Terms of Service
ATC Alert LLC TERMS AND CONDITIONS OF USE
SYSTEM AND PURPOSE. You have received a medical alert system (the “System”). You must carefully follow the instructions that accompany it in order to receive the Services described below. The System is owned by Company and provided to you, the Subscriber, in accordance with the terms of this Agreement. The System is intended to be used by you only for medical or other similar personal emergencies. You can send a medical alert signal if you need help or assistance by pressing the emergency button on the System or by pressing a wearable pendant, assuming you are within range of the System. Company is responsible only for notifying the personal emergency contacts that you provided to Company and indicated as a “Must Notify” and the applicable emergency authority such as the fire department, police, or ambulance service (each a “Notification Party”). The System does not provide protection against fire or intruders.
SERVICES. During the term of this Agreement, Company will provide seven (7) days per week, twenty-four (24) hours per day the monitoring and notification services identified in the Services and Authorization Confirmation Form (collectively, the “Services”). In the event a signal is received from the System, every reasonable effort will be made to promptly contact you to determine whether it is necessary to contact a Notification Party. If Company is informed by someone at your premises to disregard a signal or any request for assistance, Company in its sole discretion and without liability may elect not to alert a Notification Party that is an emergency authority or may advise such Notification Party to disregard request for assistance.
FALSE ALARMS AND FORCIBLE ENTRY. To avoid false alarms, Company may first determine whether an actual emergency exists before it contacts a Notification Party that is an emergency authority. Company understands that false alarms can occur. However, in the event Company determines there have been too many false alarms, Company may suspend or cancel the Services. You are responsible for any fines, penalties or other fees arising from a false alarm. In the event a Notification Party is sent to your home and cannot enter through the door, you assume any and all risk of personal injury or loss or damage to anyone and to your premises or the contents thereof.
YOUR RESPONSIBILITIES. You are responsible for: (i) installing and testing the System in accordance with any applicable instructions, including performing a range test, GPS lock test, and a signal test, and testing the System on a monthly basis; (ii) ensuring suitable electrical service for installation and operation of the System, including any permits or licenses that may be required; and (iii) ensuring that your telephone line is in good working order if it is used with the System. You may not alter, modify or attempt repairs on the System, or move the System to a new address, except pursuant to instructions from Company or authorized service representative. Company relies on the information you provide about your location and your personal emergency contacts. You must immediately notify Company in the event your contact information, or that of a personal emergency contact, changes.
PAYMENT. You will be charged the amount specified by Company in the Services and Authorization Confirmation Form beginning on the date the System is shipped to you. Payment will be due in the manner set forth in the Services and Authorization Confirmation Form unless and until this Agreement is terminated. You agree to pay all sales, service, property, use and local taxes, and any additional fees or charges arising under this Agreement. Balances that are over thirty (30) days past due will be subject to a monthly finance charge equal to 1.5% per month or the maximum allowable by law, whichever is less. Company shall have the right, at any time, to increase any fees.
TERM & TERMINATION. The Services shall begin when the test signal from the System has been successfully received and will continue unless and until terminated as provided below. Company, in its sole discretion, may suspend the Services or terminate this Agreement. If Company reactivates the Services, you shall pay, in advance, Company's then prevailing reconnection fee. You may terminate this Agreement at any time by notifying Company and returning the System to Company at your expense. The Agreement will terminate upon the Company’s receipt of all the equipment. No previously paid amounts will be refunded. The System should be returned to 15 Main Street East, Rockaway, New York 11518. If the System is not returned within thirty (30) days following the termination or expiration of this Agreement, you shall pay Company up to Three Hundred Fifty Dollars ($350.00).
ASSIGNEES AND SUBCONTRACTORS. Company may transfer or assign this Agreement to any third party. Company may use subcontractors to provide the Services. This Agreement shall apply to any assignee or subcontractor and protect them in the same manner as it applies to and protects Company. The Company is not responsible, however, for any work, including monitoring, which is done negligently by any third party. You may not transfer or assign this Agreement without prior written approval by Company.
