Terms and Conditions of Service and Sale
(Residential)
1. Acceptance.
(a) These terms and conditions of Mighty Fire Breaker LLC (“MFB”) and the terms of the MFB proposal/quote constitute the complete terms governing the sale and license of products including equipment, accessories (including the CitroTech fire inhibitor) and parts (“Products”), Software (as defined below), or services (“Services”, collectively with the Products and the Software, the “System”) by MFB to the original customer purchasing from MFB (the “Customer”).
(b) In addition to written or electronic acceptance, commencement of any work by MFB or Customer’s acceptance of any such work or acceptance of any delivery of the System will manifest Customer’s assent to these terms and conditions and the terms of the MFB proposal/quote (together, the “Agreement”).
(c) THIS AGREEMENT IS EFFECTIVE UNTIL MFB CHANGES IT. CUSTOMER ACKNOWLEDGES AND AGREES THAT MFB MAY CHANGE ALL OR ANY PORTION OF THIS AGREEMENT AT ANY TIME AND FROM TIME TO TIME UPON NOTICE TO CUSTOMER (INCLUDING BY PUBLISHING A CHANGED AGREEMENT TO www.citrosafe.com/termsandconditions). CUSTOMER’S CONTINUED RECEIPT OR USE OF THE SYSTEM FOLLOWING A CHANGE TO THIS AGREEMENT SHALL CONSTITUTE CUSTOMER’S ACCEPTANCE OF SUCH CHANGED AGREEMENT.
2. Taxes; Interest.
Prices are in U.S. Dollars and exclude sales, use, value-added or other taxes, import duties, tariffs, license fees or like charges (“Fees”) related to the sale, importation or use of the System or any component, and Customer is responsible for those Fees. If MFB is required to pay any Fees, Customer must fully defend and indemnify MFB for all Fees and associated costs incurred by MFB, including reasonable attorney fees and court costs.
3. Cancellation or Modification.
MFB may cancel any order or terminate any agreement relating to the purchase of MFB’s System upon reasonable prior written notice to Customer. Once MFB has begun taking actions with respect to an order, Customer cannot cancel or modify that order except with MFB’s written consent; and if Customer purports to cancel, Customer will be liable for cancellation or modification charges and all costs incurred and committed for the order or in connection with the cancellation or modification, as applicable, together with a reasonable allowance for prorated expenses and anticipated profits. Should Customer delay delivery, Customer will incur a storage fees. MFB will endeavor to comply with reasonable requests by the Customer for the postponement of delivery but will be under no obligation to do so. If postponement is agreed by MFB and the Customer in writing the Customer will be required by MFB to pay all costs and expenses including a reasonable charge for storage occasioned thereby. Risk of loss transfers to Customer upon postponement agreement where Customer is paying storage costs and expenses.
4. Warranty.
MFB warrants that for a period of two years from the date of installation (the “Warranty Period”), the Products, under normal use and given proper maintenance as determined by MFB, and the installation of the System, will be free from substantial defects in material and workmanship (the “Warranty”). Upon installation of the system, Customer is required to enter into a two year maintenance agreement with annual payments (the “Annual Maintenance Agreement”) covering one service visit per year to include system inspection, sprinkler testing, and inspection attestation for insurance purposes. If there is a breach of the Warranty during the Warranty Period, MFB will, at MFB’s option and as MFB’s sole liability and Customer’s sole remedy, repair, replace or credit Customer’s account for any Product or installation which fails to conform to the Warranty, provided that (i) during the Warranty Period, MFB is promptly notified in writing upon discovery of such failure with a detailed explanation of any alleged deficiencies; (ii) MFB is given a reasonable opportunity to investigate all claims; and (iii) MFB’s investigation confirms the alleged defects and that the defects were not a result of the Excluded Matters (defined below).
The Warranty does not apply to: (1) consumable components or ordinary wear and tear items; (2) damage caused by misuse, neglect, accident, improper operation, tampering, unauthorized alteration, modification or repair or improper testing performed by any party other than MFB; (3) erosion, earth movement, or other ground/home settling; (4) use of the System with equipment, components or parts not specified or supplied by MFB; or (5) Customer’s failure to maintain and pay for the Annual Maintenance Agreement (the “Excluded Matters”).
