The parties hereto agree that:
1. PERSONAL EMERGENCY RESPONSE SYSTEM [PERS]: EMC Security has sold a Personal Emergency Response System; (herein after also referred to as “System” or “Equipment”) to Subscriber and has instructed the Subscriber in the proper use of said system, installed or provided self-installation instructions for the Subscriber located at:
Should the subscriber perform a self-installation, it will be the Subscriber’s sole responsibility to install the system according to instructions provided by the Seller.
2. CANCELLATION AND REFUND POLICY: If subscriber cancels this agreement pursuant to any statutory authority, EMC Security will refund any amount paid for equipment and any advance payments for services not yet rendered within such time as specified by statute.
3. MONTHLY MONITORING SERVICE CHARGES: Subscriber agrees to pay EMC Security monthly monitoring fees for:
Payable in advance for the monitoring of the Personal Emergency Response System for the term of this agreement commencing on the first day of the month next succeeding the date hereof, and continuing monthly thereafter, all payments being due on the first of the month.
4. TERM OF AGREEMENT AND RENEWALS: The term of this agreement shall be for a period of one month. This agreement shall renew itself month to month, unless either party gives written notice to the other by certified mail, return receipt requested, of their intention not to renew the Agreement at least 30 days prior to the expiration of any term, thereby relieving Subscriber of any obligation to pay any charge after the termination of service.
5. EARLY TERMINATION: Subscriber or their representative may terminate this Agreement at any time and retain possession of the equipment. However, the Subscriber will forfeit all monies paid to Seller prior to termination.
6. INCREASES OF MONTHLY CHARGE: EMC Security shall be permitted to increase the charges provided for herein at any time or times after the expiration of the first term of this agreement by up to nine percent per annum each year, upon giving notice to Subscriber.
7. PERSONAL EMERGENCY RESPONSE SYSTEM CENTRAL OFFICE MONITORING:
Mobile unit: Upon receipt of a signal, EMC Security 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 or persons designated by Subscriber as "Responder(s)". Subscriber agrees that EMC Security may rely absolutely on the statements of Subscriber, Responders, or any person who says that they are acting on behalf of a Responder or Subscriber, with respect to the location and condition of Subscriber. Subscriber agrees that EMC Security in its sole and absolute discretion and without any liability contact or attempt to contact the Premises as frequently as EMC Security deems appropriate to verify the need to alert Responders; and after receiving oral advice from anyone at the premises to disregard the alarm signal EMC Security 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 alarm signal. SUBSCRIBER AGREES ATTEMPTING TO NOTIFY BY THE PHONE DESIGNATED RESPONDERS IS EMC SECURITY'S ONLY DUTY. Subscriber understands and agrees that (a) EMC Security is not responsible for the promptness, sufficiency or adequacy of the action of any Responder or any third party acting for Responder; and (b) EMC Security in no way represents or guarantees that Responders can be contacted, can or will respond, or that any response will be safe or effective; and (c) the Responders have been designated by him or her and are not agents or other representatives of EMC Security; and (d) EMC Security will not send any of its personnel to Subscriber's premises in response to any emergency signal. Subscriber acknowledges that the communication of the device relies upon the availability of cell service which is provided by a third party that is not controlled by EMC Security. The ability of the device to accurately track the Subscriber's location is dependent on the availability of GPS, cellular network and/or wireless internet coverage depending on the Subscriber's location. This device will function only in areas, locations, and buildings where such service is available. If such service in unavailable or unreliable, the device may not accurately reflect your location or, it may not communicate with EMC Security's monitoring center. In such event, the EMC Security monitoring center may be unable to communicate your location to a Responder, and a Responder may not be able to locate you. Subscriber agrees to furnish EMC Security with a written list of names and telephone numbers of those person 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 EMC Security in writing. EMC Security 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. EMC Security is authorized to record all telephone conversations and shall own such recordings.
In-home unit: Upon receipt of a signal, EMC Security 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, or other modes of communication pass through communication networks wholly beyond the control of EMC Security and are not maintained by EMC Security and, therefore, EMC Security 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 EMC Security with a written list of names and telephone numbers of those person 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 EMC Security in writing. Subscriber acknowledges that EMC Security 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 EMC Security's liability are fully applicable to the personal emergency response system service. EMC Security 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. EMC Security is authorized to record all telephone conversations and shall own such recordings.
8. SUBSCRIBER'S CARE OF EQUIPMENT AND REPAIRS:
Mobile unit: In addition to other responsibilities set forth elsewhere in this Agreement, Subscriber must: (a) Provide and be responsible for suitable electrical outlet for periodic charging of the Equipment. (b) Select and give accurate information as to all Responders. Subscriber represents that personal Responders have agreed to act as responders; (c) Provide Responders with access to Subscriber’s house. (d). Not alter or attempt to make repairs to Equipment; (e) Activate and use the Equipment according to EMC Security’s written requirement found in the user guide as provided with the delivery of Equipment; (f) Promptly inform EMC Security of any changes to the information provided in, or in connection with, this Agreement. All changes are the sole responsibility of Subscriber and shall become effective at the time of delivery to EMC Security.
