ImOn Communications, LLC, and its affiliates or designees (collectively, “We” or “ImOn”) will provide the home security and automation product (“Service”) that you (“You” or “Customer”) purchases from ImOn. By using the Service, you agree to be bound by these additional terms and conditions, the ImOn Acceptable use Policy (“AUP”) and any other applicable ImOn policy as each may be amended from time to time. Any new ImOn terms posted on its website shall be effective upon posting and incorporated into all ImOn contracts.
1. SERVICE. ImOn agrees to provide the Services during any applicable Term agreed to with the Customer at the site(s) identified in the Service Order(s).
2. PAYMENT TERMS. Customer agrees to pay the Monthly Service fees and any “One-Time Charges" that include, but are not limited to, Service installation charge(s), repair, replacement, or any non-recurring charges. "Service Installation Charge" is the amount specified as the fee for installation of any applicable and necessary equipment.
(a) Monthly Service fees. Customer agrees to pay the Monthly Service fees in advance of the provision of the Services. Monthly Service fees are due upon the ‘Due Date’ marked on the Customer’s monthly invoice without deduction or offset of any kind or nature whatsoever.
(b) One-Time Charges. Customer agrees to pay the One-Time Charges as described on the applicable Service Order(s).
(c) Taxes, Fees, and Government Charges. Customer agrees to pay any sales, use, property, excise or other taxes, franchise fees, and governmental charges (excluding income taxes), arising under this Agreement. In addition, Customer agrees to pay any false alarm assessment imposed by any governmental body.
(d) Charges for Change Requests. Any charges associated with Service and Equipment installations, additions, modifications, substitutions, reconfigurations, or relocations at a site and requested by Customer subsequent to executing a Service Order for that site, are the sole financial responsibility of Customer. ImOn shall notify Customer, orally or in writing, of any additional One-Time Charges and/or adjustments to Monthly Service fees associated with or applicable to such Customer change requests prior to making any such additions or modifications. Customer's failure to object to such additional charges within three (3) business days of receiving such notice shall be deemed an acceptance by Customer of such charges. Customer shall be assessed such additional One-Time Charges and/or adjusted Monthly Service fees, either (i) in advance of implementation of the change request or (ii) beginning on the Customer's next and/or subsequent invoice(s).
(e) Site Visits and Repairs. If Customer's misuse, abuse or modification of the Services or Equipment supplied by ImOn necessitates a visit to the Customer site for inspection, correction or repair, Customer agrees that ImOn may charge a site visit fee as well as charges for any Equipment or Network repair or replacement necessary to restore Service.
(f) Invoicing Errors. Customer must provide notice to ImOn of any invoice errors or disputed charges within thirty (30) days of the invoice date on which the errors and/or disputed charges appear in order for Customer to receive any credit that may be due.
(g) Late Fees. If Customer fails to timely pay an invoice on the Due Date marked on the Customer Invoice, Customer agrees that ImOn will charge Customer a late fee totaling one and one-half percent (1.5%) interest per month on the outstanding, past-due balance.
(h) Non-Payment. If Services are disconnected because Customer does not timely pay the invoice, ImOn may, in its sole discretion, require that Customer pay all past due charges, a reconnect fee, and a minimum of one month's Monthly Service fees in advance before ImOn will reconnect Services.
(i) Returned Checks, Bankcard or Credit Card Charge-Backs and Collection Fees. ImOn may charge a reasonable service fee as permitted by law for all returned checks and bankcard, credit card or other charge card charge-backs.
(j) Collection Fees. Customer shall be responsible for all expenses, including reasonable attorney's fees and collection costs, incurred by ImOn in collecting any unpaid amounts due.
(k) Credit Check. Customer acknowledges that provisioning of service requires a satisfactory initial and continuing evaluation by ImOn of the Customer’s credit history, and authorizes any person or consumer reporting agency to furnish ImOn or its designee with any pertinent credit information in response to a credit inquiry by ImOn. A service deposit may be required
prior to service installation.
