PERSONAL EMERGENCY RESPONSE SYSTEM MONITORING AND LEASE AGREEMENT
This Agreement is between Alert San Diego (“Company”) and the Subscriber identified below and consists of this document, the Subscriber’s Enrollment Profile and the provisions appearing below and on the following pages.
1. Payment. Subscriber shall pay Company monitoring fee(s) per cycle during the term of the Agreement for Monitoring Service and use of the System supplied by Company. Subscriber authorizes Company to charge Subscriber's credit card on file or debit Subscriber's checking account for payment. Payment charges will be drawn on the 1 day of each month or as otherwise specified by Company and / or Subscriber.
2. System; Installation. “System” refers to Company's medical alarm console, personal transmitter(s) and any other accessories or devices provided by Company. Subscriber shall be responsible for proper installation of the System. Company will provide installation instructions to Subscriber with the System. System remains property of Alert San Diego.
3. Term; Renewal. The initial term of this Agreement is for a period of one month from the date indicated below as the “Commencement Date”. After the initial term, this Agreement shall renew automatically from month to month thereafter unless and until either party gives notice of termination, which shall be effective at the end of the next monthly term which is at least 30 days after receipt of such notice by the other party.
4. Monitoring Service. Company will monitor signals from Subscriber's System at the Premises Address and will seek to create two-way voice communications with Subscriber through the System. Monitoring service consists solely of alerting the persons, entities or agencies identified by Subscriber to Company (“Responders”) on Subscriber’s Enrollment Profile upon the monitoring facility's receipt of signals from the System. Following receipt of those signals but before alerting any Responders: (a) Company may, in its sole and absolute discretion and without any liability, contact or attempt to contact Subscriber’s Premises as frequently as the Company deems appropriate to verify the need to alert Responders; and (b) after receiving oral advice from anyone at the Premises to disregard the signals, the 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 signals.
5. Telephone Lines. Due to the potential for service interruption or outages on phone lines, your connection to the monitoring center is not guaranteed. In addition, if Subscriber has more than one telephone extension at the Premises, using the same number, and if one of these extensions is in use, the System will not operate without installation of additional equipment. Company is not responsible for any costs for parts or labor associated with adapting Subscriber’s telephone system for use with the System.
6. Subscriber's Duties. Subscriber shall: A. 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; B. not attach any apparatus or devices to the System; C. not disturb, remove or relocated the System; D. supply 24-hour 110 volt service required to power the System; E. provide uninterrupted telephone service to keep the System operational; F. test the System periodically; G. notify Company in writing of any changes in the information contained in the Enrollment Profile; H. provide Responders access to the premises; I. refer to and comply with the user guide provided with the System; and J. notify Company if the System batteries need service or replacement.
7. Disasters. Company may terminate this Agreement, if it cannot maintain or secure transmission abilities and shall not be liable for any damages or penalties as a result of such termination. This Agreement may be canceled without previous notice by Company in the event Company’s monitoring facilities are destroyed or damaged due to any catastrophe.
8. Interruption of Services. Company assumes no liability for interruption of services due to strikes, riots, strikes, fires, acts of God, mechanical or electrical failures or any cause beyond the control of Company and will not be required to supply service while such interruptions continue.
9. Suspension or Cancellation. In the event Subscriber violates any part of this Agreement, abandons or sublets the Premises, or causes an excessive number of false alarms, Company may suspend all service and terminate this Agreement upon giving 10 days written notice to Subscriber. In such event Company shall have the right to sever the connection and render the System in operative.
10. No Warranty or Representation of Performance. Company does not represent or warrant that the System may not be compromised or circumvented or that the System will prevent any personal injury, loss of life or property, or damage, or that the System will in all cases provide protection for which it is maintained or intended. Company expressly DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, and Subscriber has not relied on any representation or warranty, other than those appearing in this Agreement. Subscriber acknowledges that any affirmation of fact or promise made by Company or any Representative (as defined below) shall not be deemed to create an express warranty unless included in writing in this Agreement. Some states do not allow limitations on how long an implied warranty lasts or the exclusion or the limitation of incidental or consequential damages, so the above limitations or exclusions may not apply. This warranty gives Subscriber specific legal rights and Subscriber may also have other rights that may vary from state to state.
11. Insurance. Company is not an insurer. The service fee is based solely upon the services Company provides hereunder and is premised and conditioned upon Company's limitation of liability and other rights arising under the risk allocation clauses contained in this Agreement. Accordingly, during the term of this agreement, Subscriber shall maintain insurance in an amount and with coverages sufficient to provide full and complete coverage for any loss, damage or expense that may be sustained by Subscriber, Subscriber’s family or others who may be on or adjacent to the Premises, including medical insurance, disability insurance, life insurance and property insurance. Subscriber (on behalf of Subscriber and Subscriber’s assigns, heirs, beneficiaries, creditors, representatives, agents and affiliates) releases Company and the Representatives (defined below) for all such loss, damage and expense.
