That for the consideration and covenants hereinafter specified, the parties hereto, their heirs, successors and assigns do mutually covenant and agrees as follows:
1. Home and Wellness, (the “Company”) agrees to furnish and pre‐program to Subscriber a Medical Alert System (the “System”) hereinafter defined, and to monitor same on the terms and conditions herein provided. The system has a unique serial number attached to it and monitoring service can only be activated with Home and Wellness. This device is a rental and will remain the property of Home and Wellness. It must be returned at the subscribers expense when service is no longer needed. Failure to return the equipment at the end of the lease will result in a $200 replacement charge.
2. The monthly monitoring charge will begin at the completion of the first month from the date the signed contract is returned to us. This contract will automatically renew monthly unless either party gives written notice of its intent to cancel. You authorize and agree that all amounts due to the company on a monthly basis, including applicable taxes due, are to be paid by automatic credit card debit. If your credit card is not honored, we will contact you for different payment arrangements. A customer will only get pre‐paid months included on the first time they activate service with Home and Wellness. If they purchase future devices with Home and Wellness, those devices will not be entitled to pre‐paid months again.
3. AUDIO LISTEN IN AND FORCIBLE ENTRY: The System includes two‐way voice and is meant to be heard under optimal conditions throughout the house. In the event that the two‐way audio is not clear, or the central station does not hear audio, Subscriber authorizes Company and central station to follow emergency response procedures. In the event the medical alert device is pressed, the monitoring station will attempt to contact the emergency contracts you provided first. If they are unable to reach those contacts, or if the subscriber does not answer their phone, or if the subscriber needs emergency service, then 911 will then be notified. Subscriber authorizes the Company and/or Central station in its sole discretion to authorize forcible entry to gain access to Subscriber ’s premises in the event of the System emits a signal to the Central Station and the Subscriber cannot be heard through the unit’s microphone nor does the Subscriber answer the telephone. Subscriber does hereby release the Company and Central Station from any and all liability whatsoever as a result of said forcible entry including, but not limited to: door replacement, locksmith fees, window replacement, etc. Subscriber also allows the central station and the company to record any conversations with the subscriber as needed, and to share those conversations with emergency personal if required in an emergency situation. Subscriber understands that system may use GPS tracking to locate a person wearing a unit and gives permission for the central station to use GPS location services.
4. PHYSICAL RESPONSE: The Subscriber is advised that certain areas of the country have in existence requirements that when an arm
monitoring service reports a medical alarm to a responding agency, that it must also report such alarm to an entity available twenty‐four hours each
day which is contractually obligated to respond to the emergency within one hour or within another designatedtime.
5. MEDICAL OR RELATED EXPENSES: In the event the Subscriber utilizes the System by giving the Central Station a signal, the Subscriber does hereby authorize the Company to seek to notify or obtain assistance. The Subscriber shall be obligated for and agrees to pay any and all costs and expenses incurred including, but not limited to, ambulance, physician or other medical assistance in obtaining assistance, or cost whatsoever incurred as a result of the Subscriber’s use of the System.
6. SELF‐PROTECTION/SUBSCRIBER ’S DUTIES: The Subscriber understands that the System is used to help the Subscriber protect his or her person. It does not assure such protection. Subscriber is encouraged and agrees whenever practical to use all other safety and medical devices and technique available to the Subscriber for such protection. Available devices and techniques are too numerous to list, but include (a) basic health precautions; and (b) adherence to physician’ directions and recommendations.
7. OPTION TO UPDATE MEDICAL DATA INFORMATION: At the option of the Subscriber, the subscriber shall communicate by telephone or in
writing with the Central Station for the purpose of verifying medical data information on file at the Central Station and updating said information, if necessary. 8. PERSONAL DISCLOSURE AUTHORIZATION: Any personal information provided by Subscriber to Company may be disclosed by Company to
any personal emergency response personnel or medical personnel requestingsame.
9. RIGHT TO SUBCONTRACT CENTRAL STATION SERVICE: Company in its sole absolute discretion, may subcontract for the provision of Central Station Services under this agreement. You acknowledge and agree that the provisions of this agreement inure to the benefit of and are applicable to any third party Central station engaged by the Company to provide this service set forth herein to you, and bind you to such Central Station subcontractor with the same force and effect as they bind you to Company.
10. Electronic Transmission: This Agreement may be executed in as many counterparts as the parties to this Agreement deem necessary. When so executed, each counterpart shall be deemed to be an original and such counterparts together shall constitute one and the same agreement. Counterparts may be evidenced by email, text message, facsimile, pdf document, or other electronic transmission.
