This “Agreement” is made by and between Elastic Care, Inc. (“Elastic Care”) and you, the subscriber (“Subscriber”, “you”, or “your”). This Agreement is effective and binding when you commence using the Elastic Care Services described hereunder. Elastic Care is sometimes referred to as “we”, “us” or “our”. The “Premises” is your address. TERM AND RENEWAL. The initial term of this Agreement is one month and shall automatically renew from month to month thereafter. You may terminate this Agreement at any time by returning the System to Elastic Care and ceasing use of all Services.
- BINDING AGREEMENT. THIS AGREEMENT SHALL BE DEEMED BINDING ON YOU AND ELASTIC CARE UPON YOU COMMENCING THE USE OF THE SERVICES. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE THE SERVICES AND PROMPTLY IMMEDIATELY RETURN ALL RELATED SYSTEMS TO ELASTIC CARE. THIS AGREEMENT IS BINDING ON YOUR HEIRS, SUCCESSORS, EXECUTORS AND ADMINISTRATORS.
ELASTIC CARE SERVICE. The Elastic Care service (the “Service”) consists of Elastic Care hardware and software and other services that may be offered by Elastic Care to you from time to time. Elastic Care will use commercially reasonable efforts to deliver the Services, but Elastic Care is relieved of all liability related to using an incorrect telephone number or other piece of contact information, even if Elastic Care is negligent. You understand, acknowledge and agree that Elastic Care may, in its sole and absolute discretion and without any liability, contact or attempt to contact you as Elastic Care deems appropriate. Your “System” refers to the Elastic Care equipment related to the Services that you may use pursuant your agreement to all applicable terms and conditions, and includes but is not limited to, components depending on the Services you selected such as phones or other hardware, software, licenses, and any other devices, features or accessories.
- YOUR RESPONSIBILITY TO PAY FOR ELASTIC CARE SERVICE. You are responsible to pay for your Elastic Care Service on time and (unless the law provides otherwise) in full. You are also responsible for directly paying all charges for services provided to you by others.
- YOUR RESPONSIBILITY FOR OTHERS WHO USE YOUR ELASTIC CARE SERVICE. You are solely responsible for any use of the Elastic Care Service, even if you are not the one using it, and even if you later claim the use was not authorized. You are also solely responsible for the services and actions requested by you, or by anyone using the Service. You agree that we may share your personal information with other third parties as necessary in order to deliver the Services.
- TITLE TO THE SYSTEM; CHARGES. (I) Elastic Care owns the System at all times; and (ii) you shall return the System to Elastic Care undamaged and in good operating condition (except for normal wear and tear) immediately upon the termination of this Agreement. If you do not return the System within ten (10) days after termination, you agree to pay the replacement value of the System based on Elastic Care’s then current outright purchase price list plus any applicable late payment penalties and interest on amounts outstanding (currently 16% per month compounded monthly). If any portion of the System is returned damaged or not in good operating condition, you agree to pay the cost required to repair the System. You agree to pay Elastic Care’s charges for all services, any applicable taxes, and any additional or increased taxes, licenses, permits, fees, or charges which may be charged to us by any volunteer, quasi-governmental or governmental agency or private person or entity relating to the Service.
- LIMITATION OF LIABILITY. ALL SERVICES ARE PROVIDED ON AN AS-IS BASIS. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT SHOULD THERE ARISE ANY LIABILITY ON THE PART OF ELASTIC CARE OR ITS OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS (COLLECTIVELY, “REPRESENTATIVES”) TO YOU FOR ANY PROPERTY LOSS OR DAMAGE, PERSONAL INJURY, HEALTH-RELATED EVENT, ECONOMIC LOSS, OR OTHER LOSS, DAMAGE, COST OR EXPENSE (COLLECTIVELY,”DAMAGES”) DUE, IN WHOLE OR IN PART, TO ANY REASON INCLUDING, WITHOUT LIMITATION OR EXAMPLE, OUR OR OUR REPRESENTATIVES’ ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE THAT OCCURS BEFORE OR AFTER THE EFFECTIVE DATE, OR FOR SUBROGATION, CONTRIBUTION OR INDEMNIFICATION, REGARDLESS OF THE LEGAL THEORY, ALL SUCH LIABILITY SHALL BE LIMITED TO THE MAXIMUM SUM OF CAD $1,000.00 COLLECTIVELY FOR ELASTIC CARE AND ITS REPRESENTATIVES. IN THE EVENT THAT YOU WISH TO INCREASE THE MAXIMUM AMOUNT OF SUCH LIMITED LIABILITY, YOU MAY, PRIOR TO AN OCCURRENCE RESULTING IN DAMAGES TO YOU, OBTAIN A HIGHER LIMIT BY PAYING AN ADDITIONAL AMOUNT FOR THE INCREASE IN SUCH LIMIT OF LIABILITY, BUT THIS PAYMENT SHALL IN NOWAY BE INTERPRETED TO HOLD ELASTIC CARE OR REPRESENTATIVES AS AN INSURER.
