TERMS AND CONDITIONS
The parties bound to these Terms and Conditions shall be UnaliWear, Inc. (“UnaliWear”), and the person(s) whose name(s) appear(s) under the words “Wearer” and, if different, the person (“Buyer”) whose name appears under the words “Buyer Information” on the Order Confirmation on the UnaliWear web site. Wearer is sometimes referred to as “User” and “Buyer” is sometimes referred to as “Purchaser”, collectively referred to as “Customer.” “Equipment” refers to UnaliWear’s Kanega watch and any other accessories or devices provided to the Customer by UnaliWear.
UnaliWear will provide to the Wearer Mobile Personal Emergency Response System (mPERS) Equipment that is monitored twenty-four hours a day, seven days per week, by a professional medical alert monitoring service contracted for such purposes by UnaliWear. The service includes receipt, analysis and response to alarm signals and calls made by the Wearer through the Equipment, and if applicable, notification and location services through UnaliWear’s server (collectively, the “Services”). The Equipment is intended to be used only for medical or other similar personal emergencies. Upon notification of an emergency condition by User’s Equipment, UnaliWear or its designee will take all reasonable and practicable steps to promptly contact the Wearer to determine whether it is necessary to notify appropriate caregivers or emergency response services as designated by and in accordance with the UnaliWear Configuration and Monitoring Center Information provided by the User. In the event that an emergency responder is sent to the Wearer’s home and cannot enter through the door, the Customer assumes all risk of personal injury or loss or damage to the Wearer’s premises or the contents thereof. UnaliWear relies on the information the Customer provides about their home location and their personal emergency contacts. The Services do not provide intrusion or fire protection. The monitoring service will not begin, and the medical alert monitoring service shall have not obligation to notify emergency personnel, until a test signal from the Equipment has been successfully received by the medical alert monitoring center and the Wearer has received confirmation that such signal has been received. For a Kanega watch, a successful test signal is a comprehensible test phone call over either Wi-Fi or cellular from the Kanega watch to the medical alert monitoring center.
The Purchaser will be charged the amount specified by UnaliWear at the time the Services are ordered, beginning on the date the Equipment is shipped to the Wearer unless the account is being provided to the Customer as a benefit by a third party. The Purchaser agrees to permit UnaliWear to use any updated account information regarding the selected payment provided by the Purchaser’s issuing bank or the applicable payment network including new expiration dates. The original term of this Agreement is the billing cycle selected (monthly, quarterly, semi-annually or annually), and will renew for the same consecutive billing cycle thereafter unless and until this Agreement is terminated pursuant to the terms of this Agreement.
The Purchaser agrees to pay all sales, service, property, use and local taxes; any police, fire department, ambulance or paramedic charges or fees; any permit fees, telephone charges, return check charges, or late fees, if applicable; and any additional fees or charges arising under this Agreement, whether imposed on the Customer or on UnaliWear, and to have the amount charged to the Purchaser by UnaliWear on the Purchaser’s current payment method on file. Balances that are more than thirty (30) days past due will be subject to a monthly finance charge equal to 1.5% per month or the maximum allowable by law. In the event that it becomes necessary for UnaliWear to undertake legal proceedings to collect payments due under this Agreement, the Purchaser agrees to reimburse all reasonable attorneys’ fees associated with such collection action, except where prohibited by law. UnaliWear shall have the right to increase any fees at any time.