3. SERVICE LOCATION ACCESS, INSTALLATION and SERVICE HOURS.
(a) Access. Customer shall provide ImOn with reasonable access to each Service Location listed on a Service Order as necessary for ImOn to review, install, inspect, maintain or repair any Equipment necessary to provide the Services. If Customer owns and/or controls the Service Location(s), Customer grants to ImOn permission to enter the site(s) for the exercise of such right. If a site is not owned and/or controlled by Customer then Customer will obtain, with ImOn's assistance, appropriate right of access. If Customer is not able to gain right of access for a site from owner and/or controlling party, ImOn's obligations under this Agreement and the appropriate Service Order for such site may be terminated, null and void.
(b) Installation Review; Subsequent Interference. ImOn may perform an installation review of each Service Location prior to installation of the Services at that Service Location. ImOn may inspect the Customer Premises before beginning installation, and shall satisfy itself that safe installation and proper operation of its Equipment and the Services are possible in the location(s) provided by Customer. In the event during the initial or any renewal Service Period, (i) proper operation of ImOn's Equipment and/or unhindered provision of the Services is no longer possible as a result of interference or obstruction caused by the acts or omissions of Customer, a third party or any Force Majeure Event, or (ii) such interference/obstruction or the cause thereof will have negative consequences to ImOn's personnel or Network and/or cause technical difficulties to ImOn or its customers, as ImOn may determine in its sole discretion, ImOn may terminate the affected Service Order(s) without liability upon written notice to Customer.
(c) Site Preparation. Customer shall be responsible, at its own expense, for all site preparation activities necessary for delivery and installation of the Equipment and the installation and ongoing provision of Services.
(d) Installation. ImOn may schedule an installation visit with Customer. Customer or Customer's authorized representative who is at least 18 years of age must be present during installation. During installation, ImOn shall test to confirm that the Services can be accessed from the Service Location. In the event that during the course of installation ImOn determines additional work is necessary to enable ImOn to deliver the Services to the Service Location, ImOn will notify Customer of any new or additional One-Time Charges that may be necessary. In the event the Customer does not agree to pay such One-Time Charges by executing a revised Service Order reflecting such new charges (and superseding the underlying applicable Service Order) within five (5) business days of receiving the revised Service Order, Customer and/or ImOn shall have the right to terminate the applicable Service Order. Customer shall be responsible for access paths, moving or relocating furniture, furnishings, or equipment, or other preparation activities necessary for ImOn to install the Services. Customer shall connect any Equipment provided by ImOn to Customer's computer or network to enable access to the Services
(e) Normal field service hours for ImOn are 8:00 a.m. to 7:00 p.m. Monday through Friday. If service personnel are dispatched outside of normal service hours at the request of the customer for reasons other than complete service outage caused by ImOn, then service fees and charges may apply.
4. EQUIPMENT AND MATERIALS.
(a) Responsibilities and Safeguards. Except as otherwise provided in any applicable ImOn term and condition, neither party shall be responsible for the maintenance or repair of cable, electronics, structures, Equipment or materials owned by the other party, provided, however, that subject to the Indemnification limitations set forth below, each party shall be responsible to the other for any physical damage or harm such party causes to the other party's personal or real property through the damage-causing party's negligence or willful misconduct.
Without limiting the foregoing, Customer will not be liable for loss of or damage to cable, electronics, structures or Equipment owned by ImOn and located on Customer Premises which occurred as a result of the occurrence of any Force Majeure Event, natural disaster or other casualty loss over which Customer has no control. Customer shall:
i. Safeguard ImOn-provided Equipment against others;
ii. Not add other equipment nor move, modify, disturb, alter, remove, nor otherwise tamper with any portion of the Equipment;
iii. Not hire nor permit anyone other than personnel authorized by ImOn acting in their official capacity to perform any work on the Equipment; and
iv. Not move nor relocate Equipment to another location or use it at an address other than the Service location without the prior written consent of ImOn.
Any unauthorized connection or other tampering with the Services, Equipment, any system or its components shall be cause for immediate disconnection of Services, termination of this Agreement and/or legal action, and ImOn shall be entitled to recover damages, including, but not limited to, the value of any Services and/or Equipment obtained in violation of this Agreement in addition to reasonable collection costs including, but not limited to, reasonable attorneys' fees.
(b) Customer Security Responsibilities. Customer shall be responsible for the implementation of reasonable security procedures and standards with respect to use of and access to the Service and/or Equipment. ImOn may temporarily discontinue or disconnect the Services upon learning of a breach of security and will attempt to contact Customer in advance, if possible. The temporary discontinuation or disconnection of the Services shall not constitute a breach of this Agreement.