- SUBSCRIBER ACKNOWLEDGMENTS. You understand, acknowledge, and agree as follows:
6.1. You must test the System at least monthly. You must also test the System whenever (a) renovations are made to your Premises, (b) the electrical service at your Premises is repaired or otherwise serviced, (c) Elastic Care sends you additional or replacement equipment for your System, or (d) a change is made by you or Elastic Care to your Elastic Care Service.
6.2. If your System communicates with Elastic Care over the Internet or a telephone line, you must test the System whenever changes are made to those services at your Premises.
6.3. Elastic Care will make commercially reasonable efforts to furnish you with hardware and software that is known to operate as intended according to the Service description and performance criteria. If you note any damage or a deficiency in performance, you must cease using the related Services immediately and contact Elastic care. You must use all components of the System (including but not limited to hardware, software or any other components) as intended and instructed by Elastic Care and any other associated component manufacturers and operators, and must do so without any modifying or damaging any such components. You relieve Elastic Care of any and all liability, subject to the limitations described herein, that may arise from any type of damage or misuse of your System or its components, regardless of if such damage or misuse was caused directly by you.
6.4. Certain Systems may use radio frequency waves to communicate between devices (for example, between a help button and a base station). Certain objects within your premises may emit and absorb radio frequency waves from other sources (for example, microwave ovens, television sets, radios, household appliances, cordless phones, cellular phones, lightning, static electricity, or other electrical discharges) and may cause interference with your System resulting in malfunctions of the System. You are also responsible for ensuring that the System is not operated in environments where the emission of radio frequencies is highly controlled and may cause harm of any type.
6.5. For Systems communicating with Elastic Care’s response center over a telephone or other communications line for internet or other network access of any type, the System will not communicate with Elastic Care’s response center if a such lines are not in service or do not possess adequate bandwidth or other minimal performance characteristics required for the Services to function properly. You are solely responsible for ensuring that such communication lines exist, perform as necessary for the Services to be delivered, and are secure. Elastic Care makes no guarantees on security of any type at your premises, devices, or any component that is not solely and completely controlled by Elastic Care.
6.6. The System is not infallible and the transmission and receipt of communications from the System may be interrupted or otherwise compromised.
6.7. The System is not an intrusion detection, security, or fire alarm system. The System and the Elastic Care Service do not provide security, intrusion, or fire protection. Our personnel are not qualified medical personnel.
6.8. If your System needs to be plugged into an electrical outlet that has been inspected and certified by the appropriate government electrical safety authority or the equivalent. You also must use an the appropriate electrical power cord and outlet according to the marks and labels on the respective devices. The outlet must not be controlled by a switch or timer.
6.9. If your System includes fall detection, fall detection can activate when you did not fall and fall detection does not detect 100% of falls. If able, you should always push your help button when you need assistance.
6.10. Depending on which System you arranged for with Elastic Care, the System and the Services may rely on the availability of your home or mobile telephone service provider, cellular network coverage, and the availability of global positioning system (“GPS”) or other location data to operate properly. These systems are available on an as-is basis. Elastic Care maintains no control or responsibility of third-party systems such as but not including telephone and cellular network provider and GPS services and there is a chance that these services and the System may fail to operate properly. Please use your local emergency services contact lines and channels as alternatives to the System and the Services.
6.11. You may not alter, modify, or attempt repairs on the System, or move the System to a new address, except with notice to Elastic Care and pursuant to instructions from Elastic Care. You must immediately notify Elastic Care in the event the contact information for you or a Responder changes.
6.12. If you choose to pay Elastic Care by EFT, you authorize Elastic Care to electronically debit the bank account you provide. This authorization will remain in effect unless canceled by you with written notice to Elastic Care.
- INDEMNIFICATION. IF ANYONE OTHER THAN YOU, INCLUDING, WITHOUT LIMITATION, YOUR INSURANCE COMPANY, ASKS ELASTIC CARE OR ITS REPRESENTATIVES TO PAY FOR ANY LOSS, DAMAGE, COST OR EXPENSE (INCLUDING, WITHOUT LIMITATION, ECONOMIC LOSSES, PROPERTY LOSS OR DAMAGE, PERSONAL INJURY), HEALTH RELATED EVENT, OR OTHER LOSS, DAMAGE, COST OR EXPENSE DUE TO ANY REASON INCLUDING, WITHOUT LIMITATION OR EXAMPLE, OUR OR OUR REPRESENTATIVES’ ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE THAT OCCURS BEFORE OR AFTER THE EFFECTIVE DATE, OR THERE IS A CLAIM AGAINST ELASTIC CARE OR ITS REPRESENTATIVES FOR SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, YOU AGREE TO PAY (WITHOUT ANY CONDITION THAT ELASTIC CARE OR ITS REPRESENTATIVES FIRST PAY) FOR ALL LOSSES, DAMAGES, COSTS AND EXPENSES INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES, WHICH MAY BE ASSERTED AGAINST OR INCURRED BY ELASTIC CARE OR ITS REPRESENTATIVES.
