This PERS Equipment and Service Agreement (this “Agreement”) is effective as of the date on which you have accepted this Agreement by clicking on the [I accept] button below or by providing clear oral consent and is entered into between Aloe Care Health, Inc. (“Company”) and you (“Subscriber”). We may modify this Agreement by written notice to you. If you do not accept any such modifications, you must stop using the Medical Alert Services (as defined below). If you continue to use the Medical Alert Services, you are deemed to have accepted any such modifications. If you are a caregiver, you agree to comply with this Agreement on your behalf and on behalf of the person you’re assisting, and you represent and warrant that you have the authority to bind such person. If you are a sales representative, case manager, Dealer (as defined below), or other individual creating an account on behalf of a Subscriber, you represent and warrant that you have the permission and authority to bind such person to this Agreement. Capitalized terms have the meanings indicated in the Agreement.
THIS AGREEMENT LIMITS OUR LIABILITY. PLEASE READ IT CAREFULLY BEFORE SIGNING.
Company is sometimes referred to as "we," "us" or "our". Subscriber is sometimes referred to as "you" or "your." The "Equipment" refers to the personal response console, personal transmitter(s) and any other accessories or devices you purchase from us, including any lock box, if applicable. "Premises" refers to Subscriber’s address. “Medical Alert Services” means the Monitoring Services and Location Based Services (as such terms are defined in this Agreement). “Application” means the mobile application that we may make available to you for use in connection with the Medical Alert Services, subject to the terms of this Agreement. “Dealer” is any home healthcare dealer that may deliver and setup Equipment and/or Medical Alert Services for the Subscriber.
Not a Substitute for 911. THE EQUIPMENT AND MEDICAL ALERT SERVICES ARE NOT A SUBSTITUTE FOR 911. IF YOU NEED HELP AND ARE ABLE TO DIAL 911, YOU SHOULD DO SO.
Term and Renewal; Termination. Unless you have agreed to a different term on the Portal (as defined below) or via the App, the term of this Agreement is month-to-month. You or we may terminate this Agreement at any time by providing thirty (30) days written notice. Our obligation to provide service shall terminate automatically as of thirtieth (30th) day following the date of such notice (the “Services Termination Date”). Subject to the terms of this Agreement, Company shall refund Subscriber any amounts pre-paid for Monitoring Services not provided following the Service Termination Date. We may terminate this Agreement for breach (including your failure to pay any amounts due hereunder) following ten (10) days written notice. Your obligations under this Agreement shall survive the cancellation or non-renewal of this Agreement by you or Company for any or no reason.
Payment. You authorize Company to charge the credit card on file or debit the checking account for payment of the Monitoring Service Fee (as indicated above). Payment is due as of the Effective Date. Company shall provide a written billing statement upon request. The Monitoring Service Fee may be paid in advance for a period of up to twelve (12) months to ensure that the Monitoring Service Fee shall not increase during such time period. Otherwise, Company may increase the Monitoring Service Fee at any time following such initial twelve (12)-month period .
Use Limitations. YOU MAY USE THE EQUIPMENT (AND RECEIVE THE MEDICAL ALERT SERVICES) ONLY WHEN THE EQUIPMENT IS LOCATED IN ONE OF THE 50 UNITED STATES, THE DISTRICT OF COLUMBIA AND PUERTO RICO. TO USE THE EQUIPMENT AND MONITORING SERVICES, THE EQUIPMENT MUST BE REGISTERED AT THE PORTAL (AS DEFINED BELOW). THERE MAY BE OTHER LIMITATIONS. (FOR EXAMPLE, THE INSTALLATION AND USE REQUIREMENTS BELOW.)
