TERMS AND CONDITIONS OF THE AGREEMENT
That, for the considerations and covenants hereinafter specified, the parties hereto, their heirs, successors and assigns, do mutually covenant and agree as follows:
SERVICE AND FEES: The Foundation Assisting SeniorsTM (FAS) agrees to furnish and preprogram a call assurance system (the “System” and/or “HowRUTM”), hereinafter defined, to you (“Subscriber”), and to monitor same on the terms and conditions herein provided. Subscriber’s enrollment and participation in the System will not commence until this Agreement is fully executed.
FORCIBLE ENTRY: Subscriber authorizes FAS, in its sole discretion if necessary, to authorize first responders to forcibly enter to gain access to Subscriber’s premises in the event the System calls the Subscriber and neither the Subscriber nor his or her emergency contact answers the telephone or cannot be reached. Subscriber does hereby fully and unequivocally release, acquit and forever discharge FAS from any and all liability whatsoever as a result of said forcible entry. The Subscriber shall be obligated for and agrees to pay any costs and expenses incurred including, but not limited to, emergency medical services, physician and/or other medical services provided in obtaining assistance, or cost whatsoever incurred as a result of the Subscriber’s use of the System.
OPTION TO UPDATE DATA INFORMATION: At the option of the Subscriber, the Subscriber may communicate by telephone or in writing with the Central Station for the purpose of verifying data information on file at the Central Station and updating said information, if necessary. FAS has no obligation to provide any data, comment and/or opinions concerning said information.
AUTHORIZATION TO FAS: The Subscriber agrees to provide and maintain, throughout the Subscriber’s involvement in the System, an appropriately operating telephone service.
INTERRUPTIONS OF SERVICE: FAS assumes no liability for interruption of services due to strikes, riots, floods, fires, acts of God, mechanical or electrical equipment failures, or any cause beyond the control of FAS.
MISUSES AND ABUSE OF SYSTEM: In the event the Subscriber violates any part of this agreement, misuses or damages the System or causes an excessive number of false alarms, FAS may suspend all service and terminate this agreement upon giving thirty (30) days written notice to the Subscriber.
SYSTEM DISCLAIMER: FAS DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM MAY NOT BE COMPROMISED OR CIRCUMVENTED OR THAT THE SYSTEM WILL PREVENT PERSONAL INJURY, LOSS OF LIFE OR PROPERTY, OR DAMAGE, OR THAT THE SYSTEM WILL IN ALL CASES PROVIDE THE PROTECTION FOR WHICH IT IS INTENDED. FAS EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THE SUBSCRIBER HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY. THE SUBSCRIBER ACKNOWLEDGES THAT ANY AFFIRMATION OF FACT OR PROMISE MADE BY FAS, ITS OFFICERS, TRUSTEES, ITS AGENTS, SERVANTS OR EMPLOYEES, SHALL NOT BE DEEMED TO CREATE AN EXPRESS WARRANTY.
ABSENCE: In the event Subscriber leaves for vacation or leaves the original monitoring location for any length of time, Subscriber agrees to immediately notify FAS and to retest the System without unreasonable delay.
SELF-PROTECTION/SUBSCRIBER’S DUTIES: The Subscriber understands that the System is provided as a courtesy to assist the Subscriber in protecting his or her person. It does not guarantee and/or assure such protection. Subscriber is encouraged to and agrees whenever practical to use all other safety and medical devices and techniques available to the Subscriber for such protection. Available devices and techniques include, but are not limited to, (a) basic health precautions; and (b) adherence to physicians’ directions and recommendations. It is the responsibility of the Subscriber to instruct all
members of his/her household and other potential users in the proper use of the System.
