MEDICAL ALERT SOUTHWEST
2651 Sagebrush Dr. #104
Flower Mound, Texas 75028
TERMS AND CONDITIONS – STANDARD PERSONAL EMERGENCY RESPONSE LEASE
The parties hereto agree that:
Subscriber (referred to as “you”) agrees to subscribe to monitoring service for the PERS systems described within this Agreement (each generally referred to as the “System”) provided to you by Medical Alert Southwest (herein referred to as MAS). MAS agrees to provide the Systems and monitoring services in accordance with the terms of this Agreement.. IF ANYONE OTHER THAN SUBSCRIBER IS THE USER OF ANY OF THE SYSTEMS OR SERVICES SUCH USER IS A THIRD PARTY BENEFICIARY TO THIS AGREEMENT AND IS BOUND BY ALL OF THE TERMS HEREIN, INCLUDING MAS’s DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY. The person using a System (Subscriber or another user) is referred to herein as the “User”.
1. PERSONAL EMERGENCY RESPONSE SYSTEM: The PERS System components, at all times, remain the property of MAS and are provided as part of the service. At the end of this Agreement, you must return all PERS System components to MAS in good operating condition. If you fail to do so within ten (10) days following the expiration or termination of this Agreement, you will be fully liable for the value of all System components, which you agree is $299.99 for each PERS System not returned fully functional, and you further agree that we may charge your credit card for said amount, which we may retain as payment in full for the System. The PERS System may include and is not limited to some or all of the following, Software, GPS enabled communication device, charger, base unit with transmitter, connection communication wire and remote devices, and accessories selected above. If PERS System to be installed by Subscriber then PERS System will be shipped point of sale FOB and price excludes shipping, handling and sales tax, if any. Agreed Value of Equipment: $ 299.99.
MAS shall provide the system and provide instructions to the Subscriber in the proper installation and use of the Personal Emergency Response System (hereinafter referred to as PERS System). The PERS System may be consist of and or a hardware device and accompanied with a software program also known as an “APP”.
2. SCHEDULE OF EQUIPMENT/SERVICES:
The System is set up and connected by the User. The System will be delivered to you by MAS, and a setup instruction sheet will be included with the System. Additional installation assistance and additional information regarding System activation is contained on our website at www.medicalalertsouthwest.com. You will provide a 110-volt non-switched electrical outlet for the System’s transformer (charger). During the term of this Agreement we will monitor the System in accordance with the provisions set forth herein. The PERS is intended to be used only for medical and similar personal emergencies, and not as a burglar or fire alarm system. WE WILL NOT PROVIDE MONITORING SERVICE AND WE WILL HAVE NO OBLIGATION TO NOTIFY EMERGENCY PERSONNEL OR OTHER PERSONS ON YOUR INFORMATION FORM UNTIL WE HAVE RECEIVED AND PROCESSED (1) A COPY OF THIS AGREEMENT SIGNED BY YOU; (2) YOUR COMPLETED PERS CALL LIST; AND (3) TEST SIGNALS FROM THE SYSTEMS.
3. CANCELLATION AND REFUND POLICY:
If Subscriber cancels this agreement pursuant to any statutory authority, MAS will, within 10 days or within such time as such statute specifies, upon such cancellation and return of equipment if provided by MAS, and or the removal of any provided software, refund to Subscriber any amount paid for the equipment and any advance payment for services not yet rendered.
4. PAYMENT TERMS AND OTHER CHARGES:
Subscriber agrees to pay MAS:
a) SYSTEM: The PERS System components, at all times, remain the property of MAS and are provided as part of the service. At the end of this Agreement, you must return all PERS System components to MAS in good operating condition. If you fail to do so within ten (10) days following the expiration or termination of this Agreement, you will be fully liable for the value of all System components, which you agree is $299.99 for each PERS System not returned fully functional, and you further agree that we may charge your credit card for said amount, which we may retain as payment in full for the System. The PERS System may include and is not limited to some or all of the following, Software, GPS enabled communication device, charger, base unit with transmitter, connection communication wire and remote devices, and accessories selected above. If PERS System to be installed by Subscriber then PERS System will be shipped point of sale FOB and price excludes shipping, handling and sales tax, if any. Agreed Value of Equipment: $ 299.99.
b) MONITORING: The monthly sum will be payable at your option (Monthly, Quarterly, Annually) in advance for monitoring service of the PERS System. The monthly service fee will be billed and is payable in advance for the selected billing cycle. The original term of this Agreement is the billing cycle you selected and will continue to automatically renew for the same cycle thereafter (e.g. month to month, quarter to quarter or year to year), unless terminated as set forth below.
c) EXTENDED WARRANTY OPTION: Subscriber agrees to pay MAS the sum of $4.99 plus tax, per month, payable monthly in advance to extend the Limited Warranty in this Agreement on PERS devices provided by MAS for so long as Subscriber continues to pay Monitoring and Extended Warranty charges.