The Warranty covers the parts and labor for defects only and does not cover consequential losses.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS LIMITED WARRANTY IS EXCLUSIVE AND EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, OBLIGATIONS OR LIABILITIES, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. MFB DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES TO THE EXTENT PERMITTED BY LAW. INSOFAR AS SUCH WARRANTIES CANNOT BE DISCLAIMED, MFB LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION OF THE LIMITED WARRANTY REFERENCED ABOVE OR THE SHORTEST PERIOD ALLOWED BY LAW.
5. System Dependencies.
(a) To optimize the operation of the System, Customer must continuously connect the System to a dedicated electrical supply and to the internet via cellular network for the System to function properly, based on minimum requirements that may be established from time to time by MFB. Failure to continuously connect the System to a dedicated electrical supply and to the internet via cellular network may result in interruption or disconnection of the System. All fees or costs incurred by Customer in obtaining or maintaining a dedicated electrical supply and a properly functioning cellular network connection are solely the responsibility of Customer. Additionally, the System must be inspected and the CitroTech fire inhibitor refilled after each use.
(b) Customer represents that the Customer’s premises comply with all applicable building codes, rules, and regulations.
(c) Customer must not deploy their water sprinklers or spray water from any source on their premises after the System has been deployed; Customer acknowledges that doing so will compromise the System’s ability to mitigate fire damage.
(d) Customer must not tamper with, alter, modify or repair or test the System (or any component, including the sprinkler distribution, power source, holding tank(s), contents of the holding tank(s), the electrical supply or the cellular network connection) or use the System with equipment, components or parts not specified or supplied by MFB.
6. Limitation of Liability and Remedies.
IN NO CASE SHALL MFB OR ANY OF ITS DIRECT OR INDIRECT PARENTS, AFFILIATES OR SUBSIDIARIES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES, SUBCONTRACTORS, ATTORNEYS, AUTHORIZED INSTALLERS, AGENTS OR REPRESENTATIVES (EACH, AN “MFB PARTY” AND COLLECTIVELY, THE “MFB PARTIES”) BE LIABLE, AND CUSTOMER WAIVES ALL CLAIMS AGAINST EACH MFB PARTY, FOR INDIRECT, INCIDENTAL, RELIANCE, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, DOWN TIME, LOST PROFITS OR COMMERCIAL LOSSES, WHETHER OR NOT BASED ON NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION. IN NO EVENT WILL AN MFB PARTY’S LIABILITY IN CONNECTION WITH THE AGREEMENT OR SALE OF MFB’S SYSTEM EXCEED THE PURCHASE PRICE OF THE SPECIFIC MFB SYSTEM COMPONENTS AS TO WHICH THE CLAIM IS MADE.
MFB does not represent that the System may not be compromised or circumvented; that the System will prevent any property loss or damage; or that the System will in all cases provide adequate wildfire protection. Customer understands that the System may be interrupted, circumvented, unavailable (for a limited or extended time period) or otherwise compromised. ACCORDINGLY, MFB IS UNABLE TO PROVIDE ANY ASSURANCE THAT USE OF THE SYSTEM WILL ELIMINATE THE RISKS OF WILDFIRE TO PERSONS OR PROPERTY, INCLUDING THE RISK OF DEATH, PHYSICAL INJURY OR PROPERTY DESTRUCTION.
CONSEQUENTLY, NO MFB PARTY SHALL HAVE ANY LIABILITY FOR ANY LOSS, DAMAGE OR EXPENSE (COLLECTIVELY, “LOSSES”), INCLUDING ANY PROPERTY DAMAGE, PERSONAL INJURY (INCLUDING DEATH), ECONOMIC LOSSES OR ANY OTHER FORM OF LOSS, DAMAGE OR EXPENSE ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY A CLAIM THE SYSTEM FAILED TO FUNCTION PROPERLY. HOWEVER, IF ANY MFB PARTY, AS DEFINED ABOVE, IS HELD LIABLE, WHETHER DIRECTLY OR INDIRECTLY, FOR ANY LOSS ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY THE LIMITED WARRANTY OR OTHERWISE, THE AGGREGATE LIABILITY OF ALL MFB PARTIES, AS DEFINED ABOVE, SHALL BE LIMITED TO THE PURCHASE PRICE OF THE SPECIFIC MFB SYSTEM COMPONENTS AS TO WHICH THE CLAIM IS MADE, WHICH SHALL BE THE COMPLETE AND EXCLUSIVE REMEDY AGAINST THE MFB PARTIES, AS DEFINED ABOVE. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO DETERMINE THE ACTUAL DAMAGES, IF ANY, THAT MAY RESULT FROM A FAILURE OF THE SYSTEM. THIS AGREED-UPON AMOUNT (THE PURCHASE PRICE OF THE SPECIFIC MFB SYSTEM COMPONENTS AS TO WHICH THE CLAIM IS MADE) IS NOT A PENALTY, AND IS THE SOLE REMEDY.
