TERMS AND CONDITIONS TO PERSONAL EMERGENCY RESPONSE SYSTEM SERVICE AGREEMENT
The Personal Emergency Response System Equipment and Service Agreement, including these terms and conditions (the "Agreement"), is effective as of the 'order date' indicated on the Alert1 E-store Receipt and is by and between AlertOne Services, LLC (the "Company"), on the one hand, and the person(s) whose name(s) appear(s) under the words "Who Will be Using this System," ("Subscriber") and/or below the words "Who Pays for Your Order" ("Payer"). Subscriber is sometimes referred to as "you" or "your." The Company is sometimes referred to as "we," "us" or "our." "System" refers to the Company's medical alarm console, personal transmitter(s) and any other accessories or devices provided by Company, including any lock box. "Premises" refers to the address set-forth under the words "Who Will Be Using this System." "Web-Buyer" means any person other than the Subscriber or Payer who is ordering the System through the Company's website. Accepting these terms and conditions on behalf of a Subscriber constitutes (i) a representation and warranty to the Company that the person accepting such terms and conditions (the "Web User") is authorized and empowered to bind the other person to this Agreement; and (ii) acceptance to be jointly and severally bound with Subscriber to this Agreement.
Term and Renewal. The initial term of this Agreement is from the Effective Date through the end of the time period indicated on the Alert1 E-Store Receipt as "Monthly," "Quarterly" or "Annually." After the initial term, this Agreement shall renew automatically for equal, successive time periods, unless terminated pursuant to Section 2 below. If this renewal provision is not effective for any reason or if no time period is indicated on the Alert1 E-Store Receipt, this Agreement shall automatically renew from month to month.
Termination by Subscriber or Company. You may terminate this Agreement at
any time by providing the Company thirty (30) days' advance notice of your intent to terminate the
Agreement. The Company's obligation to provide monitoring service shall terminate automatically as
of the date (the "Services Termination Date") that is the earlier of the (i) the
date that is thirty (30) days following such advance termination notice and (ii) date the Company
receives its equipment back. No refunds will be provided for any prepaid amounts. Notwithstanding anything contained herein to the contrary, Company may, in its
sole discretion, terminate this Agreement, with or without cause and without any liability
whatsoever, upon ten (10) days notice to Subscriber. In the event such termination is without
cause, Company shall, upon the written request of Subscriber, refund any unearned service charges.
Your obligations under this Agreement shall survive the termination or non-renewal of this Agreement
by you or the Company for any or no reason, except you shall not have any future obligation to pay
the Company for monitoring services after the System has been returned to the Company.
Payment. Subscriber authorizes Company to charge Subscriber's credit card on file or debit Subscriber's checking account for payment. The Monitoring Service Fee for the initial term is set forth on the Alert1 E-Store Receipt. Payment for the Monitoring Service Fee for the initial term is due as of the Effective Date of this Agreement. Company shall provide Subscriber a written billing statement upon Subscriber's written request. Subscriber may pay the Monitoring Service Fee in advance for a period of up to twelve (12) months at the then current rate to ensure that the Monitoring Service Fee shall not increase during such time period. Otherwise, Company may increase the Monitoring Service Fee following the initial term of the Agreement upon written notice to Subscriber, unless the customer has bought a service plan with a lifetime price guarantee, in which case the company will not increase the Monitoring Service Plan as long as the customer remains continuously with the Company.
Monitoring Services. Monitoring service consists solely of monitoring
service personnel alerting the persons, entities or agencies identified by Subscriber to Company
("Responders") upon the monitoring facility's receipt of data or other communication from the System
reporting conditions that require assistance (a "Response Condition"). Following receipt of a
Response Condition but before alerting any Responders: (a) Company may, in its sole and absolute
discretion and without any liability, contact or attempt to contact the Premises as frequently as
the Company deems appropriate to verify the need to alert Responders to the Response Condition; and
(b) after receiving oral advice from anyone at the Premises to disregard the Response Condition, the
Company may, in its sole and absolute discretion and without any liability, refrain from alerting
the Responders or advise the Responders of the receipt of oral advice to disregard the Response
Condition. The Company shall pay any telephone toll charges for (x) incoming calls to the monitoring
station or (y) calls from the monitoring facility to Responders.