TERM AND TERMINATION
This Agreement shall become effective upon use of the Equipment and will continue unless and until terminated as provided below. The Agreement may be terminated by the Customer or UnaliWear at any time for any reason. UnaliWear, in its sole discretion, may suspend the Services or terminate this Service. Any termination by UnaliWear, such as in cases of non-payment of fees or misuse of the monitoring system by Customer, shall be effective upon five (5) days’ advance notice to Customer. If UnaliWear reactivates the Services, the Purchaser shall pay, in advance, UnaliWear’s then prevailing reconnection fee. The Customer may terminate this Service at any time by writing or calling UnaliWear and notifying UnaliWear of the request to terminate. The Service will not be terminated until all Equipment has been returned to UnaliWear as provided in Cancellations & Returns. Returning the Equipment to UnaliWear is at the Purchaser’s expense. If all Equipment is not returned, the Purchaser will continue to be charged the Services fees. Upon cancellation or termination of UnaliWear’s Services, all Equipment shall be returned to UnaliWear in satisfactory condition. If any Equipment is returned in an unsatisfactory condition such that, in UnaliWear’s sole discretion, it is not reasonably usable for the monitoring purposes for which it was intended, UnaliWear will charge and Purchaser agrees to pay the reasonable replacement costs for such equipment, not to exceed Six Hundred Fifty Dollars ($650.00). When requested by the Customer at time of termination, if the Customer’s account has a remaining balance of $15.00 or more, the Purchaser will receive a prorated refund, based on the non-discounted rate, after UnaliWear receives the returned Equipment. Processing fees and shipping charges are nonrefundable after the Customer’s first 30 days of service.
To avoid false alarms, UnaliWear’s monitoring service may first determine whether an actual emergency exists before contacting emergency personnel. UnaliWear understands that false alarms can occur. In the event that UnaliWear determines there have been too many false alarms, UnaliWear may suspend or cancel the Services. The Customer is responsible for any fines, penalties, or other fees arising from a false alarm.
The Customer is responsible for ensuring that their home internet connectivity is in good service. UnaliWear may, in its sole discretion, repair or replace all or portions of the Equipment if it becomes damaged or defective, unless the Equipment has previously been disassembled, repaired or modified by someone other than UnaliWear or its authorized service representative or if the Equipment has been damaged as a result of the negligence or misconduct by any person other than UnaliWear or its authorized service representative. If the the Equipment becomes damaged as a result of the above, the Customer shall pay UnaliWear the replacement price of the Equipment of up to Six Hundred Fifty Dollars ($650.00). The Equipment and all monitoring software, computer codes and monitoring information remain UnaliWear’s sole and exclusive property. All Equipment should be tested on a monthly basis to confirm it is working properly. Customer acknowledges that UnaliWear’s artificial intelligence-based automatic fall detection and UnaliWear’s artificial intelligence-based activity monitoring does not detect one-hundred percent (100%) of falls or periods of potentially concerning activity or inactivity. If able, Wearers should always request assistance through speech activation of the Kanega watch or by pressing the Kanega watch crown button for two (2) seconds. Neither UnaliWear’s artificial intelligence-based automatic fall detection nor UnaliWear’s artificial intelligence-based activity monitoring is intended to replace a caregiver for Wearers dealing with serious health issues.
LIMITATIONS OF THE EQUIPMENT AND SERVICES
UnaliWear is not responsible for the promptness, sufficiency or adequacy of the action of any emergency responder. UnaliWear will not send any of its personnel to Wearer’s location in response to an emergency alarm signal. Neither the Equipment nor the Services can prevent death, bodily or personal injury, or any other harm or damage to the Wearer or others who use them. Customer acknowledges and understands that this monitoring system is dependent on the functionality of cellular service and/or internet connectivity and the availability of global positioning system (“GPS”) data to operate properly. Customer recognizes that UnaliWear has no control over, nor is it responsible for, such functionality or connectivity. There is always a chance that the Equipment may fail to operate properly. The 911 emergency services line is an alternative to the Equipment and the Services. If utilizing Services that include medication reminder functionality, Customer acknowledges that medication reminders are not intended to be used as a confirmation that the medication was actually taken nor is it intended to be used as a tool for dispensing medications. The accuracy of medication reminder data is the sole responsibility of the Customer entering the data. The Customer acknowledges and accepts that the medication reminders feature may display Private Medical Information.
