Subscriber is sometimes referred to as “you” or “your.” LifeCall® is sometimes referred to as “we,” “us” or “our.” The “System” refers to the LifeCall® Personal Emergency Response System (PERS), more commonly referred to as a Medical Alert system, and includes any Help Button(s) or other LifeCall® accessories or optional equipment that work with the LifeCall® personal service unit.
1. TERM AND RENEWAL AND TERMINATION
This Agreement is for the initial time period that is indicated above and shall automatically renew under the same terms and conditions for equal, successive periods until terminated by either Party. After that initial period, either Party may terminate this Agreement by sending the other Party thirty (30) days prior written notice. Upon termination, Subscriber will return system to LifeCall. If Subscriber fails to return System within fifteen (15) days following termination, the Subscriber agrees to pay LifeCall in cash the replacement cost of the System at the end of such fifteen (15) day period.
2. PERSONAL EMERGENCY RESPONSE SYSTEM CENTRAL OFFICE MONITORING.
Upon receipt of a signal, LifeCall or its designee communication center, shall make every reasonable effort to notify Subscriber and the appropriate municipal police or fire department or emergency personal response service designated by Subscriber. Subscriber acknowledges that signals which are transmitted over telephone lines, internet, VOIP, Cellular or other modes of communication pass through communication networks wholly beyond the control of LifeCall and which are not maintained by LifeCall and, therefore, LifeCall shall not be responsible for any equipment failure which prevents transmission signals from reaching the central office monitoring center or damages arising there from, or for data corruption, theft or viruses to Subscriber’s computers if connected to the alarm communication equipment. Subscriber agrees to furnish LifeCall with a written list of names and telephone numbers of those persons Subscriber wishes to receive notification of emergency conditions together with a list of all medication, allergies and medical conditions Subscriber wishes to be available to all personal emergency response personnel and medical personnel. All changes and revisions shall be supplied to LifeCall in writing. Subscriber acknowledges that LifeCall provides no response to a personal emergency response system signal except notification to the appropriate Party, and that the provisions of this Agreement exculpating and limiting LifeCall’s liability are fully applicable to the personal emergency response system service. LifeCall may, without prior notice, suspend or terminate its services, in designee communication center’s sole discretion, in event of Subscriber’s default in performance of this Agreement or in event designee communication center facility or communication network is nonoperational or Subscriber’s system is sending excessive communication. LifeCall is authorized to record all telephone conversations and shall own such recordings
3. SUBSCRIBER’S CARE OF EQUIPMENT: REPAIRS AND ADDITIONS
Subscriber agrees not to tamper with, remove or otherwise interfere with the Personal Emergency Response System. The equipment shall remain in the same location as installed and Subscriber agrees to bear the cost of repairs, replacement, relocation or additions to the system made necessary as a result of any painting, alteration, remodeling or damage, including damage caused by unauthorized intrusion to the premises, lightning or electrical surge, except for ordinary wear and tear, in which event repair or replacement shall be made by LifeCall without additional charge. Electrical surges, lightning damage, abuse, and loss of components are not included in service and will be repaired or replaced at Subscriber’s expense.
4. TELEPHONE SERVICE IS NECESSARY AND IS THE SUBSCRIBER’S RESPONSIBILITY
Subscriber acknowledges that the Personal Emergency Response System transmitter plugs into a standard telephone jack and communicates over standard telephone lines using two way voice communication. The transmitter may not work properly with Voice Over Internet Protocol (VOIP) Internet/telephone service. It is the responsibility of the Subscriber to notify LifeCall if there is a change in telephone service.
5. SUBSCRIBER’S DUTY TO SUPPLY ELECTRIC AND TELEPHONE SERVICE.
Subscriber agrees to furnish, at Subscriber’s expense, all 110 Volt AC power and electrical outlets and receptacles, telephone hook-ups, RJ31x Block or equivalent, as deemed necessary by LifeCall in its sole discretion.