(c) Ownership. Customer understands and agrees that notwithstanding any other provision contained herein to the contrary, all Equipment and materials installed or provided by ImOn are and shall always remain the property of ImOn, shall not become a fixture to the Premises, and must be returned to ImOn at any time Services are disconnected in the condition in which they were received subject to ordinary wear and tear. Customer will not sell, lease, assign nor encumber any Equipment.
(d) Equipment Return, Retrieval, Repair and Replacement. Immediately upon termination of Services ("Termination" shall mean the termination of any Service Agreement and/or Service Order(s)), at the discretion of ImOn, Customer shall return, or allow ImOn to retrieve, the Equipment supplied by ImOn to Customer, in good condition. Failure of Customer to return, or allow ImOn to retrieve, Equipment within three (3) calendar days after Services are terminated will result in a charge to Customer's account equal to the following amounts:
$525 Control Touch Panel
In addition, Customer agrees to pay for the repair or replacement of any damaged Equipment (whether or not caused by Customer's negligent act, except such repairs or replacements as may be necessary due to normal and ordinary wear and tear or material/workmanship defects), together with any costs incurred by ImOn in obtaining or attempting to regain possession of such Equipment, including, but not limited to, reasonable attorneys' fees.
5. CUSTOMER USE. Customer agrees not to re-sell or re-distribute access to the Service(s) or system capacity, or any part thereof, in any manner without the express prior written consent of ImOn. Customer agrees not to use or permit third parties to use the Service(s), including but not limited to the Equipment and software provided by ImOn, for any illegal purpose, or to achieve unauthorized access to any computer systems, software, data, or other copyright or patent protected material. Customer agrees not to interfere with other customers' use of the Equipment or Services or disrupt the ImOn Network, backbone, nodes or other Services. Violation of any part of this section is grounds for immediate Termination of the Service without penalty in addition to any other rights or remedies ImOn may have hereunder.
6. DEFAULT; SUSPENSION OF SERVICE; TERMINATION. No express or implied waiver by ImOn of any event of default shall in any way be a waiver of any further subsequent event of default. Nothing herein, including, but not limited to Termination, shall relieve Customer of its obligation to pay ImOn all amounts due.
(a) Default by Customer. Customer shall be in default under these terms and conditions in the event that the Customer does one (1) or more of the following (each individually to be considered a separate event of default) and the Customer fails to correct each such noncompliance within twenty (20) days of receipt of written notice in cases involving non-payment or within thirty (30) days of receipt of written notice in cases involving any other noncompliance:
i. Customer is more than thirty (30) days past due with respect to any payment required hereunder;
ii. Customer otherwise has failed to comply with these terms or any other Service Order(s) incorporated herein by execution thereof by the parties.
(b) ImOn's Right to Terminate and Termination Charge. In the event Customer is in default, ImOn shall have the right, at its option, and in addition to any other rights of ImOn expressly set forth in this Agreement and any other remedies it may have under applicable law, to:
i. Immediately suspend Services to the Customer until such time as the underlying noncompliance has been corrected without affecting Customer's on-going obligation to pay ImOn any amounts due under this Agreement (e.g., the Monthly Service fees), as if such suspension of Services had not taken place; or
ii. Terminate the Services and Customer agrees to pay any applicable ETC defined in the Agreement.
(c) Default by ImOn. ImOn shall be in default in the event that ImOn fails to comply with the terms of these terms and conditions and/or any or all of the applicable Service Order(s), and ImOn fails to remedy each such noncompliance or occurrence within thirty (30) days of receipt of written notice from Customer describing in reasonable detail the nature, scope and extent of the default or noncompliance:
(d) Customer's Right to Terminate and Termination Charge. Customer shall have the right, at its option and in addition to any other remedies it may have, to terminate any applicable Service Order(s), if the underlying event of default and/or noncompliance by ImOn is limited to Services provided under the applicable Service Order(s) or this Service Agreement, and if ImOn's diligent efforts to correct such breach are not commenced and pursued within thirty (30) days after ImOn's receipt of a written notice from the Customer describing in reasonable detail the nature, scope and extent of the event of default/noncompliance.
7. LIMITATION OF LIABILITY. PLEASE READ THIS SECTION CAREFULLY, IT CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY.