SYSTEM EQUIPMENT. Depending on the Services selected, the System may include a base station (wired or cellular), mobile device cradle charger, pendant and an automatic fall detection pendant. Company recommends using an RJ31X or equivalent telephone jack to give any System with a wire base station priority over other telephones in your home. When the wired base station is using the home phone line to connect to the monitoring center, you will not be able to use your home telephone to make other calls (including 911 calls). Therefore, you may opt to have the System connected to a second phone line. If you choose to use a second phone line, you must provide that number to Company in addition to your primary home phone number. The use of DSL, VoIP or other broadband telephone service may prevent the System from transmitting medical alert signals or interfere with the telephone line-seizure feature of the System (or both). DSL, VoIP or other broadband service should not be installed on a telephone number that is used for medical alert signal transmission. If you plan to install DSL, VoIP or other broadband service at your home, you should test the System immediately after the installation of any such services. Company, in its sole discretion, may repair or replace the System if it becomes damaged or is defective. If (i) the System has previously been disassembled, repaired or modified by someone other than us or our authorized service representative; or (ii) the System has been damaged as a result of the negligence or misconduct by any person other than us or our authorized service representative, you shall pay us the replacement price of up to Three Hundred Fifty Dollars ($350.00). The System and all monitoring software, computer codes and monitoring information remain Company's sole and exclusive property. THE SYSTEM SHOULD BE TESTED ON A MONTHLY BASIS TO CONFIRM IT IS WORKING PROPERLY.
LIMITATIONS OF THE SYSTEM AND THE SERVICES. Company is not responsible for the promptness, sufficiency or adequacy of the action of any Notification Party with respect to a medical alert from your System. Company will not send any of its personnel to your location in response to an emergency signal. Neither the System nor the Services can prevent death, bodily or personal injury, or any other harm or damage to you or others who use them. The System does not detect 100% of falls. If able, users should always push their help button when they need assistance. The System and the Services rely on the availability of your home telephone service provider, cellular network coverage, and the availability of global positioning system (“GPS”) data to operate properly. These systems are provided by a third party and cannot be controlled by Company. There is always a chance that the System may fail to operate properly. The 911 emergency services line is an alternative to the System and the Services. WARRANTY; DISCLAIMER; LIMITATION OF LIABILITY. COMPANY MAKES NO GUARANTEES OF ANY KIND RELATING TO THE SYSTEM OR THE SERVICES AND EXPRESSLY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE SYSTEM OR THE SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IF THE COMPANY IS FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO ITS NEGLIGENCE OR THE FAILURE TO PERFORM ITS OBLIGATIONS IN THIS AGREEMENT, INCLUDING MONITORING THE SYSTEM, IN ANY RESPECT AT ALL, THE COMPANY'S MAXIMUM LIABILITY WILL BE $250.00. THE COMPANY WILL ASSUME A GREATER LIABILITY, BUT ONLY FOR AN ADDITIONAL CHARGE TO BE AGREED UPON BY YOU AND THE COMPANY. IF THE COMPANY DOES SO, A RIDER WILL BE ATTACHED TO THIS AGREEMENT. THE COMPANY EXPRESSLY DENIES ALL LIABILITY FOR ANY OTHER LOSS OR DAMAGE WHICH MAY OCCUR PRIOR TO, AT OR AFTER SIGNING THIS AGREEMENT. THIS INCLUDES LIABILITY BASED ON CONTRACT, TORT, NEGLIGENCE, WARRANTY (INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) AND ANY OTHER THEORY OF LIABILITY, AS WELL AS THE FOLLOWING TYPES OF DAMAGES: DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (DAMAGES THAT RESULT FROM AN ACT, BUT DO NOT DIRECTLY RELATE TO THE ACT) AND PUNITIVE (DAMAGES USED TO MAKE AN EXAMPLE OF SOMEONE).