In-home unit: 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 EMC Security without additional charge during the initial warranty period.
9. SUBSCRIBER’S DUTY TO SUPPLY ELECTRIC AND TELEPHONE SERVICE: Subscriber agrees to supply 24 hours 110-volt circuits as required to power the system, and the appropriate telephone service or any other equipment that may be deemed necessary by EMC Security. EMC Security shall not be responsible for any cost of parts and or labor, associated with adapting the subscriber’s telephone system for use with the System. If the system requires a traditional phone line and the subscriber changes their telephone service to VOIP or anything other than a traditional land line carrier company, EMC Security shall not be liable for any interruption of service.
10. DELAY IN INSTALLATION: EMC Security shall not be liable for any damage or loss sustained by Subscriber as a result of delay in installation of equipment, equipment failure, or for interruption of service due to electric failure, strikes, walk-outs, war, acts of God, or other causes. Subscriber shall not be relieved from payments due under this agreement for such period.
11. LIMITED WARRANTY. EMC Security warrants that the System will be free from defects in materials and workmanship for a period of 1 year after the date of installation or delivery of the System (the “Warranty Period”). If prior to the expiration of the Warranty Period, subscriber notifies EMC Security, either in writing or by telephone of any such defect and returns the equipment to EMC Security at provider’s address, EMC Security shall repair, or at its option, replace any defective equipment with new or reconditioned parts and return to subscriber. If EMC Security fails to repair or replace the Personal Emergency Response System within 14 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 EMC Security 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 EMC Security’s cost of shipping and inspection charge of $75.00. 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 EMC Security, evidencing that service was requested by Subscriber.
12. 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 EMC Security if it is in need of repair or replacement.
13. ASSIGNMENTS/WAIVER OF SUBROGATION RIGHTS: Subscriber shall not be permitted to assign this agreement without the written consent of EMC Security. Any such assignment without prior approval shall be deemed a breach of this agreement. EMC Security 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 waive any right of subrogation Subscriber's insurance carrier may otherwise have against EMC Security or EMC Security's subcontractors arising out of this agreement or the relation of the parties hereto.
14. LEGAL ACTION: The parties agree that due to the nature of the services to be provided by EMC Security the payments to be made by Subscriber for the term of this agreement is an integral part of EMC Security's anticipated profits, and in the event of Subscriber's breach of this agreement it would be difficult if not impossible to reasonably estimate EMC Security's actual damages. Therefore, in the event, if Subscriber's default of this agreement Subscriber shall pay to EMC Security the balance due for the term of this agreement as liquidated damages, and EMC Security shall be permitted to terminate all its services under this agreement without relieving Subscriber of any obligation herein. The parties waive trial by jury in any action between them. In any action commenced by EMC Security against Subscriber, Subscriber shall not be permitted to interpose any counterclaim. Any action by Subscriber against EMC Security must be commenced within one year of the accrual of the cause of action or shall be barred. All actions or proceedings against EMC Security must be based on the provisions of this agreement. Any other action that Subscriber may have or bring against EMC Security 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 EMC Security refer this contract to an attorney, Subscriber shall pay EMC Security's legal fees. This agreement shall be governed by the laws of the State of Georgia. Subscriber submits to the jurisdiction of Georgia and agrees that any litigation between the parties must be commenced and maintained exclusively in the State of Georgia, and in the county where EMC Security’s principal place of business is located.
15. ADDITIONAL PAYMENTS. In addition to the payments set forth herein, Subscriber agrees to be liable for and pay to EMC Security any excise, sales, property, or other tax, telephone line charges, and any increases thereof, which may be imposed upon EMC Security because of this agreement. Should EMC Security 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 EMC Security for such service or material.
16. 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 EMC Security for any fines relating to permits or false alarms. EMC Security 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 the alarm, whether a 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 EMC Security 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 EMC Security for such service or material.
17. EMC SECURITY’S RIGHT TO SUBCONTRACT SPECIAL SERVICES: Subscriber agrees that EMC Security is authorized and permitted to subcontract any services to be provided by EMC Security to third parties who may be independent of EMC Security and that EMC Security 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 EMC Security'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 EMC Security.
18. NO WARRANTIES OR REPRESENTATIONS: EMC Security does not represent 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 EMC Security is not an insurer and that Subscriber assumes all risk for loss or injury to Subscriber's property or person. EMC Security has made no representation or warranties, and hereby disclaims any warranty of merchantability or fitness for any particular use.
19. SUBSCRIBER'S EXCLUSIVE REMEDY: Subscriber's exclusive remedy for EMC Security's default hereunder is to require EMC Security to repair or replace, at EMC Security's option, any equipment or part of the Personal Emergency Response System which is non-operational.
