Service Agreement2019-02-06T11:42:00-06:00

SERVICE AGREEMENT

Personal Emergency Response System Service Agreement

This Service Agreement (“Agreement”) is made by and between SameDay Security, Inc., owner of brand names Electronic Caregiver, Addison Care and PocketMD, whose national headquarters are located in Las Cruces, New Mexico (“Company”) and the subscriber mentioned in the Order Form who is located at the physical address indicated in the Form (“Subscriber”). Collectively the Order Form and this Agreement are referred to as the “Monitoring Agreement”.

  1. Definitions. The “System” refers to the purchased personal response console, remote help button(s) and any other accessories or devices provided by Company.   “Premises” refers to Subscriber’s address set-forth above.  If anyone other than Subscriber is the user of the System (“User”), such User is a third party beneficiary to this Agreement and is bound by all of the terms herein.
  2. The System. Subscriber has purchased a medical alert and health monitoring system from Company. Devices included within the System are determined by Subscriber and may include the following items: (i) blood pressure cuff, (ii) non-contact body temperature device, (iii) glucometer, (iv) pulse oxygen device, and/or (v) weight scale (collectively “Devices”). Additional devices may be purchased by Subscriber at their option.  Company shall replace faulty devices for Subscribers who have paid all fees currently due to Company pursuant to this Agreement and/or the Order Form.
  3. 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.
  4. NO WARRANTIES.
    1. System. COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WHICH EXTEND BEYOND THE DESCRIPTION OF THE SYSTEM HEREIN, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.   Subscriber understands that the System and the monitoring services may be affected by, among other things, wireless interference, poor cellular connectivity, faulty devices, devices being too far from console, Subscriber error in use of the System, third party telecom and/or service provider disruptions, and acts of God and Company is not responsible or liable for such incidents.
    2. Devices. Devices are manufactured by third parties and COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WHICH EXTEND BEYOND THE DESCRIPTION OF THE DEVICES HEREIN, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF SUCH DEVICES.   Subscriber understands that the Devices may be affected by, among other things, wireless interference, poor cellular connectivity, faulty Devices, Devices being too far from console, Subscriber error in use of the Device, third party telecom and/or service provider disruptions, and acts of God and Company is not responsible or liable for such incidents.
  5. SYSTEM AND MONITORING SERVICES LIMITATIONS. IN CONSIDERATION FOR THE PROVISION OF THE SYSTEM AND MONITORING SERVICES, SUBSCRIBER ACKNOWLEDGES THAT COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM OR MONITORING SERVICES WILL PREVENT DEATH, BODILY OR PERSONAL INJURY, PROPERTY LOSS OR DAMAGE, OR ANY OTHER INJURY OR DAMAGE TO SUBSCRIBER OR OTHERS WHO USE THE SYSTEM.  COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE PROMPTNESS OF COMPANY’S RESPONSE AND COMPANY HAS NO CONTROL OVER THE RESPONSE TIME OR CAPABILITY OF ANY AGENCY OR PERSON WHO MAY BE NOTIFIED AS A RESULT OF THE SYSTEM BEING USED.   SUBSCRIBER UNDERSTANDS THAT COMPANY MAY BE NEGLIGENT IN PROVIDING THE MONITORING SERVICES AND MAY FAIL TO PROPERLY RESPOND TO THE RECEIPT OF AN EMERGENCY SIGNAL FROM THE SYSTEM, OR THAT THE SYSTEM MAY FAIL TO FUNCTION PROPERLY.  SUBSCRIBER AGREES THAT IF COMPANY WERE TO HAVE ANY LIABILITY GREATER THAN THAT AGREED TO BY SUBSCRIBER PURSUANT TO SECTION 15 OF THIS AGREEMENT, COMPANY COULD NOT AND WOULD NOT PROVIDE THE MONITORING SERVICES.  SUBSCRIBER UNDERSTANDS THAT THERE ARE ALTERNATIVES AVAILABLE TO SUBSCRIBER SUCH AS 911 EMERGENCY TELEPHONE SERVICE AND SUBSCRIBER HAS SELECTED COMPANY’S MONITORING SERVICES WITH A FULL UNDERSTANDING OF ITS LIMITATIONS, AND THE LIMITATION OF COMPANY’S LIABILITY AS SET FORTH IN SECTION 15.
  6. System Repairs. Subscriber agrees that Company is not responsible for any repair, replacement or maintenance of the System.  Company makes no representations, warranties or guarantees that there will be no interruptions of service or delay when repair or replacement of the System is required.