Monitoring Services. Monitoring Services means that monitoring service personnel (the “Operators”) at our authorized monitoring center (the “Monitoring Center”) will alert the persons, entities or agencies you have identified via the Portal or the App (the “Responders”) after the Monitoring Center receives data or other communication from the Equipment reporting conditions that require assistance (a “Call”). After the Monitoring Center receives a Call, but before alerting any Responders, the Operators may, in their sole discretion, (a) attempt to verify the need to alert Responders; and (b) based on information received by the Operator, decide not to alert Responders of a Call or advise Responders to disregard a Call. You also understand and agree that you may designate a 911 center or communications center (“Public Responder”) as the primary Responder, and you assume all liability should one of them not be selected as the primary Responder. If we are unable to notify your primary Responders or receive an alarm message and are unable to contact you, we may notify any Public Responder in our discretion. We will not be obligated to provide the Monitoring Services if you are late in making any payment due.
You Must Return Any Equipment We Own. This Section applies unless you purchase the Equipment from us or our authorized distributors.
We own the Equipment and you must (i) use the Equipment in accordance with any user manuals and instructions provided by Company, and (ii) return the Equipment to us undamaged and in good operating condition immediately after the Termination Date.
You agree not to tamper with, remove or interfere with the Equipment, or attach to it any equipment not provided by Company. The Equipment shall remain in the same location as installed, and you are responsible for any costs (including repair and/or replacement) resulting from any painting, alteration or damage other than ordinary wear and tear.
If you do not return the Equipment as required by this paragraph, or the Equipment you return is damaged or not in good operating condition, you must pay us for the Equipment at Company’s then-existing published rates as the agreed upon cost of replacing the Equipment. You authorize us to charge the credit card or bank account on file for these charges. You alone bear the risk of loss if the Equipment is destroyed, damaged or not delivered to Company. You must, at your sole cost and expense, (a) ship the Equipment in its original packaging; (b) insure the shipment of the Equipment at the Equipment’s agreed upon replacement cost; (c) use a carrier that provides tracking information for delivery of the Equipment; and (d) comply with Company’s other reasonable requirements respecting the return of the Equipment.
The Equipment May Not Always Work. The Equipment uses a third-party wireless telephone network (the “Network”) to transmit and receive data and other communications. You acknowledge and understand that the use of cellular-based and/or mobile solutions includes additional risks associated with the quality and reliability of cellular signals, cellular service and GPS or other location services data. In particular, if the Equipment is not connected to the Network or the Network is not available or not properly functioning for any reason, we will not receive data or other communications and will not be able to provide Monitoring Service. The Network may not be available if the Equipment is out of range or because of certain conditions such as topography, buildings or the weather. Governmental authorities limit the power that certain devices can use to transmit data and such limitations can adversely affect a device’s ability to transmit data. You are solely responsible to ensure the Equipment system has sufficient battery charge and cellular signal to transmit information.
Fall Detection. If your Equipment includes a fall detection device, the device may not detect all falls and may activate when you do not fall. In addition, please always keep in mind that the Equipment must have sufficient battery charge and cellular signal for fall detection devices to work properly. You should always push your help button when you require assistance and you should not rely exclusively on a fall detection device. This Section 7, along with Section 6 above, describe the limitations of the devices (the “Limitations”).
INSURANCE. COMPANY IS NOT AN INSURER. THE MEDICAL ALERT SERVICES FEE IS BASED SOLELY ON THE SERVICES WE PROVIDE AND THE LIMITATION OF LIABILITY AND OTHER PROTECTIONS ARISING UNDER THIS AGREEMENT. WE ARE NOT AN INSURER AND ARE NOT PROVIDING INSURANCE. ACCORDINGLY, YOU SHALL MAINTAIN INSURANCE IN AN AMOUNT SUFFICIENT TO PROVIDE FULL AND COMPLETE COVERAGE FOR ANY LOSS, DAMAGE OR EXPENSE THAT MAY BE SUSTAINED BY YOU, YOUR FAMILY OR OTHERS, INCLUDING MEDICAL INSURANCE, DISABILITY INSURANCE, LIFE INSURANCE, LIABILITY INSURANCE AND PROPERTY INSURANCE. EXCEPT IN CONNECTION WITH ANY STATUTORY AMOUNT (AS DEFINED IN THE NEXT SECTION), YOU AGREE TO (I) LOOK SOLELY TO THE INSURANCE YOU MAINTAIN IN THE EVENT OF ANY SUCH LOSS, DAMAGE OR EXPENSE AND (II) RELEASE US FOR ALL SUCH LOSS, DAMAGE AND EXPENSE.