ARBITRATION, LIMITATION ON LAWSUITS; WAIVER OF JURY TRIAL. To the extent permitted by law, no lawsuit or any other legal proceeding brought in connection with this Agreement shall be brought or filed more than one (1) year after the incident giving rise to the claim occurred. Service of process may be made by personal service, traced overnight mail, or certified mail to each party’s address as set forth in this Agreement unless otherwise provided by the receiving party in writing. Any dispute between the parties or arising out of this Agreement, including issues of arbitrability, shall, at the option of any party, be determined by final and binding arbitration in Westchester County, New York before a neutral, independent arbitrator in accordance with the JAMS General Arbitration Rules & Procedures (www.jamsadr.com). In any such arbitration, the parties may conduct discovery to the same extent as would be permitted in a court of law. The arbitrator shall issue a written decision stating the essential findings and conclusions on which the award is based, and shall have full authority to award all remedies which would be available in court. The arbitrator may award the prevailing party his, her or its expenses and fees of arbitration, including reasonable attorney’s fees, witness fees, in such proportion as the arbitrator decides. Any judgment upon the award rendered by the single arbitrator may be entered in any court having jurisdiction thereof. The parties agree that they may bring claims against each other only in their individual legal capacity, and not, whether by litigation or arbitration, as a class action plaintiff or class action member in any purported class or representative proceeding. In addition, where permissible by law, each of the parties hereby waives its rights to a jury trial of any claim or action based upon or arising out of this Agreement, directly or indirectly, and/or the relationship that is being established among the parties hereunder. The scope of this waiver is intended to cover all disputes that may be filed in court, including without limitation contract, tort, breach of duty, and all other common law and statutory claims. This waiver is irrevocable and may not be modified either orally or in writing. This waiver applies to any future amendments, renewals, supplements or modifications of or to this Agreement. In the event of litigation covered by the scope of this waiver, this Agreement may be filed in court as a waiver of jury trial and written consent to a trial by the court. In any jurisdiction that prohibits or declines to enforce pre-dispute jury trial waivers, any dispute between the parties or arising out of this Agreement shall be determined by binding arbitration, in accordance with this Agreement’s arbitration provision, as the exclusive remedy for such controversy, claim or dispute.
THIRD PARTY INDEMNIFICATION AND NO SUBROGATION. You hereby indemnify Company against any third party claim (including claims for property damage, personal injury or death) connected with or resulting from Company's performance under this Agreement, including failure of the System or the Services or Company’s negligence. You further agree to pay Company (i) any amount which a court orders Company to pay or which Company reasonably agrees to pay in connection with such claims; and (ii) the amount of Company's reasonable attorneys' fees and any other losses or costs that Company may pay in connection with the harm or damage giving rise to such claims including, without limitation, contribution, indemnification or subrogation.
ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding between you and Company concerning the subject matter hereof and supersedes all prior discussions, agreements and representations, whether oral or written. This Agreement and the respective rights and obligations of the parties hereto shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of law provisions. Any equipment or services the Company provides to you in the future are subject to the terms of this Agreement. This Agreement cannot be changed except by a writing that both you and the Company sign. If any provision of this Agreement is found to be invalid, the remaining provisions are still effective. In the event that it should become necessary for Company to institute legal proceedings to collect payments due under this Agreement or to otherwise enforce any provision of this Agreement, you agree to reimburse Company for all of its reasonable attorneys' fees and costs, in connection with any such proceeding, to the extent permitted by law.
UPDATES. Company may post updates to these Terms and Conditions of Use on its website (www.atcalert.com) and may also mail updated Terms and Conditions of Use to the Subscriber’s address on file.
ACKNOWLEDGMENTS. By signing this Agreement you acknowledge that (i) the Company has informed you, and you acknowledge, that a copy of the JAMS General Arbitration Rules & Procedures are publically available on the JAMS website at www.jamsard.com; (ii) the Company has provided You with ample time to review and consider this Agreement, including the Arbitration; Limitation of Lawsuits; Waiver of Jury Trial provisions, and ask questions regarding the Agreement; (iii) You have not requested additional time to consider any provision of this Agreement.