Personal Emergency Response Systems
Monitoring Service Agreement
LAST UPDATED: 7/9/2018
IMPORTANT: THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION __ BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THIS MEANS THAT WE ARE GIVING UP OUR RIGHTS TO SUE EACH OTHER IN COURT OR IN CLASS ACTIONS OF ANY KIND.
PLEASE READ CAREFULLY THE TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE AGREEING AND USING THE DEVICE.
THIS MONITORING SERVICE AGREEMENT (this “Agreement”) is entered into by and between Affinity Cellular, Incorporated, a _____________________, (the “Company” “us” or “we”), and you as the subscriber (“Subscriber” or “you”). This Agreement, which must be accepted to complete the activation process, contains terms of Subscriber’s service, cancellation, returns, refunds and cancellation of service.
Subscriber has agreed to purchase a personal emergency response device (the “Device”) from the Company and subscribe to Monitoring Service (as defined below) which will be provided by a third-party subcontractor call center (the “Center”). The Company agrees to provide Monitoring Service for the Device in accordance with the terms and conditions of this Agreement and as further described on our website at https://www.affinitycellular.com. By activating the Device and sending a test signal to the Center, Subscriber confirms that he / she has read this Agreement and accepts all of the terms and conditions contained herein. This Agreement may be updated by Company at any time by posting an updated version to their website. IT IS THE RESPONSIBILITY OF SUBSCRIBER TO MONITOR THE WEBSITE FOR ANY UPDATES. CONTINUED USE OF THE MONITORING SERVICE AFTER ANY UPDATE SHALL SERVE AS ACCEPTANCE OF THE UPDATED AGREEMENT.
MONITORING SERVICE.During the term of this Agreement, the Center will provide seven (7) days per week, twenty-four (24) hours per day monitoring of the Device (the “Monitoring Service”) in accordance with the provisions set forth herein. The Monitoring Service will include receipt, analysis and response to alarm signals and calls made by Subscriber through the Device. The Device is intended to be used only for personal emergencies and the Center may notify appropriate authorities (i.e., police, fire department or other emergency personnel) or approved individuals or both (collectively, the “Responders” and each a “Responder”) if a signal is received from the Device and the Center verifies such signal. The Monitoring Service is designed to track the Device, and, therefore, if (i) you provide the Device to another person or (ii) become separated from the Device, the Monitoring Service will not be able to track your location. THE MONITORING SERVICE WILL NOT BEGIN AND THE CENTER WILL HAVE NO OBLIGATION TO NOTIFY EMERGENCY PERSONNEL UNTIL A TEST SIGNAL FROM THE DEVICE HAS BEEN SUCCESSFULLY RECEIVED BY THE CENTER AND YOU HAVE RECEIVED CONFIRMATION THAT SUCH SIGNAL HAS BEEN RECEIVED.
The Device is connected to the Center’s monitoring network. When an emergency signal from the Device is received by the Center, the Center shall, without warranty, make every reasonable effort to promptly contact you and, if the Center determines that it is necessary in its reasonable judgment, notify the appropriate Responders. You represent that the emergency contact information provided by you to the Company is accurate. To avoid false alarms, the Center may first call your contact telephone number to determine if an actual emergency exists before contacting any Responder. If the Center has reason to believe that no actual emergency exists, the Center may choose not to place such call or notify any Responder. You hereby agree that the Center may rely absolutely on the statements of Subscriber, the Responders or any person acting on behalf of Subscriber or the Responder, with regards to responses to the location and condition of Subscriber. We may discontinue any particular form of response if required to do so by any governmental authority or insurance interest. You acknowledge and agree that all monitoring software, computer codes and monitoring information remain our sole and exclusive property.