By purchasing the System from MFB, Customer acknowledges that it has had an opportunity to review MFB’s Warranty, has done so to the degree Customer feels it needs to be familiar with them, and Customer accepts the terms and conditions, including the limitations, exclusions, and disclaimers.
NONE OF THE MFB PARTIES WILL BE LIABLE FOR ANY ALTERATION TO OR TRANSFER OF THE SYSTEM, INCLUDING REMOVING OR DISABLING SOFTWARE, APPLICATIONS, FEATURES AND/OR FUNCTIONALITIES, OR THE EXCLUDED MATTERS. ANY SUCH ALTERATION WILL VOID THE LIMITED WARRANTY OFFERED HEREIN.
7. Insurance.
THE PRICE OF THE SYSTEM IS UNRELATED TO THE VALUE OF CUSTOMER’S REAL ESTATE, IMPROVEMENTS AND PERSONAL PROPERTY LOCATED ON OR NEAR THE PREMISES AT WHICH THE SYSTEM IS INSTALLED. NO PORTION OF THE SERVICE FEE OR THE SYSTEM’S PURCHASE PRICE IS FOR INSURANCE OR SHALL BE DEEMED OR CONSIDERED INSURANCE PREMIUMS. CUSTOMER ACKNOWLEDGES AND AGREES THAT MFB IS NOT AN INSURER AND SHALL NOT PROVIDE INSURANCE COVERAGE AGAINST ANY LOSSES, AS DEFINED ABOVE. TO THE EXTENT CUSTOMER WISHES TO HAVE ANY INSURANCE COVERAGE FOR LOSSES, AS DEFINED ABOVE, IT IS CUSTOMER’S RESPONSIBILITY TO PROCURE AND MAINTAIN SEPARATE INSURANCE POLICIES FROM AN INSURANCE COMPANY OR COMPANIES, SOLELY AT CUSTOMER’S COST AND EXPENSE, FOR COVERAGE AGAINST ALL LOSSES, AS DEFINED ABOVE, INCLUDING THOSE ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY (I) THIS AGREEMENT, INCLUDING ANY BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR OBLIGATION ARISING HEREUNDER, (II) THE SYSTEM, (III) THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF AN MFB PARTY, (IV) THE IMPROPER OPERATION OR NON-OPERATION OF THE SYSTEM, (V) BREACH OF CONTRACT, EXPRESS OR IMPLIED, WHICH OCCURS BEFORE OR AFTER THE SIGNING OF THIS AGREEMENT, (VI) BREACH OF WARRANTY, EXPRESS OR IMPLIED, (VII) PRODUCT OR STRICT LIABILITY, (VIII) LOSS OR DAMAGE TO OR MALFUNCTION OF FACILITIES NECESSARY TO OPERATE THE SYSTEM, TRANSMIT ANY SIGNAL TO OR RECEIVE SIGNALS TO OR FROM THE SYSTEM, (IX) A CLAIM FOR SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, OR (X) A VIOLATION OF ANY APPLICABLE CONSUMER PROTECTION LAW OR ANY OTHER THEORY OF LIABILITY OR ALLEGED FAULT ON THE PART OF ANY MFB PARTY, AS DEFINED ABOVE. RECOVERY FOR ANY LOSS, AS DEFINED ABOVE, SHALL BE LIMITED TO THE INSURANCE CUSTOMER PURCHASES SEPARATELY FROM AN INSURANCE COMPANY, IF ANY.