- INSTALLATION AND START OF SERVICES. The System is intended to be Installed by you. The System will be delivered to you by Elastic Care with instructions. Additional installation assistance and information is available by calling Elastic Care customer service. Elastic Care makes no promise of commencement of service by any particular time. Service will commence only after (a) the necessary information provided by or for you is entered into Elastic Care’s systems, and (b) an acceptable test of the System is received by Elastic Care.
- SYSTEM USE. You understand and agree that certain laws, rules, regulations and ordinances imposed by governmental authorities, utilities, businesses, homeowners’ associations, and/or other entities may affect your rights in connection with the installation, operation and Services related to 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 including, without limitation or example, notice to First Responders. You may use the Services and related Systems for only those purposes permitted under law and may not use it for any purposes that may bring about any harm of any type to an individual or entity of any type.
- MEDICAL OR RELATED EXPENSES. Any and all costs and expenses arising out of or from, in connection with, related to or as consequence of use of the System including, without limitation or example, emergency medical technician services, ambulance services, physician, medical center, hospital or other medical services shall be borne solely by you without recourse to Elastic Care or its Representatives.
- ASSIGNMENT. We can assign this Agreement or your obligations to pay under it in whole or in part to anyone we choose. You cannot assign this Agreement or your obligations to anyone else without our prior written consent.
- SUSPENSION OF SERVICE. You understand, acknowledge and agree that Elastic Care and its Representatives’ obligations are waived automatically without notice and you release each of them for and from all Damages in the event of (i) a default or breach of this Agreement by you, or (ii) Elastic Care’s response center, communications equipment, network or Services or the System are destroyed, damaged, inoperable or malfunction for any reason whatsoever, or (iii) for any other reason or cause beyond Elastic Care’s reasonable control, in each event for the duration of such interruption of Service . You shall be entitled to reimbursement of the unearned charge paid for the period of interruption on your request and this shall be the limit of Elastic Care’s liability.
- INTEGRATED AGREEMENT. This Agreement contains the entire agreement between you and us concerning the transactions described in this Agreement and supersedes all prior or current negotiations, commitments, contracts, express or implied, warranties, express or implied, statements and representations, written or oral, pertaining to such matters, all of which are merged into this Agreement. NEITHER PARTY HAS AUTHORITY TO MAKE OR CLAIM ANY REPRESENTATION, TERM, PROMISE, CONDITION, STATEMENT, WARRANTY, OR INDUCEMENT (COLLECTIVELY, “lNDUCEMENT”) WHICH IS NOT EXPRESSED HEREIN. EACH PARTY REPRESENTS THAT IT/HE/SHE IS NOT RELYING ON ANY INDUCEMENT IN SIGNING THIS AGREEMENT WHICH IS NOT EXPRESSED IN THIS AGREEMENT. All changes or amendments to this Agreement must be in writing and signed by all parties to be binding on the parties. Notwithstanding anything contained herein to the contrary, Elastic Care may, in its sole discretion, terminate this Agreement, with or without cause and without any liability whatsoever, upon thirty (30) days’ notice to Subscriber.
- VALID AGREEMENT. Should any provision of this Agreement (or portion of it), or its application to any circumstances, be held illegal, invalid or unenforceable to any extent, the validity and enforceability of the remainder of the provisions of this Agreement, or of such provisions as applied to any other circumstances, shall not be affected, and shall remain in full force and effect as valid, binding and continuing. The interpretation of this Agreement shall not be construed against the drafter.
- INTENDED THIRD PARTY BENEFICIARIES. You acknowledge, understand, and agree that the provisions of this Agreement inure to the benefit of and are applicable to any service provider or subcontractor engaged by Elastic Care to per form or provide any service set forth herein to you, and bind you to such service provider and subcontractor with the same force and effect as they bind you to Elastic Care.
- REPAIR SERVICE. Following Elastic Care’s receipt of notice from you of the
need to service the System, Elastic Care agrees, pursuant to the terms of this Agreement, to replace or repair the System at Elastic Care’s sole option, due to ordinary wear and tear only. You shall pay for all other repairs at Elastic Care’s then prevailing charges. Elastic Care will ship you replacement equipment to replace the part of the System needing service. The equipment needing service must be delivered to Elastic Care within ten (10) days of your receipt of the replacement equipment.
