22B Old Hope Road
Kingston 5, Jamaica, W.I.
1. MOBILE PERSONAL EMERGENCY RESPONSE SYSTEM REMAINS PERSONAL PROPERTY: The Mobile Personal Emergency Response System (hereinafter referred to as MPERS System) The MPERS System may be in the form of a software program also known as an “APP” and or a hardware device.
2. SCHEDULE OF EQUIPMENT/SERVICES: Description of Equipment:MPERS App to be installed by SubscriberCommunication By: Customer Provided DeviceEquipment: Customer Provided DeviceService: First Alert App
3. CANCELLATION AND REFUND POLICY: All paid service fees are non-refundable, unless otherwise agreed with the Subscriber in writing
4. PURCHASE AND SERVICE CHARGES: Subscriber agrees to pay FIRST ALERT :
b) The pre-determined fixed sum in advance for monitoring service of EACH of the MPERS Systems for the term of this agreement
5. TERM OF AGREEMENT/RENEWALS: The term of this agreement shall be for a period of 1 month or one year, depending on the package selected.
6. INCREASES OF MONTHLY CHARGE: FIRST ALERT shall be permitted to increase the charges provided for herein at any time or times after the expiration of one month from the date hereof, upon giving 15 days notice to Subscriber in writing.
7. WIRELESS CAPABILITIES: MPERS System may communicate by wireless cellular transmission. FIRST ALERT does not provide wireless access or communication pathways, computer, smart phone or electric current connection. FIRST ALERT is not responsible for Subscriber’s access to the cellular or radio service or any interruption of service or down time caused by loss of cellular, radio or any other mode of communication. FIRST ALERT is not responsible for the security or privacy of any wireless network system. Subscriber acknowledges that FIRST ALERT provides no response to a MPERS System signal except notification to the appropriate party, and that the provisions of this agreement exculpating and limiting FIRST ALERT ‘s liability are fully applicable to the MPERS System service. FIRST ALERT may, without prior notice, suspend or terminate its services in event of Subscriber’s default in performance of this agreement or in the event FIRST ALERT’s designated central office facility or communication network is nonoperational or Subscriber’s system is sending excessive communication. FIRST ALERT’s designated central station is authorized to record all images, video, and audio conversations and shall own such recordings and any electronic data regarding Subscriber’s services.
8. GPS MONITORING /MOBILE TRACKING: Subscriber has or shall download the FIRST ALERT App to Subscriber’s GPS enabled cellular device which downloads the software enabling FIRST ALERT to monitor the location of Subscriber’s cellular device via the cellular network for the duration of this agreement. FIRST ALERT is licensed to monitor the FIRST ALERT App.Mobile Tracking is designed to track individuals who will have on their person the Mobile Tracking Device. The device will work globally, within areas where mobile tracking has coverage and FIRST ALERT has no control over such coverage. Mobile Device may not be able to be tracked with exact precision, and FIRST ALERT will have no liability for inability to report exact location at any particular time, but FIRST ALERT will use its best efforts to report all available tracking information. FIRST ALERT is authorized to record and maintain audio and video transmissions, data and communications, and shall be the exclusive owner of such property. Subscriber is responsible for all permits and permit fees that may be required, agrees to file for and maintain any permits required by applicable law and indemnify or reimburse FIRST ALERT for any fines relating to permits or the services to be provided. FIRST ALERT shall monitor GPS/Mobile Tracking signals and communications received from the mobile tracking equipment. Upon subscriber’s request FIRST ALERT shall make every reasonable effort to locate the tracking device and if appropriate notify the police, medical, fire or other municipal authority deemed appropriate in FIRST ALERT’s absolute discretion, and such other persons Subscriber has requested receive notification of such location on Subscriber’s Call List. Subscriber agrees to furnish FIRST ALERT with a written Call List of names and telephone numbers of those persons 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 MPERS personnel and medical personnel. All notifications by FIRST ALERT or its designated communication center shall be by telephonic communication and FIRST ALERT or its designated communication center shall be deemed to satisfy its monitoring response service by reaching the first agency or person designated on the Call List. Unless otherwise provided in the Call List FIRST ALERT will make a reasonable effort to contact the first person reached or notified on the list either via telephone call, text or email message. No more than one call to the list shall be required and any form of notification provided for herein, including leaving a message on an answering machine, shall be deemed reasonable compliance with FIRST ALERT’s notification obligation. Subscriber agrees to keep the call list up to date with current information.