11. INTERRUPTIONS IN SERVICE: The Company assumes no liability for delays in equipment installation, interruption of services due to strikes, riots, floods, fires, acts of God, atmospheric or topographical conditions, busy cells, limitations of capacity, issues with maintenance of the equipment, public utility failure, system failures, civil disturbances, mechanical or electrical equipment failures, or any cause beyond the control of the Company, and will not be required to supply service when said interruption may continue. The system will not work if the availability of a wireless and/or cellular signal to the monitoring station is not available. This availability can be limited for if the wireless equipment does not have electrical power, if the customer is traveling outside of a carrier’s wireless network, or if there is no current monitoring agreement with Home and Wellness. Home and Wellness will not assume liability for or relating to the delay, failure, interruption or corruption of voice, call quality or transmitted data when using a wireless service, nor accuracy or precision of location information it may provide to responders.
12. MISUSES AND ABUSE OF SYSTEM: In the event the Subscriber violates any part of this agreement, misuses or damages the System or causes
an excessive number of false alarms, the Company may suspend all services and terminate this agreement upon giving thirty (30) days written notice
to the Subscriber.
13. TESTING OF THE SYSTEM: The parties hereto agree that the equipment is in the exclusive possession and control of the Subscriber, and that it is the Subscriber’s sole responsibility to test the operation of the equipment and to notify Company in writing, if any equipment is in need of repair or service. The Company shall not be required to service the equipment unless it has received such written notice from the Subscriber.
14. WARRANTY: The system includes a one‐year manufacturer warranty. At the time of purchase, a $5 per month insurance plan is available. If the customer chooses the $5 per month insurance plan, the system will be fixed or replaced for any reason if it becomes defective. If you need repair, service, or exchange of your system, contact us at 888‐851‐4291 and we will make arrangements for service of your system. The company reserves the right to replace equipment with refurbished equipment if necessary. If a subscriber chooses to not purchase the insurance plan, they will still be covered under the manufacturer one‐year warranty.
15. SYSTEM USE/SUBSCRIBER’S DUTIES: The Subscriber understands that certain laws, rules, regulations and ordinances imposed by governmental authorities, utilities, business, homeowners’ associations, and/or other entities may affect the Subscriber’s rights in relation to the installation and service of the system. The Subscriber agrees to obtain and maintain in current status all licenses or permits or other authorizations necessary for the installation and use of the System. The Subscriber shall carefully use the System and instruct all members of the household and other potential users in the proper use of the System.
16. SUBSCRIBER AGREES AND UNDERSTANDS THAT COMPANY IS NOT AN INSURER AND THAT THE INSURANCE COVERING PERSONAL INJURY, INCLUDING DEATH, AND REAL OR PERSONAL PROPERTY LOSS OR DAMAGE IN, ABOUT OR TO THE PREMISES SHALL BE OBTAINED BY THE SUBSCRIBER; THAT THE COMPANY MAKES NO GUARANTEE, REPRESENTATION OR WARRANTY INCLUDING, WITHOUT LIMITATION, AND IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE; THAT THE EQUIPMENT AND SERVICES ARE DESIGNED TO REDUCE, BUT NOT ELIMINATE, CERTAIN RISKS OF LOSS AND THAT THE COMPANY MAKES NO GUARANTEE, REPRESENTATION OR WARRANTY INCLUDING, WITHOUT LIMITATION, AND IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE; THAT THE EQUIPMENT AND SERVICES ARE DESIGNED TO REDUCE, BUT NOT ELIMINATE, CERTAIN RISKS OF LOSS AND THAT THE AMOUNT BEING CHARGED BY COMPANY ARE NOT SUFFICIENT TO WARRANT OR GUARANTEE THAT EITHER NO LOSS OR DAMAGE WILL OCCUR OR CONTEMPORANEOUS WITH, OR SUBSEQUENT TO THE EXECUTION OF THIS AGREEMENT EVEN IF DUE