SUBSCRIBER AGREES THAT THE CENTER IS RESPONSIBLE ONLY FOR ENDEAVORING TO NOTIFY THE APPROPRIATE RESPONDERS AND IS NOT RESPONSIBLE FOR THE PROMPTNESS, SUFFICIENCY OR ADEQUACY OF THE ACTION OF ANY RESPONDER OR ANY THIRD PARTY ACTING AS A RESPONDER. SUBSCRIBER ACKNOWLEDGES THAT IN NO WAY DOES THE COMPANY REPRESENT OR GUARANTEE THAT THE RESPONDERS CAN BE CONTACTED, THAT THEY CAN OR WILL RESPOND, OR THAT ANY RESPONSE WILL BE SAFE OR EFFECTIVE. SUBSCRIBER AGREES THAT THE RESPONDERS ARE NOT AGENTS OR OTHER REPRESENTATIVES OF THE COMPANY AND ANY ACTION TAKEN BY THE RESPONDERS SHALL IN NO WAY BE IMPUTED TO THE COMPANY. YOU UNDERSTAND THAT THE CENTER WILL NOT SEND ANY COMPANY OR CENTER PERSONNEL IN RESPONSE TO ANY EMERGENCY SIGNAL.
YOU UNDERSTAND THAT CERTAIN LAWS, RULES, REGULATIONS AND ORDINANCES IMPOSED BY GOVERNMENTAL AUTHORITIES, UTILITIES, BUSINESSES, HOMEOWNERS ASSOCIATIONS, AND/OR OTHER ENTITIES MAY AFFECT YOUR RIGHTS IN RELATION TO THE INSTALLATION AND SERVICE OF THE SYSTEM. YOU AGREE TO OBTAIN AND MAINTAIN IN CURRENT STATUS ALL LICENSES OR PERMITS OR OTHER AUTHORIZATIONS NECESSARY FOR THE INSTALLATION AND USE OF THE SYSTEM.
YOU UNDERSTAND THAT THE DEVICE WILL NOT WORK WITH EQUIPMENT USED BY OTHER COMPANIES OR MONITORING CENTERS. YOU UNDERSTAND THAT THERE ARE ALTERNATIVES AVAILABLE TO YOU SUCH AS 911 EMERGENCY TELEPHONE SERVICE AND YOU HAVE SELECTED THIS SERVICE WITH A FULL UNDERSTANDING OF ITS LIMITATIONS, AND THE LIMITATION OF OUR LIABILITY SET FORTH IN SECTIONS 19 and 21.
PAYMENT AND DISPUTES.For the Monitoring Service, you agree to pay the amount specified by the Company at the time you purchased the Device beginning from the time the Device is shipped. The Monitoring Service shall begin only when the test signal from the Device has been successfully received by the Center (the “Effective Date”). The original term of this Agreement is the number of months originally selected by the Subscriber and will renew for the same consecutive billing cycle thereafter unless changed or terminated pursuant to the terms of this Agreement. If you have authorized charges to a credit card, no additional notice or consent will be required before billings to that credit card. We are hereby authorized to charge the provided credit card for any charges or expenses incurred pursuant to this Agreement, including late charges. Payments of all charges, including disputed charges, must be received by the due date shown on the invoice. Disputes of charges must be in writing and received no later than the due date to: Affinity Cellular, 955 Kacena Rd STE A, Hiawatha, IA 52233. We will make good-faith efforts to resolve disputes promptly.
You agree to pay all sales, service, property, use, regulatory, local and other taxes; any, police, fire department, ambulance or paramedic charges or fees; and any permit fees, telephone charges, return check charges, or late charges, if applicable, whether imposed on you or us. We shall have the right, at any time, to increase the services fee to reflect any additional or increased taxes, licenses, permits, fees or charges which may be charged to us by a utility or governmental agency, the Center or any private response agency relating to the Monitoring Service and you agree to pay the same. If you do not pay all charges by the due date, unless prohibited by law, you shall pay us a minimum late fee of ten dollars ($10) per month of any balance due, payable for every month such amount remains unpaid; If your account is sent to a collection agency due to an unpaid balance, unless prohibited by law, you may be assessed up to an additional twenty-five dollar ($25) collection fee. Acceptance of late or partial payments (even if marked "Paid in Full") will not waive our rights thereunder. We may assess up to a twenty-five dollar ($25) fee for any check returned for insufficient funds or credit/debit card chargeback for a transaction that you had authorized. In the event that it shall become necessary for us to undertake collection or legal proceedings to collect payments due under this Agreement then you agree to pay us our reasonable fees, including attorney’s fees, for such collection action except where prohibited by law.
