Terms and Conditions of Use
THIS AGREEMENT IS GOVERNED EXCLUSIVELY BY THE LAWS OF THE STATE OF FLORIDA AND THE FEDERAL ARBITRATION ACT.
THE USER. The user(s) desires to lease and/or purchase a medical alert system (the “System”) from MobileHelp LLC or One Call Alert located at 5050 Conference Way North, Suite 125, Boca Raton, Florida 33431 (the “Company”) and subscribe to the Service(s) described herein.
THE SYSTEM. Personal emergency response systems are units that are plugged into telephone jacks or can also be cellular. The System is loaned to you, the subscriber, or it can be an application that is downloaded by you to your smartphone, or you may have purchased through a retail or online store and is intended to be used only for medical or other similar personal emergencies. Depending on your system and accessories, the subscriber of the system can send an alarm signal if they need help or assistance by pressing the emergency button on the system, smart watch or smartphone application, or by triggering a help button, assuming the subscriber is within range of the system and inside the cellular network. Health Hub systems transmit vitals data only and the MDLIVE service provides virtual doctor visits; they do not send emergency signals. Except for equipment purchased in a retail or online store, Smart Watch, and Vital peripherals (blood pressure monitor, weight scale, pulse oximeter and glucose monitor), all other units and software systems are owned by the Company. The System does not provide protection against fire or intruders. Company relies on the information you provide about your location and your personal emergency contacts.
SERVICES. During the term of this Agreement, Company will provide monitoring and notification services three hundred sixty five (365) days per year, (24) hours per day. These services include the receipt, analysis and response to alarm signals and calls made through the System, and, if applicable, notification and location services through Company’s server (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 Responder. In the event a Responder is sent to your home and cannot enter through the door, you assume all risk of personal injury or loss or damage to your premises or the contents thereof. Health Hub systems transmit vitals data only and the MDLIVE service provides virtual doctor visits; they do not send emergency signals. While you are subscribed to our Services, you agree to have given your prior express written consent and authorization to be contacted by or on behalf of the Company on your System, cellular and/or other phone numbers you provided to Company, including by autodialed, pre-recorded and/ or artificial voice calls and SMS/Texts even if you are on the federal, any state and/or Company Do-Not-Call list and for all other purposes. This authorization extends to those you’ve requested we contact in the event of an emergency.
ASSIGNEES AND SUBCONTRACTORS. Company may transfer or assign this Agreement to a financial institution, other personal emergency services provider, or any other business entity. 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 is applies to and protects Company. Any subcontractor shall be considered an “independent contractor” and therefore not affiliated with Company in any way as a partner, joint venture, agent or employee. You may not transfer this Agreement without prior written approval by Company.
PAYMENT. You will be charged the amount specified by Company at the time you ordered the System, beginning on the date the System is shipped to you unless your account is being provided to you as a benefit by a third party. You agree to permit Company to use any updated account information regarding your selected payment method provided by your issuing bank or the applicable payment network including new expiration dates. If you purchased the system through a retail or online store, you will be charged the amount specified by Company at the time you activate your System. Payment will be due each billing cycle (monthly, quarterly, semi-annually or annually) 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. In the event that it becomes necessary for Company to undertake legal proceedings to collect payments due under this Agreement, you agree to reimburse all reasonable attorneys’ fees associated with such collection action, except where prohibited by law. Company shall have the right, at any time, to increase any fees.
FEES FOR RESPONSE TO CALLS. If any governmental agency, entity or authority for your location imposes a fee or tax of any kind for responding to any calls, whether necessary or false alarm, you are responsible for the fees and/or taxes imposed. If the Company is assessed a fee and/or tax for calling the appropriate agency, authority or entity on your behalf, after the Company receives a signal from your System, you agree to reimburse the Company for any such fee and/or tax, and to have the amount charged to you by the Company on your current payment method on file.
TERM & TERMINATION. This “Term and Condition of Use” shall begin upon use of the System and will continue unless and until terminated as provided below. Company, in its sole discretion, may suspend the Services or terminate this Service. If Company reactivates the Services, you shall pay, in advance, Company’s then prevailing reconnection fee. You may terminate this Service at any time by calling Company and notifying the Company of your request. The Service will not be terminated until the complete System has been returned to Company unless you purchased the equipment in a retail or online store or you are using the smart watch or smartphone application. Returning the equipment to Company is at your expense. When requested by you at time of termination, if you have a remaining balance of $15.00 or more, you will receive a prorated refund, based on the non-discounted rate, after we receive your complete System. The proration calculation is based on the number of full service months remaining. Processing fees and shipping charges are nonrefundable after your first 30 days of service. If you are mailing the System back to the Company, please call to get the “Return” address. If the complete System is not returned, you will continue to be charged the service fee. If you fail to pay the service fee and do not return the equipment, you shall pay Company up to Six Hundred Fifty Dollars ($650.00) for the System, plus any unpaid service fees. If you have a smartphone application and want to cancel your service, you must call the Company. Deleting the application from your smartphone does not constitute a cancellation of service.
FALSE ALARMS. To avoid false alarms, Company may first determine whether an actual emergency exists before it contacts any Responder. 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.