20. EXCULPATORY CAUSE: Subscriber acknowledges that the Personal Emergency Response System and related Monitoring Service is designed to reduce, but not eliminate, certain risks of loss and that the amounts being charged by EMC Security are not sufficient to warrant that no loss will occur. Subscriber understands that EMC Security as well as its affiliates, its parent, and any directors, officers, shareholder, agents, employees, or subcontractors of EMC Security (collectively, “EMC Security Representatives”) are not insurers and are not responsible for acts or omissions of others or for events beyond their control. EMC Security 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 EMC Security's negligent performance to any degree or failure to perform any obligation or strict products liability. Subscriber releases EMC Security and EMC Security Representatives from any claims for contribution, indemnity or subrogation.
21. LIMITATION AND RELEASE OF LIABILITY: SUBSCRIBER RELEASES EMC SECURITY AND EMC SECURITY REPRESENTATIVES FROM ANY AND ALL LOSSES, LIABILITIES, DAMAGES, JUDGMENTS, CLAIMS, COSTS, OR EXPENSES (INCLUDING REASONABLE ATTORNEY’S FEES AND COST AND EXPENSES OF LITIGATION) (HEREINAFTER REFERRED TO AS “LOSSES”), WHICH MAY OCCURE PRIOR TO CONTEMPORANEOUS WITH, OR SUBSEQUENT TO THE EXECUTION OF THIS AGREEMENT DUE TO THE IMPROPER OPERATION OR NONOPERATION OF THE PERSONAL EMERGENCY RESPONSE SYSTEM, BREACH OF CONTRACT, EXPRESS OR IMPLIED WARRANTY, NEGLIGENCE OF EMC SECUIRITY OR EMC SECURITY REPRESENTATIVES PROVIDING MONITORING SERVICE, OR LOSS OR DAMAGE TO OR MALFUNCTION OF FACLITIES OR EQUIPMENT NECESSARY TO OPERATE THE PERSONAL EMERGENCY RESPONSE SYSTEM, TRANSMIT ANY SIGNAL, OR OPERATE THE CONTROLLING FACILITY OR ANY REMOTE STATION. SUBSCIRBER DOES NOT RELEASE EMC SECURITY FROM LOSSES COVERED BY THE LIMITED WARRANTY UNDER THIS AGREEMENT OR LOSSES ARISING FROM THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF EMC SCURITY OR EMC SECURITY REPRESTATIVES. IF EMC SECURITY OR EMC SECURITY REPRESENTATIVES ARE LIABLE FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY, BREACH OF CONTRACT, OR OTHERWISE, THE TOTAL LIBILITY OF EMC SECURITY AND EMC SECURITY REPRSENTATIVES COLLECTIVELY SHALL BE LIMITED TO THE MAXIMUM SUM OF $250.00. THIS SHALL NOT BE CONSTRUED AS INSURANCE COVERAGE. SUBSCRIBER ACCEPTS RESPONSIBLILITY FOR LOSSES EXCEEDING $250.00 AND SHALL ACQUIRE AND MAINTAIN ANY INSURANCE COVERAGE IT DESIRES TO PROTECT THE SUBSCRIBER AND OTHERS FROM LOSSES EXCEEDING SUCH LIMIT. EXCEPT FOR THE LIMIT DESCRIBED HEREIN WHICH EMC SECURITY OR EMC SECURITY REPRESENTATIVES MAY BE RESPONSIBLE, SUBSCRIBER SHALL INDEMNIFY EMC SECURITY OR EMC SECURITY REPRESENTATIVE FOR DAMAGES OR EXPENSES EMC SECURITY OR EMC SECURITY REPRESENTATIVES INCUR IN A SUBROGATION ACTION BROUGHT BY SUBSCRIBER’S INSURER.
22. INDEMNITY: Subscriber agrees to and shall indemnify and hold harmless EMC Security, its employees, agents, subcontractors, and EMC Security Representatives, 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 EMC Security'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.
23. PERSONAL MEDICAL DISCLOSURE AUTHORIZATION: Any medical or other personal information provided by the subscriber to EMC Security may be disclosed by EMC Security to any personal emergency response personnel or medical personnel requesting same.
24. NOTICE: Unless otherwise proved in this Agreement, all notices required under his Agreement must be in writing and sent by certified mail or U.S. mail, postage prepaid, addressed as follows:
If to EMC Security: 55 Satellite Blvd. NW, Suwanee, GA 30024.
If to Subscriber: To Subscriber’s billing address. Either party must notify the other party of any change of address for the purpose of giving notice under this Agreement.
25. CONFLICTING DOCUMENTS: Should there arise any conflict between this agreement and Subscriber's purchase order or another document, this agreement will govern, whether such purchase order or document is prior to or subsequent to this agreement.
26. 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 contract shall be governed by the laws of the State of Georgia. Should any provisions of this agreement be deemed void, all other provisions will remain enforceable.
Mobile Emergency Alert Disclaimer:
You authorize EMC Security to collect your IoT emergency response pendant device location from third parties including wireless carriers and to use it to provide assistance services to you. EMC Security will share your location with individuals you authorize as well as first responders and call centers in order to provide you with assistance, including showing your location in near-real time in a web portal or application.
Your consent will be valid for the duration of your relationship with us unless you revoke it. You may revoke your consent by calling 770-963-0305. If you do not consent or you revoke consent, we may be unable to provide you with assistance.