty set forth in Section 14(a) unless Customer gives written notice of non-conformance, reasonably described, to J&K within one (1) year from the date such original Work installation.
    4. Subject to Section 14(c), J&K shall, in its sole discretion, either: (i) repair or reperform such non-conforming Work; or (ii) credit or refund the price of such Work at the pro rata contract rate. Notwithstanding the foregoing, J&K reserves the right to substitute materials of equal quality at time of replacement, or to use reconditioned parts in fulfillment of this warranty.  This warranty does not cover any aesthetic or cosmetic blemishes, faults, or issues. This warranty only covers damage above normal wear, tear, and/or use. This warranty does not include batteries, electrical surges, lightning damage, software upgrades and repairs, communication devices that are no longer supported by communication pathways, or obsolete components and components exceeding manufacturer’s useful life.  This warranty does not cover any damage to material or equipment caused by improper installation or repair by anyone other than J&K, or modification, alteration, or addition to any material or equipment by anyone other than J&K.
    5. THE REMEDIES SET FORTH IN SECTION 14(D) SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND J&K’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 14(A).
15. DISCLAIMER OF J&K WARRANTIES: EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 14(A) ABOVE, J&K MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE WORK AND THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. In addition to the foregoing, J&K neither represents nor warrants that the system may not be compromised or circumvented, or that the system will prevent any loss by burglary, hold-up, fire or otherwise; or that the system will in all cases provide the protection for which it is installed. Customer acknowledges that any affirmation of fact or promise made by J&K shall not be deemed to create an express warranty unless included in the Terms herein;  that Customer is not relying on J&K’s skill or judgment in selecting or furnishing certain Software suitable for any particular purpose and that there are no warranties which extend beyond those contained in these Terms.
16. REPRESENTATIONS AND WARRANTIES OF CUSTOMER: Customer makes the following representations and warranties to J&K, each of which is correct and complete as of the date of the Agreement or the date of the J&K Document was accepted and shall remain correct and complete during the term of the Agreement:
    1. Customer has obtained all necessary approvals to execute, deliver and perform the Agreement and any J&K Documents;
    2. the Agreement is a valid and binding agreement of Customer, enforceable in accordance with its terms;
    3. neither Customer nor any of its equityholders or employees is under any obligation or restriction, nor will any of the foregoing become subject to any obligation or restriction, that would in any way interfere or conflict with any of Customer’s performance of the Agreement or any accompanying J&K Documents; and
    4. Customer and its equityholders and employees are fully able to perform all of Customer’s obligations under the Agreement without restriction.
17. DELAY IN PERFORMANCE; FORCE MAJEURE: Neither party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement (except for obligations of Customer to make payments to J&K hereunder), when and to the extend such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, a Force Majeure Event. A “Force Majeure Event” means: electric failure, telecommunications breakdowns or power outages or shortages; strikes, walk-outs, labor stoppages or slowdowns, or other industrial disturbances; war, invasion, terrorist threats or acts, riot, or other civil unrest; acts of God; flood, fire, earthquake, or explosion; quarantine, virus, pandemic, or epidemic; government order, law, or action; embargoes or blockades in effect on or after the date of the Agreement; national or regional emergency; and any other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give prompt notice of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) days following written notice given by it under this Section 17, either party may thereafter terminate the Agreement upon thirty (30) days’ written notice.
18. TESTING OF SYSTEM: A system, once installed, is in the exclusive possession and control of the Customer, and it is Customer’s sole responsibility to test the operation of the system and to notify J&K if it is in need of repair. Any Work due to default in the system, if provided, is pursuant to Section 14.
19. CARE AND SERVICE OF SYSTEM: Customer agrees not to tamper with, remove or otherwise interfere with the system which shall remain in the same location as installed. During the warranty period, only J&K is authorized to repair, replace, and/or alter the system. Batteries, electrical surges, lightning-damage, software upgrades and repairs, communication devices that are no longer supported by communication pathways, obsolete components and components exceeding manufacturer’s useful life, are not included in service under plan and will be repaired or replaced at Customer’s expense payable at time of Work.  No apparatus or device shall be attached to or connected with the system as originally installed without J&K’s written consent.
20. ALTERATION OF PREMISES FOR INSTALLATION: J&K is authorized to make preparations such as drilling holes, driving nails, making or removing attachments, and/or doing any other thing necessary in J&K’s sole discretion in connection with J&K’s performance of the Work, and J&K shall not be responsible for any condition created thereby as a result of such Work.
