These Terms of Service (the “Terms”) constitute a binding contract between EveryFit, Inc. (“QMedic”) and the person who will be using the Services (“You”). The Terms govern Your access to and use of (a) the QMedic Personal Emergency Response System, and any other accessories or devices provided by EveryFit (the “PERS Equipment”), and (b) any services, features, functionalities and information provided by EveryFit or otherwise made available by accessing or using the PERS Equipment, ((a) and (b), collectively, the “Services”).
By purchasing the QMedic service, You agree that You have read and understand these Terms and that You accept and agree to be bound by these Terms. If you are accepting these Terms on behalf of another person who will be using the Services, you represent and warrant to QMedic that you are authorized to bind the person using the Services to these Terms, and you agree to be jointly and severally bound with the person using the Services to these Terms. If You do not agree to these Terms, You may not access or use the Services and You are instructed to stop using the PERS Equipment. Notwithstanding anything to the contrary in this notice, Your first use of the Services shall irrevocably indicate Your agreement to these Terms.
1. PERS EQUIPMENT
1.1 PERS Equipment Leased, Not Sold. Pursuant to these Terms, and provided You have paid the applicable subscription fees, QMedic agrees to lease the PERS Equipment to You for the Term. Title to the PERS Equipment will remain, at all times, with QMedic, and the PERS Equipment shall not be considered a fixture or a part of the realty, or an addition to, alteration, conversion, improvement, modernization, remodeling, repair, or replacement of any part of the realty.
1.2 Care of the PERS Equipment. You may not tamper with, remove any portion of, or interfere with the PERS Equipment.
1.3 Return of the PERS Equipment. Upon the termination or expiration of these Terms for any reason, You shall immediately return the PERS Equipment to QMedic undamaged and in good operating condition. If You fail to return the PERS Equipment in accordance with these Terms or the PERS Equipment is damaged or is not in good operating condition, You shall pay QMedic for the PERS Equipment at QMedic’s then-existing rates as the agreed-upon cost of replacing the PERS Equipment.
1.4 Shipping; Risk of Loss. You, alone, bear the risk of loss if the PERS Equipment is destroyed, damaged, or not delivered to QMedic as required hereunder. You must (a) ship the PERS Equipment to QMedic (b) use a carrier that provides tracking information for delivery of the PERS Equipment, and (c) comply with QMedic’s other reasonable requirements respecting the return of the PERS Equipment. Depending upon the reasons for shipping the PERS Equipment, QMedic will, in its sole discretion, determine whether You or QMedic will be responsible for the cost of shipping.
2.1 Designating An Emergency Responder. You shall designate a municipal police or fire department, emergency personal response service, or other individual to be contacted in the event of an emergency (“Emergency Responders”). You acknowledge and agree that Your designation of Emergency Responders to QMedic is a precondition of QMedic providing the Monitoring Services. Emergency Responders are not agents or representatives of QMedic.
2.2 Monitoring Services. Provided You are in compliance with these Terms and Your PERS Equipment does not require repair or replacement, QMedic (or its Subcontractors at a designated monitoring facility) shall, upon receipt of a signal from the PERS Equipment, make reasonable efforts to notify the Emergency Responders that You require assistance (the “Monitoring Services”).
2.3 Recordings. You understand and agree that the PERS Equipment may permit two-way communication between You and QMedic or its Subcontractors, and may collect and transmit information about You (including Your location) to QMedic or its Subcontractors at a designated monitoring facility for use in providing the Services. You hereby consent to such collection and transmission of information and authorize QMedic and its Subcontractors at its designated monitoring facilities to record all telephone conversations with you. QMedic shall own such recordings.
2.4 Disclosure of Information. You are providing QMedic with certain medical information or other personal information (“Your Information”) and You authorize QMedic and its Subcontractors to disclose Your Information for the purposes of providing the Services. Further, You release QMedic and its Subcontractors, and their officers, employees, agents and representatives, from all liability arising out of or relating to QMedic’s or its Subcontractor’s disclosure of Your Information.