  7. Monitoring Services.
    1. Monitoring Services. Monitoring services consists solely of Company’s monitoring service personnel alerting the persons, entities or agencies identified by Subscriber in writing to Company (“Responders”) upon the Company’s monitoring facility’s receipt of data or other communication from the System reporting conditions that require assistance (a “Response Condition”).  Subscriber understands, acknowledges and agrees that: (a) following receipt of a Response Condition, but before alerting any Responders, Company may, in its sole and absolute discretion and without any liability, contact or attempt to contact the premises as frequently as 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, 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.
    2. Start of Services. Monitoring services will commence after: (i) all required information to be provided by Subscriber is entered into Company’s monitoring facility’s computer system; (ii) an acceptable test of the System is received by Company’s monitoring facility; and (iii) Company’s receipt of a copy of this Agreement signed by you.
    3. Suspension of Monitoring Services. Subscriber understands and acknowledges that Company’s obligations are automatically suspended without notice to Subscriber and Subscriber hereby waives all claims and releases Company for all liability, loss, damage and expense in the event of: (i) a breach of this Agreement by Subscriber, (ii) the monitoring facility, communications equipment or network or the System is destroyed, damaged, inoperable or malfunctions for any reason whatsoever, or (iii) any other reason or cause.  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 Subscriber, upon on Subscriber’s request, Subscriber shall be entitled to reimbursement of the unearned charge paid for the period of the suspension and this shall be the limit of Company’s liability.
    4. Moving the System from Premises. If Subscriber moves from Subscriber’s premises and reinstalls the System at Subscriber’s new home or business, as conditions for Company’s continued duty to perform monitoring services Company must receive from Subscriber within thirty (30) days prior to such move: (a) a new fully completed and legible contact information form, (b) written notice of the new address of Subscriber’s premises (which Subscriber acknowledges and agrees will be a ratification of this Agreement), and (c) acceptable test signals from the System. If Subscriber fails to fully comply with the requirements of this Section 7, Subscriber understands that the monitoring facility will not properly respond to data received from the System and Subscriber understands and agrees Company will be released from all claims arising out of, from, related to, in connection with or resulting from any failure, inadequate or improper response, conduct or omission to data received from the System, including due to Company’s negligence.
  8. Additional Services. Subscriber may elect to purchase additional services including, but not limited to those set forth below.
    1. PocketMD. PocketMD is a physician on demand telemedicine service provided by a third party company named MyTelemedicine.  PocketMD is not a replacement for regular health care visits with your primary health care provider.  Company is not responsible for PocketMD being available or  any advice or guidance provided by or through PocketMD and Company shall have no liability to Subscriber regarding the same.  Company reserves the right, in its sole discretion, to cancel PocketMD and/or to replace these services with those of another third party telemedicine company.
  9. False Alarms and Forced Entry. If the System is activated for any reason, Subscriber shall: (i) pay, without reimbursement from Company, or (ii) reimburse Company, for any fines, fees, costs, expenses or penalties assessed against Subscriber or Company by any court or governmental agency. Subscriber must provide access to the premises to Responders.  If Subscriber fails 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 Subscriber without recourse to Company or Company’s Representatives.  Company has no control over response times for Responders.   Subscriber acknowledges, understands and agrees that Subscriber 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 Company’s monitoring service.   Subscriber hereby releases Company, Company’s Representatives and Responders for and from all claims, losses and damages that may arise from any forced entry or any delayed response by Responders.
  10. Access to Company’s Customer Portal. Company hereby grants to Subscriber a non-exclusive, non-transferable license to use the Company’s customer access portal to access, input, delete and modify information through the Internet. Except for Subscriber’s: (a) failure to keep confidential all information, passwords, etc., (b) use of the license or the information in any manner that negatively affects Company, (c) use of the license or the information for any illegal purpose, or (d) violation of any applicable law, this license shall continue and be coextensive with the term of this Agreement.  Subscriber shall be solely and absolutely responsible for the information which Subscriber inputs, deletes or modifies.  Subscriber agrees that upon termination of this Agreement or termination or suspension of the license by Company, Company may immediately, and without notice, disable Subscriber’s access to Company’s customer access portal and cancel all passwords or other access codes.