8. Software Terms/License Agreement.
The Products include certain firmware, middleware, software, and mobile applications (“Mobile Apps”), that are embedded in Products or otherwise made available by MFB to Customer (together with any related documentation made available by MFB, collectively, the “Software”). All Software is licensed to Customer and not sold. Customer is licensed to use the Software solely in connection with the System. The Software is protected by copyright law and international copyright treaties as well as other intellectual property laws and treaties. Customer shall not (a) use or authorize use of the Software, for any unauthorized purpose, including, without limitation, for the purpose of offering services to third parties that are competitive to the System; (b) copy, transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau, arbitrage or other unauthorized purposes the Software or any portion thereof; or (c) modify, prepare derivative works of, translate, reverse engineer, reverse compile, disassemble the Software, or (d) attempt to do any of the foregoing. Customer’s use of Mobile Apps may be subject to additional terms.
When Customer downloads, registers, or uses the Software, MFB collects certain information. Customer agrees that MFB may use such information in accordance with the provisions of MFB’s Privacy Policy.
9. MFB Employees.
No salesperson, installer, customer service representative, independent contractor or other similarly situated individual is authorized to change or override this Agreement or enter into any agreements or execute any Customer documents affecting legal responsibilities or waiving legal rights. Any such representations, agreements or documents will not be binding on MFB or such MFB personnel.
10. Force Majeure.
MFB will not be responsible for failure to perform in a timely manner under the Agreement when its failure results from events beyond its reasonable control (an event of “Force Majeure”), including (i) acts of God, fire, casualty, accident, extreme weather (floods, drought, hurricane or tropical storm, unforeseen weather conditions that are more severe than are normally experienced in any relevant location), earthquake, epidemics, pandemics, disease outbreak, acts of war whether declared or undeclared, act of public enemy, hostilities action, civil disturbance, act of terror, riot, blockades, (ii) labor disputes (whether of MFB’s employees or the employees of others), (iii) cyber-attack, internet/telecommunications outage, electrical outage, or technical failure, (iv) the termination or suspension of Customer’s access to all or any portion of the System or a change in the software, applications, features and/or functionalities available with Customer’s equipment; or (v) raw material shortages and material increases in costs of raw materials. If there is an event of Force Majeure, the time for performance will extend for such time as reasonably necessary to enable MFB to perform.
11. Assignment; Binding Effect.
No assignment (by operation of law or otherwise) of any rights or interest or delegation of any obligation of Customer under the Agreement may be made without MFB’s prior written consent. Any attempted assignment by Customer will be void ab initio. MFB may assign the Agreement or otherwise transfer its rights and/or obligations under the Agreement, and may subcontract its services in its discretion and without notice to Customer. The Agreement will inure to the benefit of and be binding on the parties and their respective permitted successors and permitted assigns.
12. Waiver.
If there is any default by Customer, and MFB fails to insist on strict compliance with the Agreement, MFB’s actions will not waive Customer’s default or any other existing or future default or affect MFB’s legal remedies.
13. Limitation of Actions/Choice of Law/Litigation Costs.
This Agreement, and any and all claims or causes of action that arise out of or relate to this Agreement, shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. Subject to Section 19, any action or proceeding brought by Customer against an MFB Party arising out of or related to this Agreement shall be brought exclusively in a state or federal court of competent subject matter jurisdiction located in the County of New Castle, State of Delaware, and each of the parties consents to the personal jurisdiction and venue of those courts; provided, however, that, nothing herein shall be considered a waiver of diversity jurisdiction in the federal court. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement. In the event of any proceeding to enforce the terms of this Agreement or to otherwise resolve any dispute among the parties arising out of or related to this Agreement, the prevailing party in such proceeding shall be entitled to receive its reasonable attorneys’ fees, expert witness fees, interest and all costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
14. Battle of the Forms Inapplicable.
The parties have agreed, and it is their intent the battle of the forms Section 2-207 of the Uniform Commercial Code shall not apply to this Agreement or to any purchase order, invoice, acceptance form or other document of Customer relating to this Agreement.
15. Severability.
If any provision herein is held to be unlawful or unenforceable, the remaining provisions herein will remain in effect.
16. Integration and Modification.
(a) The Agreement constitutes the entire agreement between MFB and Customer with respect to the System covered by the Agreement, and supersedes and replaces any and all previous or contemporaneous arrangements, understandings or agreements, either written or verbal with respect thereto. No amendment, modification or supplement will be of any effect on MFB unless in writing and executed by an authorized executive or officer of MFB.