2.5 False Alarms and Forced Entry. If the PERS Equipment is activated for any reason, You shall pay any resulting fines, fees, costs, expenses and penalties assessed against you, QMedic, or its Subcontractors by any court or governmental agency. You must provide access to Your location to Emergency Responders. If You fail to provide access, Emergency Responders may use forcible means to enter the premises, which may result in damage to the premises, all of which damage, cost and expense shall be borne solely by You without recourse to QMedic, its Subcontractors or their representatives. QMedic has no control over the response times for Emergency Responders. You understand, acknowledge and agree that You may be able to reach Emergency Responders, municipal paramedic or private ambulance services, and other public safety officials by telephone, including, in many areas, by dialing 911 in addition to relying on the PERS Equipment and Monitoring Services. You hereby release QMedic, its Subcontractors and Emergency Responders from all claims, losses, damages and expenses arising from or related to any forced entry or any delayed response or failure to respond by Emergency Responders.
2.6 Interruption of Services. The PERS Equipment transmits information to QMedic over telephone or alternative communication networks that are not within QMedic’s control. IN THE EVENT THAT ANY OR ALL OF THESE NETWORK SERVICES ARE OUT OF ORDER OR DISCONNECTED, THE PERS EQUIPMENT WILL NOT OPERATE. Due to the potential for service interruption or outages involving these systems, Your connection to QMedic and its designated monitoring facilities is not guaranteed, and QMedic is not responsible for any equipment failure that prevents transmission signals or other communications from reaching QMedic’s designated monitoring facilities, and any damages that arise therefrom.
2.7 Telephone Lines.If a landline telephone connection is required for Your service, You are responsible for installing or otherwise providing suitable electrical and telephone service for installation and operation of the PERS Equipment, including 110 Volt AC power and telephone hookups.
2.8 Alternative Communication Networks. Depending upon Your geography and the network coverage in Your area, a landline telephone connection may not be required for Your service. As stated above, QMedic is not responsible for equipment and transmission failures that result from network outages or lack of coverage. It is Your responsibility to contact Your network provider to restore network coverage.
2.9 Testing. You shall test the PERS Equipment at least once a month and otherwise follow all recommended testing procedures established by QMedic.
2.10 Subcontractors. QMedic may subcontract some or all of the Services, including the operation of the Monitoring Services, to third parties (collectively, “Subcontractors”).
3. REPAIRS TO THE PERS EQUIPMENT
3.1 Notifying QMedic. If You believe the PERS Equipment is not working properly (“Malfunctioning Equipment”), You must immediately notify QMedic. Upon receipt of such notice, QMedic will, at its election, service or replace the Malfunctioning Equipment or any component thereof. To obtain repairs or a replacement PERS Equipment, You must send Your Malfunctioning Equipment to the address specified by QMedic. Upon Your request, QMedic will arrange pick-up and delivery of Your Malfunctioning Equipment. QMedic, in its sole discretion, will determine whether You or QMedic will be responsible for the cost of pick-up/delivery/shipping.
3.2 Timing. QMedic makes no representation, warranty, promise, or guarantee with respect to how quickly a repair or replacement of Malfunctioning Equipment will be completed. If a repaired or replacement PERS Equipment is not delivered to You within seven (7) business days after QMedic’s receipt of Your Malfunctioning Equipment, You will be issued a pro-rata credit for the Service Fees for each additional day until You receive a repaired or replacement PERS Equipment.
3.3 No Third Party Repairs. All repairs or replacement of the PERS Equipment shall be made by QMedic or its authorized designees.
3.4 Charges For Repairs. Except as set forth herein, You will not be charged for the repair or replacement of Malfunctioning Equipment unless (a) QMedic determines that the problems with the PERS Equipment were caused by Your breach of these Terms (in which case You will be charged for the full cost of the repair or replacement), or (b) Your PERS Equipment is working properly (in which case You will be charged a seventy-five dollar ($75.00) inspection fee as well as any shipping and handling charges associated with the pickup and return of Your PERS Equipment).
3.5 Disclaimer. You acknowledge and agree that Your failure to properly test and notify QMedic of the need for the repair or replacement of the PERS Equipment may interfere with, or prevent, QMedic’s provision of the Services, including the Monitoring Services.