6. DELAY IN INSTALLATION
LifeCall shall not be liable for any damage or loss sustained by Subscriber as a result of delay in equipment installation, failure, or interruption of service due to electric failure, strikes, walk-outs, war, acts of God, or other causes, including LifeCall’s negligence in the performance of this Agreement, and Subscriber shall not be relieved from payments due under this Agreement for such period.
7. TESTING AND SERVICE OF PERSONAL EMERGENCY RESPONSE SYSTEM
The Parties hereto agree that the Personal Emergency Response System, once installed, is in the exclusive possession and control of the Subscriber, and it is Subscriber’s sole responsibility to test the operation of the Personal Emergency Response System and to notify LifeCall if it is in need of repair or replacement. LifeCall shall not be required to service or replace the equipment unless the equipment is returned by the Subscriber to LifeCall at the LifeCall address. LifeCall, will upon Subscriber’s request, arrange pick-up and delivery, at LifeCall’s expense by UPS or US Postal Service. If LifeCall fails to repair or replace the Personal Emergency Response System within 7 days after receipt of said written notice, Subscriber shall not be obligated to pay any amount for service from date said written notice is given, until the Personal Emergency Response System is restored to working order, unless LifeCall determines that the equipment is operational and the system failure was electrical or telephone service related at Subscriber’s premises, in which event Subscriber shall pay LifeCall’s cost of shipping and inspection charge of $75. In any lawsuit between the Parties in which the condition or operation of the equipment is in issue, the Subscriber shall be precluded from raising the issue that the equipment was not operating unless Subscriber can produce a US Post Office certified or registered receipt, signed by LifeCall, evidencing that service was requested by Subscriber.
8. MEDICAL OR RELATED EXPENSES
In the event the Subscriber utilizes the System by giving the Central Station a signal, the Subscriber does hereby authorize LifeCall to seek to notify or obtain assistance. The Subscriber shall be obligated for and agrees to pay any 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.
9. SUBSCRIBER TO INSURE LIFECALL’S EQUIPMENT
Subscriber shall insure LifeCall’s equipment against fire and casualty and Subscriber agrees to name LifeCall in said insurance policy as “loss payee” to the extent of the value of the equipment as set forth herein above. Subscriber shall be responsible for any loss occasioned by fire or casualty and the cost of replacing or restoring the Personal Emergency Response System. Notwithstanding the condition of Subscriber’s premises, or LifeCall’s impossibility of performance occasioned by condition of Subscriber’s premises, Subscriber shall remain liable for monthly payments for the term of this Agreement without offset or reduction.
10. TERMINATION IN THE EVENT OF DEATH
This Agreement shall terminate upon Subscriber’s death and the return of all LifeCall equipment by Subscriber’s representative at Subscriber’s expense by UPS or US Postal Service, signature required, delivery to LifeCall. LifeCall shall terminate all services upon death of Subscriber.
11. ASSIGNMENTS/WAIVER OF SUBROGATION RIGHTS
Subscriber shall not be permitted to assign this Agreement without written consent of LifeCall. Any such assignment without prior approval shall be deemed a breach of this Agreement. LifeCall shall have the right to assign this contract and shall be relieved of any obligations created herein upon such assignment. Subscriber on its behalf and any insurance carrier waives any right of subrogation Subscriber’s insurance carrier may otherwise have against LifeCall or LifeCall’s subcontractors arising out of this Agreement or the relation of the Parties hereto.
Subscriber agrees to and shall indemnify and hold harmless LifeCall, its employees, agents and subcontractors, from and against all claims, lawsuits, including those brought by third Parties, including reasonable attorneys’ fees, and losses asserted against and alleged to be caused by LifeCall’s performance, negligent performance or failure to perform its obligations under this Agreement. Parties agree that there are no third Party beneficiaries of this contract.
