clauses such as paragraph 5 herein and DCR, Inc. also show there can be no separate negligence liability exceeding $250. The clause here is in plain bold type. The contract is not lengthy and the language is clear. Twice in the clause any claim for Affiliated's own negligence is plainly disclaimed and/or limited.
Therefore, assuming Affiliated is determined to be negligent, its liability is limited to $250.
VI. CONCLUSION Accordingly, defendant Affiliated Central, Inc.'s motion for partial summary judgment is GRANTED and its liability, if any, is limited to $250.
NOTES [1] 5. IT IS UNDERSTOOD AND AGREED BY THE PARTIES HERETO THAT [AFFILIATED] IS NOT AN INSURER AND THAT INSURANCE, IF ANY, COVERING PERSONAL INJURY AND PROPERTY LOSS OR DAMAGE ON [THE INSUREDS'] PREMISES SHALL BE OBTAINED BY THE [INSURED]; THAT [AFFILIATED] IS BEING PAID TO MONITOR A SYSTEM DESIGNED TO REDUCE CERTAIN RISKS OF LOSS AND THAT THE AMOUNTS BEING CHARGED BY [AFFILIATED] ARE NOT SUFFICIENT TO GUARANTY THAT NO LOSS WILL OCCUR; THAT [AFFILIATED] IS NOT ASSUMING RESPONSIBILITY FOR ANY LOSSES WHICH MAY OCCUR EVEN IF DUE TO [AFFILIATED'S] NEGLIGENT PERFORMANCE OR FAILURE TO PERFORM ANY OBLIGATION UNDER THIS AGREEMENT. [AFFILIATED] HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS THAT THE SYSTEM INSTALLED BY THE INSTALLER OR SERVICE SUPPLIED BY [AFFILIATED] MAY NOT BE COMPROMISED, OR THAT THE SERVICES WILL IN ALL CASES PROVIDE THE PROTECTION FOR WHICH IT IS INTENDED.
SINCE IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES WHICH MAY ARISE DUE TO THE FAILURE OF SERVICES PROVIDED, IF, NOTWITHSTANDING THE ABOVE PROVISIONS, THERE SHOULD ARISE ANY LIABILITY ON THE PART OF [AFFILIATED], SUCH LIABILITY SHALL BE LIMITED TO $250. THIS SUM SHALL BE THE COMPLETE LIMIT OF [AFFILIATED'S] LIABILITY AND SHALL NOT BE DEEMED AS A PENALTY. IN THE EVENT THE [INSUREDS WISH AFFILIATED] TO ASSUME A GREATER OR HIGHER LIMITATION OF LIABILITY, THE [INSUREDS] MAY, AS A MATTER OF RIGHT, OBTAIN FROM [AFFILIATED] A HIGHER LIMIT BY PAYING AN ADDITIONAL AMOUNT PROPORTIONED TO THE INCREASE IN DAMAGES, BUT SUCH ADDITIONAL OBLIGATION SHALL IN NO WAY BE INTERPRETED TO HOLD [AFFILIATED] AS AN INSURER.
[THE INSUREDS AGREE] TO AND SHALL INDEMNIFY AND SAVE HARMLESS [AFFILIATED], ITS EMPLOYEES AND AGENTS, FOR AND AGAINST ALL THIRD PARTY CLAIMS, LAWSUITS, AND LOSSES ALLEGED TO BE CAUSED BY [AFFILIATED'S] PERFORMANCE, NEGLIGENT PERFORMANCE, OR FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT. [Emphasis in original.]
[2] A letter from Robert L. Ferguson, Jr. dated August 14, 1992 was included as Exhibit A attached to defendant Affiliated's reply brief.
[3] Thus, this Court does not reach the issues raised where such a provision exists in a noncommercial user setting.