Personal Emergency Response System Service Agreement
This Agreement is made by and between LifeSupport Medical, a DBA of SameDay Security, Inc. (“Company”, “LSM”, “SDS”), whose national headquarters are located in Las Cruces, New Mexico, and the “subscriber” mentioned in the monitoring agreement located at the physical address indicated in the monitoring agreement. Subscriber is sometimes referred to as “you” or “your.” Company is sometimes referred to as “we,” “us” or “our”. The “System” refers to the purchased LifeSupport Medical personal response console, remote help button(s) and any other accessories or devices provided by LifeSupport Medical. The word “premises” refers to your address set-forth above. If anyone other than Subscriber is the user of the System (the “User”), such User is a third party beneficiary to this agreement and is bound by all of the terms herein.
- Term and Renewal. The term of this Agreement is for a period of twelve (12) months and shall automatically renew for equal, successive periods unless either party provides thirty (30) days written notice before the end of any 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 notice of termination before the beginning of any calendar month.
- Monitoring Services. Monitoring service consists solely of monitoring service personnel alerting the persons, entities or agencies identified by Subscriber in writing to Company (“Responders”) upon the monitoring facility’s receipt of data or other communication from the System reporting conditions that require assistance (a “Response Condition”). You understand, acknowledge and agree 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.
- The System. You have purchased a medical alert system from LifeSupport Medical, a DBA of SameDay Security, Inc. LifeSupport Medical is responsible for the purchase terms, warranty, replacement, performance, and maintenance of the LifeSupport Medical supplied “system” and associated devices.
- Charges. You agree to pay the monitoring charges in the amount indicated in the monitoring agreement payable monthly in advance.
- LIMITATION OF LIABILITY; NOT AN INSURER.
- SUBSCRIBER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT SHOULD THERE ARISE ANY LIABILITY ON THE PART OF COMPANY OR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS AND EMPLOYEES (COLLECTIVELY, “REPRESENTATIVES”) FOR ANY PERSONAL INJURY, HEALTH RELATED EVENT, LOSS, DAMAGE OR EXPENSE INCLUDING, WITHOUT LIMITATION OR EXAMPLE, ANY LIABILITY ARISING OUT OF OR FROM CLAIMS IN CONNECTION WITH SUBROGATION, CONTRIBUTION OR INDEMNIFICATION, DUE TO ANY REASON INCLUDING, WITHOUT LIMITATION OR EXAMPLE, COMPANY’S OR REPRESENTATIVES’ ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE THAT OCCURS BEFORE OR AFTER THE SIGNING OF THIS AGREEMENT OR BREACH OF CONTRACT, ALL SUCH LIABILITY SHALL BE LIMITED TO THE MAXIMUM SUM OF $1,000.00 COLLECTIVELY FOR COMPANY AND REPRESENTATIVES.
- YOU ACKNOWLEDGE, UNDERSTAND AND AGREE THAT: (A) WE ARE NOT AN INSURER OF YOUR PREMISES, PROPERTY OR THE PERSONAL SAFETY OF YOU OR ANY OTHER PERSONS; (B) YOU ACKNOWLEDGE AND AGREE THAT YOU WILL BE SOLEY RESPONSIBLE TO CONTINUOUSLY MAINTAIN LIFE, MEDICAL, DISABILITY, LONG TERM CARE, AND PROPER AND ADEQUATE INSURANCE ON YOUR PREMISES AND ITS CONTENTS; AND OTHER INSURANCE AS APPROPRIATE FOR THE PROTECTION OF YOURSELF AND OTHERS WHO MAY USE THE SYSTEM; (C) THE AMOUNT YOU PAY TO US IS BASED ONLY ON THE COST OF THE MONITORING SERVICES WE PROVIDE AND NOT ON THE VALUE OF YOUR PREMISES OR ITS CONTENTS; (D) MONITORING SERVICES MAY NOT ALWAYS BE PERFORMED PROPERLY FOR VARIOUS REASONS, INCLUDING OUR NEGLIGENCE; (E) IT IS DIFFICULT TO DETERMINE IN ADVANCE THE VALUE OF THE PROPERTY THAT MIGHT BE LOST, STOLEN OR DESTROYED IF MONITORING SERVICES ARE NOT PERFORMED PROPERLY; (F) IT IS DIFFICULT TO DETERMINE IN ADVANCE WHETHER OR HOW FAST THE RESPONSIBLE AUTHORITIES, POLICE OR OTHERS WOULD RESPOND TO NOTICE OF AN ALARM SIGNAL; (G) IT IS DIFFICULT TO DETERMINE IN ADVANCE 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 OUR NEGLIGENCE. THEREFORE YOU AGREE: EVEN IF A COURT DECIDES THAT OUR BREACH OF THIS AGREEMENT, OR ANY OTHER DUTY WE MAY HAVE TO YOU, OR TO OTHERS IN YOUR PREMISES, INCLUDING WITHOUT LIMITATION OR EXAMPLE, OUR NEGLIGENCE, THAT CAUSED OR ALLOWED ANY HARM OR DAMAGE (WHETHER PROPERTY DAMAGE, PERSONAL INJURY OR DEATH) TO YOU OR ANY OTHER PERSON, YOU AGREE THAT OUR LIABILITY SHALL BE LIMITED TO $1,000.00 AND THIS SHALL BE YOUR 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 WE WERE LIABLE FOR THE HARM, DAMAGE, INJURY, DEATH OR LOSS. YOU MAY OBTAIN A HIGHER LIMITATION OF LIABILITY FROM US FOR AN ADDITIONAL PERIODIC CHARGE. IF YOU ELECT THIS OPTION, WE 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 DOES NOT MEAN THAT WE ARE AN INSURER.