(a) Limited Warranty. At all times during the Service, ImOn warrants only that all material is installed in a good and workmanlike manner. This warranty is not assignable. THE FOREGOING LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL EXPRESS AND IMPLIED WARRANTIES WHATSOEVER. EXCEPT AS OTHERWISE STATED IN THIS SERVICE AGREEMENT, IMON MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE PROVISIONED HEREUNDER AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. This warranty does not cover any damage to material or equipment caused by accident, vandalism, fire, water, lightning, act of God, repair service, modification or improper installation by anyone other than ImOn, or any other cause other than ordinary wear and tear.
IMON SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF SERVICES HEREUNDER (INCLUDING ANY SERVICE IMPLEMENTATION DELAYS AND/OR FAILURES), UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF IMON HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS APPLIES TO ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. IMON SHALL ALSO NOT BE LIABLE FOR ANY DAMAGES OF ANY TYPE INCURRED BY CUSTOMER IN THE EVENT THAT CUSTOMER IS IN DEFAULT BY FAILURE TO TIMELY PAY HIS/HER INVOICE FOR SERVICES RESULTING IN IMON SUSPENDING OR SHUTTING OFF SUCH SERVICE. IMON SHALL ALSO NOT BE LIABLE FOR ANY DAMAGES OF ANY TYPE INCURRED BY CUSTOMER REGARDING THE CUSTOMER’S HEATING AND COOLING SYSTEM IN USE WITH THE Z WAVE THERMOSTAT AND THE IMON HOME SECURITY PRODUCT, NOR SHALL IMON BE RESPONSIBLE OR LIABLE FOR ANY MAINTENANCE OR SUPPORT OF THE CUSTOMER’S HEATING AND COOLING SYSTEM.
Customer acknowledges that any affirmation of fact or promise made by ImOn shall not be deemed to create an express warranty, that ImOn does not make any representation or warranty, including any implied warranty of merchantability or fitness that the system or service supplied may not be comprised, circumvented, or the system or services will in all cases provide the signaling, monitoring and response for which it was intended, that there are no express warranties beyond those on the face of this Agreement.
(b) Force Majeure Event. Customer agrees that ImOn shall not be liable for any inconvenience, loss, liability or damage resulting from any failure or interruption of Services, directly or indirectly caused by circumstances beyond ImOn's control. In addition, if performance by ImOn of any obligation under this Agreement is prevented, restricted or interfered with by causes including without limitation failure or malfunction of Customer-supplied equipment, acts of God, explosions, terrorism, vandalism, cable cut, storms, fires, floods or other catastrophes, power failure, national emergencies, insurrections, riots, wars, strike, lockouts, boycotts, work stoppage or other labor difficulties, or any law, order, regulation or other actions of any
governmental authority, agency, instrumentality, or of any civil or military authority, then ImOn shall be excused from such performance on a day-to-day basis to the extent of such restriction or interference. ImOn will use reasonable efforts under the circumstances to avoid or remove such causes of nonperformance with reasonable dispatch.
8. INDEMNIFICATION. Customer agrees, at its own expense, to indemnify, defend and hold harmless ImOn and its directors, employees, representatives, officers and agents, (the "Indemnified Parties") against any and all claims, liabilities, lawsuits, damages, losses, judgments, costs, fees and expenses incurred by ImOn Indemnified Parties, including but not limited to, reasonable attorneys' fees and court costs incurred by ImOn Indemnified Parties provided under these terms and conditions, to the full extent that such arise from Customer's misrepresentation with regard to or noncompliance with the terms of the Service and any or all Service Orders, Customer's failure to comply with applicable law, and/or Customer's negligence or willful misconduct. ImOn Indemnified Parties shall have the right but not the obligation to participate in the defense of the claim at Customer‘s cost and Customer agrees to cooperate with ImOn Indemnified Parties in such case.
9. TITLE. Title to the Equipment shall remain at all times with ImOn. Customer shall keep that portion of the Equipment located on Customer Premises free and clear of all liens, encumbrances and security interests. Upon Termination of Service or expiration of a Service Order's Service Term for a specific site, ImOn shall have the right to remove all Equipment components and/or leave any of such components in place, assigning title and interest in such components to the Customer, it being understood that no further notice or action is required to accomplish the assignment contemplated hereunder. ImOn shall have the right to remove the Equipment and all components immediately after any such Termination.