5. TERM OF AGREEMENT:
a) TERMINATION: Either party may terminate this Agreement at the end of the original term or any renewal term by giving the other If, at the end of the original or any renewal term, you wish to discontinue PERS and retain other services, you may do so, pursuant to a new agreement to be entered into between MAS and you.
b) OTHER CHARGES: Subscriber agrees to pay all sales, service, property, use and local taxes; any ambulance or paramedic charges or fees; and any permit fees, telephone charges, return check charges, or late charges, if applicable, whether imposed on you or us, and we may initiate payment for such items on the credit card used at time of initial transaction. We shall have the right, at any time, to increase the services fee to reflect any additional or increased taxes, licenses, permits, fees or charges which may be charged to us by any utility or governmental agency or private response agency relating to the monitoring service and you agree to pay the same.
c) PAYMENT AUTHORIZATION: Subscriber authorizes MAS to initiate payments for the sales price, use of the System, monitoring and other services and Subscriber’s other obligations under this Agreement from the credit card used at time of the initial transaction: You further agree that if payments to be made pursuant to this authorization are discontinued or terminated by you or any payment is refused or dishonored by the credit card company or is not paid to MAS for any reason, that your payment obligations under this Agreement remain in full force and effect and you agree to pay the same to MAS by check or other good funds.
6. 30-DAY TERMINATION: Notwithstanding Section 5 herein, you may cancel this Agreement and services at any time prior to midnight of the 30th day following delivery of the System(s), for a refund of any sales price and any prepaid monitoring fees, less original shipping charges. After 30 days following delivery, all sales are final and no refunds will be issued. If you cancel, you must return ship, with tracking, to MAS in substantially as good condition as when received, any goods delivered to you under this agreement. If you fail to return the Systems to MAS, then you remain liable for the sales price of the System and all monitoring fees. To cancel this transaction: (i), mail a signed cancellation letter to Medical Alert Southwest; P.O. Box 270346, Flower Mound, TX 75027-0346 or fax a signed cancellation letter to (972) 355-0139.
7. CANCELLATION – [FACE-TO-FACE]: IF THIS AGREEMENT WAS ENTERED INTO IN A FACE-TO-FACE TRANSACTION YOU, THE SUBSCRIBER, MAY CANCEL THIS AGREEMENT AT ANY TIME PRIOR TO MIDNIGHT OF THE SEVENTH BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION. SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT.
8. RECEIPT OF COPY: BY ACKNOWLEDGING THIS AGREEMENT YOU HEREBY STATE THAT YOU HAVE RECEIVED (DOWNLOADED) A COMPLETE COPY OF THIS AGREEMENT WHICH INCLUDES PAGES 1 THROUGH 6 (Additional Terms and Conditions) ALONG WITH A NOTICE OF CANCELLATION, A PERS CALL LIST AND A CONSUMER DISCLOSURE AND CONSENT TO ELECTRONIC COMMUNICATIONS. YOU ARE ACKNOWLEDGING THAT YOU HAVE READ THIS AGREEMENT BEFORE YOU CHECKED THE BOX ACCEPTING IT.
PERS SYSTEM MONITORING CENTER SERVICES: Upon receipt of a signal, MAS or its designated Monitoring Center shall make every reasonable effort to notify the appropriate municipal police, fire, medical, EMT, emergency personal response service or person designated by Subscriber in Subscriber’s Call List to receive notification. Subscriber acknowledges that signals which are transmitted over cellular networks, telephone lines, internet, VOIP, or other modes of communication pass through communication networks which are beyond the control of MAS and are not maintained by MAS, except MAS may own the radio network, and therefore MAS shall not be responsible for any equipment failure which prevents transmission signals from reaching the Monitoring Center or damages arising as a result thereof, or for data corruption, theft or viruses to Subscriber’s computers if connected to the PERS System communication equipment.
SUBSCRIBER ACKNOWLEDGES THAT MAS PROVIDES NO RESPONSE TO A PERS SYSTEM SIGNAL OTHER THAN NOTIFICATION TO THE APPROPRIATE PARTY, AND THAT THE PROVISIONS OF THIS AGREEMENT EXCULPATING AND LIMITING MAS’ LIABILITY ARE FULLY APPLICABLE TO THE PERS SYSTEM SERVICE.