CANCELLATION:UNLESS PROHIBITED OR RESTRICTED BY LAW, INITIALLY YOU MAY CANCEL THIS AGREEMENT AND THE MONITORING SERVICE HEREUNDER AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE EFFECTIVE DATE. IF CANCELLATION IS DESIRED, YOU MUST MAKE AVAILABLE TO THE COMPANY OR ITS AGENT, IN THE SAME CONDITION AS IT WAS PROVIDED TO YOU AND AT YOUR EXPENSE, THE DEVICE AND ANY OTHER EQUIPMENT DELIVERED UNDER THIS AGREEMENT. YOU WILL BE SUBJECT TO ANY RESTOCKING CHARGES AS WELL AS ANY ACTIVATION OR SHIPPING FEES INCURRED BY COMPANY. THEREAFTER, YOU MAY CANCEL THE SERVICE AT ANY TIME HOWEVER YOUR SERVICE WILL CONTINUE THROUGH THE END OF THE ORIGINAL OR RENEWAL TERM, AS APPROPRIATE, AND NO REFUNDS WILL BE PROVIDED. TO CANCEL THIS AGREEMENT AND THE MONITORING SERVICE HEREUNDER, SUBSCRIBER MUST MAIL OR DELIVER A SIGNED AND DATED NOTICE OF CANCELLATION TO THE COMPANY AT THE FOLLOWING ADDRESS: AFFINITY CELLULAR, LTD, 955 KACENA RD STE A, HIAWATHA, IA, 52233; ATTENTION: CANCELLATION DEPARTMENT.
COVERAGE; GEOGRAPHIC LIMITATIONS.The ability of the Device to accurately track your location is dependent upon the availability of the appropriate technology provided by a third party that is not controlled by the Company including, but not limited to, GPS, cellular network or wireless internet coverage depending upon your location and Device. The Device will function only in areas, locations and buildings where such service is available. If such service is unavailable or unreliable, the Device may not accurately reflect your location. In such event, the Center may be unable to receive your notification or to communicate your location to a Responder, and a Responder may not be able to locate you. Devices that use cellular telephone, radio or other similar services have an estimated range of up to 300 feet from the Device. However, the construction of a home or building and other factors may reduce these range limits for your particular Device. You can ensure that you are in range at any time by pressing the button to test the system. Subscriber understands these range limitations and agrees to test the Device as necessary to determine particular Device range. Cellular based Devices do not track locations outside of the forty-eight contiguous United States; therefore, if Subscriber resides outside of such geographic area or intends to use the Device outside of such geographic area, we recommend that Subscriber contacts Company to determine the availability of any options.
FALSE ALARMS AND ABUSE OF SERVICE.You agree that you and others using the Device will use it carefully so as to avoid causing false alarms. If we receive too many false alarms, that will constitute a breach of contract by you, and we may cancel this Agreement and the Monitoring Service. If a false alarm fine or penalty or a response fee is charged to us or you by any governmental agency or other person, you will pay such charge. Subscriber further acknowledges and agrees that the Monitoring Service may be suspended from time to time for excessive false alarms, improper signals and “problem accounts.”
SUBSCRIBER’S DUTIES.You shall:
- upon receipt of the device, review all instructions and other written materials and call the Company with any questions or concerns;
- test the Device in accordance with the instructions provided;
- use the Device and the Monitoring Service in accordance with the terms and conditions of this Agreement and the procedures and specifications provided by the Company and shall not use the Device and the Monitoring Service for any other purposes;
- instruct all members of your household and other potential users on the proper use of the Device and the Monitoring Service;
- provide us necessary Subscriber information and notify us in writing in advance of any changes in phone number, address or the persons or telephone numbers on your emergency call list;
- not alter, modify or attempt repairs on the Device, except pursuant to the instructions of the Company, the Center and/or our authorized service representatives;
- not allow any other person to use the Device unless such person is approved by the Company and the Center and provides emergency contact information; and
- allow us, the Center and/or our authorized service representatives access to the Device in order to inspect the Device, perform maintenance or repairs to the Device or remove the Device after termination or expiration of this Agreement.