13. REMOVAL OF PERSONAL EMERGENCY RESPONSE SYSTEM
Upon termination of this Agreement LifeCall shall be permitted to discontinue all monitoring service and Subscriber shall at Subscriber’s expense return, via UPS or US Postal Service, signature required, LifeCall equipment to LifeCall. If for any reason caused by Subscriber, or the owner of the premises if other than the Subscriber, said Personal Emergency Response System is not delivered to LifeCall within 15 days of such termination, Subscriber shall be deemed to have purchased the equipment for the agreed value stated in this Agreement.
14. LEGAL ACTION
The Parties agree that due to the nature of the services to be provided by LifeCall, the payments to be made by Subscriber for the term of this Agreement are an integral part of LifeCall’s anticipated profits, and in the event of Subscriber’s breach of this Agreement it would be difficult if not impossible to reasonably estimate LifeCall’s actual damages. Therefore, in the event of Subscriber’s default of this Agreement Subscriber shall pay to LifeCall 80% of the balance due for the term of this Agreement as liquidated damages, and LifeCall shall be permitted to terminate all its services under this Agreement without relieving Subscriber of any obligation herein. Additionally, in the event of Subscriber’s breach of this Agreement LifeCall may, at its option, either remove its equipment or deem same sold to Subscriber for 80% the amount specified as the value of the equipment. The Parties waive trial by jury in any action between them. In any action commenced by LifeCall against Subscriber, Subscriber shall not be permitted to interpose any counterclaim. Any action by Subscriber against LifeCall must be commenced within one year of the accrual of the cause of action or shall be barred. All actions or proceedings against LifeCall must be based on the provisions of this Agreement. Any other action that Subscriber may have or bring against LifeCall in respect to other services rendered in connection with this Agreement shall be deemed to have merged in and be restricted to the terms and conditions of this Agreement. Should LifeCall refer this contract to an attorney, Subscriber shall pay LifeCall’s legal fees. This Agreement shall be governed by the laws of the State of Florida. Subscriber submits to the jurisdiction of Florida and agrees that any litigation between the Parties must be commenced and maintained exclusively in the State of Florida, and in the county where LifeCall’s principal place of business is located. Any service of process or papers in any action, proceeding or arbitration may be served by first class mail delivered by the US Post Office or overnight carrier to addresses in this Agreement.
15. ADDITIONAL PAYMENTS
In addition to the payments set forth herein, Subscriber agrees to be liable for and pay to LifeCall any excise, sales, property, or other tax, telephone line charges, and any increases thereof, which may be imposed upon LifeCall because of this Agreement. Should LifeCall be required by existing or hereafter enacted law to perform any service or furnish any material not specifically covered by the terms of this Agreement Subscriber agrees to pay LifeCall for such service or material.
Subscriber agrees to pay the Fees listed on front side (Part B) of this Agreement. Fees are subject to change upon thirty (30) days’ prior written notice to Subscriber. Payment is due upon receipt of invoice. Past due balances [over thirty (30) days past due] will be subject to a monthly finance service charge equal to eighteen percent (18%) per annum, or, if less, the maximum allowable by law. LifeCall may terminate this Agreement for non-payment of fees and recover all payments due to Lifecall. In the event that it shall become necessary for LifeCall to institute legal proceedings to collect payments due under this Agreement then Subscriber agrees to pay LifeCall’s reasonable attorney’s fees for such collection action except where prohibited by law.
17. FALSE ALARMS/PERMIT FEES
Subscriber is responsible for all alarm permits and permit fees, agrees to file for and maintain any permits required by applicable law and indemnify or reimburse LifeCall for any fines relating to permits or false alarms. LifeCall shall have no liability for permit fees, false alarms, false alarm fines, police or fire response, any damage to personal or real property or personal injury caused by police or fire department response to alarm, whether false alarm or otherwise, or the refusal of the police or fire department to respond. In the event of termination of police or fire response by the municipal police or fire department this contract shall nevertheless remain in full force and Subscriber shall remain liable for all payments provided for herein. Should LifeCall be required by existing or hereinafter enacted law to perform any service or furnish any material not specifically covered by the terms of this Agreement Subscriber agrees to pay LifeCall for such service or material.
