1. System & Services. We will lease and provide to you a personal emergency response system (the “System”) under the terms and conditions of this Agreement.
1.1 System Equipment. We will provide all equipment and devices for the System and monitor them in your home or premises, as applicable. The System, including monitoring software, is and will remain the sole and exclusive property of the Company during the entire term of this Agreement. Note: you will be responsible for installation of the system and devices. We will provide full installation instructions with your unit.
1.2 Monitoring Services. During the term of this Agreement, we will monitor the System and respond to signals received from the System, as set forth below. The System is intended to be used only for medical and similar personal emergencies. The police, sheriff or other law enforcement personnel will not be notified if a signal is received from the System. MONITORING SERVICE WILL NOT BEGIN, AND WE WILL HAVE NO OBLIGATION TO NOTIFY EMERGENCY PERSONNEL OR OTHER PERSONS ON YOUR SUBSCRIBER INFORMATION FORM, UNTIL WE HAVE RECEIVED AND PROCESSED: (1) A COPY OF THIS AGREEMENT SIGNED BY YOU; (2) YOUR COMPLETED SUBSCRIBER INFORMATION FORM; AND (3) TEST SIGNALS FROM THE SYSTEM HAVE BEEN SUCCESSFULLY
RECEIVED AND VERIFIED.
2. Price.
2.1 Security Deposit: You will pay us a security deposit of $195.00.
2.2 Monitoring Services: For monitoring service, you agree to pay us the sum of $ per month, billed and payable monthly, quarterly or annually in advance (the “Service Fee”).
2.3 Taxes, Fees and Other Charges; Increases. You agree to pay all sales, service, property, use and local taxes associated with sale, installation and use of the System; 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. We shall have the right, at any time, to increase the service fee set forth in paragraph 2.2 above 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 any private response agency relating to the monitoring service, and you agree to pay the increase. In addition, after the first year, we may increase the Service Fee during each following year (but not more often than once every 12 months), by an amount which is not more than 10% of the monitoring fee then being charged, by giving you 30 days prior written notice. If you are unwilling to pay the increased Service Fee, you may terminate this Agreement by giving us written notice within 45 days from the effective date of the increase.
3. Term. The initial term of this Agreement is for one year, commencing on the date set forth above. This Agreement will automatically renew for consecutive one year periods thereafter unless terminated as provided herein. Either party may terminate this Agreement at the end of the original or any renewal term by giving the other party not less than 30 days advance written notice.
4. Receipt of Copy: You acknowledge that you have received a fully-completed copy of this Agreement and two copies of the Notice of Cancellation form, and that your right of cancellation has been explained to you. IMPORTANT NOTICES TO SUBSCRIBER:
CERTAIN LIMITATIONS OF THE SYSTEM; LIMITATION OF LIABILITY: WE DO NOT REPRESENT OR WARRANT THAT THE SYSTEM OR MONITORING SERVICE WILL PREVENT DEATH, BODILY OR PERSONAL INJURY, 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 THE RESPONSE TO ANY SIGNAL FROM THE SYSTEM, 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’S BEING USED. YOU FURTHER UNDERSTAND THAT WE OR THE MONITORING CENTER 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. SECTIONS 13 AND 14 OF THIS AGREEMENT LIMIT OUR LIABILITY IF YOU OR ANYONE ELSE SUFFERS ANY HARM (DAMAGE TO OR LOSS OF PROPERTY, PERSONAL INJURY OR DEATH) BECAUSE THE SYSTEM FAILED TO OPERATE PROPERLY OR WE WERE CARELESS OR ACTED IMPROPERLY. YOU ACKNOWLEDGE THAT IF WE OR THE MONITORING CENTER WERE TO HAVE ANY LIABILITY GREATER THAN THAT PURSUANT TO SECTION 13 OR 14 OF THIS AGREEMENT, WE COULD NOT AND WOULD NOT PROVIDE THE SYSTEM OR SERVICE. YOU ACKNOWLEDGE THAT YOU SHOULD OBTAIN ANY LIFE, MEDICAL OR DISABILITY INSURANCE FOR THE PROTECTION OF YOURSELF AND OTHERS WHO MAY USE THE SYSTEM. YOU UNDERSTAND THAT THERE ARE ALTERNATIVES AVAILABLE TO YOU, SUCH AS 911 EMERGENCY TELEPHONE SERVICE, AND YOU HAVE SELECTED THIS SERVICE WITH FULL UNDERSTANDING OF ITS LIMITATIONS, AND THE LIMITATION OF OUR LIABILITY SET FORTH IN SECTIONS 13 AND 14. PERMITS; ACTIVATION OF SYSTEM: MONITORING MAY BE SUBJECT TO PERMIT FEES WHICH MAY BE REQUIRED BY THE CITY OR COUNTY IN WHICH YOUR HOME OR BUSINESS PREMISES IS LOCATED. LOCAL
AUTHORITIES MAY NOT RESPOND TO ALARM NOTIFICATIONS UNTIL ALL PERMITS OR LICENSES FOR USE OF THE SYSTEM HAVE BEEN OBTAINED. THEREFORE, WE WILL NOT START TO MONITOR THE SYSTEM UNTIL THE SALES PRICE IS PAID IN FULL AND YOU HAVE OBTAINED, AT YOUR EXPENSE, ALL NECESSARY PERMITS OR LICENSES AND HAVE PROVIDED US WITH THE LICENSE OR PERMIT NUMBER. YOU, THE SUBSCRIBER, MAY CANCEL THIS AGREEMENT AT ANY TIME PRIOR TO MIDNIGHT OF THE SEVENTH BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION.