9. MPERS SYSTEM CENTRAL OFFICE MONITORING: Upon receipt of a signal, FIRST ALERT or its designated central office, shall make every reasonable effort to notify the appropriate EMT, emergency personal response service or person designated by Subscriber in Subscriber’s Call List to receive notification. Subscriber acknowledges that signals which are transmitted through communication networks beyond the control of FIRST ALERT and are not maintained by FIRST ALERT, and therefore FIRST ALERT shall not be responsible for any equipment failure which prevents transmission signals from reaching the central office monitoring center or damages arising as a result thereof, or for data corruption, theft or viruses to Subscriber’s computers if connected to the MPERS System communication equipment. Subscriber acknowledges that FIRST ALERT provides no response to a MPERS System signal except notification to the appropriate party, and that the provisions of this agreement exculpating and limiting FIRST ALERT ′s liability are fully applicable to the MPERS System service.
10. SUBSCRIBER’S CARE OF EQUIPMENT: REPAIRS AND ADDITIONS: FIRST ALERT has no control over the hardware device the subscriber installs the APP software on, the device’s operating system, security settings, changes made by common carriers, or other software programs that might conflict with or cause the FIRST ALERT APP not to operate or perform as designed. FIRST ALERT’s sole responsibility is to attempt to resolve any reported software issues within a reasonable amount of time. FIRST ALERT is not liable for any loses caused by software incompatibility issues. Subscriber agrees to report any discovered software issues to FIRST ALERT as soon as practical
11. TELEPHONE SERVICE IS NECESSARY AND SUBSCRIBER’S RESPONSIBILITY: The FIRST ALERT APP utilizes the cellular services of the subscribers phone. The software utilize voice, data, SMS, video, and other services that may be available. FIRST ALERT bears no responsibility for any cellular charges or cellular overage charges that the subscriber may incur for any reason. The subscriber bears sole responsibility for providing and maintaining compatible cellular service. If FIRST ALERT has provide a cellular hardware device inclusive of cellular service, the subscriber is responsible for any excess service fees that may be applied to the users account do to misuse or abuse of service as determined by FIRST ALERT App.
12. SUBSCRIBER’S DUTY TO SUPPLY ELECTRIC AND TELEPHONE SERVICE: Subscriber agrees to furnish, at Subscriber’s expense, all 110 Volt AC power and electrical outlets and receptacles, telephone hook-ups, and or high speed Internet, as deemed necessary by FIRST ALERT or MPERS System equipment manufacturer.
13. SELF-INSTALLATION: FIRST ALERT will provide telephone assistance to subscriber to assist subscriber with the installation of FIRST ALERT devices and or software. FIRST ALERT has no liability for the installation.
14. INSTALLATION & DELAY IN INSTALLATION: FIRST ALERT shall not be liable for any damage or loss sustained by Subscriber as a result of equipment, equipment failure, or for interruption of service due to electric failure, transmission failure, software failure, cellular carrier failure, acts of God, or other causes, including FIRST ALERT ‘s negligence in the performance of this agreement, and Subscriber shall not be relieved from payments due under this agreement for such period.
15. TESTING AND SERVICE OF MPERS: Subscriber is responsible for installing and activating the MPERS System and ensuring that the MPERS System communicates with the designated central office and that the MPERS System remains operational so that upon activation signals are communicated to the designated central office.
16. TERMINATION IN THE EVENT OF DEATH: This agreement and Subscriber’s payment obligations shall terminate upon Subscriber’s death. FIRST ALERT shall terminate all services upon death of Subscriber.
17. ASSIGNMENT: Subscriber shall not be permitted to assign this agreement without written consent of FIRST ALERT. Any such assignment without prior approval shall be deemed a breach of this agreement. FIRST ALERT shall have the right to assign this agreement and shall be relieved of any obligations created herein upon such assignment. Subscriber on its behalf and any insurance carrier waives any right of subrogation Subscriber’s insurance carrier may otherwise have against FIRST ALERT or FIRST ALERT ‘s subcontractors arising out of this agreement or the relation of the parties hereto.
18. INDEMNITY: SUBSCRIBER AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS FIRST ALERT, ITS EMPLOYEES, AGENTS AND SUBCONTRACTORS, FROM AND AGAINST ALL CLAIMS, LAWSUITS, INCLUDING REASONABLE ATTORNEYS’ FEES, AND LOSSES ASSERTED AGAINST AND ALLEGED TO BE CAUSED BY FIRST ALERT‘S PERFORMANCE, NEGLIGENT PERFORMANCE OR FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT. Parties agree that there are no third party beneficiaries of this agreement.