LIMITATION OF LIABILITY. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THE COMPANY NOR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS, EMPLOYEES, DISTRIBUTORS, MANUFACTURERS OR SUB-CONTRACTORS SHALL BEAR ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE LIMITATIONS. SHOULD THERE ARISE ANY LIABILITY ON THE PART OF COMPANY OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS, EMPLOYEES, DISTRIBUTORS, MANUFACTURERS OR SUB-CONTRACTORS (COLLECTIVELY, “REPRESENTATIVES”) FOR ANY PERSONAL INJURY OR DEATH OR ANY OTHER LOSS, DAMAGE, COST OR EXPENSE, PROPERTY DAMAGE OR OTHER LIABILITY ARISING OUT OF OR FROM, IN CONNECTION WITH, OR RELATED TO, ANY REASON, INCLUDING THE (1) ACTIVE OR PASSIVE, SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF COMPANY OR REPRESENTATIVES, (2) IMPROPER OPERATION OF THE EQUIPMENT OR THE FAILURE OF THE EQUIPMENT TO OPERATE; (3) THE MEDICAL ALERT SERVICES, INCLUDING THE FAILURE TO PROVIDE THE MEDICAL ALERT SERVICES, (4) BREACH OF CONTRACT, OR (5) ANY CLAIMS FOR SUBROGATION, CONTRIBUTION OR INDEMNIFICATION, ALL SUCH LIABILITY SHALL BE LIMITED TO THE MAXIMUM SUM OF $1,000.00, OR SUCH OTHER AMOUNT AS PERMITTED BY ANY APPLICABLE STATE STATUTE, WHICH COMPANY OR ANY OF THE REPRESENTATIVES MAY VIOLATE (THE “STATUTORY AMOUNT”), COLLECTIVELY FOR COMPANY AND REPRESENTATIVES.
CONSEQUENTIAL DAMAGES. NEITHER COMPANY NOR REPRESENTATIVES SHALL BE LIABLE FOR ANY GENERAL, DIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES EVEN IF INFORMED OF THE POTENTIAL FOR SUCH DAMAGES; PROVIDED, HOWEVER, THIS SECTION SHALL NOT LIMIT ANY STATUTORY AMOUNT.
WAIVER OF SUBROGATION. YOU WAIVE ANY RIGHTS YOUR INSURANCE COMPANY MAY HAVE TO SUE 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 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) ACTIVE OR PASSIVE, SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF COMPANY OR REPRESENTATIVES, (2) IMPROPER OPERATION OF THE EQUIPMENT OR THE FAILURE OF THE EQUIPMENT TO OPERATE; (3) THE MEDICAL ALERT SERVICES, INCLUDING THE FAILURE TO PROVIDE THE MEDICAL ALERT SERVICES, (4) BREACH OF CONTRACT, OR (5) ANY CLAIMS FOR SUBROGATION, CONTRIBUTION OR INDEMNIFICATION, 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.
APPLICATION; ESSENTIAL PURPOSE. PARAGRAPHS 10-14 APPLY (I) WHETHER OR NOT THE LOSS, DAMAGE OR EXPENSE ARISES UNDER THIS AGREEMENT OR IS PREMISED ON ANY OTHER LEGAL OR EQUITABLE THEORY OR OTHERWISE; AND (II) REGARDLESS OF ANY FAILURE OF ESSENTIAL PURPOSE OF A LIMITED REMEDY.
ACKNOWLEDGMENTS. BY SIGNING THIS AGREEMENT, YOU (I) UNDERSTAND THIS IS A BINDING AGREEMENT; (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.
NO WARRANTIES. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, WHICH EXTEND BEYOND THE DESCRIPTION HEREIN, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Applicable Law. This Agreement shall be governed by and construed according to the laws of the state of New York without reference to its conflicts of law rules. The interpretation of this Agreement shall not be construed against the drafter.
Assignment. This Agreement is binding on you and your heirs, executors and administrators. You may not assign this Agreement. Company may assign this Agreement.