9. WIRELESS CAPABILITIES / EXCESSIVE DATA USAGE: PERS Systems communicate by communication pathways which are not owned by MAS. MAS does not provide cellular or Internet service, maintain Internet connection, wireless access or other communication pathways, computer, smart phone, electric current connection or supply, or in all cases the remote video server except MAS may own its own radio pathway and remote servers, through which data passes and may be stored. In consideration of Subscriber making its monthly payments for remote access to the system and any remote servers maintained by MAS or others, MAS will authorize Subscriber access. MAS is not responsible for Subscriber’s access to the Internet or any interruption of service or down time of remote access caused by loss of Internet service, radio or cellular or any other mode of communication used by Subscriber to access the system. Subscriber acknowledges that Subscriber’s PERS system can be compromised if the codes or devices used for access are lost or accessed by others and MAS shall have no liability for such unauthorized access. MAS is not responsible for the security or privacy of any wireless network system or router. Wireless systems can be accessed by others, and it is the Subscriber’s responsibility to secure access to the system with pass codes and lock out codes. Electronic data may not be encrypted and wireless components of the PERS System may not meet Advanced Encryption Standard specifications for encryption of electronic data established by the US National Institute of Standards and Technology or any other established criteria for encryption and MAS shall have no liability for access to the PERS System by others by hacking or otherwise. MAS is not responsible for access to wireless networks or devices that may not be supported by communication carriers and upgrades to Subscriber’s system will be at Subscriber’s expense. If Subscriber is Self-Monitoring, no signals will be received unless Subscriber has access to the selected mode of communication pathway such as cellular, radio or Internet service. MAS shall have no liability for excessive data usage expense incurred by Subscriber attributable to the equipment or services provided herein.
10. GPS MONITORING / MOBILE TRACKING: If GPS tracking is included in MAS’ services Subscriber will download the MAS’ APP to Subscriber’s GPS enabled cellular device which software enables MAS to monitor the location of Subscriber’s cellular device via the cellular network selected by Subscriber for the duration of this agreement. MAS is licensed to monitor the APP by the APP Manufacturer.
Mobile Tracking is designed to track individuals who will have on their person the Mobile Tracking Device or Internet connected device with software tracking APP. The device will work only within the 50 United States, in areas where mobile tracking has coverage and MAS has no control over such coverage. Mobile Device or APP may not be able to be tracked with exact precision; only ground level locations can be determined; MAS cannot determine locations within a building or any structure. MAS will have no liability for inability to report exact location at any particular time, but MAS will use its best efforts to report all available tracking information. MAS is authorized to record and maintain audio and video transmissions, data and communications, and shall be the exclusive owner of such property. Subscriber is responsible for all permits and permit fees that may be required, agrees to file for and maintain any permits required by applicable law and indemnify or reimburse MAS for any fees or fines relating to permits or the services provided. MAS shall monitor tracking signals and communications received from the tracking device, or software APP. Upon Subscriber’s activation of the device or Software APP, MAS shall make every reasonable effort to locate the tracking device and if appropriate notify the police, fire, medical EMT, or other municipal authority deemed appropriate in MAS’ absolute discretion, and such other persons Subscriber has requested receive notification of such location on Subscriber’s Call List. Subscriber agrees to furnish MAS with a written Call List of names and telephone numbers of those persons Subscriber wishes to receive notification of emergency conditions together with a list of all medication, allergies and medical conditions Subscriber wishes to be available to all responding PERS personnel and medical personnel. All changes and revisions shall be provided to MAS in writing. All notifications by MAS or its designated communication center shall be by telephonic communication and MAS or its designated communication center shall be deemed to satisfy its monitoring response service by reaching the first agency or person designated on the Call List. Unless otherwise provided in the Call List MAS will make a reasonable effort to contact a person listed on the call list. A person on the list shall be deemed reached when contacted either via telephone call, text, email message, or voice mail. No more than one call to the list shall be required and any form of notification provided for herein, including leaving a voice message, shall be deemed reasonable compliance with MAS’ notification obligation.
11. LIMITED WARRANTY: In the event that any part of the PERS System becomes defective, or in the event that any repairs are required, MAS agrees to make all repairs and replacement of parts without costs to the Subscriber for a period of One Year from the date of installation or commencement of services or during the Extended Warranty period if Subscriber has selected that coverage. MAS reserves the option to either replace or repair the PERS equipment, and reserves the right to substitute materials of equal quality at time of replacement, or to use reconditioned parts in fulfillment of this warranty. This warranty does not include batteries, electrical surges, lightning damage, software upgrades and repairs, communication devices that are no longer supported by communication pathways, obsolete components and components exceeding manufacturer’s useful life. MAS is not the manufacturer of the equipment and other than MAS’ limited warranty Subscriber agrees to look exclusively to the manufacturer of the equipment for repairs under its warranty coverage if any. Except as set forth in this agreement, MAS makes no express warranties as to any matter whatsoever, including but not limited to, the condition of the equipment, its merchantability, or its fitness for any particular purpose and MAS shall not be liable for consequential damages. MAS does not represent nor warrant that the PERS may not be compromised or circumvented, or that the system will prevent any loss; or that the system will in all cases provide the protection for which it is designed. MAS expressly disclaims any implied warranties, including implied warranties of merchantability or fitness for a particular purpose. The warranty does not cover any damage to material or equipment caused by accident, misuse, attempted or unauthorized repair service, modification, or improper installation by anyone other than MAS. MAS shall not be liable for consequential damages. Subscriber acknowledges that any affirmation of fact or promise made by MAS shall not be deemed to create an express warranty unless included in this agreement in writing; that Subscriber is not relying on MAS’ skill or judgment in selecting or furnishing a system suitable for any particular purpose and that there are no warranties which extend beyond those on the face of this agreement, and that MAS has offered additional and more sophisticated equipment for an additional charge which Subscriber has declined. Subscriber’s exclusive remedy for MAS’ breach of this agreement or negligence to any degree under this agreement is to require MAS to repair or replace, at MAS’ option, any equipment which is non-operational. This Limited Warranty is independent of and in addition to the Extended Warranty Option if selected by Subscriber in paragraph 4(c) of this agreement. Except for MAS repairs under the Warranty and Extended Warranty it is Subscriber’s responsibility to maintain the PERS system in working order and Subscriber remains liable for all payments under this Lease notwithstanding the operation of the PERS system. This warranty gives you specific legal rights and you may also have other rights which vary from state to state. If required by law, MAS will procure all permits required by local law and will provide certificate of workman’s compensation prior to starting work.