4.1 Subscription Fees. The fees for the Services during the Initial Term are set forth on Your service confirmation. All fees are due in advance and must be paid by the first of the month of the applicable payment period (which may be monthly, quarterly, or annually, depending on the particular service plan You selected). You authorize QMedic to charge the credit card on file for Your account or debit the checking account associated with Your account for payment of the Services for the Initial Term and each Renewal Term. QMedic may increase the Fees for each Renewal Term by giving written notice at least thirty (30) calendar days before the start of such Renewal Term.
4.2 Refund Policy. If You cancel the Services and return the PERS Equipment within thirty (30) calendar days after entering into these Terms, QMedic will refund to You all payments made for the Services, excluding any shipping costs for the PERS Equipment.
4.3 Taxes. In addition to the fees set forth herein, You shall be responsible for any excise, sales, property, or other taxes imposed on QMedic in connection with, or otherwise associated with, Your receipt of the Services.
5.1 Initial Term. The Initial Term shall commence on the date You agree to these Terms and continue for the time period specified on Your service confirmation (which may be thirty (30) calendar days, ninety (90) calendar days, one (1) year, or some other period of time, depending on the particular service plan You selected), unless earlier terminated as provided herein (the “Initial Term”).
5.2 Renewal Terms. Following the Initial Term, these Terms and the Services shall automatically renew for additional consecutive terms, each equal in length to the Initial Term (each a “Renewal Term”), unless (a) either party gives written notice of non-renewal to the other at least thirty (30) calendar days prior to the end of the then-current Term, or (b) these Terms are terminated in accordance with Section 6 (Termination). The Initial Term and any Renewal Terms are referred to herein collectively as the “Term.”
6.1 Termination for Breach. QMedic may terminate these Terms or terminate or suspend the Services (or any portion, aspect, or feature of the Services) for any violation of these Terms, with or without notice.
6.2 Termination for Convenience. QMedic may terminate these Terms or terminate or suspend the Services (or any portion, aspect, or feature of the Services) upon thirty (30) days prior written notice to you.
6.3 Termination in the Event of Death. These Terms shall terminate upon Your death and the return of the PERS Equipment by Your representative in accordance with Section 1.4 (Shipping; Risk of Loss).
6.4 Effect of Termination. QMedic’s obligation to provide the Services shall terminate automatically as of the date of the expiration or termination of these Terms for any reason. Upon termination or expiration of these Terms, You shall return the PERS Equipment in accordance with Section 1.3 (Return of the PERS Equipment) and Section 1.4 (Shipping; Risk of Loss).
6.5 Suspension of Services. All of QMedic’s obligations to provide the Services are automatically suspended without notice to You and You hereby waive all claims and release QMedic from all liability, loss, damages and expenses in the event of (a) a breach of these Terms by you, (b) the occurrence of a Force Majeure Event, or (c) QMedic’s inability to provide the Services for any other reason not caused by QMedic. In each such event, the suspension shall continue until the reason for the suspension is cured. In the case of a suspension of the Services due to a Force Majeure Event, You may receive, upon written request to QMedic, a credit for the pro-rated amount of fees for the period of the suspension. Such credit, if any, shall be Your sole and exclusive remedy, and QMedic’s sole liability and obligation, for the suspension of the Services.