19. TERMINATION OF AGREEMENT AND SERVICES: Upon termination of this agreement FIRST ALERT shall be permitted to discontinue all monitoring service.
20. LEGAL ACTION: THE PARTIES AGREE THAT DUE TO THE NATURE OF THE SERVICES TO BE PROVIDED BY FIRST ALERT THE PAYMENTS TO BE MADE BY SUBSCRIBER FOR THE TERM OF THIS AGREEMENT ARE AN INTEGRAL PART OF FIRST ALERT ‘S ANTICIPATED PROFITS, AND IN THE EVENT OF SUBSCRIBER’S BREACH OF THIS AGREEMENT IT WOULD BE DIFFICULT IF NOT IMPOSSIBLE TO REASONABLY ESTIMATE FIRST ALERT ‘S ACTUAL DAMAGES. THEREFORE, IN THE EVENT OF SUBSCRIBER’S DEFAULT OF THIS AGREEMENT SUBSCRIBER SHALL PAY TO FIRST ALERT 80% OF THE BALANCE DUE FOR THE TERM OF THIS AGREEMENT AS LIQUIDATED DAMAGES, AND FIRST ALERT 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 UNLESS PROHIBITED BY LAW. IN ANY ACTION COMMENCED BY FIRST ALERT AGAINST SUBSCRIBER, SUBSCRIBER SHALL NOT BE PERMITTED TO INTERPOSE ANY COUNTERCLAIM. ANY ACTION BY SUBSCRIBER AGAINST FIRST ALERT MUST BE COMMENCED WITHIN ONE YEAR OF THE ACCRUAL OF THE CAUSE OF ACTION OR SHALL BE BARRED. ALL ACTIONS OR PROCEEDINGS AGAINST FIRST ALERT MUST BE BASED ON THE PROVISIONS OF THIS AGREEMENT. ANY OTHER ACTION THAT SUBSCRIBER MAY HAVE OR BRING AGAINST FIRST ALERT 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. SUBSCRIBER AGREES THAT SUBSCRIBER WILL NOT COMMENCE OR PARTICIPATE IN ANY CLASS ACTION AGAINST FIRST ALERT AND AGREES THAT ANY DISPUTE BETWEEN FIRST ALERT AND SUBSCRIBER SHALL BE MAINTAINED EXCLUSIVELY IN AN ACTION, PROCEEDING OR ARBITRATION BETWEEN THEM. IF FIRST ALERT PREVAILS IN ANY LITIGATION OR ARBITRATION BETWEEN THE PARTIES, SUBSCRIBER SHALL PAY FIRST ALERT’S LEGAL FEES. 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 ARBITRATION BEFORE A SINGLE ARBITRATOR, UNDER STANDARD ARBITRATION RULES IN JAMAICA, EXCEPT THAT NO PUNITIVE DAMAGES MAY BE AWARDED. THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. SERVICE OF PROCESS OR PAMPERS IN ANY LEGAL PROCEEDING OR ARBITRATION BETWEEN THE PARTIES MAY BE MADE BY FIRST-CLASS MAIL DELIVERED BY THE JAMAICAN POSTAL SERVICE ADDRESSED TO THE PARTY’S ADDRESS IN THIS AGREEMENT OR ANOTHER ADDRESS PROVIDED BY THE PARTY IN WRITING TO THE PARTY MAKING SERVICE. RESIDENTIAL SUBSCRIBERS: This agreement shall be governed by the laws of Jamaica, and all actions and proceedings commenced exclusively in Kingston, notwithstanding where the MPERS System was delivered. COMMERCIAL SUBSCRIBERS: Subscriber submits to the jurisdiction and laws of Jamaica and agrees that any litigation or arbitration between the parties must be commenced and maintained in the county where FIRST ALERT’s principal place of business is located. AS A CONDITION OF THIS AGREEMENT, SUBSCRIBER AGREES TO WAIVE SUBSCRIBER’S RIGHT TO A JURY TRIAL IN ANY ACTION OR PROCEEDING INVOLVING FIRST ALERT. SUBSCRIBER UNDERSTANDS THAT SUBSCRIBER IS WAIVING SUBSCRIBER’S RIGHT TO A JURY TRIAL VOLUNTARILY AND KNOWINGLY, AND FREE FROM DURESS OR COERCION. SUBSCRIBER UNDERSTANDS THAT SUBSCRIBER HAS A RIGHT TO CONSULT WITH A PERSON OF SUBSCRIBER’S CHOOSING, INCLUDING AN ATTORNEY, BEFORE SIGNING/CONFIRMING AGREEMENT TO THIS DOCUMENT. SUBSCRIBER AGREES THAT INSTEAD OF SUING OR BEING SUED IN COURT, SUBSCRIBER MAY SETTLE DISPUTES BY ARBITRATION. THE RULES IN ARBITRATION ARE DIFFERENT. THERE’S NO JUDGE OR JURY, AND REVIEW IS LIMITED, BUT AN ARBITRATOR CAN AWARD THE SAME DAMAGES AND RELIEF, AND MUST HONOR THE SAME LIMITATIONS STATED IN THE AGREEMENT AS A COURT WOULD. SUBSCRIBER AGREES THAT ANY DISPUTE BETWEEN THE PARTIES, INCLUDING BUT NOT LIMITED TO ANY DISPUTE RELATING TO THIS AGREEMENT OR BASED ON JAMAICAN STATUTE (EXCEPT WHERE PROHIBITED BY LAW), MAY, AT THE OPTION OF EITHER PARTY, BE RESOLVED BY ARBITRATION by single arbitrator. ARBITRATION: Subscriber understands that this agreement with FIRST ALERT contains an agreement to arbitrate. After signing this document, Subscriber understands that Subscriber will not be able to bring a lawsuit concerning any dispute that may arise which is covered by the arbitration agreement, unless it involves a question of constitutional or civil rights. Instead, Subscriber agrees to submit any such dispute to an impartial arbitrator.