5. Monitoring Service. The System will be connected to our monitoring facility or an independently owned and operated monitoring facility under subcontract with us (the “Monitoring Center”). When an emergency signal from the System is received in the Monitoring Center, it will try to telephone the emergency response authority listed on your Subscriber Information Form and the first person available as designated on your Subscriber Emergency Form. To avoid false alarms, the Monitoring Center may use the two-way audio feature of the System, if provided, or first call your premise to determine if an actual emergency exists before we call any authorities or persons on your call list, or dispatch emergency response personnel. If we have reason to believe that no actual emergency exists, we may choose not to place such call or notify emergency response personnel. We reserve the right to tape record all telephone conversations with the Monitoring Center. We may discontinue any particular form of response if required to do so by any governmental authority or insurance interest. You acknowledge and agree that all monitoring software, computer codes and monitoring information remain our sole and exclusive property. SUBSCRIBER AGREES THAT THE MONITORING CENTER IS RESPONSIBLE
ONLY FOR ATTEMPTING TO NOTIFY BY TELEPHONE THE APPROPRIATE EMERGENCY AGENCY OR OTHER PERSONS NAMED IN THE SUBSCRIBER EMERGENCY FORM. YOU UNDERSTAND THAT THE MONITORING CENTER WILL NOT SEND ANY COMPANY OR MONITORING CENTER PERSONNEL TO YOUR HOME OR PREMISES IN RESPONSE TO ANY EMERGENCY SIGNAL.
6. Transmission Lines. The System includes a communicator that sends signals to the Monitoring Center over your regular telephone service. You will pay for all telephone charges including any installation fee for a special jack to connect the System to your telephone service. We recommend the use of an RJ31X or equivalent telephone jack to give the System priority over other telephones in your home or business premises; however, when the System is activated, you will be unable to use your telephone line connected to the System to make other calls such as calls to the emergency 911 operator. Therefore, you may wish to have the System connected to a separate telephone line. If your telephone line connected to the System is out of order, placed on vacation status or otherwise not working, signals cannot be transmitted and we and/or the Monitoring Center may be unaware of the telephone service problem. IMPORTANT NOTE: If your telephone lines are serviced or modified, including a change from “ordinary” telephone lines to broadband, DSL or internet-based “VoIP” service, it may affect the transmission of alarm signals and/or you may need different equipment to be installed, or you may need “outside of warranty” service from us – IN THAT EVENT, YOU MUST
CONTACT US IMMEDIATELY OR YOUR SYSTEM MAY NOT OPERATE PROPERLY. Ideally, DSL service should be installed on a telephone number that is not used for alarm signal transmission.
7. False Alarms. You agree that you and others using the System will use it carefully so as to avoid causing false alarms. False alarms can be caused by forces beyond our control. If we receive too many false alarms, that will constitute a breach of contract by you, and we may cancel monitoring service. If a false alarm fine or penalty or a response fee is charged to us or you by any governmental agency, you will pay for the charge.
8. Subscriber's Duties. You will instruct all other persons who may use the System on its proper use, including any User if different than you. You or the User will test the System and send test signals to the Monitoring Center on a monthly basis. If the Monitoring Center does not respond to the test signal, you should call the Monitoring Center and confirm the status of the test. You will obtain and keep in effect all permits or licenses that may be required for the installation and operation of the System. You will complete and give us the Subscriber Information Form. You will notify us in writing of any changes in the persons or telephone numbers on your emergency call list. You agree that we may disclose the information on the Subscriber Information Form to any governmental agency having jurisdiction over the use and operation of the System.
9. Suspension or Cancellation of this Agreement.. You understand that we may stop or suspend monitoring services if: (a) strikes, severe weather, earthquakes, or other such events beyond our control affect the operation of the Monitoring Center or so severely damage your home or premises that continuing service would be impractical; (b) there is an interruption or unavailability of the telephone service between the System and the Monitoring Center; (c) we are unable to provide service because of some action or ruling by any governmental authority; or (d) you become a debtor in a bankruptcy proceeding.
10. Termination, Default. If you fail to make any payment when due, we may discontinue monitoring and terminate this Agreement after we have given you five days written notice that we are canceling service because of non-payment. If service is suspended or canceled because you have failed to pay the monitoring fees set forth herein, and you ask us to reactivate the System, you will pay, in advance, our then-prevailing re-connection fee. You authorize us to investigate your credit record, and to report your payment performance under this Agreement to credit agencies and credit reporting services. YOU UNDERSTAND THAT THE ALARM SYSTEM MAY NOT WORK WITH EQUIPMENT USED BY OTHER ALARM COMPANIES OR MONITORING CENTERS.