- Subscriber Acknowledgments. You understand, acknowledge and agree as follows:
- The System requires 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.
- You must test the System at least monthly and whenever modifications are made to the electrical or telephone services at your premises.
- 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 the 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.
- 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.
- 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.
- The System is not infallible and the transmission and receipt of communications from the System may be interrupted or otherwise circumvented.
- Waiver of Subrogation. You hereby waive any rights your insurance company may have to be reimbursed by Company or Representatives for money paid to you or on your behalf.
- INDEMNIFICATION. IF ANYONE OTHER THAN YOU, INCLUDING, WITHOUT LIMITATION, YOUR INSURANCE COMPANY, ASKS COMPANY OR 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)
DUE TO ANY REASON INCLUDING, WITHOUT LIMITATION OR EXAMPLE, THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF COMPANY OR REPRESENTATIVES, OR THERE IS A CLAIM FOR SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, YOU AGREE TO PAY (WITHOUT ANY CONDITION THAT COMPANY OR 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 REPRESENTATIVES IN CONNECTION WITH ANY AND ALL SUCH CLAIMS.
- Increase in Charges and Fixed Period. Company will not increase the charge for standard monthly services and the rate will be fixed for 60 months from the date of this agreement. Company may increase periodic charges at any time after five (5) years by giving written notice thirty (30) days in advance of the effective date of such change. If you are unwilling to pay any revised charge, you must notify Company in writing twenty (20) days prior to the otherwise effective date of the change. This Agreement then will be terminated on the effective date of the change unless Company rescinds the change following which Company may elect to resume the charge of the previous term binding you to the full term of this Agreement. The time periods in this paragraph must be complied with strictly. You may be subject to a higher charge for monthly services if you elect to add special services to the standard services offered.
- THE SYSTEM AND SERVICE HAVE CERTAIN LIMITATIONS.
IN CONSIDERATION FOR THE PROVISION OF THE SYSTEM AND SERVICE, YOU ACKNOWLEDGE THAT WE DO NOT REPRESENT OR WARRANT THAT THE SYSTEM OR MONITORING SERVICE WILL PREVENT DEATH, BODILY OR PERSONAL INJURY, PROPERTY LOSS OR DAMAGE, OR ANY OTHER INJURY OR DAMAGE TO YOU OR OTHERS WHO USE THE SYSTEM. WE MAKE NO REPRESENTATION OR WARRANTY AS TO THE PROMPTNESS OF OUR RESPONSE, AND WE HAVE 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. YOU FURTHER UNDERSTAND THAT WE MAY BE NEGLIGENT IN PROVIDING THE SERVICE, 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. YOU AGREE THAT IF WE WERE TO HAVE ANY LIABILITY GREATER THAN THAT AGREED TO BY YOU PURSUANT TO SECTION 5.1 AND 5.2 OF THIS AGREEMENT, WE COULD NOT AND WOULD NOT PROVIDE THE SERVICE. YOU UNDERSTAND THAT THERE ARE ALTERNATIVES AVAILABLE TO YOU SUCH AS 911 EMERGENCY TELEPHONE SERVICE AND YOU HAVE SELECTED THIS SERVICE WITH A FULL UNDERSTANDING OF ITS LIMITATIONS, AND THE LIMITATION OF OUR LIABILITY SET FORTH IN SECTION 5.