SUBSCRIBER AGREES AND UNDERSTANDS THAT: FAS IS NOT AN INSURER AND THAT INSURANCE COVERING PERSONAL INJURY, INCLUDING DEATH, AND REAL OR PERSONAL PROPERTY LOSS OR DAMAGE IN, ABOUT OR TO THE PREMISES SHALL BE OBTAINED BY THE SUBSCRIBER; FAS MAKES NO GUARANTEE, REPRESENTATION OR WARRANTY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; THAT THE SERVICES ARE DESIGNED TO REDUCE, BUT NOT ELIMINATE, CERTAIN RISKS OF LOSS AND THAT THE AMOUNTS BEING CHARGED BY COMPANY ARE NOT SUFFICIENT TO WARRANT OR GUARANTEE THAT EITHER NO LOSS OR DAMAGE WILL OCCUR OR INCREASED LOSS OR DAMAGE WILL NOT OCCUR; THAT FAS IS NOT A MEDICAL SERVICE PROVIDER AND THAT FAS IS NOT LIABLE FOR THE ACTIONS OF ANY THIRD- PARTY MEDICAL SERVICE PROVIDERS, INCLUDING, BUT NOT LIMITED TO, THOSE PROVIDERS WHO RESPOND TO REQUESTS FOR ASSISTANCE BY FAS ON BEHALF OF SUBSCRIBER AS A RESULT OF AUTHORITY GIVEN BY SUBSCRIBER UNDER THIS AGREEMENT; THAT FAS IS NOT LIABLE FOR ANY LOSS OR DAMAGE WHICH MAY OCCUR PRIOR TO, CONTEMPORANEOUS WITH, OR SUBSEQUENT TO THE EXECUTION OF THIS AGREEMENT EVEN IF DUE TO THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF FAS, ITS OFFICERS, TRUSTEES, AGENTS, SERVANTS, EMPLOYEES, SUPPLIERS OR SUBCONTRACTORS, OR TO THE IMPROPER PERFORMANCE OF AND/OR FAILURE TO PERFORM OF THE EQUIPMENT, OR BREACH OF CONTRACT, EXPRESS OR IMPLIED, OR BREACH OF WARRANTY, EXPRESS OR IMPLIED, OR BY LOSS OR DAMAGE TO FACILITIES NECESSARY TO OPERATE THE SYSTEM OR ANY CENTRAL STATION;
DEFENSE AND INDEMNIFICATION: Subscriber hereby agrees to indemnify, defend and hold harmless FAS from and against all claims, demands, liabilities, damages, losses, expenses, costs, including attorney’s fees and lawsuits which may be asserted against and/or incurred by FAS by or due to any third party persons and/or entities not parties to this Agreement, including but not limited to, Subscriber’s heirs, family members, representatives, agents, assigns, insurance, medical/psychological facilities, lien holders (including Medicare and/or Medicaid) and/or bonding company, for any claim, expense, loss or damage including, but not limited to, statutory civil damages, personal injury, death and/or property damage, real or personal, arising out of the design, sale, lease, installation, usage, repair, service, dispatch, maintenance, monitoring, recording of communications, operation or non-operation of the equipment, System or Central Station facilities, whether due to the sole, joint or several negligence (including gross negligence) of FAS, its officers, trustees, agents, servants, employees, suppliers, or subcontractors, breach of contract, express or implied, breach of warranty, express or implied, product or strict liability, and/or any claim for contribution or indemnification, whether in contract, tort or equity.
FULL RELEASE: It is intended by the parties to this Agreement that the FAS’s services in connection with the System shall not subject FAS’s individual board members, employees, officers, partners, agents, affiliates, trustees, managers, directors or attorneys to any personal and/or legal exposure for any of the risks associated with this Agreement. Therefore, and notwithstanding anything to the contrary contained herein, the Subscriber agrees that as the Subscriber’s sole and exclusive remedy, any claim, demand or suit shall be directed and/or asserted only against FAS, a Nevada corporation, and not against any of FAS’s individual board members, trustees, employees, agents, affiliates, partners, officers, managers, directors or attorneys.