Finance and Late Charges. We may impose a (i) finance charge of one and one-half (1 1/2%) percent per month (eighteen (18%) percent per year); and (ii) an administrative fee (late charge) of 5% of any late payment.
No Waiver of Breach. Waiver of any breach of this Agreement shall not be a waiver of any subsequent breach. Our rights under this Agreement are cumulative, may be exercised concurrently or consecutively, and shall include all remedies, even those remedies not referred to in this Agreement.
False Alarms and Forced Entry. You are solely responsible for obtaining all required alarm permits and fees. Company shall have no liability, and you agree to indemnify Company with respect to, any permit fees, false alarms, false alarm fines, police or fire response, any damage to personal or real property or personal injury caused by police or fire department response to alarm, whether false alarm or otherwise, or the refusal of the police or fire department to respond. You must provide Responders access to the Premises. If you fail to provide access, Responders may use force to enter the Premises, and that may result in damage. You alone are responsible for any such damage. Company has no control over response times for Responders. You acknowledge that you may be able to reach Responders more quickly by telephone, including by dialing 911. You hereby release Company and Responders from all claims, losses and damages that may arise from any forced entry or delayed response.
Force Majeure; Suspension of Service. We have no obligation to provide any service to you if the Monitoring Center, communications equipment or network or the Equipment is destroyed, damaged, inoperable or malfunctions for any reason beyond our reasonable control. This includes (a) acts of God, (b) floods, earthquakes, storms of any type, (c) fire, explosions, war (declared or undeclared), invasion, hostilities, terrorism, riots or other civil unrest, (d) action by a governmental authority or any governmental orders or laws, (e) actions, embargoes or blockades; (f) strikes, labor stoppage or slowdowns; and any other event beyond our reasonable control. We have no obligation to notify you of any such event. 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 written request and this shall be the limit of Company's liability.
Intellectual Property. You will not, and will not permit others to, directly or indirectly, copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify or create derivative works of the Equipment or any of its components or software. You must keep all user names and passwords confidential. You alone assume the risk that any unauthorized person gains access or control of the Equipment or any Data.
NO WARRANTIES. YOU ACKNOWLEDGE: THAT (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 OF (A) MERCHANTABILITY, (B) FITNESS FOR A PARTICULAR PURPOSE OR (C) THAT THE EQUIPMENT OR SERVICE SUPPLIED MAY NOT BE COMPROMISED, CIRCUMVENTED, (3) THE EQUIPMENT OR MEDICAL ALERT SERVICES WILL NOT IN ALL CASES PROVIDE THE SIGNALING, MONITORING AND RESPONSE FOR WHICH IT WAS INTENDED; (4) THERE ARE NO EXPRESS WARRANTIES IN THIS AGREEMENT 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.
Equipment Service Plan. If the Equipment becomes defective for any reason, we will repair or replace the Equipment at no cost to you so long as you continue to be a Subscriber in good standing. This paragraph is a service contract, not a warranty. This service plan does not cover damage caused by accident, vandalism, negligence or mistake, violation of the installation and use requirements, flood, water, lightning, fire, abuse, misuse, acts of god, casualty (including electricity), attempted unauthorized repair service, or use by anyone other than You, or any other cause (excluding ordinary wear and tear). You must return the Equipment to us in good condition, ordinary wear and tear excepted, to permit us to repair or replace the Equipment.
Integrated Agreement; Amendment. This Agreement contains the entire agreement between you and Company concerning the transactions described in this Agreement. This Agreement 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. Any amendment of this Agreement shall be in a writing signed by both parties.
Severability. If any part of this Agreement is determined to be illegal, invalid or unenforceable, the validity and enforceability of the remainder of 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.
Third Party Beneficiaries. There are no third-party beneficiaries of the Agreement other than the Representatives who are entitled to the rights and benefits hereunder.