- False Alarms and Forced Entry. If the System is activated for any reason, you shall (i) pay, without reimbursement from Company, or (ii) reimburse Company, for any fines, fees, costs, expenses or penalties assessed against you or Company by any court or governmental agency. You must provide access to the premises to Responders. If you fail to provide access, Responders may use forcible means to enter the premises, which may result in damage to the premises, all of which damage, cost and expense shall be borne solely by you without recourse to Company or Representatives. Company has no control over response times for Responders. You acknowledge, understand and agree that you may be able to reach Responders or a municipal paramedic or private ambulance service by telephone including, in many areas, by dialing 911 in addition to relying on the service. You hereby release Company and Responders for and from all claims, losses and damages that may arise from any forced entry or any delayed response by Responders.
- Default of Subscriber. If you breach this Agreement, without limiting Company’s rights, and without any further notice, Company shall retain all prepayments and you 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 as agreed upon damages and not as a penalty; and Company shall have no further obligation to perform under this Agreement. If any claim is asserted or any legal action, suit, mediation or arbitration proceeding is instituted, Subscriber shall pay Company its costs and expenses of such legal action, suit, mediation or arbitration proceeding including, without limitation or example, consultants’ and professionals’ fees and costs and reasonable attorneys’ fees and costs on the sole condition that Company is the substantially prevailing party by way of termination or withdrawal of the claim, settlement, judgment or award.
- Binding Agreement. This Agreement is binding on Subscriber’s heirs, executors and administrators.
- Agreement; Choice of Law; Time of the Essence. If you have given or ever give us a purchase order for the Monitoring Services that provides for different terms than this Agreement, the purchase order shall be void and this Agreement will govern exclusively. 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. You agree that 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 or any rule of contract construction, which construes any ambiguity or interpretation against the drafter. The time periods in this Agreement must be strictly complied with. The interpretation of this Agreement shall not be construed against the drafter.
- This Agreement is not assignable by you. This Agreement or any portion thereof is assignable by Company in its sole discretion.
- Finance and Late Charges. A finance charge of one and one-half (1 1/2%) percent per month
(eighteen (18%) percent per year) will apply to all obligations not paid pursuant to these terms.
- No Waiver of Breach. If you or Company shall waive any breach of this Agreement it shall not be construed as a waiver of any subsequent breach. Your rights and Company’s rights hereunder shall be cumulative, and any rights hereunder may be exercised concurrently or consecutively and shall include all remedies available even though not expressly referred to herein.
- Suspension of Service. You understand and acknowledge that Company’s obligations are automatically suspended without notice to you and you hereby waive all claims and release Company for all liability, loss, damage and expense in the event of (i) a breach of this Agreement by you, or (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 you, you shall be entitled to reimbursement of the unearned charge paid for the period of the suspension on your request and this shall be the limit of Company’s liability.
- Integrated Agreement; Modifications. This Agreement contains the entire agreement between you and the Company concerning the transactions described in this Agreement and supersedes all prior or current negotiations, commitments, contracts, express or implied, warranties, express or implied, statements and representations, written or oral, pertaining to such matters, all of which are merged into this Agreement. NEITHER
PARTY HAS AUTHORITY TO MAKE OR CLAIM ANY REPRESENTATION, TERM, PROMISE, CONDITION, STATEMENT, WARRANTY, OR INDUCEMENT (COLLECTIVELY, “INDUCEMENT”) WHICH IS NOT
EXPRESSED HEREIN. THIS AGREEMENT MAY NOT BE CHANGED BY ANY ORAL STATEMENTS OR REPRESENTATIONS MADE BY OUR AGENTS OR REPRESENTATIVES, OR THE RETAIL OUTLET WHO SOLD YOU THE SYSTEM. EACH PARTY REPRESENTS THAT IT/HE/SHE IS NOT RELYING ON ANY INDUCEMENT IN SIGNING THIS AGREEMENT WHICH IS NOT EXPRESSED IN THIS AGREEMENT. All changes or amendments to this Agreement must be in writing and signed by all parties to be binding on the parties.
- Moving the System. If you move from your premises and reinstall the System at your new home or business, we must receive (a) a new fully completed and legible information form, (b) written notice of the new address of your premises (which you acknowledge and agree is a ratification of this Agreement), and (c) acceptable test signals from the System as conditions of our duty to perform Monitoring Services of the System. If you fail to fully comply with the requirements of the preceding sentence, you understand that the monitoring facility will not properly respond to data received from the System and you understand and agree we are released from all claims arising out of or 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 our negligence.