12. INCREASES OF MONTHLY CHARGE: MAS shall be permitted to increase the charges provided for herein at any time or times after the expiration of one year from the date hereof by up to nine percent per annum each year upon giving notice to subscriber and subscriber agrees to pay such increases as invoiced.
13. SUBSCRIBER’S CARE OF EQUIPMENT / REPAIRS AND ADDITIONS: If MAS has provided hardware, Subscriber agrees not to tamper with, or otherwise interfere with the PERS System. Subscriber agrees to bear the cost of repairs or replacement made necessary as a result of damage caused by, misuse, negligent care, water, insects, vermin, lightning or electrical surge, except for ordinary wear and tear, in which event repair or replacement shall be made by MAS without additional charge during the Warranty or Extended Warranty period. Batteries, electrical surges, lightning damage, obsolete components and components exceeding manufacturer’s useful life are not included in the Warranty and will be repaired or replaced at Subscriber’s expense. MAS’ obligation to repair or replace any device does not extend past MAS’ warranty for the device. MAS has no control over the hardware device the Subscriber installs the APP software on, the device’s operating system, security settings, changes made by common carriers, or other software programs that might conflict with or cause the MAS APP not to operate or perform as designed. MAS’ sole responsibility is to attempt to resolve any reported software issues within a reasonable amount of time. MAS is not liable for any loses caused by software incompatibility issues. Subscriber agrees to report any discovered software issues to MAS as soon as practical. Subscriber is responsible to return the leased equipment to MAS in working order upon expiration of this lease.
14. TELEPHONE SERVICE MAY BE NECESSARY AND SUBSCRIBER’S RESPONSIBILITY: If MAS has provided a base unit with transmitter which is installed or placed in Subscriber’s premises in a fixed location and designed to communicate by telephone or high speed Internet VoIP, Subscriber agrees that it is Subscriber’s responsibility to provide appropriate communication pathways. MAS has no control over these pathways and no responsibility for communication failure. Subscriber agrees not to tamper with or otherwise interfere with the PERS System. Subscriber agrees to bear the cost of repairs or replacement made necessary as a result of damage caused by misuse, negligent care, lightning or electrical surge, except for ordinary wear and tear, in which event repair or replacement shall be made by MAS without additional charge. Batteries, electrical surges, lightning damage, obsolete components and components exceeding manufacturer’s useful life are not included in service and will be repaired or replaced at Subscriber’s expense. MAS’ obligation to repair or replace any device does not extend past MAS’ warranty for the device. MAS has no control over the Subscriber owned hardware device the Subscriber installs the APP software on, the device’s operating system, security settings, changes made by common carriers, or other software programs that might conflict with or cause the APP not to operate or perform as designed. MAS’ sole responsibility is to attempt to resolve any reported software issues within a reasonable amount of time. MAS is not liable for any loses caused by software incompatibility issues. Subscriber agrees to report any discovered software issues to MAS as soon as practical
15. SUBSCRIBER’S DUTY TO SUPPLY ELECTRIC AND TELEPHONE SERVICE: Subscriber agrees to furnish, at Subscriber’s expense, all 110 Volt AC power and electrical outlets and receptacles, telephone hook-ups, and or high speed Internet, as deemed necessary by MAS or PERS System equipment manufacturer.
16. SELF-INSTALLATION: MAS will provide telephone assistance to Subscriber to assist Subscriber with the installation of MAS’ device or Software APP. MAS has no liability for the installation. Under no circumstances will MAS repair Subscriber’s Internet connected device unless provided by MAS.