21. CUSTOMER’S DUTY TO SUPPLY ELECTRIC, INTERNET AND TELEPHONE SERVICE: Customer agrees to furnish, at Customer’s expense, all 110 Volt AC power, electrical outlet, ARC Type circuit breaker and dedicated receptacle, internet connection, high speed broadband cable or DSL and IP Address, telephone hook-ups, RJ31x Block or equivalent, as deemed necessary by J&K. Customer is responsible for supplying high speed Internet access at Customer’s premises. J&K does not provide Internet service, maintain Internet connection, wireless access or communication pathways, computer, smart phone, electric current connection, or supply, or in all cases the remote video server.  In consideration of Customer making its monthly payments for remote access to the system J&K will authorize Customer limited access to the system. J&K is not responsible for Customer’s access to the Internet or any interruption of service or down time of remote access caused by loss of Internet service, radio or cellular or any other mode of communication used by Customer to access the system. Customer acknowledges that Customer’s system can be compromised if the codes or devices used for access are lost or accessed by others and J&K shall have no liability for such third-party unauthorized access.  J&K is not responsible for the security or privacy of any wireless network system or router.  Wireless systems can be accessed by others, and it is the Customer’s responsibility to secure access to the system with pass codes and lock out codes. J&K is not responsible for access to wireless networks or devices that may not be supported by communication carriers and upgrades to Customer’s system will be at Customer’s expense.
22. LIEN LAW: J&K or any subcontractor engaged by J&K to perform the Work or other work, or furnish material who is not timely paid hereunder may have a claim against Customer or the owner of the premises if other than the Customer which may be enforced against the property in accordance with the applicable lien laws or other general rights of creditors pursuant to applicable law.
23. INDEMNITY: Customer agrees to indemnify, defend, and hold harmless J&K and its parent company, their respective subsidiaries, affiliates, successors, and assigns and its and their respective directors, officers, shareholders, employees, agents, and subcontractors, from and against any and all loss, injury, death, damage, liability, claim, lawsuit, deficiency, action, judgment, interest, award, penalty, fine, cost, fees, or expenses (including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers) arising out of or occurring in connection with: (a) Customer’s use of the Work; (b) Customer’s breach of the Agreement (including any J&K Document); (c) any negligence or willful misconduct of Customer; (d) any violation by Customer, its employees, or agents of any applicable law, rule, order, ordinance, or regulation; (e) any claim of infringement or other misappropriation of Confidential Information; or (f) any claim of patent, trademark, copyright or trade secret infringement, or infringement of any Intellectual Property Rights or other proprietary rights of third parties to the extent that any Work is performed in accordance with specifications proposed or furnished by Customer.
24. NO THIRD PARTY BENEFICIARIES; NO ASSIGNMENT: The parties agree that the Agreement is for the sole benefit of the parties hereto and their successors and permitted assigns and there are no third-party beneficiaries of the Agreement. Customer shall not be permitted to assign the Agreement without written consent of J&K. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under the Agreement.
25. INSURANCE: During the term of the Agreement and for a period of three (3) years thereafter, Customer shall, at its own expense, maintain and carry insurance of the types and in the amounts reasonably requested by J&K from time to time. Customer shall ensure that J&K is named as additional insured and as a loss payee on such insurance policies, and Customer shall provide J&K with certificates of insurance upon request. Customer shall provide J&K with thirty (30) days’ advance written notice in the event of a cancellation or material change in any of Customer’s insurance policies. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against J&K’s insurers and J&K.
26. LIMITATION OF LIABILITY: IN NO EVENT SHALL J&K BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT J&K HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL J&K’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INLCUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO J&K FOR THE WORK OR SUPPLY OF THE PRODUCTS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. The Work is designed to reduce certain risks of loss, though J&K does not guarantee that no loss will occur. J&K is not assuming liability, and, therefore, shall not be liable to Customer for any loss, data corruption or inability to retrieve data, personal injury or property damage sustained by Customer as a result of intrusion, burglary, theft, hold-up, fire, equipment failure, smoke, or any other cause whatsoever, regardless of whether or not such loss or damage was caused by or contributed to by J&K’s negligent performance to any degree in furtherance of the Agreement, or negligent failure to perform any obligation pursuant to the Agreement.