21. ADDITIONAL PAYMENTS: In addition to the payments set forth herein, Subscriber agrees to be liable for and pay to FIRST ALERT any excise, sales, property, or other tax, telephone line charges, and any increases thereof, which may be imposed upon FIRST ALERT because of this agreement. Should FIRST ALERT 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 FIRST ALERT for such service or material.
22. FIRST ALERT ′S RIGHT TO SUBCONTRACT SPECIAL SERVICES: Subscriber agrees that FIRST ALERT is authorized and permitted to subcontract any services to be provided by FIRST ALERT to third parties who may be independent of FIRST ALERT, and that FIRST ALERT 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 FIRST ALERT ‘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 central offices of FIRST ALERT.
23. NO WARRANTIES OR REPRESENTATIONS: SUBSCRIBER’S EXCLUSIVE REMEDY: FIRST ALERT does not represent nor warrant that the MPERS System will prevent any loss, damage or injury, or that the MPERS System will in all cases provide the protection for which it is installed or intended. Subscriber acknowledges that FIRST ALERT is not an insurer, and that Subscriber assumes all risk for loss or injury to Subscriber’s property or person. FIRST ALERT has made no representation or warranties, and hereby disclaims any warranty of merchantability or fitness for any particular use. Subscriber’s exclusive remedy for FIRST ALERT ‘s default hereunder is to require FIRST ALERT to repair or replace, at FIRST ALERT ‘s option, any equipment or part of the MPERS System which is non-operational. Except for services provided pursuant to this agreement, Subscriber agrees to look to manufacturer’s warranty for any equipment warranty. FIRST ALERT has no control over the hardware device the subscriber installs the APP software on, the device’s operating system, or other software programs that might conflict with or cause the FIRST ALERT APP not to operate or perform as designed. FIRST ALERT s sole responsibility is to attempt to resolve any reported software issues within a reasonable amount of time. FIRST ALERT is not liable for any loses caused by software incompatibility issues. Subscriber agrees to report any discovered software issues to FIRST ALERT as soon as practical
24. EXCULPATORY CLAUSE: FIRST ALERT AND SUBSCRIBER AGREE THAT FIRST ALERT IS NOT AN INSURER AND NO INSURANCE COVERAGE IS OFFERED HEREIN. SUBSCRIBER’S PAYMENTS TO FIRST ALERT ARE FOR THE MONITORING OF A MPERS SYSTEM. THE MPERS SYSTEM AND FIRST ALERT’S SERVICES ARE DESIGNED TO REDUCE CERTAIN RISKS OF LOSS, THOUGH FIRST ALERT DOES NOT GUARANTEE THAT NO LOSS WILL OCCUR. FIRST ALERT IS NOT ASSUMING LIABILITY, AND, THEREFORE, SHALL NOT BE LIABLE TO SUBSCRIBER FOR ANY LOSS, DATA CORRUPTION OR INABILITY TO RETRIEVE DATA, PERSONAL INJURY OR PROPERTY DAMAGE SUSTAINED BY SUBSCRIBER AS A RESULT OF ANY OTHER CAUSE WHATSOEVER, REGARDLESS OF WHETHER OR NOT SUCH LOSS OR DAMAGE WAS CAUSED BY OR CONTRIBUTED TO BY FIRST ALERT ’S NEGLIGENT PERFORMANCE TO ANY DEGREE IN FURTHERANCE OF THIS AGREEMENT, ANY EXTRA CONTRACTUAL OR LEGAL DUTY, STRICT PRODUCTS LIABILITY, OR NEGLIGENT FAILURE TO PERFORM ANY OBLIGATION PURSUANT TO THIS AGREEMENT OR ANY OTHER LEGAL DUTY. IN THE EVENT OF ANY LOSS OR INJURY TO ANY PERSON OR PROPERTY, SUBSCRIBER AGREES TO LOOK EXCLUSIVELY TO SUBSCRIBER’S INSURER TO RECOVER DAMAGES. SUBSCRIBER RELEASES FIRST ALERT FROM ANY CLAIMS FOR CONTRIBUTION, INDEMNITY OR SUBROGATION.