Reliability of Phone Lines. Due to the potential for service interruption
or outages on phone lines, your connection to the monitoring center is not guaranteed. Customers who
use cable or Voice over Internet Protocol (VOIP) for their phone service are subject to additional
consistency and reliability issues, The Company recommends that customers purchase land line phone
service from a reliable national provider.
Title to the System; Obligation to Return the System. Title to the System
shall remain at all times in Company. You shall return the System to Company undamaged and in good
operating condition, immediately following the Services Termination Date. If (a) you do not return
the System in accordance with this Agreement or (b) the System is damaged or not in good operating
condition, you shall pay the Company for the System at the Company’s then-existing published rates
as the agreed upon cost of replacing the System. You alone bear the risk of loss if the System is
destroyed, damaged or not delivered to the Company. Accordingly, you must, at your sole cost and
expense: (1) ship the System to Company in its original packaging; (2) use a carrier that provides
tracking information for delivery of the System; and (3) comply with the Company’s other reasonable
requirements respecting the return of the System.
System Installation and Use. Subscriber shall abide by the Company’s
then-published written requirements for the installation and use of the System found in the user
guide (the “Installation and Use Requirements”). The Installation and Use Requirements are
incorporated by reference in this Agreement as if set forth in full herein. Subscriber acknowledges
receipt of a copy of the Installation and Use Requirements with the delivery of the System. Company
may re-publish the Installation and Use Requirements from time-to-time and Subscriber shall be bound
thereby upon Company’s delivery thereof to Subscriber.
Insurance. Company is not an insurer. The monitoring service fee is based
solely upon the services company provides hereunder and is premised and conditioned upon company's
limitation of liability and other rights arising under the risk allocation clauses contained in this
agreement. Accordingly, during the term of this agreement, you shall maintain insurance in an amount
and with coverage’s sufficient to provide full and complete coverage for any loss, damage or expense
that may be sustained by you, your family or others who may be on or adjacent to the premises,
including medical insurance, disability insurance, life insurance and property insurance. You (on
behalf of yourself, your assigns, heirs, beneficiaries, creditors, representatives, agents and
affiliates) release company and the representatives (as that term is defined in the next paragraph)
for all such loss, damage and expense.
LIMITATION OF LIABILITY. SHOULD THERE ARISE ANY LIABILITY ON THE PART OF
COMPANY, ANY OF ITS PRESENT OR FORMER DIRECT OR INDIRECT SHAREHOLDERS, MEMBERS OR PARTNERS, OR ANY
PRESENT OR FORMER OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, TRUSTEE, REPRESENTATIVE, AGENT,
AFFILIATE, SUBSIDIARY, PREDECESSOR, SUCCESSOR, ASSIGN, BENEFICIARY, HEIR, EXECUTOR, INSURER,
ATTORNEY OR EMPLOYEE OF ANY OF THEM (COLLECTIVELY, “REPRESENTATIVES”) FOR ANY PERSONAL INJURY OR
DEATH OR ANY OTHER LOSS, DAMAGE, COST OR EXPENSE, INCLUDING ANY ECONOMIC LOSSES, PROPERTY DAMAGES OR
OTHER LIABILITY ARISING OUT OF OR FROM, IN CONNECTION WITH, RELATED TO, AS A CONSEQUENCE OF, OR
RESULTING FROM THIS AGREEMENT OR THE PERFORMANCE BY COMPANY OR ITS REPRESENTATIVES OF ITS
OBLIGATIONS HEREUNDER, INCLUDING THE (1) ACTIVE OR PASSIVE, SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY
KIND OR DEGREE OF COMPANY OR ANY OF THE REPRESENTATIVES, WHETHER BEFORE OR AFTER THE SUBSCRIBER’S
ACCEPTANCE OF THIS AGREEMENT, (2) IMPROPER OPERATION OF THE SYSTEM OR THE FAILURE OF THE SYSTEM TO
OPERATE, (3) BREACH OF CONTRACT, OR (4) ANY CLAIMS FOR SUBROGATION, CONTRIBUTION OR INDEMNIFICATION,
ALL SUCH LIABILITY SHALL BE LIMITED TO THE MAXIMUM SUM OF $1,000.00, COLLECTIVELY FOR COMPANY AND
THE REPRESENTATIVES. NEITHER COMPANY NOR THE REPRESENTATIVES SHALL BE LIABLE FOR ANY GENERAL,
DIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
Waiver of Subrogation. You waive any rights your insurance company may
have to be reimbursed by Company or Representatives for money paid to you or on your behalf.