- USAGE LIMITS. We may place usage limits for any Elastic Care service. If we place usage limits for an Elastic Care service, and you then use such service more than allowed by the limit amount, we will charge you at our then current rates for your usage in excess of the limit amount. You agree that we may use any credit or debit card or other payment account of yours that we have on file for payment of such charges.
- CONTRACTUAL LIMITATION OF ACTIONS. All claims, actions, or proceedings by or against Elastic Care and/or its Representatives must be commenced within one (1) year after the cause of action has accrued, or said claim, action or proceeding is barred. The time period in this paragraph must be strictly complied with.
- YOUR INTERACTIONS WITH ELASTIC CARE. We and our response center may record and monitor conversations and other communications between our personnel or the personnel of our response center and you, your agents or representatives, Responders, or other third parties. You authorize and consent to such recording and monitoring for yourself and as the authorized agent of others in your Premises, your agents and employees. Please note that our personnel may also remain on the telephone line if they conference in a third party to assist in completing a service request. You agree that Elastic Care is not required to release any recorded conversations or communications or physical records that are created by or on behalf of Elastic Care unless required by law. We will use commercially reasonable efforts to accommodate you if English is not your first language and you request translation services, but we do not guarantee the availability or competence of any translator.
- AGREEMENT HEADINGS. The headings of the paragraphs in this Agreement are inserted for the convenience of reference only and shall in no way affect the meaning or interpretation of the provisions of this Agreement.
- DIGITAL COPY OF THIS AGREEMENT; EXECUTION IN COUNTERPARTS AND ELECTRONICALLY. You agree that if a digital copy in any medium is made of this Agreement it will have the same legal force and effect as the original. This Agreement may be executed in any number of counterparts, any one of which need not contain the signature of more than one party, but all of which shall together constitute one and the same instrument. The parties agree that this Agreement and the signatures affixed hereto may be digital or transmitted and delivered by facsimile and electronically and that all such signatures and this Agreement whether digital or transmitted or delivered by facsimile or electronically shall be deemed to be originals for all purposes and given the same legal force and effect as an original written Agreement and original ink signatures including, without limitation, litigation, and arbitration.
- WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY LAW, EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING BROUGHT BY EITHER PARTY ARISING OUT OF OR FROM, IN CONNECTION WITH, RELATED TO, OR AS A CONSEQUENCE OF THIS AGREEMENT.
- GOVERNING LAW. To the fullest extent permitted by law, and except as explicitly provided otherwise, this Agreement and any disputes arising out of or relating to it will be governed by the laws of the Province of Ontario, without regard to its conflict of law principles, and by any applicable tariffs, wherever filed. All controversies, disputes, demands, counts, claims, or causes of action between you and us shall be exclusively brought and heard in the state courts located in City of Markham, Ontario, without any right to remove to Federal Court.
- CONSENT TO CALL YOU AND YOUR CONTACT LIST. Elastic Care and Representatives have your consent to (a) call or text your residential or mobile phone, (b) use an automatic telephone dialing system, and (c) use pre-recorded calls as part of delivering the Elastic Care Service, including for marketing purposes. Your consent is not required as a condition of purchase. As the authorized agent of each Responder on the Contact List from time-to-time you represent and warrant that you have obtained and will maintain their express written consent to contact them as part of your use of the Service.
- AMENDMENTS. From time to time, upon not less than thirty (30) days prior written notice to you at your address on file at Elastic Care, we may modify this Agreement. Your continued use of the System, or payment of amounts due under this Agreement, after the effective date specified in the notice shall constitute your acceptance of the amendment and you shall thereafter be bound by the terms of this Agreement as so amended.
BY COMMENCING THE USE OF SERVICES, YOU (I) AGREE TO ABIDE BY THE TERMS OF THIS AGREEMENT AND THAT THIS IS A BINDING AGREEMENT; (II) AGREE TO THE LIMITATION OF LIABILITY AND INDEMNITY PARAGRAPHS OF THIS AGREEMENT; AND (III) ACKNOWLEDGE HAVING RECEIVED AND READ A COPY OF THE ENTIRE AGREEMENT BEFORE COMMENCING THE USE OF ANY SERVICES.
THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, ON ANY SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS AGREEMENT HAS BEEN PRE-SIGNED BY ELASTIC CARE IN ANTICIPATION OF ACCEPTANCE AND SIGNATURE BY YOU. ANY HAND-WRITTEN OR OTHER CHANGES TO THIS AGREEMENT WITHOUT ELASTIC CARE’S PRIOR WRITTEN APPROVAL ARE HEREBY REJECTED AND WILL NOT BE BINDING OR ENFORCEABLE AGAINST ELASTIC CARE.