ASSIGNEES AND SUBCONTRACTORS
UnaliWear reserves the right to assign this Agreement, or to subcontract its obligations hereunder, to any third party without the consent of the Customer. This Agreement shall apply to any assignee or subcontractor and protect them in the same manner as it applies to and protects UnaliWear. Any subcontractor shall be considered an “independent contractor” and therefore not affiliated with UnaliWear in any way as a partner, joint venture, agent, or employee. You may not transfer this Agreement without prior written approval by UnaliWear.
WARRANTY; DISCLAIMER; LIMITATIONS ON LIABILITY
UnaliWear makes no warranties or guarantees of any kind whatsoever related to the Services or related Equipment and expressly disclaims any such warranties or guarantees, whether express or implied, written or oral, with respect to the Services or the Equipment, including without limitation any warranty of merchantability or fitness for a particular purpose. Customer furthermore understands that UnaliWear is not an insurer of the Wearer’s premises, property, or personal safety, and payments provided to UnaliWear are solely for the Services and lease of Equipment set forth herein. Customer agrees and acknowledges that fixing actual damages from the incidence of any negligence or failure to perform on the part of UnaliWear is inherently difficult and therefore agrees, if there should arise any liability under this Agreement or in any way related to the Services or Equipment provided, whether based upon tort, contract, or otherwise, including any liability alleged to arise from the negligence or intentional actions of UnaliWear, UnaliWear’s liability shall not exceed One Thousand Dollars ($1000.00), inclusive of all claims for damages, costs, or otherwise. Upon such a finding of liability, this amount shall be paid by UnaliWear and received by Customer as liquidated damages in full and fair compensation for Customer’s loss and not as a penalty. Claims for liability must be made on or before the first anniversary of the event allegedly giving rise to the liability. Claims or actions brought more than one (1) year after the date of the event giving rise to the alleged liability are barred by agreement between UnaliWear and the Customer regardless of any Statute of Limitations and are waived forever. In no circumstance shall UnaliWear be liable to Customer for incidental, consequential, special, exemplary, or other damages.
THIRD PARTY INDEMNIFICATION AND NO SUBROGATION
Should any third party seek contribution or compensation for any claim or loss relating in any way to the Services or Equipment provided by UnaliWear hereunder, Customer agrees to indemnify, defend, and hold harmless UnaliWear, its employees, agents, and subcontractors against any and all such claims, regardless of the claimant’s theory of liability. Customer further agrees to pay UnaliWear (i) any amount which a court orders UnaliWear to pay or which UnaliWear reasonably agrees to pay, and (ii) the amount of UnaliWear’s reasonable attorney’s fees and any other losses or costs that UnaliWear may pay in connection with the harm or damages.
This Agreement shall be construed according to the laws of the State of Texas and all actions or claims arising under or relating to this Agreement shall be brought exclusively in the courts of Travis County, Texas. Both parties agree that no lawsuit or any other legal proceeding brought in connection with this Agreement shall be brought or filed more than one (1) year after the event giving rise to the claim occurred. Both parties agree that any lawsuit or other legal proceeding brought in connection with this Agreement will be conducted only on an individual basis, and not in a class, consolidated or representative action. Customer hereby expressly consents to the jurisdiction of the courts of Travis County, Texas, for the resolution of such disputes and furthermore permanently and irrevocably waives any right to a jury trial for any claim or action arising under or relating to this Agreement. The scope of this waiver is intended to cover all disputes that may be filed in court, including without limitations contract, tort, breach of duty and all other common law and statutory claims. This waiver is irrevocable and may not be modified either orally or in writing. This waiver applies to any future amendments, renewals, supplements or modifications of or to this Agreement. In the event of litigation covered by the scope of this waiver, this Agreement may be filed in court as a written consent to a trial by the court. Should UnaliWear be required to engage legal counsel for the purposes of resolving any dispute with Customer or to enforce any term or condition herein, Customer agrees to pay the UnaliWear the reasonable attorney’s fees associated with such engagement, except where prohibited by law.
This Agreement constitutes the entire agreement and understanding between Customer and UnaliWear concerning the subject matter hereof and supersedes all prior discussions, agreements and representations, whether oral or written and whether or not executed.
Date posted: April 10, 2020