(b) MFB REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY CUSTOMER, WHETHER OR NOT CONTAINED IN ANY OF CUSTOMER’S BUSINESS FORMS, PURCHASE ORDERS, OR IN CUSTOMER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS WILL BE OF NO EFFECT.
17. Interpretation.
Where the context requires, the use of a pronoun of one gender or the neuter is to be deemed to include a pronoun of the appropriate gender. References herein to any law shall be deemed to refer to such law, as amended from time to time, and all rules and regulations promulgated thereunder. The words “herein,” “hereof” and “hereunder” and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. The word “or” when used in this Agreement is not exclusive and, unless the context otherwise requires, means “and/or”. References to “include,” “includes” and “including” are deemed to be followed by “without limitation”.
18. Miscellaneous.
This Agreement is not intended to, and does not, confer upon any person other than the parties hereto, any rights or remedies hereunder. The headings and other captions in this Agreement are for convenience and reference only and shall not be used in interpreting, construing or enforcing any provision of this Agreement.
19. Arbitration.
(a) Agreement to Arbitrate. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, enforcement, interpretation or validity hereof whether in contract, tort, equity or otherwise, and whether relating to the meaning, interpretation, effect, validity, performance or enforcement of this Agreement, including the determination of the scope or applicability of this agreement to arbitrate (each, a “Dispute”), shall be determined by arbitration in [ ], before one arbitrator. The arbitration shall be administered by Judicial Arbitration and Mediation Services pursuant to its Comprehensive Arbitration Rules and Procedures, in accordance with the Expedited Procedures in those Rules. The Federal Arbitration Act shall govern the interpretation and enforcement of such arbitration proceeding; accordingly, the Federal Arbitration Act shall preempt any state arbitration rules, including any rules pertaining to arbitration procedure, to the fullest extent permissible under law. The parties agree that any procedures which prolong arbitration, including, but not limited to, permitting discovery, serve to frustrate arbitration and will not be permissible.
(b) Exclusive Method. The parties agree that arbitration as provided in this Section 19 shall be the exclusive and binding method for resolving any Dispute and will be used instead of any court action, which is hereby expressly waived, except for any request by a party for temporary or preliminary injunctive relief pending arbitration in accordance with applicable law, or an administrative claim with an administrative agency. The parties expressly acknowledge and agree that they are hereby waiving any rights to trial by jury.
(c) Process. The parties agree that they will attempt, and they intend that they and the arbitrator should use their commercially reasonable efforts in that attempt, to conclude the arbitration and have a final decision from the arbitrator within one hundred and twenty (120) days after the date of selection of the arbitrator; provided, however, that the arbitrator shall be entitled to extend such period to the extent the arbitrator deems it necessary to adjudicate the claim. The arbitrator shall promptly deliver a decision with respect to the Dispute to each of the parties, who shall promptly act in accordance therewith. Each party agrees that any decision of the arbitrator shall be final and binding. It is specifically understood and agreed that any party may enforce any award rendered pursuant to the arbitration provisions of this Section 19 by bringing suit in any court having jurisdiction. The parties agree that the arbitrator shall have authority to grant injunctive or other forms of equitable relief to any party that prevails in any such arbitration.
(d) Initial Payment of Fees and Expenses. Subject to Section 19(e) below, all fees and expenses of the arbitration relating to the arbitrator shall be paid by the parties in equal shares (that is, one-half by Customer and one-half by MFB) and all other fees and expenses of the arbitration incurred by each party (including attorneys’ fees and costs) will be paid by the party incurring them.
(e) Allocation of Fees and Expenses in Award. The costs of the arbitration proceeding, including any appeal proceeding and any proceeding in court to confirm or to vacate any arbitration award, and including each party’s reasonable attorneys’ fees, costs, expert witness fees and out-of-pocket costs incurred in connection with such proceedings, shall be borne by the unsuccessful party, or at the discretion of the arbitrator, may be prorated between the parties in such proportion as the arbitrator determines equitably reflects the proportion by which the parties prevailed on their respective claims, and shall be awarded as part of the arbitrator’s final award. The parties shall provide evidence of such fees and expenses to the arbitrator.