7. WARRANTY DISCLAIMER
7.1 THE PERS EQUIPMENT AND ALL SERVICES ARE PROVIDED TO YOU IN THEIR THEN-EXISTING CONDITION, “AS IS,” “WHERE IS,” “AS AVAILABLE,” WITH ALL FAULTS AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT WARRANTIES OF ANY KIND. QMEDIC MAKES NO WARRANTIES REGARDING THE SERVICES OF ANY KIND AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY LOSS OR INJURY SUSTAINED BY YOU AS A RESULT OF ANY CAUSE WHATSOEVER, REGARDLESS OF WHETHER OR NOT SUCH LOSS OR INJURY WAS CAUSED BY OR CONTRIBUTED TO BY QMEDIC’S NEGLIGENT PERFORMANCE TO ANY DEGREE OR FAILURE TO PERFORM ANY OBLIGATION OR STRICT PRODUCTS LIABILITY. QMEDIC AND ITS SUBCONTRACTORS, VENDORS AND LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS AND TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE, AS TO ANY MATTER, INCLUDING PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. QMEDIC DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE SECURE, UNINTERRUPTED, OR ERROR FREE, OR MEET YOUR EXPECTATIONS OR REQUIREMENTS. YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES AND THE PERS EQUIPMENT ARE NOT A REPLACEMENT FOR MEDICAL CARE OR MEDICAL ADVICE OR PROPER SUPERVISION OR MONITORING OR ANY MEDICAL CONDITION. IN PROVIDING THE PERS EQUIPMENT AND SERVICES, NO RECOMMENDATIONS ARE GIVEN OR IMPLIED BY QMEDIC AS TO THE TREATMENT OR CARE OF ANY OF YOU OR ANY OTHER PERSON WITH RESPECT TO YOU OR THEIR MEDICAL CONDITIONS. THE SERVICES AND THE PERS EQUIPMENT DO NO PROVIDE OR CONTRIBUTE TO A PLAN FOR TREATMENT AND DO NOT CONSTITUTE MEDICAL ADVICE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY QMEDIC, ITS SUBCONTRACTORS, OR ANY OTHER OF ITS AUTHORIZED REPRESENTATIVES SHALL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF QMEDIC’S OBLIGATIONS HEREUNDER. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS OR PROBLEMS INHERENT IN THE USE OF TELECOMMUNICATIONS EQUIPMENT. QMEDIC IS NOT RESPONSIBLE FOR ANY DELAYS, FAILURES OR DAMAGES RESULTING FROM SUCH PROBLEMS.
7.2 QMEDIC AND ITS SUBCONTRACTORS ARE NOT RESPONSIBLE FOR, AND MAKES NO REPRESENTATIONS, WARRANTIES, PROMISES, OR GUARANTEES WITH RESPECT TO, THE PROMPTNESS, SUFFICIENCY, OR ADEQUACY OF THE ACTION OF ANY EMERGENCY RESPONDER, ANY THIRD PARTY ACTING FOR AN EMERGENCY RESPONDER, MUNICIPAL PARAMEDIC OR PRIVATE AMBULANCE SERVICES, OR OTHER PUBLIC SAFETY OFFICIALS. YOU AGREE THAT QMEDIC IN NO WAY REPRESENTS OR GUARANTEES THAT EMERGENCY RESPONDERS CAN BE CONTACTED, CAN OR WILL RESPOND, OR THAT ANY RESPONSE WILL BE SAFE OR EFFECTIVE.
8. LIMITATION OF LIABILITY
8.1 IN NO EVENT SHALL QMEDIC, ITS SUBCONTRACTORS, OR ANY OTHER PERSONS OR ENTITIES RELATED TO QMEDIC BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE CONSEQUENTIAL, OR INCIDENTAL DAMAGES CONNECTED WITH OR ARISING FROM OR OUT OF THESE TERMS, THE SERVICES, OR THE PERS EQUIPMENT, EVEN IF QMEDIC, ITS SUBCONTRACTORS, OR ANY OTHER PERSONS OR ENTITIES RELATED QMEDIC HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. QMEDIC’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE GREATER OF (A) THE SUBSCRIPTION FEES PAID BY YOU TO QMEDIC DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY OR (B) TWO-HUNDRED-FIFTY DOLLARS ($250.00).
9.1 You agree to indemnify, defend and hold QMedic and its Subcontractors, and their respective officers, directors, employees and agents and affiliates, harmless from and against all claims, demands, suits, or other proceedings, and all resulting loss, damage, liability, cost and expense (including reasonable attorneys’ fees), in connection with or arising out of these Terms, including the active or passive, sole, joint, or several negligence of any kind or degree of QMedic or any of its representatives, the improper operation of the Services or the failure of the Services to operate, any information that You provide or transmit to QMedic or its Subcontractors through the Services or PERS Equipment, Your violation of these Terms, Your violation of any rights of another. QMedic reserves, and You grant to QMedic, the right to assume exclusive defense and control of any matter subject to indemnification by you. All rights and duties of indemnification that are set forth herein shall survive termination of these Terms.