25. LIMITATION OF LIABILITY: THE PARTIES AGREE THAT THE MPERS SYSTEM IS NOT DESIGNED OR GUARANTEED TO PREVENT ANY LOSS OR INJURY. SUBSCRIBER AGREES THAT SHOULD THERE ARISE ANY LIABILITY ON THE PART OF FIRST ALERT AS A RESULT OF FIRST ALERT ‘S NEGLIGENT PERFORMANCE TO ANY DEGREE OR NEGLIGENT FAILURE TO PERFORM ANY OF FIRST ALERT ‘S OBLIGATIONS PURSUANT TO THIS AGREEMENT OR ANY OTHER LEGAL DUTY, EQUIPMENT FAILURE, OR STRICT PRODUCTS LIABILITY, THAT FIRST ALERT ‘S LIABILITY SHALL BE LIMITED TO THE SUM OF $US250.00 OR 5% OF THE SALES PRICE OR 6 TIMES THE AGGREGATE OF MONTHLY PAYMENTS FOR SERVICES BEING PROVIDED AT TIME OF LOSS, WHICHEVER IS GREATER. SUBSCRIBER ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS A LIMITATION OF LIABILITY PROVISION
26. NOTE ABOUT EXTRA DEVICES: Extra devices for remote activation of the MPERS System which are ordered after this agreement is executed or not included in the description of equipment will be deemed part of the equipment described in this agreement and governed as if part of the system and equipment sold pursuant to this agreement.
27. MODIFICATION OF CALL LIST: The Subscriber may change the Call List in writing provided to and acknowledged by FIRST ALERT.
28. PERSONAL MEDICAL DISCLOSURE AUTHORIZATION: Any medical or other personal information provided by Subscriber to FIRST ALERT may be disclosed by FIRST ALERT to any police, fire, EMT personnel or medical personnel, or anyone on Subscriber’s Call List requesting same.
29. CRA: In compliance with the relevant Jamaican Credit Reporting Act, the Subscriber hereby authorizes FIRST ALERT to obtain a consumer credit report. Subscriber has the right, by contacting the provider of this information, to dispute the information on the report or request additional disclosures as provided under the Act. Written request must be given from the Subscriber to FIRST ALERT to request additional credit information. Subscriber releases all persons involved in the credit investigation from liability in connection with such investigation.
30. CONFLICTING DOCUMENTS: Should there arise any conflict between this agreement and Subscriber’s purchase order or other document, this agreement will govern, whether such purchase order or document is prior to or subsequent to this agreement.
31. FULL AGREEMENT/SEVERABILITY: This agreement constitutes the full understanding of the parties and may not be amended, modified or canceled, except in writing signed by both parties, except FIRST ALERT’s requirements regarding items of protection provided for in this agreement imposed by Authority Having Jurisdiction. Subscriber acknowledges and represents that Subscriber has not relied on any representation, assertion, guarantee, warranty, collateral agreement or other assurance, except those set forth in this agreement and waives any claims in connection with same. Should any provision of this agreement be deemed void, all other provisions will remain in effect.
READ THIS AGREEMENT CAREFULLY.
IT MAY LIMIT CERTAIN OF YOUR RIGHTS, INCLUDING YOUR RIGHT TO MAINTAIN A COURT ACTION. IT ALSO CONTAINS EXCULPATORY AND LIMITATION OF LIABILITY PROVISIONS. FOR MORE INFORMATION, PLEASE SEE SECTIONS 18, 20, 23, 24, and 25.
SUBSCRIBER ACKNOWLEDGES RECEIVING A FULLY EXECUTED COPYOF THIS AGREEMENT AT TIME OF EXECUTION.