JURISDICTION, VENUE AND WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY AGREES THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING (“SUIT”) ARISING OUT OF OR FROM, IN CONNECTION WITH OR AS A RESULT OF THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE COMPETENT COURTS IN THE STATE OF NEW YORK. EACH PARTY CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE OF EACH SUCH COURT IN ANY SUCH SUIT AND WAIVES ANY OBJECTION THAT IT MAY HAVE TO JURISDICTION OR VENUE OF ANY SUCH SUIT. YOU KNOWINGLY WAIVE YOUR RIGHT TO BRING ANY SUIT IN FEDERAL COURT. EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING BROUGHT BY EITHER PARTY.
Right to Terminate. Company may, in its sole discretion, terminate this Agreement, without cause and without any liability whatsoever, upon ten (10) days notice. Company may also terminate this Agreement immediately in case of a material breach of this Agreement by you. In such event, Company shall, upon Subscriber’s written request, refund any unearned service charges.
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. Time is of the essence and the time period in this paragraph must be complied with strictly.
Headings. Paragraph titles are for convenience only and shall not be considered in construing this Agreement. In this Agreement, the word “including” is not a word of limitation but means “including, without limitation or example.”
Start of Services. Company makes no promise of commencement of Medical Alert Services by any particular date. Any such services will commence after (i) all information to be provided by Subscriber is entered into the computer Equipment for the Monitoring Center; and (ii) an acceptable test of the Equipment is received by the Monitoring Center. The date on which Medical Alert Services commences shall be referred to as the “Effective Date.”
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 subcontractors with the same force and effect as they bind you to Company.
Consent to Intercept, Record, Disclose And Use Data and Communications. The Monitoring Center or we may record any communications with you or others in providing services under this Agreement. Accordingly, you, for yourself and as the authorized agent of any family, guests, employees, any other person who may be on the Premises or any other person whom we may call (i) consent to Company and the Monitoring Center recording, disclosing and using the contents of any such communications (collectively, the “Recorded Data”); and (ii) release Company and the Representatives from any loss, damage or expense arising out of or in connection with the Recorded Data. You agree that Company alone owns the Recorded Data.
Consent to Communicate by Telephone. The Medical Alert Services require that we communicate with the persons whose name and telephone number you provide us. Our communication may take different forms, including a live telephone call, a pre-recorded telephone message using an auto-dialer, an SMS or other form of text message or some other form of electronic communications. We will communicate with the persons at the telephone number you provide us, including any mobile phone number or residential landline number. You will (i) inform each such person that we will communicate with them at such numbers; and (ii) obtain permission from such person that we may (a) communicate with them at such telephone numbers; and (b) record such communications as set forth more fully in the prior paragraph. You will indemnify, defend and hold us harmless (without any condition that we first pay) for any loss, damage or expense we may incur, including our reasonable attorneys’ fees, arising out of or in connection with any claims asserted against us in connection with or as a result of our communications with any such person, including any claim under any state or federal consumer protection or similar law, including the Telephone Consumer Protection Act.
System Use. Certain laws, rules, regulations, ordinances and policies may affect your rights under this Agreement. You must obtain and maintain all licenses, permits and other authorizations or consents necessary for the Equipment and Monitoring Services including local municipal notices or permits. You must abide by all laws when you use the Equipment, the Monitoring Services or the Location Based Services.
You Appoint Us as Agent. You appoint us as your agent to give information and direction to Responders or the Monitoring Center concerning matters arising under this Agreement. You ratify and confirm all acts of (i) the Monitoring Center and (ii) Company pursuant to this paragraph.
Right to Subcontract. Company may, in its sole and absolute discretion, subcontract for the provision of services under this Agreement. This Agreement inures to the benefit of and is applicable to any such subcontractors.
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.
Additional Equipment or Services. Any additional equipment or services we provide you shall be subject to this Agreement and you agree to pay us any additional charges due for such equipment or services.
Modifications. We may modify this Agreement from time-to-time by providing you reasonable written notice of such modifications. If you do not agree to such modifications, you may stop using the Equipment and Monitoring Services following written notice to us and the term of this Agreement shall terminate immediately. If you continue to use the Equipment and Monitoring Services after we notify you of a modification, you will be deemed to have accepted such modifications and this Agreement shall continue in accordance with Section 1 above.