CONSENT TO CONTACT.The Company may use predictive or autodialing equipment, text messaging, and/or prerecorded messages to your wireless phone number to contact you to advise you about the Monitoring Service or other matters we believe may be of interest to you. When you sign up for Monitoring Service, you are asked to OPT IN to receive these communications. You can cancel these communications at any time by texting “STOP” to 2561 or call us at 1-855-699-5920. If you opt out of receiving text messages, after you send the message “STOP” to us, we will send you an SMS message to confirm that you have been unsubscribed. After you opt out, you will no longer receive messages from us. If you want to join again, just sign up as you did the first time and we will start sending communications to you again.
FORCED ENTRY.You agree and acknowledge that if any alarm signal is received by the Center and a Responder is sent to the location of the Device, in the event that the Responder would need a key, code or other means of accessing such location that is unavailable to such Responder, the Responder may be required to forcibly enter or break into such location if the Responder determines that it is necessary in their sole discretion. You understand that this may result in damage or physical injury to you or a third-party or to property owned by you or a third-party. YOU HEREBY WAIVE ANY CLAIM AGAINST US OR ANY RESPONDER WHICH MAY ARISE AS A RESULT OF SUCH BREAK-IN OR FORCED ENTRY, AND YOU HEREBY AGREE TO HOLD HARMLESS, INDEMNIFY AND DEFEND US, THE CENTER, THE RESPONDER AND ANY OF OUR OR THEIR AUTHORIZED REPRESENTATIVES FOR ANY LOSSES INCURRED BY US OR THEM IN CONNECTION WITH SUCH FORCED ENTRY. YOU ACKNOWLEDGE THAT THIS PROVISION COULD REQUIRE YOU TO PAY SIGNIFICANT AMOUNTS IN THE EVENT THAT THE COMPANY, THE CENTER, THE RESPONDER AND/OR ANY OF OUR OR THEIR AUTHORIZED REPRESENTATIVES IS REQUIRED TO PAY, OR
EQUIPMENT MAINTENANCE.You agree to notify us and the manufacturer if the Device malfunctions. We may repair or replace, as determined in our sole discretion, the Device if it becomes damaged or is defective during the period of any warranty offered to you at the time of purchase, unless (i) the Device has previously been disassembled, repaired or modified by someone other than us or our authorized service representative or (ii) the Device has been damaged as a result of the negligence or misconduct by any person other than us or our authorized service representative. If the Device becomes damaged as a result of (i) or (ii) above, you shall must pay fora new Device should you wish to continue Monitoring Services. The 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 Device.
WIRELESS AND TELEPHONE SERVICE; CONNECTION REQUIREMENTS.Wireless and telephone service, if required, are subscriber’s responsibility. Subscriber acknowledges that, with the exception of any cellular-based system, certain Devices plug into a standard telephone jack and communicate over standard telephone lines using two-way voice communication, radio, or other similar services. The Device may not work with VoIP Internet connections. 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 Company in its sole discretion.
CELLULAR SYSTEMS.Subscriber acknowledges and understands that the use of cellular-based and/or mobile solutions for Device systems includes additional risks associated with the quality and reliability of cellular signals, cellular service and GPS or other location services data. Cellular communications are affected by a number of factors outside the control of Company and may be impaired or blocked by building construction style, building materials, atmospheric conditions (i.e. weather), distance from transmitter to receiver, surrounding terrain, battery life, signal strength, cellular network traffic, cellular tower condition, carrier coverage and interference from other cellular devices. Subscriber understands and acknowledges that cellular based solutions rely on third party services from wireless carriers that are not controlled by Company or its representatives.
Subscriber must have adequate cellular coverage in the area where the Device is being used. Subscriber is responsible to ensure the Device has adequate signal and power (or sufficient battery charge) to send and receive a signal.
FALL ALERT.Subscriber may purchase a fall alert option. Subscriber understands that fall detection technology does not detect 100% of falls, and that the Device must have sufficient battery charge signal strength to transmit information. If able, Subscriber should always push their help button when they need assistance.
RESPONSE.You acknowledge that we make no representation or warranty as to the promptness of the Center and that we have no control over the response time or capability of any Responder who may be notified as a result of the Device being used. You further understand that the Center may fail to properly respond to an emergency signal from the Device or that the Device may fail to operate properly. You further acknowledge that the Center shall not be obligated to perform the Monitoring Service during any time when the Device is inoperative.