  11. Subscriber’s Consents and Releases. Subscriber, on behalf of himself or herself and as the authorized agent of Subscriber’s family, guests, agents, servants, representatives and employees (individually and collectively, “Subscriber’s Parties”), hereby consents to:
    1. 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 Subscriber or any of Subscriber’s Parties are parties;
    2. Company’s use of visual sensing, geolocation and data collection. The System is not configured to provide remote, real time viewing by a third party unless an emergency exists or the Subscriber elects to engage in a video conference call with Company or Responder;
    3. Company’s use of Subscriber’s protected health information, whether collected directly by Company or through a third party that Company contracts with, including, but not limited, to Rapid Response Monitoring Service, PocketMD and/or MyTelemedicine or such other companies as Company may contract with in the future to provide additional services as part of the System, to, among other things, study, analyze, extrapolate, enhance, and develop Company’s artificial technology, products and services and customers’ experiences and for clinical research; provided, however, that, except for emergency circumstances in which a Subscriber’s protected health information may be shared with first responders, no such protected health information will be shared with third parties; and
    4. Company’s use of Subscriber’s protected health information to create de-identified information, in accordance with the requirements of 45 C.F.R. §164.514(b), and such de-identified information will be solely owned by Company and which may be shared with third parties for research and other purposes.
  12. Subscriber’s Acknowledgments and Duties. Subscriber understands, acknowledges and agrees as follows:
    1. Subscriber will instruct all other persons who may use the System on its proper use.
    2. Subscriber will obtain, at Subscriber’s sole cost, and keep in effect continuously all permits and licenses that may be required for the operation or monitoring of the System.
    3. The System may require electrical service and traditional hard-wired telephone service to consistently operate. Voice over internet protocol (“VOIP”) and other broadband communication services may not permit the System to consistently communicate with Company’s monitoring facility.   Such services require testing and verification by the carrier that they are compatible with Company’s equipment.
    4. Subscriber will test the System, monthly in accordance with the testing instructions in the Owner’s Manual, at least monthly and whenever modifications are made to the electrical or telephone services at Subscriber’s premises. Subscriber’s failure to test the System monthly is a breach of this Agreement.
    5. The System uses radio frequency waves (“RF Waves”) to communicate between accessories (e.g., between the help button and the personal response console). Certain objects in Subscriber’s premises and RF Waves from other sources (e.g., microwave ovens, television sets, radios, household appliances, cordless telephones, cellular telephones, lightning, static electricity or other electrical discharges) may cause interference resulting in malfunctions of the System.
    6. If the System purchased requires a non-wireless phone connection such as a standard telephone line the System will not communicate with Company’s monitoring facility if a telephone connected to the same telephone line which the System uses to communicate with Company’s monitoring facility is in use, off the hook, or not properly in its cradle.
    7. When the System is in use, an alternative telephone line at the premises or other mode of communication (e.g. cellular telephone), is necessary to communicate by telephone with others.
    8. The System is not infallible and the transmission and receipt of communications from the System may be interrupted or otherwise circumvented.
    9. Subscriber will legibly complete and give to Company a contact information form, which will include the name, telephone number and relationship of each Responder Company may call in the event Company believes there is an emergency at Subscriber’s premises, and such other information as Company may require. Subscriber will notify Company in writing of any changes in Responders and/or the persons or telephone numbers on Subscriber’s contact information form.   Subscriber agrees that Company may disclose the information on the contact information form to any governmental agency having jurisdiction over the use, operation or monitoring of the System.
    10. Subscriber is responsible for providing Company with accurate information, including any required updating of Subscriber medications and medication schedule and reminders.
  13. Charges and Fees.
    1. Monthly Monitoring Services Charges. Subscriber agrees to pay the monitoring services charges in the amount indicated in the monitoring agreement payable monthly in advance.
    2. Increases in Charges and Fixed Period. So long as Subscriber’s services under this Agreement have been continuous and Subscriber has paid all fees due hereunder, Company will not increase the monitoring services charge for standard monthly services for five (5) years from the date of this Agreement (“Initial Monitoring Period”); provided, however, that Company is not responsible for and has no control over rate increases by Subscriber’s internet or telephone service provider.  Company may increase periodic charges at any time after the Initial Monitoring Period by giving thirty (30) days advance written notice to Subscriber. Deleted section that says we won’t increase. If Subscriber is unwilling to pay any revised charge, Subscriber must notify Company in writing at least twenty (20) days prior to the effective date of the change.  This Agreement then will be terminated on the effective date of the change unless Company rescinds the change in which case Company, in its sole discretion, may elect to resume billing at the previous monitoring services charge rate.  The time periods in this Section 11(b) must be complied with strictly.