17. DELAY IN DELIVERY / INSTALLATION / RISK OF LOSS OF MATERIAL: If this agreement requires MAS to install equipment, MAS shall not be liable for any damage or loss, economic or non-economic, sustained by Subscriber as a result of delay in delivery and/or installation of equipment, equipment failure, or for interruption of service due to electric failure, strikes, walk-outs, war, acts of God, or other causes, including MAS’ negligence or failure to perform any obligation
18. TESTING AND REPAIR SERVICE OF PERS: The parties agree the equipment, once delivered, is in the exclusive possession and control of the Subscriber, and it is Subscriber’s sole responsibility to test the operation of the PERS System and to notify MAS if it is in need of repair or replacement. During the warranty period MAS shall service or replace the equipment only if returned by the Subscriber to MAS at MAS’ address. If MAS fails to repair or replace the PERS equipment within 14 days after receipt of the equipment and notice, Subscriber shall not be obligated to pay any amount for service from date said written notice and equipment is delivered to MAS, until the PERS System is restored to working order unless MAS determines that the equipment is operational and the system failure was electrical, telephone or communication service related at Subscriber’s premises, in which event Subscriber shall pay MAS’ cost of shipping and inspection charge of $ 50.00. If this agreement calls for self-installation, Subscriber is responsible for installing and activating the PERS System and insuring that the PERS System communicates with the designated Monitoring Center and that the PERS System remains operational so that upon activation signals are communicated to the designated Monitoring Center.
If MAS has installed the PERS systems at Subscriber’s premises, the Warranty Service is pursuant to paragraphs 4c, 10 , 12 and 17 and MAS shall not be required to service the PERS equipment unless it has received notice from Subscriber, and upon such notice, MAS shall, during the warranty period, service the PERS equipment to the best of its ability within 36 hours, exclusive of Saturday, Sunday and legal holidays, during the business hours of 9 a.m. and 5 p.m. Subscriber agrees to test and inspect the PERS equipment and to advise MAS of any defect, error or omission in the PERS equipment. In the event Subscriber complies with the terms of this agreement and MAS fails to repair the PERS equipment within 36 hours after notice is given, excluding Saturdays, Sundays, and legal holidays, Subscriber agrees to send notice that the PERS equipment is in need of repair to MAS, in writing, by certified or registered mail, return receipt requested, and Subscriber shall not be responsible for payments due while the PERS equipment remains inoperable. In any lawsuit between the parties in which the condition or operation of the PERS equipment is in issue, the Subscriber shall be precluded from raising the issue that the PERS equipment was not operating unless the Subscriber can produce a post office certified or registered receipt signed by MAS, evidencing that warranty service was requested by Subscriber.
19. TERMINATION IN THE EVENT OF DEATH AND EARLY TERMINATION RIGHTS: This agreement and Subscriber’s payment obligations shall terminate upon Subscriber’s death and Subscriber may have other reasons to terminate this agreement early. See the Notice of Cancellation Rights below for additional basis to terminate this agreement early.
20. ASSIGNMENT / WAIVER OF SUBROGATION: Subscriber shall not be permitted to assign this agreement without written consent of MAS which shall not unreasonably be withheld. Any such assignment without prior approval shall be deemed a breach of this agreement. MAS shall have the right to assign this agreement to a company licensed to perform the services and shall be relieved of any obligations created herein upon such assignment. Subscriber on its behalf and any insurance carrier waives any right of subrogation Subscriber’s insurance carrier may otherwise have against MAS or MAS ‘s subcontractors arising out of this agreement , the relation of the parties, or extra-contractual duty.
21. INDEMNITY: SUBSCRIBER AGREES TO DEFEND, ADVANCE EXPENSES FOR LITIGATION AND ARBITRATION, INCLUDING INVESTIGATION, LEGAL AND EXPERT WITNESS FEES, INDEMNIFY AND HOLD HARMLESS MAS, ITS EMPLOYEES, AGENTS AND SUBCONTRACTORS, FROM AND AGAINST ALL CLAIMS, LAWSUITS, INCLUDING THOSE BROUGHT BY THIRD-PARTIES OR BY SUBSCRIBER, INCLUDING REASONABLE ATTORNEYS’ FEES AND LOSSES, ASSERTED AGAINST AND ALLEGED TO BE CAUSED BY MAS’ PERFORMANCE, NEGLIGENCE OR FAILURE TO PERFORM ANY OBLIGATION UNDER OR IN FURTHERANCE OF THIS AGREEMENT. PARTIES AGREE THAT THERE ARE NO THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT.
SUBSCRIBER ACKNOWLEDGES THAT THIS AGREEEMENT CONTAINS AN INDEMNITY CLAUSE.
22. TERMINATION OF AGREEMENT AND SERVICES: Upon termination of this agreement MAS shall be permitted to discontinue all monitoring service.