TERMINATION, DEFAULT.If you materially breach this Agreement, including, without limitation, by failing to make any payment when due, we may discontinue the Monitoring Service and terminate this Agreement. If service is suspended because you have breached this Agreement, and you ask us to reactivate the Device after you have cured such breach, you will pay, in advance, our then prevailing reconnection fee. You authorize us to investigate your credit record, and to report your payment performance under this Agreement to credit agencies and credit reporting services.
SUSPENSION OR CANCELLATION OF THIS AGREEMENT.You understand that we may stop or suspend the Monitoring Service at any time for any or no reason upon ten (10) days’ notice to you. If we stop or suspend the Monitoring Service where you have not breached your obligations, we will refund any prepaid but unused charges within sixty (60) days.
ASSIGNEES AND SUBCONTRACTORS.
- We may transfer or assign this Agreement without notifying you and without your consent. You may not transfer this Agreement to someone else unless we approve the transfer in writing.
- We may use subcontractors (including the Center or any other independent monitoring center) to provide the Monitoring Service, and this Agreement shall apply to them and the work they perform and protect them in the same manner as it is applies to and protects us. You acknowledge and agree that any subcontractor shall be considered an “independent contractor” and therefore not affiliated with us in any way as a partner, joint venture, agent or employee.
CHANGES TO THE DEVICE.If you or any governmental agency or insurance interest requires us to change the Device described herein, or change it after it is installed, you agree to pay our standard parts and labor charges for such changes.
THE COMPANY IS NOT AN INSURER; WARRANTY AND DISCLAIMER; LIMITATION OF LIABILITY.
- You understand and agree that neither we nor the Center are an insurer of your premises, property or your personal safety and that you are solely responsible for providing any life, health or disability insurance and insurance on you and your premises and its contents. You understand and agree that the amount you pay to us is based solely only on the value of the Monitoring Service we provide and not on the value of you or your premises or its contents, it is difficult to determine in advance the value of any personal injury or death or the property that might be lost, stolen or destroyed if the Device or our service fails to operate properly and it is difficult to determine in advance what portion, if any, of any property loss, personal injury or death would be proximately caused by our or the Center’s failure to perform, our or the Center’s active or passive, sole, joint or several negligence, or a failure of the Device or our or the Center’s service. You further understand that the amounts being charged by us are not sufficient to guarantee that no loss will occur and that we are not assuming responsibility for any losses which may occur even if due to our negligent performance or failure to perform any obligation under this Agreement. Subscriber assumes all risk of loss or damage to premises or the contents thereof, or personal injury or death. You agree to look exclusively to your insurer to recover damages. You waive all subrogation and other rights of recovery against us or the Center that any insurer or other person may have as a result of paying any claim for loss or injury to any other person.
- YOU ACKNOWLEDGE THAT NEITHER WE, THE CENTER NOR ANY OF OUR SUPPLIERS OR SUBCONTRACTORS REPRESENT OR WARRANT THAT THE DEVICE OR THE MONITORING SERVICE WILL PREVENT DEATH, BODILY OR PERSONAL INJURY, OR ANY OTHER INJURY OR DAMAGE TO YOU OR OTHERS WHO USE THE DEVICE AND YOU OR OTHERS WHO USE THE DEVICE DO NOT AND HAVE NOT RELIED UPON ANY EXPRESS OR IMPLIED REPRESENTATION BY THE COMPANY, THE CENTER OR ANY OF OUR SUPPLIERS OR SUBCONTRACTORS TO THAT EFFECT. THE COMPANY MAKES NO GUARANTEES OR WARRANTIES OF ANY KIND RELATING TO THE DEVICE AND THE MONITORING SERVICE AND EXPRESSLY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE DEVICE AND THE MONITORING SERVICE, INCLUDING, WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THIS AGREEMENT, THERE SHOULD ARISE ANY LIABILITY WITH REGARD TO THE DEVICE AND/OR THE MONITORING SERVICE, THE MAXIMUM LIABILITY OF US, OUR THIRD-PARTY VENDORS AND CENTER ARISING OUT OF THE PROVISION OF THE DEVICE OR THE MONITORING SERVICE OR BOTH, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE COST OF THE DEVICE PAID TO THE COMPANY. SINCE IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES WHICH MAY ARISE DUE TO A FAILURE OF THE DEVICE AND/OR THE MONITORING SERVICE, THIS SUM SHALL BE COMPLETE AND EXCLUSIVE AND SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES AND NOT AS A PENALTY. THIS SUM IS YOUR SOLE REMEDY NO MATTER HOW THE LOSS, DAMAGE, INJURY OR OTHER CONSEQUENCE IS CAUSED, EVEN IF CAUSED BY OUR NEGLIGENCE, GROSS NEGLIGENCE, FAILURE TO PERFORM DUTIES UNDER THIS CONTRACT, STRICT LIABILITY, FAILURE TO COMPLY WITH ANY APPLICABLE LAW, OR OTHER FAULT. IN NO EVENT SHALL WE, OUR THIRD-PARTY VENDORS OR CENTER BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