18. AUDIO LISTEN IN AND FORCIBLE ENTRY
The System includes two-way voice and is meant to be heard under optimal conditions throughout most of 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. LifeCall will notify 911 first, unless otherwise instructed in writing. Subscriber authorizes LifeCall in its sole discretion to authorize forcible entry to gain access to Subscriber’s premises in the event 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.
19. LIFECALL’S RIGHT TO SUBCONTRACT SPECIAL SERVICES
Subscriber agrees that LifeCall is authorized and permitted to subcontract any services to be provided by LifeCall to third Parties who may be independent of LifeCall, and that LifeCall shall not be liable for any loss, damage or injury sustained by Subscriber by reason of any other cause whatsoever caused by the negligence of third Parties. Subscriber acknowledges that this Agreement, and particularly those paragraphs relating to LifeCall’s disclaimer of warranties, exemption from liability, even for its negligence, limitation of liability and indemnification, inure to the benefit of and are applicable to any assignees, subcontractors and communication centers of LifeCall.
18. NO WARRANTIES OR REPRESENTATIONS: SUBSCRIBER’S EXCLUSIVE REMEDY
LifeCall neither represents nor warrants that the Personal Emergency Response System will prevent any loss, damage or injury to person or property, or that the Personal Emergency Response System will in all cases provide the protection for which it is installed or intended. Subscriber acknowledges that LifeCall is not an insurer, and that Subscriber assumes all risk for loss or injury to Subscriber’s property or person. LifeCall has made no representation or warranties, and hereby disclaims any warranty of merchantability or fitness for any particular use. Subscriber’s exclusive remedy for LifeCall’s default hereunder is to require LifeCall to repair or replace, at LifeCall’s option, any equipment or part of the personal emergency response system which is non-operational.
19. EXCULPATORY CLAUSE
The Parties agree that LifeCall is not an insurer and no insurance coverage is offered herein. Subscriber’s payments to LifeCall are for the installation, rental and service of a Personal Emergency Response System designed to reduce certain risks of loss, though LifeCall does not guarantee that no loss will occur. LifeCall is not assuming liability and therefore shall not be liable to Subscriber for any loss or injury sustained by Subscriber as a result of any cause whatsoever, regardless of whether or not such loss or injury was caused by or contributed to by LifeCall’s negligent (including gross negligence) performance to any degree or failure to perform any obligation or strict products liability. Subscriber releases LifeCall from any claims for contribution, indemnity or subrogation.
20. LIMITATION OF LIABILITY
The Parties agree that the personal emergency response system is not designed or guaranteed to prevent any loss or injury. If, notwithstanding the terms of this Agreement, there should arise any liability on the part of LifeCall as a result of any cause whatsoever, regardless of whether or not such loss, damage, or personal injury was caused by or contributed to by LifeCall’s negligence to any degree or failure to perform any obligation or strict products liability, such liability will be limited to an amount equal to six (6) times the monthly payment paid by the Subscriber to LifeCall at the time such liability is fixed, or to the sum of $250, whichever is greater. If Subscriber wishes to increase LifeCall’s maximum amount of such limitation of liability, Subscriber may, as a matter of right, at any time, by entering into a supplemental Agreement, obtain from LifeCall a higher limit by paying an additional amount consonant with the increase of liability. This shall not be construed as insurance coverage.
21. PERSONAL MEDICAL DISCLOSURE AUTHORIZATION
Any medical or other personal information provided by subscriber to LifeCall may be disclosed by LifeCall to any personal emergency response personnel or medical personnel requesting same.
22. CONFLICTING DOCUMENTS
Should there arise any conflict between this Agreement and Subscriber’s purchase order or other document, this Agreement will govern, whether such purchase order or document is prior to or subsequent to this Agreement.
23. FULL AGREEMENT/SEVERABILITY
This Agreement constitutes the full understanding of the Parties and may not be amended or modified or canceled except in writing signed by both Parties. This Agreement shall be governed by the laws of the State of Florida. Should any provisions of this Agreement be deemed void, all other provisions will remain in enforceable.