Indemnification. If anyone other than you, including your insurance company,
asks company or representatives to pay for any loss, damage, cost or expense (including economic
losses, property damage, personal injury, or death) arising out of or from, in connection with,
related to, as a consequence of, or resulting from any reason, including (1) the active or passive,
sole, joint or several negligence of any kind or degree of company or any of the representatives,
(2) the improper operation of the system or the failure of the system to operate, (3) the breach of
contract, or (4) any claims for subrogation, indemnification or contribution, you agree to pay
(without any condition that company or representatives first pay) for all such loss, damage, cost
and expense, including attorneys' fees, which may be asserted against or incurred by company or any
of the representatives in connection with any and all such claims.
False Alarms and Forced Entry. If the System is activated for any reason,
you shall (i) pay, without reimbursement from Company, or (ii) reimburse Company, for any fines,
fees, costs, expenses or penalties assessed against you or Company by any court or governmental
agency. You must provide access to the premises to Responders. If you fail to provide access,
Responders may use forcible means to enter the premises, which may result in damage to the premises,
all of which damage, cost and expense shall be borne solely by you without recourse to Company or
Representatives. Company has no control over response times for Responders. You acknowledge,
understand and agree that you may be able to reach Responders or a municipal paramedic or private
ambulance service by telephone including, in many areas, by dialing 911 in addition to relying on
the System and the monitoring service provided by the Company under this Agreement. You hereby
release Company and Responders for and from all claims, losses and damages that may arise from any
forced entry or any delayed response by Responders.
Default of Subscriber. If you breach this Agreement, without limiting
Company's rights, and without any further notice, Company may retain all prepayments and you shall
immediately pay Company (a) all payments then due and payable, and (b) eighty percent (80%) of all
payments that would become due for the unexpired term as agreed upon damages and not as a penalty;
and Company shall have no further obligation to perform under this Agreement. If any claim is
asserted or any legal action, suit, mediation or arbitration proceeding is instituted, Subscriber
shall pay Company its costs and expenses of such legal action, suit, mediation or arbitration
proceeding, including consultants’ and professionals’ fees and costs and reasonable attorneys’ fees
and costs on the sole condition that Company is the substantially prevailing party by way of
termination or withdrawal of the claim, settlement, judgment or award.
Binding Agreement. This Agreement is binding on Subscriber, Subscriber's heirs, executors and administrators, any Payer and any Web-Buyer. Subscriber and Payer or Subscriber and Web-Buyer each shall be jointly and severally liable to satisfy the Subscriber's obligations under this Agreement. By accepting these terms and conditions: (a) Subscriber represents and warrants to the Company that Subscriber has the full power and authority to bind the Payer to these terms and conditions; (b) Payer represents and warrants to the Company that Payer has the full power and authority to bind Subscriber to these terms and conditions; and (c) Web-Buyer represents and warrants to the Company that Web-Buyer has the full power and authority to bind Subscriber to these terms and conditions.
Applicable Law. This Agreement shall be governed by and construed according to
the laws of the Commonwealth of Pennsylvania without reference to its conflicts of law rules. The
interpretation of this Agreement shall not be construed against the drafter.
Assignment. This Agreement is not assignable by you. This Agreement or
any portion thereof is assignable by Company in its sole discretion.
Finance and Late Charges. A finance charge equal to the lesser of (a) one and
one-half (1 1/2%) percent per month (eighteen (18%) percent per year) and (b) the maximum amount
permitted under applicable law shall apply to all obligations not paid pursuant to these terms. You
shall also pay Company an administrative fee (late charge) of 5% of any payment due that is received
by Company after the date on which such payment is due as agreed upon damages and not as a
penalty.
No Waiver of Breach. If you or Company shall waive any breach of this
Agreement it shall not be construed as a waiver of any subsequent breach. Your rights and Company's
rights hereunder shall be cumulative, and any rights hereunder may be exercised concurrently or
consecutively and shall include all remedies available even though not expressly referred to
herein.