LIMITATION OF LIABILITY: To the fullest extent permitted by law, and not withstanding any other provision of this Agreement, the total liability, in the aggregate, of FAS and any of its board members, trustees, officers, directors, partners, employees and subcontractors, and any of them, to the Subscriber and anyone claiming by or through the Subscriber, for and from any and all claims, losses, costs or damages, including attorney’s fees and costs and costs of any nature whatsoever or claims expenses resulting from or in any way related to the System or this Agreement from any cause or causes shall not exceed the total compensation received by FAS under this Agreement, or the total amount of $35.00, whichever is greater. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law.
MEDIATION: In an effort to resolve any conflicts that arise during the duration of this Agreement, the Subscriber and FAS agree that all disputes between them arising out of or relating to this Agreement or the System shall be submitted to nonbinding mediation prior to the commencement of any legal action in a court of law.
ARBITRATION: In the event the parties to this Agreement are unable to reach a settlement of any dispute arising out of this Agreement or related to the services under this Agreement, in accordance with Paragraph 14 (Mediation), then such
disputes may, with the consent of both parties, be settled by binding arbitration in accordance with the rules of any and all mutually agreed upon arbitration service, current as of the date of this Agreement then pertaining.
PRIVACY: Subscriber understands that once Subscriber’s data is provided, used, disclosed, reviewed, copied and/or relied upon by FAS and its individual board members, trustees, employees, agents, affiliates, partners, officers, managers, directors or attorneys., Subscriber no longer has control over said information and Federal or State of Nevada privacy laws may no longer protect the information. Subscriber further agrees to waive any and all claims, demands, liabilities, damages and issues against FAS and its individual board members, trustees, employees, agents, affiliates, partners, officers, managers, directors or attorneys for their access to and/or usage of said data. FAS will not sell or share any Subscriber information .
VOLUNTARY PARTICIPATION: Subscriber understands that Subscriber had the opportunity to consult with independent counsel, or any other professionals deemed necessary by Subscriber, prior to entering into this Agreement and hereby voluntarily executes this Agreement, as evidenced on Page 1 of this Agreement, with full understanding of all terms, conditions and obligations herein including the waiver of the legal and privacy rights that Subscriber may have as to the disclosure of the information provided to FAS. Subscriber has the capacity to understand, appreciate and consent to all the Terms and Conditions of this Agreement. Subscriber also hereby enters this Agreement absent duress, coercion or undue influence.
FULL AGREEMENT: This Agreement constitutes the full understanding by and between the parties hereto, and may not be amended or modified, except in a writing signed by both parties. This Agreement shall not be binding upon FAS until the Agreement is fully executed and the $35.00 fee has been paid.
ASSIGNMENT: It is specifically agreed that the Subscriber shall not be permitted to assign any rights under this agreement without the prior written consent of FAS, and any such assignment of rights without such prior approval shall be deemed a breach of this agreement. FAS shall have the right to assign this agreement to any other company engaging in a business similar to that of FAS and upon such assignment shall be relieved of any obligations created therein.
INVALID PROVISIONS: In the event that any of the terms or provisions of this agreement shall be invalid or inoperative, all of the other terms thereof shall remain in full force and effect.
RIGHT OF CANCELLATION: The Subscriber may cancel this transaction at any time by providing thirty (30) days written notice to FAS. FAS may cancel this Agreement and transaction at any time by providing thirty (30) days written notice to Subscriber including the date of cancellation. Any unused fees will be prorated and returned to the Subscriber.
GOVERNING LAW: This Agreement shall be governed by the laws of the State of Nevada. Jurisdiction over this Agreement shall reside with the Eighth Judicial District Court, Clark County, Nevada.
VOLUNTARY WAIVER OF CLAIMS: Subscriber hereby voluntarily, understandingly and knowingly waives and forever discharges any and all legal rights, allegations, demands, claims, lawsuits, actions, legal proceedings, expenses, damages and administrative proceedings against FAS, its agents, assistants, principals, employees, officers, insurers, members, the HowRUTM program developers, attorneys and/or any entity or individual affiliated with FAS for their use of and reliance on this Authorization.
End of Document.