THIRD PARTY INDEMNIFICATION AND NO SUBROGATION.If anyone other than you asks us to pay for any harm or damages (including property damage, personal injury or death) connected with or resulting from (i) the Company’s breach of this Agreement or a failure of the Device and/or the Monitoring Service, (ii) our negligence, gross negligence or failure to perform, (iii) any other improper or careless activity of ours in providing the Device and/or the Monitoring Service or (iv) a claim for indemnification or contribution, you will pay us (a) any amount which a court orders us to pay or which we reasonably agree to pay, and (b) the amount of our reasonable attorneys’ fees and any other losses or costs that we may pay in connection with the harm or damages. Unless prohibited by your property insurance policy or other insurance, you agree to release us from any claims of any parties suing through your authority or in your name, such as your insurance carriers, and you agree to defend us against any such claim. You will notify your insurance carrier(s) of this release.
Disputes and Arbitration.PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. Using the Monitoring Service constitutes your acceptance of this Arbitration provision. Please read it carefully as it provides that you and the Company will waive any right to file a lawsuit in court or participate in a class action for matters within the terms of the Arbitration provision.
EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE MONITORING SERVICE, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. AND YOU AGREE THAT THE COMPANY AND YOU ARE EACH WAIVING THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by Judicial Arbitration Mediation Services, Inc. (“JAMS”) pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective July 1, 2014 (the “JAMS Rules”) and as modified by this agreement to arbitrate. The JAMS Rules, including instructions for bringing arbitration, are available on the JAMS website at http://www.jamsadr.com/rules-streamlined-arbitration. The Minimum Standards are available at http://www.jamsadr.com/consumer-arbitration/.
The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by JAMS or by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against us for you.
All disputes, claims, actions or proceedings by or against the Company must be commenced within one (1) year after the cause of action has accrued, without extension of time, or said dispute, claim, action or proceeding is barred.
ENTIRE AGREEMENT.This Agreement, which must be accepted to complete the activation process, constitutes the entire agreement and understanding between the Company and Subscriber concerning Monitoring Services and supersede all prior discussions, agreements and representations, whether oral or written and whether or not executed.
AMENDMENT AND WAIVER.This Agreement may not be amended except in a writing signed by us. Amendments posted to the Company’s website will be deemed a writing signed by us. Any amendment to this Agreement will take effect immediately upon being posted to the Company’s website and your continued use of the Monitoring Service after an amendment is so posted constitutes your acceptance of and agreement to the amendment.
SEVERABILITY.In the event any one or more of the provisions of this Agreement is held to be unenforceable under applicable law, such unenforceability shall not affect any other provision of this Agreement and this Agreement shall be construed as if said unenforceable provision had not been contained herein.
FORCE MAJEURE.Neither the Company nor the Subscriber shall be liable to the other for any failure to perform any obligation under this Agreement which is due to an event beyond the control of such party including but not limited to any Act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made eventuality outside of our control, which causes the termination of an agreement or contract entered into, nor which could have been reasonably foreseen. The party affected by such event shall forthwith inform the other party of the same and shall use all reasonable endeavors to comply with this Agreement.
GOVERNING LAW.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 Iowa, without regard to conflicts of laws provisions.
ATTORNEYS FEES.In the event that it should become necessary for the Company to institute legal proceedings against Subscriber to enforce any provision of this Agreement, Subscriber agrees to pay the Company reasonable attorneys’ fees and costs, except where prohibited by law.
NO WAIVER.Any failure by us to enforce or exercise any provision of this Agreement or related rights shall not constitute a waiver of that right or provision.