Suspension of Service. All of Company's obligations are automatically
suspended without notice to you and you hereby waive all claims and release Company for all
liability, loss, damage and expense (i) in the event of a breach of this Agreement by you, or (ii)
if the monitoring facility, communications equipment or network or the System is destroyed, damaged,
inoperable or malfunctions for any reason whatsoever. In each such event, the duration of such
suspension shall be until the reason for the suspension is cured. Except for any suspension of
service due to a breach of this Agreement by you, you shall be entitled to reimbursement of the
unearned charge paid for the period of the suspension on your request and this shall be the limit of
Company's liability.
Limited Warranty. If the system becomes defective due to a defect in
materials, workmanship or design, company shall replace or repair the system at company's election.
This warranty is not assignable. At company's election, you must either deliver the system to
company's office (at your sole cost) or notify company of any defect so that warranty service may be
rendered. This warranty does not cover damage caused by accident, vandalism, negligence or mistake,
violation of the installation and use requirements, flood, water, lightning, fire, intrusion, abuse,
misuse, acts of god, casualty (including electricity), attempted unauthorized repair service,
modification or improper installation or use by anyone other than company, or any other cause
(excluding ordinary wear and tear). Company shall not be liable for any general, direct, special,
exemplary, punitive, incidental or consequential damages. You acknowledge that, except as expressly
set forth in this section 19: (1) any affirmation of fact or promise made by company shall not be
deemed to create an express warranty; (2) company does not make any representation or warranty,
including any implied warranty or merchantability or fitness, that the system or service supplied
may not be compromised or circumvented; (3) the system or services will in all cases be used by you
for the signaling, monitoring and response for which it was intended; (4) there are no express
warranties that extend beyond those on the face of the agreement or herein, and (5) all implied
warranties, if any, coincide with the duration of this warranty. Some states do not allow
limitations on how long an implied warranty lasts or the exclusion or the limitation of incidental
or consequential damages, so the above limitations or exclusions may not apply to you. This warranty
gives you specific legal rights and you may also have other rights that may vary from state to
state.
Integrated Agreement; Modifications. This Agreement and the Rider contain
the entire agreement between you and us concerning the transactions described in this Agreement and
the Rider and supersedes all prior or current negotiations, commitments, contracts, express or
implied, warranties, express or implied, statements and representations, written or oral, pertaining
to such matters, all of which are merged into this Agreement and the Rider. NO PERSON ACTING ON THE
COMPANY’S BEHALF HAS ANY AUTHORITY TO MAKE OR CLAIM ANY REPRESENTATION, TERM, PROMISE, CONDITION,
STATEMENT, WARRANTY, OR INDUCEMENT (COLLECTIVELY, "INDUCEMENT") NOT EXPRESSED HEREIN. BY ACCEPTING
THESE TERMS AND CONDITIONS, YOU REPRESENT THAT YOU ARE NOT RELYING ON ANY INDUCEMENT THAT IS NOT
EXPRESSED IN THIS AGREEMENT.
Valid Agreement. Should any provision hereof (or portion thereof), or its
application to any circumstances, be held illegal, invalid or unenforceable to any extent, the
validity and enforceability of the remainder of the provision and this Agreement, or of such
provisions as applied to any other circumstances, shall not be affected thereby, and shall remain in
full force and effect as valid, binding and continuing.
Waiver Of Jury Trial. You and company each waive the right to trial by
jury in any suit, action or other legal proceeding in connection with this agreement. This jury
trial waiver cannot be revoked. Any suite, action or other legal proceeding arising out of or
relating to this agreement shall be brought exclusively in the state courts of record or the courts
of the United States located in the district or county where the company's principal place of
business is located. You and company each consent to the exclusive jurisdiction and venue of each
such court in any such suit and waive any objection you may have to jurisdiction or venue of any
such suit.
Repair Service. Following Company's receipt of notice from you of the need
to service the System, Company agrees, at its election, to replace or repair the System or any
component of the System. Company makes no representation, promise, warranty or guarantee that there
will be no interruptions of service or delay in performing repair or replacement of the System. All
repairs or replacements of the System shall be performed by Company only.
Contractual Limitation of Actions. All claims, actions or proceedings by
or against Company or Representatives must be commenced in court within one (1) year after the cause
of action has accrued, without judicial extension of time, or said claim, action or proceeding is
barred. The time period in this paragraph must be strictly complied with.