SYSTEM EQUIPMENT. The System may include, depending on the plan selected, a wired base station, a cellular base station, mobile device, cradle charger, pendant, automatic fall detect pendant, Wall Button, Smart Watch and Vital peripherals (blood pressure, monitor, weight scale, pulse oximeter and/or glucose monitor). If you are using the smartphone application, the System may include the application and a smartphone you own. You are responsible for ensuring that your home telephone service, Smart Watch and/or smartphone is in good working order. The Company, in its sole discretion, may repair or replace the leased System if it becomes damaged or is defective, unless the System has previously been disassembled, repaired or modified by someone other than us or our authorized service representative or the System has been damaged as a result of the negligence or misconduct by any person other than us or our authorized service representative. If the System becomes damaged as a result of above, you shall pay us the replacement price of up to Six Hundred Fifty Dollars ($650.00) for the System. The System and all monitoring software, computer codes and monitoring information remain Company’s sole and exclusive property. All equipment should be tested on a monthly basis to confirm it is properly working. Subscriber acknowledges that the automatic fall detect pendant does not detect one-hundred percent (100%) of falls. If able, users should always push their help button when they need assistance. Automatic fall detect pendant is not intended to replace a caregiver for users dealing with serious health issues.
LIMITATIONS OF THE SYSTEM AND THE SERVICES. Company is not responsible for the promptness, sufficiency or adequacy of the action of any Responder. 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. Depending on the plan selected, the System and the Services rely on the availability of your home telephone service, 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 or warranties 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, notwithstanding any other provision of this Agreement, there should arise any liability with regard to the System, Services or third party accessories and/or services, whether based upon warranty, contract, tort, or otherwise, including any liability alleged to arise from the negligence or intentional actions of the Company, the Company’s maximum liability for any claim and for all damages of any kind related to any claim whether before, during or after the event giving rise to the claim or damages, shall not exceed One Thousand Dollars ($1,000.00) under this Agreement. Claims for liability must be made on or before the first anniversary of the event allegedly giving rise to the liability. Claims or actions brought more than one (1) year after the date of the event giving rise to the alleged liability are barred by agreement between the Company and the Subscriber regardless of any Statute of Limitations and are waived forever. Since it is impractical and extremely difficult to fix actual damages which may arise due to a failure of the System or the Services, this sum shall be complete and exclusive and shall be paid and received as liquidated damages and not as a penalty. In no event shall Company be liable for punitive, special, incidental, or consequential damages.
DISPUTE RESOLUTION; ARBITRATION; WAIVER OF LAWSUITS AND ALL ACTIONS IN A COURT OF LAW; WAIVER OF JURY TRIAL. Any dispute or claim relating in any way to your use of any Company service, and/or Company equipment or devices, whether purchased from Company or obtained as part of a Service Agreement or otherwise, and all actions or damages of any and every kind that you claim Company is responsible for, will be resolved by binding arbitration, rather than in court. The Federal Arbitration Act and the laws of the State of Florida apply to this Agreement without regard to any conflict of law provisions. There is no judge or jury in an arbitration and Court review of an arbitration award is very limited. However, an arbitrator can award on an individual basis the same damages and relief as a Court of law, and must follow the Terms and Conditions of this Agreement as stated herein, as a Court would. To begin an arbitration proceeding, you must send a certified letter describing your claim and requesting arbitration to our Company, at the business address shown on our website. The arbitration will be conducted by a single arbitrator, by the American Arbitration Association, in accordance with their latest published Expedited Case rules. The arbitration will be conducted in Boca Raton, Florida. You may choose to appear at the arbitration in person, by telephone or video connection or to submit your claim in writing for the arbitrator to consider. The arbitrator shall not award any consequential, punitive or speculative damages in rendering an award, and only the laws of the State of Florida, the Federal laws of arbitration and this Agreement will be considered in rendering an award. The Parties shall equally split the cost of the arbitrator and the arbitration proceedings and each Party shall bear its own attorney’s fees and costs. We each agree that any dispute resolution proceedings will be conducted only on an individual basis, and not in a class, consolidated or representative action. If, for any reason, a claim proceeds in a Court of law, rather than by arbitration, we each waive any right to a jury trial. No claim for arbitration will be allowed more than one (1) year from the date of the event giving rise to the claim asserted. The scope of this waiver of a trial in a court of law 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. Notwithstanding the above waiver of a trial in a Court of law, if for any reason the waiver of a trial is determined to be invalid and litigation is allowed, this Agreement may be filed in court as a written consent to a waiver of a jury trial and consent to a trial by the Court. In that case, venue shall lie exclusively in the State Courts of the State of Florida, in Palm Beach County Florida, and all Parties consent to the personal jurisdiction of these Courts.
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. You further agree to pay Company (i) any amount which a court orders Company to pay or which Company reasonably agrees to pay, 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 damages.
MEDICATION REMINDER OPTIONAL SERVICE. Medication Reminder is an optional service offered with certain versions of the Base Station in conjunction with the Company web portal. It is intended to be used as a mechanism for assisting users in remembering to take their medications. The medication reminder feature displays a reminder message which includes the medication name, at a scheduled time, prompts the user to acknowledge receipt of the reminder, and then records the acknowledgment (or lack of acknowledgment). The feature is not intended to be used as confirmation that the medication was actually taken nor is it intended to be used as a tool for dispensing medications. The accuracy of the reminder data (medication type, dosage, and schedule time) is the sole responsibility of the user entering the data. User acknowledges and accepts that the system displays Private Medical Information (Medication Names Only).
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 and whether or not executed. 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 Florida, without regard to conflict of law provisions. In the event that it should become necessary for Company to institute legal proceedings to enforce any provision of this Agreement, you agree to pay Company reasonable attorneys’ fees and costs, except where prohibited by law.