10.1 Governing Law; Jurisdiction. These Terms shall be made, governed, construed and enforced in accordance with the laws of the Commonwealth of Massachusetts without reference to conflicts of law principles. Each of You and QMedic agrees that any dispute or proceeding under these Terms shall be subject to the exclusive jurisdiction of the state courts located in the Commonwealth of Massachusetts or the U.S. District Court for the Commonwealth of Massachusetts to the extent such federal court has independent subject matter jurisdiction without reference to this provision, and the respective court of appeals, and each of You and QMedic hereby irrevocably consents to the exclusive personal jurisdiction of these courts.
10.2 Severability. In the event that one or more of the provisions herein shall be invalid, illegal, or unenforceable in any respect, each such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. Notwithstanding the foregoing, the unenforceability or invalidity of any provision shall not affect any other provision of these Terms, and these Terms shall continue in full force and effect, and be construed and enforced as if such provision had not been included, or had been modified as above provided, as the case may be.
10.3 No Waiver. QMedic’s failure or delay to enforce any provision of these Terms or respond to any breach by You or others shall not operate or be construed as a waiver or prevent QMedic from taking any permitted action to prevent further breaches.
10.4 Survival. The following provisions shall survive termination or expiration of these Terms: 1.3 (Return of the PERS Equipment), 1.4 (Shipping; Risk of Loss), 2.5 (False Alarms and Forced Entry), 3.5 (Disclaimer), 6.4 (Effect of Termination), 7 (Warranty Disclaimer), 8 (Limitation of Liability), 9 (Indemnification), 10 (Miscellaneous), and those sections that by their nature are intended to be applicable following the expiration or termination of these Terms.
10.5 Entire Agreement. These Terms constitute the entire understanding of QMedic and You with respect to the subject matter hereof, and supersedes all prior and contemporaneous written and oral agreements with respect to the subject matter.
10.6 Assignment. You shall not be entitled to and shall not assign or delegate or otherwise transfer any rights or obligations under these Terms to any other person, in whole or in part. Any purported assignment, delegation, transfer, or novation in violation of the terms of this Section 10.6 (Assignment) shall be null and void and shall be of no force and effect. QMedic may assign, delegate, or otherwise transfer any and all rights or obligations under these Terms, including to (a) any affiliate or (b) any entity in connection with the sale, combination, or transfer of all or substantially all of the assets related to the Site or of control over QMedic or from any other corporate form of reorganization by or of QMedic. Neither these Terms nor any rights hereunder shall inure to the benefit of any trustee in bankruptcy or receivers of you, whether by operation of law or otherwise. Any permitted successors and assigns of You or QMedic shall be bound by the provisions and obligations of these Terms applicable to the assignor hereunder. No provision of these Terms shall create any rights or benefits in favor of third parties.
10.7 Force Majeure. Except for Your payment obligations, neither party will be liable for any failure or delay in performance under these Terms which is due to any event beyond the reasonable control of such Party, including without limitation, fire, explosion, unavailability of utilities or raw materials, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments, or government instructions (“Force Majeure Event”).
10.8 Construction. The section headings in these Terms are for convenience of reference only, will not be deemed to be a part of the Terms and will not be referred to in connection with the construction or interpretation of the Terms. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party will not be applied in the construction or interpretation of the Terms. As used in the Terms, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed in each instance to be followed by the words “without limitation.”
10.9 Claims. All claims, actions, or proceedings by You related to these Terms must be commenced in court within one (1) year after the cause of action has accrued, without judicial extension of time, or said claim, action, or proceeding is barred and You waive Your right to bring such claim, action, or proceeding.
10.10 Waiver of Trial by Jury. YOU AND QMEDIC HEREBY IRREVOCABLY WAIVE(S) ANY AND ALL RIGHTS ANY OF THEM MAY HAVE, NOW OR IN THE FUTURE, TO HAVE ANY CONTROVERSY BETWEEN THEM OR CLAIM AGAINST ANY OF THEM OR ANY OTHER AFFILIATE OF QMEDIC, ARISING OUT OF OR RELATING TO THESE TERMS OR ANY TRANSACTION OR CONTRACT CONTEMPLATED BY THIS CONTRACT OR RELATED HERETO, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT OR STATUTORY VIOLATION, BE HEARD OR DECIDED BY A JURY IN A TRIAL OR OTHER PROCEEDING.