23. LEGAL ACTION / TERMINATION OF SERVICES NOTIFICATION / LIQUIDATED DAMAGES / AGREEMENT TO BINDING ARBITRATION: THE PARTIES AGREE THAT DUE TO THE NATURE OF THE SERVICES TO BE PROVIDED BY MAS, THE PAYMENTS TO BE MADE BY THE SUBSCRIBER FOR THE TERM OF THIS AGREEMENT FORM AN INTEGRAL PART OF MAS’ ANTICIPATED PROFITS; THAT IN THE EVENT OF SUBSCRIBER’S DEFAULT IT WOULD BE DIFFICULT IF NOT IMPOSSIBLE TO FIX MAS’ ACTUAL DAMAGES. THEREFORE, IN THE EVENT SUBSCRIBER DEFAULTS IN ANY PAYMENT OR CHARGES TO BE PAID TO MAS WITHIN 10 DAYS OF THE DATE SUCH PAYMENT IS DUE SUBSCRIBER SHALL BE LIABLE FOR ANY UNPAID CHARGES TO DATE OF DEFAULT AND THE BALANCE OF ALL PAYMENTS FOR THE ENTIRE TERM SHALL IMMEDIATELY BECOME DUE AND PAYABLE AND SUBSCRIBER SHALL BE LIABLE FOR 80% THEREOF AS LIQUIDATED DAMAGES AND MAS SHALL BE PERMITTED TO TERMINATE ALL ITS SERVICES UNDER THIS AGREEMENT WITHOUT RELIEVING SUBSCRIBER OF ANY OBLIGATION HEREIN INCLUDING BUT NOT LIMITED TO TERMINATING MONITORING SERVICE. WITHIN 10 DAYS OF TERMINATION OF THIS AGREEMENT SUBSCRIBER AGREES, AT SUBSCRIBER’S EXPENSE, TO RETURN THE LEASED EQUIPMENT TO MAS IN WORKING ORDER. IN THE EVENT THE EQUIPMENT IS NOT RECEIVED BY MAS WITHIN 20 DAYS OF TERMINATION OF THIS AGREEMENT THEN SUBSCRIBER SHALL BE LIABLE TO MAS FOR THE AGREED VALUE OF THE EQUIPMENT IN ADDITION TO ANY DAMAGES AND LIQUIDATED DAMAGES PROVIDED FOR HEREIN. IN THE EVENT OF SUCH TERMINATION OF SERVICES MAS WILL NOTIFY SUBSCRIBER, AND MAS IS AUTHORIZED TO NOTIFY SUBSCRIBER BY SENDING A TEXT MESSAGE TO SUBSCRIBER’S CELL PHONE, WHICH NOTICE OF TERMINATION OF SERVICES SHALL BE DEEMED SUFFICIENT NOTICE FOR ALL PURPOSES
SUBSCRIBER ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS A LIQUIDATED DAMAGE CLAUSE.
The prevailing party in any litigation or arbitration is entitled to recover its reasonable legal fees from the other party. In any action commenced by MAS against Subscriber, Subscriber shall not be permitted to interpose any counterclaim. SUBSCRIBER AGREES THAT SUBSCRIBER MAY BRING CLAIMS AGAINST MAS ONLY IN SUBSCRIBER’S INDIVIDUAL CAPACITY, AND NOT AS A CLASS ACTION PLAINTIFF OR CLASS ACTION MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY DISPUTE BETWEEN THE PARTIES OR ARISING OUT OF THIS AGREEMENT, INCLUDING ISSUES OF ARBITRABILITY, SHALL, AT THE OPTION OF ANY PARTY, BE DETERMINED BY BINDING AND FINAL ARBITRATION BEFORE A SINGLE ARBITRATOR ADMINISTERED BY ARBITRATION SERVICES INC., AND THE FEDERAL ARBITRATION ACT, OR ITS SUCCESSORS OR ASSIGNS, PURSUANT TO ITS ARBITRATION RULES AT WWW.ARBITRATIONSERVICESINC.COM, EXCEPT THAT NO PUNITIVE OR CONSEQUENTIAL DAMAGES MAY BE AWARDED. The arbitrator shall be bound by the terms of this agreement and is authorized to conduct proceedings by telephone, video, submission of papers or in-person hearing. By agreeing to this arbitration provision you are waiving your right to a trial before a judge or jury, waiving your right to appeal the arbitration award and waiving your right to participate in a class action. Service of process or papers in any legal proceeding or arbitration between the parties may be made by First-Class Mail delivered by the U.S. Postal Service addressed to the party’s address in this agreement or another address provided by the party in writing to the party making service.
The parties waive trial by jury in any action between them unless prohibited by law. Any action between the parties must be commenced within one year of the accrual of the cause of action or shall be barred. All actions or proceedings by either party must be based on the provisions of this agreement. Any other action that Subscriber may have or bring against MAS in respect to other services rendered in connection with this agreement shall be deemed to have merged in and be restricted to the terms and conditions of this agreement. The parties submit to the jurisdiction and laws of Texas, except for arbitration which is governed by the FAA and agree that any litigation or arbitration between the parties may be commenced and maintained in the county where MAS’ principal place of business is located or Nassau County, New York.
SUBSCRIBER ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE DISPUTES AND THAT ARBITRATION IS BINDING AND FINAL AND THAT SUBSCRIBER IS WAIVING SUBSCRIBER’S RIGHT TO TRIAL IN A COURT OF LAW AND OTHER RIGHTS.