    3. Additional Charges.
      1. Additional Devices. Subscriber may elect to purchase additional devices for the System for an additional fee of seventy-five dollars ($75) per device.
      2. Increased Services. Subscriber may be subject to a higher charge for monthly monitoring services if Subscriber elects to add special services to the standard services offered.
      3. Glucose Strips. Additional charges apply for replacement glucose strips for glucometer devices.  Subscriber must pay such additional charges in order for Company to ship any glucose strips Subscriber may elect to order.  Subscriber should maintain a sufficient supply of glucose strips on hand in the event of shipping delays.
    4. Finance Charges and Late Fees. A finance charge of one and one-half percent (1.5%) per month (eighteen percent (18%) per year) will apply to all obligations not paid pursuant to the terms of this Agreement.
    5. Sales Taxes. If local and state taxes are applicable in Subscriber’s area, Subscriber will be billed for such taxes and Subscriber agrees to pay the same.
  14. Default of Subscriber. If Subscriber breaches this Agreement, without limiting Company’s rights and without any further notice, as agreed upon damages and not as a penalty, Company shall retain all prepayments and Subscriber shall immediately pay to Company: (a) all payments then due and payable, and (b) eighty percent (80%) of all payments that would become due for the unexpired term of this Agreement.  Company shall have no further obligation to perform under this Agreement in the event of a default by Subscriber.
  15. Term and Renewal; Right to Cancel.
    1. Term. The term of this Agreement is for a period of one (1) year from the date of purchase (“Initial Term”) and shall automatically renew for successive one (1) year periods (each a “Renewal Term” and collectively with the Initial Term, the “Term”), unless either party provides thirty (30) days written termination notice to the other party before the end of the current Term.  If this renewal provision is not effective for any reason, this Agreement shall automatically renew from month to month until either party provides thirty (30) days written termination notice to the other party prior to the beginning of any calendar month.
    2. RIGHT TO CANCEL. YOU MAY CANCEL THIS AGREEMENT PRIOR TO MIDNIGHT OF THE THIRD (3rd) BUSINESS DAY AFTER THE DATE OF THIS AGREEMENT.
    3. Effect of Termination within Initial Term. If Subscriber terminates his/her service within the Initial Term, Company will send Subscriber a return merchandise authorization (“RMA”) tag and box and Subscriber must promptly return the System to Company.
  16. INDEMNIFICATION. IF ANYONE OTHER THAN SUBSCRIBER, INCLUDING, WITHOUT LIMITATION, SUBSCRIBER’S INSURANCE COMPANY, ASKS COMPANY OR COMPANY’S REPRESENTATIVES TO PAY FOR ANY LOSS, DAMAGE, COST OR EXPENSE (INCLUDING, WITHOUT LIMITATION OR EXAMPLE, ECONOMIC LOSSES, PROPERTY LOSSES, PROPERTY DAMAGE, PERSONAL INJURY, HEALTH RELATED EVENTS OR DEATH) FOR ANY REASON INCLUDING, WITHOUT LIMITATION OR EXAMPLE, THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF COMPANY OR COMPANY’S REPRESENTATIVES, OR THERE IS A CLAIM FOR SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, SUBSCRIBER AGREES TO PAY (WITHOUT ANY CONDITION THAT COMPANY OR COMPANY’S REPRESENTATIVES FIRST PAY) FOR ALL LOSSES, DAMAGES, COSTS AND EXPENSES INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES, WHICH MAY BE ASSERTED AGAINST OR INCURRED BY COMPANY OR COMPANY’S REPRESENTATIVES IN CONNECTION WITH ANY AND ALL SUCH CLAIMS.
  17. LIMITATION OF LIABILITY; NOT AN INSURER.
    1. LIMITATION OF LIABILITY. SUBSCRIBER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT IF ANY LIABILITY ARISES ON THE PART OF COMPANY OR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, DEALERS, PARTNERS AND EMPLOYEES (“COMPANY’S REPRESENTATIVES”) FOR ANY PERSONAL INJURY, HEALTH RELATED EVENT, LOSS, DAMAGE OR EXPENSE INCLUDING, WITHOUT LIMITATION OR EXAMPLE, ANY LIABILITY ARISING OUT OF, RELATED TO OR FROM CLAIMS IN CONNECTION WITH SUBROGATION, CONTRIBUTION OR INDEMNIFICATION, FOR ANY REASON INCLUDING, WITHOUT LIMITATION OR EXAMPLE, COMPANY’S OR COMPANY’S REPRESENTATIVES’ ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE, THAT OCCURS BEFORE OR AFTER THE SIGNING OF THIS AGREEMENT, ALL SUCH LIABILITY SHALL BE LIMITED TO THE MAXIMUM SUM OF $1,000.00 COLLECTIVELY FOR COMPANY AND COMPANY’S REPRESENTATIVES.