27. TERMINATION: In addition to any other remedies that may be provided under the Agreement, J&K may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (a) defaults in any payment or charges to be paid to J&K when due under the Agreement; (b) by act or omission breaches or defaults on any material term or condition of the Agreement other than the obligation to make payments as and when due and Customer fails to cure such breach or default within thirty (30) calendar days after written notice from J&K; or (c) becomes insolvent, makes an assignment for the benefit of creditors, has a receiver appointed over all or any portion of its property, becomes the subject of an “order for relief” as that term is used in the U.S. Bankruptcy Code, or is liquidated or dissolved or its affairs are wound up.
28. GOVERNMENT CONTRACTS: If the provision of Work or Products by J&K under accepted orders is subject to mandatory provisions of U.S. law concerning contracts or subcontracts with or for the benefit of the U.S. or any state government, Customer shall so notify J&K in advance of order acceptance specifying the mandatory provisions of U.S. or state law which apply.
29. GOVERNING LAW: All matters arising out of or relating to the Agreement are governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Wisconsin. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION BETWEEN THEM WITH RESPECT TO ANY DISPUTE OR DISAGREEMENT ARISING OR RELATING TO THE AGREEMENT UNLESS PROHIBITED BY LAW.
30. ARBITRATION: Any and all disputes arising under or in connection with the Agreement will be exclusively resolved by final and binding arbitration. The parties may endeavor to resolve disputes by mediation at any time as they may agree, provided however that resolution of disputes by mediation is not required prior to initiating resolution of disputes by arbitration. Any such arbitration will be conducted in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”) by one arbitrator appointed in accordance with the rules of the AAA. The seat of the arbitration and hearings will be Madison, Wisconsin. The award rendered by the arbitrator will be final, binding, and nonappealable, and judgment may be entered on the award in any court having jurisdiction. Any arbitral proceeding(s) and any related award will be strictly confidential between the parties. Except as set forth in the next sentence, arbitration under this Agreement will be in lieu of all other remedies and procedures available to J&K and Customer. Notwithstanding anything to the contrary in this Section, either party may seek preliminary injunctions and interim or emergency relief which includes conservatory measures and a preliminary injunction in any court of competent jurisdiction prior to the commencement of or during the arbitration proceeding. Further, this Section will not prevent either party from joining, or bringing a claim against, the other party in a products liability action or other claim relating to a party’s Confidential Information or Intellectual Property Rights, nor will this Section be construed to modify or displace the ability of the parties to effectuate any termination contemplated by the Agreement. A request by a party to a court for such relief or the bringing of such a claim by a party will not be deemed a waiver of the obligation to arbitrate. The parties agree that any court sitting in Madison, Wisconsin, will have jurisdiction with respect to such claims for equitable relief. The parties will share equally in the costs of any arbitration, but a prevailing party will be entitled to receive, as a part of the award, its reasonable arbitrator, attorney, and expert fees incurred in connection with the arbitration or litigation (in accordance with this Section). For purposes of the Agreement, “prevailing party” means the party that prevails (whether affirmatively or by means of a successful defense) with respect to claims having the greatest value or importance as reasonably determined by the arbitrator or court.
31. NOTICE: All notice, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the J&K Document or to such other address that may be designated by the receiving party in writing in accordance with this Section. All Notices shall be made by personal delivery, nationally recognized overnight courier (with all fees paid), email (with unautomated confirmation of receipt), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving Notice has complied with the requirements of this Section.
32. J&K’S RIGHT TO SUBCONTRACT WORK: Customer agrees that J&K is authorized and permitted to subcontract any services to be provided by J&K to competent and qualified third parties who may be independent of J&K.
33. RELATIONSHIP OF THE PARTIES: The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
34. SEVERABILITY: If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
35. WAIVER: No waiver by J&K of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by J&K. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
36. SURVIVAL: Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of the Agreement including, but not limited to, the following provisions: Confidentiality, Intellectual Property, Insurance, Termination, Governing Law, Arbitration, and Survival.
37. COUNTERPARTS: Each party agrees that the Agreement and any other documents to be delivered in connection herewith may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of the Agreement and any other documents delivered in connection herewith may be delivered by email or electronically signed, and that any electronic signatures appearing on the Agreement, or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.

UPDATES. THESE TERMS MAY BE MODIFIED, AMENDED AND UPDATED FROM TIME TO TIME AT THE DISCRETION OF J&K UPON WRITTEN NOTICE TO CUSTOMER.

March 2025