12. LIMITATION OF LIABILITY. SHOULD THERE ARISE ANY LIABILITY ON THE PART OF COMPANY, ANY OF ITS PRESENT OR FORMER OWNERS, OR ANY PRESENT OR FORMER OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, TRUSTEE, REPRESENTATIVE, AGENT, AFFILIATE, SUBSIDIARY, PREDECESSOR, SUCCESSOR, ASSIGN, BENEFICIARY, HEIR, EXECUTOR, SUBCONTRACTOR, INSURER, ATTORNEY OR EMPLOYEE OF ANY OF THEM (COLLECTIVELY, “REPRESENTATIVES”) FOR ANY PERSONAL INJURY OR DEATH OR ANY OTHER LOSS, DAMAGE, COST OR EXPENSE, INCLUDING ANY ECONOMIC LOSSES, PROPERTY DAMAGES OR OTHER LIABILITY ARISING OUT OF OR FROM, IN CONNECTION WITH, RELATED TO, AS A CONSEQUENCE OF, OR RESULTING FROM THIS AGREEMENT OR THE PERFORMANCE BY COMPANY OR ITS REPRESENTATIVES OF ITS OBLIGATIONS HEREUNDER, INCLUDING THE (1) ACTIVE OR PASSIVE, SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF COMPANY OR ANY OF THE REPRESENTATIVES, WHETHER BEFORE OR AFTER THE SUBSCRIBER’S ACCEPTANCE OF THIS AGREEMENT, (2) IMPROPER OPERATION OF THE SYSTEM OR THE FAILURE OF THE SYSTEM TO OPERATE, (3) BREACH OF CONTRACT, OR (4) ANY CLAIMS FOR SUBROGATION, CONTRIBUTION OR INDEMNIFICATION, ALL SUCH LIABILITY SHALL BE LIMITED TO THE MAXIMUM SUM OF $500.00, COLLECTIVELY FOR COMPANY AND THE REPRESENTATIVES. NEITHER COMPANY NOR THE REPRESENTATIVES SHALL BE LIABLE FOR ANY GENERAL, DIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
13. Waiver of Subrogation. Subscriber waives any rights Subscriber’s insurance Company may have to be reimbursed by Company or Representatives for money paid to, or on behalf of, Subscriber.
14. Indemnification. If anyone other than Subscriber, including Subscriber’s insurance Company, asks Company or Representatives to pay for any loss, damage, cost or expense (including economic losses, property damage, personal injury, or death) arising out of or from, in connection with, related to, as a consequence of, or resulting from any reason, including (1) the active or passive, sole, joint or several negligence of any kind or degree of Company or any of the Representatives, (2) the improper operation of the System or the failure of the System to operate, (3) breach of contract, or (4) any claims for subrogation, indemnification or contribution, Subscriber agrees to pay (without any condition that Company or any Representative first pay) for all such loss, damage, cost and expense, including attorneys' fees, which may be asserted against or incurred by Company or any of the Representatives in connection with any and all such claims.
15. Repair Service. Following Company's receipt of notice from Subscriber of the need to service the System, Company agrees, at its election, to replace or repair the System or any component of the System. Company makes no representation, promise, warranty or guarantee that there will be no interruptions of service or delay in performing repair or replacement of the System. All repairs or replacements of the System shall be performed by Company only. However, any damage caused by accident, vandalism, negligence or mistake, violation of the installation and use requirements, flood, water, lightning, fire, intrusion, abuse, misuse, acts of God, casualty (including electricity), attempted unauthorized repair service or modification by anyone other than Company shall be repaired or replaced by Company at Subscriber’s expense at Company’s then prevailing rates.
16. Medical or Related Expenses; Forcible Entry. Subscriber appoints Company as Subscriber’s agent to give information and direction to Responders, directly or via any subcontractor of Company, as if done by Subscriber in Subscriber’s own name, concerning any and all matters arising out of or from the performance of monitoring services. Subscriber shall be obligated to pay for any costs and expenses incurred in obtaining assistance, including but not limited to ambulance, physician or other medical assistance, or any cost whatsoever incurred as a result of Subscriber’s use of the System. Subscriber authorizes Company, or its subcontractor, in their sole discretion, to authorize entry to Subscriber’s Premises in the event a signal is transmitted to Company and Company and Representatives are relieved of all responsibility as a result of such 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 Representatives. Company has no control over response times for Responders.
17. Title to the System. Title to the System shall remain at all times in Company. Subscriber shall return the System to Company undamaged and in good operating condition, immediately following termination of this Agreement or Subscriber shall pay the Company $300 for the System as the agreed upon cost of replacing the System. Subscriber alone bears the risk of loss if the System is destroyed, damaged or not delivered to the Company.
19. Credit Investigation Report. Subscriber authorizes and consents to credit investigations and reports by Company and Company providing information concerning Subscriber to credit reporting agencies.
20. Right to Subcontract; Assignment. Company may, in its sole and absolute discretion, subcontract for the provision of services under this Agreement. Subscriber acknowledges 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 to Subscriber, and bind Subscriber to such subcontractor(s) with the same force and effect as they bind Subscriber to Company. This Agreement is not assignable by Subscriber. This Agreement or any portion thereof is assignable by Company in its sole discretion without notice to or consent of Subscriber.
21. Entire Agreement. This Agreement constitutes the full understanding and agreement between the parties hereto and may not be amended or modified except in writing signed by all parties.
22. Applicable Law; Waiver of Jury Trial; Commencement of Action. This Agreement shall be governed by and construed according to the laws of the State of Connecticut without reference to its conflicts of law rules. Subscriber and Company each waive the right to trial by jury in any suit, action or other legal proceeding in connection with this agreement. This jury trial waiver cannot be revoked. Any suit, action or other legal proceeding arising out of or relating to this agreement shall be brought exclusively in the state courts of Connecticut or the courts of the United States located in the district or county where the company's principal place of business is located. Subscriber and Company each consent to the exclusive jurisdiction and venue of each such court in any such suit and waive any objection each may have to jurisdiction or venue of any such suit. 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.
Alert San Diego© 2013