11. Assignees and Subcontractors. We may transfer or assign this Agreement to a financial institution or any other personal emergency services provider. You may not transfer this Agreement to someone else (including someone who purchases or rents your home or premises) unless we approve the transfer in writing. We may use subcontractors (including the Monitoring Center) to provide monitoring services, and this Agreement, and particularly Sections 14 and 15, shall apply to them and the work they perform and protect them in the same manner as it is applies to and protects us.
12. Changes to the System. If you or any governmental agency or insurance interest wants us to change the System as described herein, or change it after it is installed, you agree to pay our standard parts and labor charges for such changes. YOU AGREE THAT YOU HAVE CHOSEN THIS SYSTEM AND YOU UNDERSTAND THAT THIS SYSTEM DOES NOT PROVIDE INTRUSION OR FIRE PROTECTION.
13. THE COMPANY IS NOT AN INSURER; LIQUIDATED DAMAGES; LIMITATION OF LIABILITY. You understand that: (a) we are not an insurer of your home or premises, or the property or personal safety of persons in your home or premises; (b) you are solely responsible for providing any life, health or disability insurance for yourself and persons who use the System, and insurance on your home or premises and its contents; (c) the amount you pay to us is based only on the value of the service we provide and not on the value of your premises or its contents; (d) emergency notification systems and monitoring service may not always operate properly for various reasons; (e) it is difficult to determine in advance the value of the property that might be lost, stolen or destroyed if the System or our service fails to operate properly; (f) it is difficult to determine in advance how fast emergency personnel or others would respond to a notification of
an emergency 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 perform, our negligence, or a failure of the System or service.
THEREFORE YOU AGREE:
Even if a court decides that Company’s breach of this Agreement, a failure of the System, or Company’s negligence, or a failure of the monitoring service caused or allowed any harm or damage (whether property damage, personal injury or death) to you or anyone in your premises, you agree that our liability shall be limited to $1,500, as liquidated damages and not as a penalty, and this shall be your only remedy regardless of what legal theory (including without limitation, negligence, breach of contract, breach of warranty or product liability) is used to determine that we were liable for the injury or loss.
YOU MAY OBTAIN A HIGHER LIMITATION OF LIABILITY. If you wish, you may obtain from us a higher limitation of liability, in lieu of the liquidated damages, 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 additional charge. Agreeing to the limitation of liability does not mean that we are an insurer.
14. THIRD PARTY INDEMNIFICATION AND NO SUBROGATION. If anyone other than you asks us to pay for any harm or damages (including property damage, personal injury or death) connected with or resulting from (i) Company’s alleged breach of this Agreement or alleged failure of the System or services, (ii) our negligence, (iii) any other improper or careless activity of ours in providing the System or services or (iv) a claim for indemnification or contribution, you will pay us (a) any amount which a court orders us to pay or which we reasonably agree to pay, and (b) the amount of our reasonable attorneys fees and any other losses or costs that we may pay in connection with the harm or damages. Unless prohibited by your property insurance policy or other insurance, you agree to release us from any claims of any parties suing through your authority or in your name, such as your insurance carriers, and you agree to defend us against any such claim. You will notify your insurance carrier(s) of this release.
15. Title to Equipment; Insurance; Removal of System: You acknowledge and agree that the System and all its components is and shall at all times remain the sole property of the Company. You agree to protect the System and not subject it to damage, lien or encumbrance, nor will you dispose of the System, nor will you allow the System to be damaged or subjected to lien or encumbrance, taken from the premises, tampered with or repaired by anyone but our authorized agent. You agree to keep the System fully insured against loss. If the System or any component is lost or damaged, you agree to pay us its reasonable value or the cost of repair, as the case may be. At the expiration, termination or cancellation of this Agreement, you agree to return the System and all of its components to us in good condition, reasonable wear and tear excepted.
16. Limitation on Lawsuits; Attorneys Fees. Both the Company and Subscriber agree that no lawsuit or any other legal proceeding connected with this Agreement shall be brought or filed more than one year after the incident occurred which gave rise to the claim. If any dispute arises over the enforcement, terms conditions, construction or interpretation of this Agreement, the prevailing party (whether or not suit is filed) shall be entitled to be, and shall be, awarded all costs, fees and expenses of investigation, collection, attorneys fees and costs of suit.
17. Entire Agreement; Governing Law. The entire and only agreement between you and us with respect to purchase, installation and monitoring of the System is written in this Agreement. It replaces any earlier oral or written, and any contemporaneous understandings or agreements. It may only be changed by a written agreement signed by you and us. If any provision of this Agreement is found to be invalid or illegal by a court, the balance of the Agreement shall remain in force. You agree that this Agreement shall be governed by the laws of the State of California.