    2. NOT AN INSSURER. SUBSCRIBER ACKNOWLEDGES, UNDERSTANDS AND AGREES THAT: (A) COMPANY IS NOT AN INSURER OF SUBSCRIBER’S PREMISES, PROPERTY OR THE PERSONAL SAFETY OF SUBSCRIBER OR ANY OTHER PERSONS; (B) SUBSCRIBER WILL BE SOLEY RESPONSIBLE TO CONTINUOUSLY MAINTAIN LIFE, MEDICAL, DISABILITY, LONG TERM CARE, AND PROPER AND ADEQUATE INSURANCE ON SUBSCRIBER’S PREMISES AND ITS CONTENTS AND SUCH OTHER INSURANCE AS APPROPRIATE FOR THE PROTECTION OF SUBSCRIBER AND OTHERS WHO MAY USE THE SYSTEM; (C) THE AMOUNT SUBSCRIBER PAYS TO COMPANY IS BASED ONLY ON THE COST OF THE MONITORING SERVICES COMPANY PROVIDES AND NOT ON THE VALUE OF SUBSCRIBER’S PREMISES OR ITS CONTENTS; (D) MONITORING SERVICES MAY NOT ALWAYS BE PERFORMED PROPERLY FOR VARIOUS REASONS, INCLUDING COMPANY’S NEGLIGENCE; (E) IT IS DIFFICULT TO DETERMINE IN ADVANCE: (1) THE VALUE OF THE PROPERTY THAT MIGHT BE LOST, STOLEN OR DESTROYED IF MONITORING SERVICES ARE NOT PERFORMED PROPERLY, (2) WHETHER OR HOW FAST THE RESPONSIBLE AUTHORITIES, POLICE OR OTHERS WOULD RESPOND TO NOTICE OF AN ALARM SIGNAL, (3) WHAT PORTION, IF ANY, OF ANY PROPERTY LOSS, PERSONAL INJURY OR DEATH WOULD BE PROXIMATELY CAUSED BY OUR FAILURE TO PROPERLY PERFORM MONITORING SERVICES, OR  COMPANY’S NEGLIGENCE. THEREFORE SUBSCRIBER AGREES (EVEN IF A COURT DECIDES THAT COMPANY’S BREACH OF THIS AGREEMENT, OR ANY OTHER DUTY COMPANY MAY HAVE TO SUBSCRIBER, OR TO OTHERS IN SUBSCRIBER’S PREMISES, INCLUDING WITHOUT LIMITATION OR EXAMPLE, COMPANY’S NEGLIGENCE, THAT CAUSED OR ALLOWED ANY HARM OR DAMAGE (WHETHER PROPERTY DAMAGE, PERSONAL INJURY OR DEATH) TO SUBSCRIBER OR ANY OTHER PERSON) THAT COMPANY’S LIABILITY SHALL BE LIMITED TO $1,000.00 AND THIS SHALL BE SUBSCRIBER’S SOLE REMEDY REGARDLESS OF WHAT LEGAL THEORY (INCLUDING, WITHOUT LIMITATION OR EXAMPLE, NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY OR PRODUCT LIABILITY) IS USED TO DETERMINE THAT COMPANY WAS LIABLE FOR THE HARM, DAMAGE, INJURY, DEATH OR LOSS.  SUBSCRIBER MAY OBTAIN A HIGHER LIMITATION OF LIABILITY FROM COMPANY FOR AN ADDITIONAL PERIODIC CHARGE.  IF SUBSCRIBERS ELECTS THIS OPTION, COMPANY WILL ATTACH A RIDER TO THIS AGREEMENT WHICH WILL SET FORTH THE AMOUNT OF THE LIMITATION OF LIABILITY AND THE AMOUNT OF THE INITIAL ADDITIONAL CHARGE.  AGREEING TO THE LIMITATION OF LIABILITY SET FORTH HEREIN DOES NOT MEAN THAT COMPANY IS AN INSURER.
  18. Waiver of Subrogation. Subscriber hereby waives any rights Subscriber’s insurance company may have to be reimbursed by Company or Company’s Representatives for money paid to Subscriber or on Subscriber’s behalf.