10. COMPLIANCE WITH LAWS. Customer shall not use or permit third parties to use the Services in any manner that violates applicable law or causes ImOn to violate applicable law. Both parties shall comply with all applicable laws and regulations when carrying out their respective duties hereunder.
11. PRIVACY. ImOn treats private communications on or through its Network or using any Service as confidential and does not access, use or disclose the contents of private communications, except in limited circumstances and as permitted by law.
12. GENERAL CUSTOMER REPRESENTATIONS AND OBLIGATIONS. Customer represents to ImOn that Customer has the authority to execute, deliver and carry out the terms of the Service. Customer also represents that any person who accesses any Services through Customer's equipment or through the Network facilities in Customer's Premises will be an authorized user, will use the Service, Network and/or Network facilities in an appropriate and legal manner, and will be subject to these terms. Customer shall be responsible for ensuring that all such users understand the Service and comply with its terms.
The Customer shall be responsible for all access to and use of the Service by means of the Customer's equipment, whether or not the Customer has knowledge of or authorizes such access or use. The Customer shall be solely liable and responsible for all charges incurred and all conduct through either authorized or unauthorized use of the Service, until the Customer informs ImOn of any breach of security.
13. NOTICES. Any notices to be given shall be validly given or served only if in writing and sent by nationally recognized overnight delivery service or certified mail, return receipt requested, to the following addresses:
If to ImOn:
ATTN: Customer Care Manager
625 First Street, SE, Suite 250
Cedar Rapids, IA 52401
If to Customer:
See Customer's Service Order.
Each party may change its respective address (es) for legal notice by providing notice to the other party.
14. Customer acknowledges and agrees to the following: (a) neither ImOn nor its directors, officers, shareholders, partners or employees (collectively, “representatives”) is an insurer; (b) it is the specific intent of the parties that (i) insurance covering all loss, damage, and expense arising out of or from, in connection with, related to, as a consequence of or resulting from this Agreement, shall be obtained and continuously maintained by the Customer, (ii) recovery of all such loss, damage and expense shall be limited to any such insurance coverage only, (iii) ImOn and its representatives are released from any and all liability for all such loss, damage and expense, (c) ImOn and its representatives, except as set forth herein, make no guarantee, representation or warranty, (d) ImOn and its representatives are released for all loss, damage or expense which may occur prior to, contemporaneously with, or subsequent to the execution of this Agreement due to the improper operation or non-operation of the system or the response time of third party emergency personnel; and (e) should there arise any liability on the part of ImOn or its representatives for economic losses, personal injury, including death or property damage (real or personal) that is in connection with, arises out of or from, results from, is related to or is a consequence of the active or passive sole, joint or several negligence of any kind or degree of ImOn or its representatives including, without limitation, acts, errors or omissions which occur prior to, contemporaneously with or subsequent to the execution of this Agreement, or breach of this Agreement, or any claim brought in product or strict liability, subrogation, contribution or indemnification, whether in contract, tort or equity, including without limitation, any general, direct, special, incidental, exemplary, punitive, statutory or consequential damages, irrespective of cause, such liability shall be limited to the maximum sum of $250.00 collectively against ImOn and its representatives, and this liability shall be exclusive.
15. Customer authorizes ImOn to perform the installation during regular work hours with Customer furnishing any necessary electric power at Customer’s cost. Installation charges referenced in this Agreement are based on ImOn performing the installation with its own personnel or contractors or its choosing. If, for any reason, these services must be performed by another contractor, charges shall be revised accordingly. If any inspection bureau, or any other agency having jurisdiction, or the Customer by his own act, shall require or make necessary any changes in the system, installation must be requested in writing by Customer and shall be paid for by Customer. ImOn is authorized to make any preparation appropriate to the installation of the system, such as drilling holes, making attachments or doing any other thing reasonably necessary to provide the Service.
16. Any conflicts between these website terms and conditions related to the Home Security Product and other ImOn terms and conditions, the Home Security Product terms and conditions control.