Recording Consent. You, for yourself and as the authorized agent of your
family, guests, agents, servants, representatives and employees (individually and collectively, "Any
Person"), hereby consent to Company intercepting, recording, retrieving, reviewing, copying, using
and, subject to Company's privacy policy , disclosing the contents of all telephone, video, wire,
oral, electronic and other forms of transmission or communication to which Company and you or Any
Person are parties.
Headings. The paragraph titles used herein are for convenience of the
parties only and shall not be considered in construing the provisions of this Agreement. In this
Agreement, the word "including" is not a word of limitation but means "including, without limitation
or example."
Credit Investigation Report. You authorize and consent to credit
investigations and reports by the Company and Company providing information concerning you to credit
reporting agencies.
System Use. Subscriber understands, acknowledges and agrees that certain
laws, rules, regulations and ordinances of governmental authorities, utilities, businesses,
homeowners associations and other entities may affect Subscriber's rights under this Agreement
without any liability of Company. Subscriber agrees to obtain and maintain all licenses, permits
and other authorizations or consents necessary for the installation and use of the System including,
without limitation or example, notice to municipal Responders.
Company as Agent. You appoint Company as your agent for Company, in
Company's name, to give information and direction to Responder, directly or via any subcontractor of
Company, as if done by you in your own right, concerning any and all matters arising out of or from
the performance of monitoring services. In addition, you authorize Company and its subcontractors
to enter onto the Premises to inspect, test, repair, replace or modify the System. The authority
granted to Company under this section shall continue to be binding upon you until revocation in
writing, signed by you, shall have been actually received by Company and the monitoring facility;
and no such notice shall affect anything done by (a) Company in reliance hereon or (b) the
monitoring facility pursuant to the request or demand of Company prior to actual receipt by Company
and the monitoring facility of such written and signed notice of revocation. You hereby ratify and
confirm all prior and contemporaneous acts of (x) the monitoring facility pursuant to the request or
demand of Company and (y) Company pursuant to this section, which you acknowledge and agree shall be
and are deemed to be retroactive to the initial date that Company performed any Services for you or
the monitoring facility performed monitoring services on your behalf. Company shall have no
obligation to repair or redecorate any portion of the Premises at any time.
Privacy Policy. The Company strives to protect confidential customer
information in accordance with federal and state regulations on data privacy and security; in order
to comply, we need to follow verification procedures prior to releasing confidential data. As
such, it may take several weeks to provide account information to a legal representative or designee
of subscriber.
Start of Services. Company makes no promise of commencement of monitoring
services by any particular date. Monitoring services will commence after: (i) all required
information to be provided by Subscriber is entered into the computer system for Company's
monitoring facility; and (ii) an acceptable test of the System is received by Company's monitoring
facility.
Right to Subcontract. Company may, in its sole and absolute discretion,
subcontract for the provision of services under this Agreement. You acknowledge and agree that the
provisions of this Agreement inure to the benefit of and are applicable to any subcontractors
engaged by Company to provide any service set forth herein to you, and bind you to such
subcontractor(s) with the same force and effect as they bind you to Company.
Mediation. If a dispute arises out of or relates to the Agreement or the
breach thereof and cannot be settled through negotiation, the parties agree first to try in good
faith to settle the dispute by mediation administered by the American Arbitration Association under
its Commercial Mediation Rules before resorting to arbitration, litigation, or some other dispute
resolution procedure.
Electronic Media. A copy of this Agreement and signatures transmitted and
delivered by facsimile or e-mail shall be originals for all purposes. We may scan or convert this
Agreement into an electronic or digital file and a copy of this Agreement printed from such file
shall be given the same legal force and effect as the original.
ACKNOWLEDGMENTS. BY SIGNING THE RIDER WHERE INDICATED, YOU (I)
UNDERSTAND THAT THIS IS A BINDING AGREEMENT AND INCLUDE THE ABOVE TERMS AND CONDITIONS; (II) ACCEPT
THE DISCLAIMER/LIMITATION OF LIABILITY AND INDEMNITY PARAGRAPHS OF THIS AGREEMENT; AND (III)
ACKNOWLEDGE HAVING RECEIVED AND READ A COPY OF THE ENTIRE AGREEMENT BEFORE SIGNING.
RIGHT TO CANCEL. YOU MAY CANCEL THIS TRANSACTION WITHOUT PENALTY OR
OBLIGATION AT ANY TIME WITHIN 30 DAYS. See the last page of the user guide for an explanation of
this right.
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