24. ADDITIONAL PAYMENTS: In addition to the payments set forth herein, Subscriber agrees to be liable for and pay to MAS any excise, sales, property, or other tax, telephone line charges, and any increases thereof, which may be imposed upon MAS because of this agreement. Should MAS be required by existing or here after enacted law to perform any service or furnish any material not specifically covered by the terms of this agreement Subscriber agrees to pay MAS for such service or material.
25. FALSE ALARMS / PERMIT FEES / WITNESS FEES: Subscriber is responsible for all permits and permit fees, agrees to file for and maintain any permits required by applicable law and indemnify or reimburse MAS for any fees or fines relating to permits or false alarms. MAS shall have no liability for permit fees, false alarms, false alarm fines, police, medical EMT or fire response, any damage to personal or real property or personal injury caused by EMT, police, fire department or any other responders response to emergency conditions, whether false alarm or otherwise, or the refusal of the police, medical, EMT, or fire department to respond or the manner in which police or fire department responds. In the event of termination of police medical, fire, or EMT response service this agreement shall nevertheless remain in full force and Subscriber shall remain liable for all payments provided for herein. Should MAS be required by existing or hereafter enacted law to perform any service or furnish any material not specifically covered by the terms of this agreement Subscriber agrees to pay MAS for such service or material. MAS shall have no liability for police, fire, medical or EMT non-response, response, or any damage to person or property in connection with any emergency condition reported by MAS or its designated Monitoring Center in response to a signal received from Subscriber’s PERS. In the event Subscriber or any third party subpoenas or summons MAS requiring any services or appearances, Subscriber agrees to pay MAS $150 per hour for such services and appearances. Subscriber shall reimburse MAS for any Monitoring Center charges for excessive, run-a-way or false alarm signals.
26. MAS’ RIGHT TO SUBCONTRACT SPECIAL SERVICES: Subscriber agrees that MAS is authorized and permitted to subcontract any services to be provided by MAS to third parties who may be independent of MAS and that MAS shall not be liable for any loss, damage or injury sustained by Subscriber by reason of any other cause whatsoever caused by the negligence of third parties, except that MAS shall not obligate Subscriber to make any payments to such third parties. Subscriber appoints MAS to act as Subscriber’s agent with respect to such third parties, Subscriber acknowledges that this agreement, and particularly those paragraphs relating to MAS’ disclaimer of warranties, exemption from liability, even for its negligence, limitation of liability and indemnification, inure to the benefit of and are applicable to any assignees, subcontractors, manufacturers, vendors and Monitoring Center of MAS.
27. NO WARRANTIES OR REPRESENTATIONS: SUBSCRIBER’S EXCLUSIVE REMEDY: MAS does not represent nor warrant that the PERS System will prevent any loss, damage or injury, or that the PERS System will in all cases provide the protection for which it is installed or intended. Subscriber acknowledges that MAS is not an insurer, and that Subscriber assumes all risk for loss or injury to Subscriber’s property or person. MAS has made no representation or warranties, and hereby disclaims any warranty of merchantability or fitness for any particular use. Subscriber’s exclusive remedy for MAS’ default hereunder is to require MAS to repair or replace, at MAS’ option, any equipment or part of the PERS System which is non-operational. Except for services provided pursuant to this agreement, Subscriber agrees to look to manufacturer’s warranty for any equipment warranty. MAS has no control over the hardware device the Subscriber installs the APP software on, the device’s operating system, or other software programs that might conflict with or cause the MAS APP not to operate or perform as designed. MAS’ sole responsibility is to attempt to resolve any reported software issues within a reasonable amount of time. MAS is not liable for any losses caused by software incompatibility issues. Subscriber agrees to report any discovered software issues to MAS as soon as practical.
28. EXCULPATORY CLAUSE: MAS AND SUBSCRIBER AGREE THAT MAS IS NOT AN INSURER AND NO INSURANCE COVERAGE IS OFFERED HEREIN. THE PERS SYSTEM AND MAS’ SERVICES ARE DESIGNED TO DETECT AND REDUCE CERTAIN RISKS OF LOSS, THOUGH MAS DOES NOT GUARANTEE THAT NO LOSS OR DAMAGE WILL OCCUR. MAS is not assuming liability, and, therefore, shall not be liable to Subscriber or any other third party for any loss, economic or non-economic, in contract or tort, data corruption or inability to retrieve data, personal injury, death or property damage sustained by Subscriber as a result of equipment failure, human error or any other cause whatsoever, regardless of whether or not such loss or damage was caused by or contributed to by MAS’ breach of contract, negligent performance to any degree in furtherance of this agreement, any extra contractual or legal duty, strict products liability, or negligent failure to perform any obligation pursuant to this agreement or any other legal duty, except for intentional willful misconduct.