17. RELEASE. Customer hereby releases ImOn for all losses, damages and expenses (i) covered by the Customer’s insurance policies, (ii) including, without limitation, policy deductibles, co-pay percentage, or retained limits, (iii) in excess of amounts paid by Customer’s insurance, and (iv) due to under insurance. As an inducement to ImOn to enter into this Agreement, Customer further represents, warrants and covenants that Customer’s insurance companies shall not have (a) any rights created by a loan agreement, loan receipt, or other like document or procedure, or (b) any right to subrogation against ImOn.
(a) Entire Agreement. These terms and conditions and any related, executed Service Order(s) constitute the entire Agreement with respect to the Services and Equipment. These terms and conditions supersedes all prior understandings, promises and undertakings, if any, made orally or in writing by or on behalf of the parties with respect to the subject matter of this Service Agreement. Customer acknowledges and agrees that no oral representations by any ImOn employee can be relied upon to supersede any term stated in the ImOn contract executed by the Customer. If the terms of the ImOn contract conflict with any alleged oral representation made by any ImOn employee, the ImOn contract controls.
(b) No Amendments, Supplements or Changes. These terms and conditions and the associated executed Service Order(s) may not be amended, supplemented or changed by Customer without the prior written consent of ImOn.
(c) No Assignment or Transfer. The parties may not assign or transfer (directly or indirectly by any means, by operation of law or otherwise) the Service Agreement, if any, and the associated Service Order(s), or their rights or obligations hereunder to any other entity without first obtaining written consent from the other party, which consent shall not be unreasonably withheld, provided, however, that ImOn may assign any Service Agreement and the associated executed Service Order(s) to affiliates controlling, controlled by or under common control with ImOn, or to its successor-in-interest in the event ImOn sells the underlying communications system, without Customer's consent.
(d) Severability. If any term, covenant, condition or portion of these Terms and Conditions shall, to any extent, be invalid or unenforceable, the remainder of these Terms and Conditions shall not be affected and each remaining term, covenant or condition shall be valid and enforceable to the fullest extent permitted by law.
(e) Section Headings. The section headings are furnished for the convenience of the parties and are not to be considered in the construction or interpretation of these terms.
(f) Governing Law. These terms and conditions and all matters arising out of or related to Services provided shall be governed by the laws of the State of Iowa, without regard to conflicts of law provisions. Customer agrees that the federal and state courts of Iowa alone have jurisdiction over all disputes arising under this Agreement, and Customer consents to personal jurisdiction of those courts with respect to any disputes arising under this Agreement. IN ANY AND ALL CONTROVERSIES OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, ITS NEGOTIATION, ENFORCEABILITY OR VALIDITY, OR THE PERFORMANCE OR BREACH THEREOF OR THE RELATIONSHIPS ESTABLISHED HEREUNDER, CUSTOMER AND IMON EACH HEREBY WAIVES ITS RIGHT, IF ANY, TO TRIAL BY JURY.
(g) Both parties hereby acknowledge that no court in construing these terms and conditions shall construe it more stringently against one party than against the other.
(h) No Third Party Beneficiaries. The parties agree that the terms of the Service and the parties' respective performance of obligations as described are not intended to benefit any person or entity not a party to the Service, and that the consideration provided by each party under the Service only runs to the respective parties hereto, and that no person or entity not a party to these terms and conditions shall have any rights under these terms and conditions or the right to require the performance of obligations by either of the parties.
(i) Waiver. Except as otherwise provided herein, the failure of ImOn to enforce any provision of these terms and conditions shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.
(j) Attorney’s Fees and Costs. In the event that ImOn has to bring any legal action based on this Agreement and substantially prevails in its claim, Customer agrees to reimburse ImOn for all reasonable attorney’s fees and costs incurred by ImOn related to the legal action.
19. ASSET OR STOCK SALE. In the event that Customer enters into an asset sale or a stock sale that involves an existing Customer location served by ImOn, Customer agrees to remain liable for any applicable early termination charge ("ETC"), unless the buyer assumes the existing ImOn contract in its entirety in writing and ImOn consents in writing to any such assumption by the buyer. Unless Customer can prove to ImOn, at its sole discretion, that a buyer has either assumed the Customer's existing ImOn contract or that a buyer has executed a new ImOn contract and that ImOn has released the Customer in writing from all remaining ImOn obligations at the closing of the asset sale or stock sale, Customer agrees to remain liable to ImOn for any applicable ETC.