  19. Miscellaneous.
    1. Entire Agreement; Amendments. This Agreement contains the entire agreement between the parties relating to the subject matter herein and supersedes all prior or current negotiations, commitments, contracts, purchase orders, 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. All changes or amendments to this Agreement must be in writing and signed by all parties to be bound.
    2. State Law Provisions.
      1. Kansas Modification. If Subscriber is a Kansas consumer, as that term is defined in the Kansas Consumer Protection Act (“Kansas Act”), nothing in this Agreement shall be construed to exclude, modify or otherwise limit either the implied warranties of merchantability or fitness for a particular purpose, or any remedy provided by the Kansas Act for a breach of these warranties.
      2. Kentucky Modification. If you are a Kentucky consumer, as that term is defined in the Kentucky Subscriber Response Plan Rights (“Kentucky Act”), nothing in this Agreement shall be construed to exclude, modify or otherwise limit either the implied warranties of merchantability or fitness for a particular purpose, or any remedy provided by the Kentucky Act for a breach of these warranties. View the Kentucky Act: https://www.electroniccaregiver.com/service-agreement/kentucky-subscriber-response-plan-rights/
    3. Headings. The Section titles used herein are for convenience of the parties only and shall not be considered in construing the provisions of this Agreement.
    4. Binding Agreement. This Agreement is binding on Subscriber’s heirs, executors and administrators.
    5. Intended Third Party Beneficiaries. Subscriber acknowledges, understands and agrees 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.
    6. Assignment. Subscriber may not assign this Agreement.  This Agreement or any portion thereof is assignable by Company in its sole discretion.
    7. No Waiver of Breach. If a party waives any breach of this Agreement such waiver shall not be construed as a waiver of any subsequent breach.
    8. Remedies. The parties’ 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.
    9. Severability. If any provision of this Agreement is found to be invalid or illegal by a court, the balance of the Agreement shall remain in full force and effect.
    10. Choice of Law; Time of the Essence. Subscriber understands, acknowledges and agrees that Company’s monitoring services are performed in New York and the laws of New York shall govern this Agreement without reference to its conflicts of law rules. The interpretation of this Agreement shall not be construed against the drafter. The time periods in this Agreement must be strictly complied with.
    11. Compliance with Laws. Company may, in compliance with applicable laws, pay third parties referral fees for soliciting customers to purchase the System and Monitoring Services.
    12. Limitation of Actions. All claims, actions or proceedings by or against Company or Company’s 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 Section 17(k) must be strictly complied with.
    13. WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING BROUGHT BY EITHER PARTY ARISING OUT OF OR FROM, IN CONNECTION WITH, RELATED TO, AS A CONSEQUENCE OF OR RESULTING FROM THIS AGREEMENT.
    14. Prevailing Party. If Company is the substantially “prevailing party” in any claim asserted or any legal action, suit, mediation or arbitration proceeding arising under or related to this Agreement, Subscriber shall pay to Company Company’s costs and expenses of such legal action, suit, mediation or arbitration proceeding including, without limitation or example, consultants’ and professionals’ fees and costs and reasonable attorneys’ fees and costs.  “Prevailing party” shall mean the party who is most successful in the proceedings as determined by the trial judge, mediator or arbitrator, as the case may be.
    15. Counterparts. You will not receive a copy of this Agreement signed by Company. Acceptance of payment and the commencement of the monitoring services will constitute Company’s acceptance of this Agreement. Subscriber agrees that a copy of: (i) this Agreement and any amendments or documents related to this Agreement, and (ii) the signatures affixed to the documents referenced in clause (i) hereof may be transmitted and delivered by original, facsimile or electronic mail and that all such documents shall be deemed to be originals for all purposes. Company may scan or otherwise convert the documents referenced above into an electronic data file and/or digital media file, and that a copy of any such document produced from such electronic or media file shall be deemed to be an original for all purposes and given the same legal force and effect as the original.
    16. Acknowledgements. By signing this Agreement Subscribers: (i) UNDERSTANDS THAT THIS IS A BINDING AGREEMENT; (ii) ACCEPTS ALL OF THE TERMS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE SECTIONS ON LIMITATION OF LIABILITY, INDEMNITY SECTIONS, SERVICE LIMITATION, AND FEES; AND (iii) ACKNOWLEDGES A COPY OF THE ENTIRE AGREEMENT WAS MADE AVAILABLE TO SUBSCRIBER BEFORE SIGNING.