29. LIMITATION OF LIABILITY: SUBSCRIBER AGREES THAT SHOULD THERE ARISE ANY LIABILITY ON THE PART OF MAS AS A RESULT OF MAS’ BREACH OF THIS CONTRACT, NEGLIGENT PERFORMANCE TO ANY DEGREE OR NEGLIGENT FAILURE TO PERFORM ANY OF MAS’ OBLIGATIONS PURSUANT TO THIS AGREEMENT OR ANY OTHER LEGAL DUTY, EQUIPMENT FAILURE, HUMAN ERROR, OR STRICT PRODUCTS LIABILITY, WHETHER ECONOMIC OR NON-ECONOMIC, IN CONTRACT OR IN TORT, THAT MAS’ LIABILITY SHALL BE LIMITED TO THE SUM OF $250.00 OR 6 TIMES THE MONTHLY PAYMENT FOR SERVICES BEING PROVIDED AT TIME OF LOSS, WHICHEVER IS GREATER. IF SUBSCRIBER WISHES TO INCREASE MAS’ AMOUNT OF LIMITATION OF LIABILITY, SUBSCRIBER MAY, AS A MATTER OF RIGHT, AT ANY TIME, BY ENTERING INTO A SUPPLEMENTAL AGREEMENT, OBTAIN A HIGHER LIMIT BY PAYING AN ANNUAL PAYMENT CONSONANT WITH MAS’ INCREASED LIABILITY. THIS SHALL NOT BE CONSTRUED AS INSURANCE COVERAGE.
SUBSCRIBER ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS AN EXCULPATORY CLAUSE, INSURANCE PROVISION ALLOCATING ALL RISK TO SUBSCRIBER AND LIMITATION OF LIABILITY PROVISION.
30. NOTE ABOUT EXTRA DEVICES: Extra devices for remote activation of the PERS System which are ordered after this agreement is executed or not included in the description of equipment will be deemed part of the equipment described in this agreement and governed as if part of the system and equipment sold pursuant to this agreement.
31. MODIFICATION OF CALL LIST: The Subscriber may change the Call List in writing provided to and acknowledged by MAS.
32. PERSONAL MEDICAL DISCLOSURE AUTHORIZATION: Any medical or other personal information provided by Subscriber to MAS may be disclosed by MAS to any police, fire, EMT personnel or medical personnel, (First Responders) or anyone on Subscriber’s Call List requesting same. MAS DOES NOT RESPOND TO SUBSCRIBER’S LOCATION AND DOES NOT PROVIDE ANY MEDICAL OR EMERGENCY ADVICE. SUBSCRIBER ACKNOWLEDGES THAT SUBSCRIBER CANNOT RELY ON ANY STATEMENT OR ASSURANCES BY MONITORING CENTER OPERATORS WHO CONTACT SUBSCRIBER IN RESPONSE TO A SIGNAL AND ANY STATEMENTS ARE INTENDED TO CALM SUBSCRIBER DURING AN EMERGENCY SITUATION.
33. FAIR CREDIT REPORTING ACT: In compliance with the Fair Credit Reporting Act (“FCRA”), the Subscriber hereby authorizes MAS to obtain a consumer credit report. Subscriber has the right, by contacting the provider of this information, to dispute the information on the report or request additional disclosures as provided under Section 606 of the FCRA. Written request must be given from the Subscriber to MAS to request additional credit information. Subscriber releases all persons involved in the credit investigation from liability in connection with such investigation.
34. TEXAS PROPERTY CODE NOTICE: This contract may be subject to Chapter 27 of the Texas Property Code. The provisions of that chapter may affect your right to recover damages arising from the performance of this contract. If you have a complaint concerning a construction defect arising from the performance of this contract and that defect has not been corrected through normal warranty service, as may be required by law or by contract, you must provide the notice required by Chapter 27 of the Texas Property Code to the contractor by certified mail, return receipt requested, not later than the 60th day before the date you file suit to recover damages in a court of law or initiate arbitration. The notice must refer to Chapter 27 of the Texas Property Code and must describe the construction defect. If requested by the contractor, you must provide the contractor an opportunity to inspect and cure the defect as provided by Section 27.004 of the Texas Property Code.
35. FULL AGREEMENT/SEVERABILITY: This agreement constitutes the full understanding of the parties and may not be amended, modified or canceled, except in writing signed by both parties. Subscriber acknowledges and represents that Subscriber has not relied on any representation, assertion, guarantee, warranty, collateral agreement or other assurance, except those set forth in this Agreement. Subscriber hereby waives all rights and remedies, at law or in equity, arising, or which may arise, as the result of Subscriber’s reliance on such representation, assertion, guarantee, warranty, collateral agreement or other assurance. To the extent this agreement is inconsistent with any other document or agreement, whether executed prior to, concurrently with or subsequent to this agreement the terms of this agreement shall govern. Should any provision of this agreement be deemed void, the remaining parts shall be enforceable.
CAUTION: IT IS IMPORTANT THAT YOU THOROUGHLY READ THE AGREEMENT BEFORE YOU ACCEPT IT. YOU ACKNOWLEDGE RECEIVING A FULLY EXECUTED COPY OF THIS AGREEMENT AT TIME OF EXECUTION.