TO THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF COMPANY OR ITS AGENTS, SERVANTS, EMPLOYEES, SUPPLIERS OR SUBCONTRACTORS, OR THE IMPROPER PERFORMANCE OF AND/OR FAILURE TO PERFORM OF THE EQUIPMENT, OR BREACH OF CONTRACT, EXPRESS OR IMPLIED, OR BREACH OF WARRANTY, EXPRESS OR IMPLIED, OR BY LOSS OR DAMAGE TO FACILITIES NECESSARY TO OPERATE THE SYSTEM OR ANY CENTRAL STATION; THAT SHOULD THERE ARISE ANY LIABILITY ON THE PART OF THE COMPANY FOR PERSONAL INJURY AND/OR PROPERTY DAMAGE, REAL OR PERSONAL, WHICH IS IN CONNECTION WITH, ARISES OUT OF OR FROM, OR RESULTS FROM THE REMOTE PROGRAMING OR MONITORING OF ANY EQUIPMENT OR SYSTEM, AND/OR THE DISPATCH OF INDIVIDUALS TO THE PREMISES, AND/OR THE FAILURE OR FAULTY OPERATION OF SYSTEM, EQUIPMENT OR CENTRAL STATION FACILITIES, AND/ OR THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE (INCLUDING GROSS NEGLIGENCE) OF COMPANY AND/OR ITS AGENTS, SERVANTS, EMPLOYEES, SUPPLIERS OR SUBCONTRACTORS INCLUDING, WITHOUT LIMITATION, ACTS, ERRORS OR OMISSIONS WHICH OCCUR PRIOR TO, CONTEMPORANEOUSLY WITH OR SUBSEQUENT TO THE EXECUTION OF THIS AGREEMENT, AND/OR ANY CLAIM(S) BROUGHT IN PRODUCT OR STRICT LIABILITY, AND/OR BREACH OF WARRANTY, EXPRESS OR IMPLIED, AND/OR BREACH OF CONTRACT, EXPRESS OR IMPLIED, AND/OR ANY CLAIM FOR DISTRIBUTION OR INDEMNIFICATION WHERE IN CONTRACT, TORT OR EQUITY, INCLUDING, WITHOUT LIMITATION, ANY GENERAL, DIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, IRRESPECTIVE OF CAUSE, SUCH LIABILITY SHALL BE LIMITED TO THE MAXIMUM SUM OF $250.00, AND THIS LIABILITY SHALL BE EXCLUSIVE IN THE EVENT THAT THE SUBSCRIBER WISHES TO INCREASE THE MAXIMUM AMOUNT OF SUCH LIMITED LIABILITY, SUBSCRIBER MAY, AS A MATTER OR RIGHT, OBTAIN FROM COMPANY A HIGHER LIMIT BY PAYING AN ADDITIONAL AMOUNT FOR THE INCREASE IN SUCH LIMIT OF LIABILITY, BUT THIS HIGHER LIMITATION SHALL IN NO WAY BE INTERPRETED TO HOLD COMPANY AS AN INSURER.
17. Subscriber agrees to indemnify, defend and hold harmless Company from and against all claims, demands, liabilities, damages, losses,
expenses, including attorney’s fees and lawsuits which may be asserted against or incurred by Company by or due to any personal not a party to this Agreement, including Subscriber’s insurance or bonding company for any expenses, loss or damage including, but not limited to, statutory civil damages, personal injury, death and/or property damage, real or personal, arising out of the design, sale, lease, installation, repair, service, dispatch, maintenance, monitoring, recording of communications, operation or non‐operation, of the equipment, System or central station facilities, whether due to the sole, joint or several negligence (including gross negligence) of Company or its agents, servants, employee, suppliers, or subcontractors, breach of contract, express or implied, breach of warranty, express or implied, product or strict liability, and/or any claim for contribution or indemnification, whether in contract, tort or equity.
18. FULL AGREEMENT: This agreement constitutes the full understanding by and between the parties hereto, and may not be amended or modified, except in writing signed by both parties. This agreement shall not be binding upon the Company unless signed by an authorized officer.
19. ASSIGNMENT: It is specifically agreed that the Subscriber shall not be permitted to assign this agreement
20. INVALID PROVISIONS: In the event that any of the terms or provisions of this agreement shall be invalid or inoperative, all of the other terms thereof shall remain in full force and effect.
21. Upon accepting delivery of the System, Subscriber agrees to the terms and conditions of thisAgreement.
22. RIGHT OF CANCELLATION: YOU, the subscriber may cancel this transaction at any time. There are no refunds for partial months of service.
23. GOVERNING LAW: This Agreement shall be governed by the laws of the State of Kansas. Purchasing this system through the Home and
Wellness website and clicking agreement of the terms and conditions at checkout constitutes acceptance of this contract and serves as your personal signature in this agreement.