- Intended Third Party Beneficiaries. You acknowledge, understand and agree that the provisions of this Agreement inure to the benefit of and are applicable to any subcontractors engaged by Company to provide any service set forth herein to you, and bind you to such subcontractor(s) with the same force and effect as they bind you to Company.
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.
- WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY
- Repair Service. Company makes no representation, promise, warranty or guarantee that there will be no interruptions of service or delay when repair or replacement of the System is required. All repair or replacement of the System shall be performed by LifeSupport Medical, a division of SameDay Security, Inc. You agree that Life Safety Monitoring Service, a division of Rapid Response Monitoring Service, is not responsible for any repair, replacement or maintenance of the system.
- Contractual Limitation of Actions. All claims, actions or proceedings by or against Company or Representatives must be commenced in court within one (1) year after the cause of action has accrued, without judicial extension of time, or said claim, action or proceeding is barred. The time period in this paragraph must be strictly complied with.
- Headings. The paragraph titles used herein are for convenience of the parties only and shall not be considered in construing the provisions of this Agreement.
- Internet Services. Company hereby grants to Subscriber a non-exclusive, non-transferable license to use the Company’s [website] [internet site] [and] [software] 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 it 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 the [website] [internet site] [and] [software] and cancel all passwords or other access codes.
- 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.
- Start of Services. Services will commence after (i) all required information to be provided by Subscriber is entered into the computer system for Company’s monitoring facility; (ii) an acceptable test of the System received by Company’s monitoring facility; and (iii) receipt of a copy of this agreement signed by you.
- Electronic Media. You agree 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 facsimile or electronic mail and that all such documents shall be deemed to be originals for all purposes and given the legal force and effect as originals. In addition, 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.
- Customer’s Duties. You will instruct all other persons who may use the System on its proper use. You will obtain at your sole cost and keep in effect continuously all permits and licenses that may be required for the operation or monitoring of the System. You will legibly complete and give us an information form, which will include the name, telephone number and relationship of each person we may call in the event we believe there is an emergency at your premises, and other information we may require. You will notify us in writing of any changes in the persons or telephone numbers on your information form. You agree that we may disclose the information on the information form to any governmental agency having jurisdiction over the use, operation or monitoring of the System. You will test the system, at least monthly in accordance with the testing instructions in your Owner’s Manual. Your failure to test the system monthly is a breach of this Agreement.
- Kansas Modification. If you are a Kansas consumer, as that term is defined in the Kansas Consumer Protection 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 law for a breach of these warranties.
- Kentucky Modification.If you are a Kentucky consumer, as that term is defined in the KENTUCKY SUBSCRIBER RESPONSE PLAN RIGHTS, 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 law for a breach of these warranties. View the KENTUCKY SUBSCRIBER RESPONSE PLAN RIGHTS HERE: https://www.electroniccaregiver.com/service-agreement/kentucky-subscriber-response-plan-rights/
BY SIGNING THE MONITORING AGREEMENT, YOU (I) UNDERSTAND THAT THIS IS A BINDING AGREEMENT. (II) ACCEPT THE LIMITATION OF LIABILITY AND INDEMNITY PARAGRAPHS OF THIS AGREEMENT
; AND (III) ACKNOWLEDGE A COPY OF THE ENTIRE AGREEMENT WAS MADE AVAILABLE TO YOU BEFORE SIGNING.
NO WARRANTIES. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, WHICH EXTEND BEYOND THE DESCRIPTION HEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
RIGHT TO CANCEL
. YOU MAY CANCEL THIS TRANSACTION PRIOR TO MIDNIGHT OF THE THIRD (3rd) BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION.
IF YOU HAVE QUESTIONS, PLEASE FEEL FREE TO CONTACT CUSTOMER CARE TOLL FREE AT: 1-866-572-3274 or E-MAIL: email@example.com
. If local and state taxes are applicable in your area, you will be billed for such taxes and you agree to pay the same. You will be billed in advanced for these services. By signing the monitoring agreement, you confirm that the information provided is correct, you have read the Terms and Conditions of this agreement particularly Sections 5.1, 5.2 (Limitation of Liability/Not an Insurer), 8 (Indemnification) and 10 (System and Service Limitations) which limit our liability, and you have checked the box in the monitoring agreement
, and you agree to the terms of payment. You will not receive a copy of this Agreement signed by LSM. Acceptance of your payment and the beginning of your service will constitute LifeSupport Medical’s acceptance of this Agreement.