Enterprise Service Agreement
1. BINDING EFFECT. THIS IS A BINDING AGREEMENT BETWEEN THE CARE FACILITY, CLINIC, HOSPITAL, HOSPITAL CHAIN OR OTHER ENTITY AGREEING TO THIS SERVICE (“CUSTOMER,” “YOU” OR “YOUR”) AND TRANQUILITY LIFESTYLE SOLUTIONS, INC. (“TLS”, “WE” OR “OUR”). BY CLICKING ON THE “ACCEPT” BUTTON, AND REGISTERING AND CREATING A CUSTOMER ACCOUNT ON THE EMBRACE™ SERVICE (THE “SERVICE”), YOU AGREE TO BECOME A PARTY TO AND TO ABIDE BY THIS SERVICE AGREEMENT (“AGREEMENT”). IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT CLICK ON “ACCEPT” AND DO NOT REGISTER AND CREATE AN ACCOUNT ON THE SERVICE. SELECTING “ACCEPT” WILL BE THE LEGAL EQUIVALENT OF CUSTOMER’S SIGNATURE ON A WRITTEN CONTRACT, AND EQUALLY BINDING. CUSTOMER MUST AGREE TO THIS AGREEMENT IN ORDER TO BE ABLE TO SUBSCRIBE TO SERVICE.
2. BY CLICKING “ACCEPT,” YOU ARE ALSO AGREEING THAT CUSTOMER IS SUBJECT TO AND SHALL COMPLY WITH ALL APPLICABLE NATIONAL STATUES AND ACTS, INCLUDING BUT NOT LIMITED TO ALL LAWS REGARDING THE PROTECTION OF PERSONAL INFORMATION AND MEDICAL INFORMATION, AND ALL APPLICABLE NATIONAL, STATE AND LOCAL LAWS AND REGULATIONS RELATED TO THE FOREGOING. THE SERVICE DOES NOT PROVIDE MEDICAL ADVICE. THE CONTENTS OF THE SERVICE ARE MADE AVAILABLE TO YOU FOR INFORMATIONAL PURPOSES ONLY. THE SERVICE DOES NOT PROVIDE MEDICAL DIAGNOSES OR RECOMMENDATIONS REGARDING MEDICAL TREATMENT. THE SERVICE AND ITS CONTENTS, THE SERVICE AND NOTIFICATIONS ARE NOT SUBSTITUTES FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR MEDICAL PROVIDER OR OTHER QUALIFIED HEALTH CARE PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING ANY MEDICAL CONDITION OR TREATMENT. IN NO EVENT WILL WE BE LIABLE FOR ANY DECISION MADE OR ACTION TAKEN IN RELIANCE UPON THE INFORMATION PROVIDED THROUGH THE SERVICE.
3. AGREEMENT TO PROVIDE THE SERVICE. We agree to provide to you and your End Users (as defined below) the Service in accordance with the terms of this Agreement and you agree to make the payments, and perform the obligations, and be bound by the terms of this Agreement, as described below.
4. ACCOUNT SET-UP. To access and use the Service, Customer will need to create an account and subscribe to a monitoring plan. By creating your account, you agree to be responsible for: (i) maintaining the confidentiality of all credentials for your personnel using the Service (each, an “End User”); (ii) managing access to End User accounts; and (iii) ensuring that your End User’s use of the Service is solely as permitted in this Agreement and in full compliance with our End User License Agreement (“EULA”) and all state, federal and local laws relating to Customer or to the services provided by Customer (“Applicable Laws”). You shall designate one or more of your End Users as administrators (each, an “Administrator”) who shall be responsible to create, manage, restrict and terminate your End Users’ access to the Service. You shall additionally (a) require End Users to, provide accurate, current and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) be responsible for the acts or omissions of your End Users and any other third party who has authority to access or use the Service on your behalf, and (d) immediately notify us if you discover or otherwise suspect any security breaches related to your account. You shall cooperate with TLS by: (i) providing such information, data, management decisions, approvals and acceptances as may be required to permit TLS to provide the Service; (ii) providing secure, remote access to Customer’s network and/or computing technology, as required by TLS to support Customer’s use of the Service; (iii) abiding with all commercially reasonable security and privacy requests made by TLS; and (iv) names, email addresses and telephone numbers of all End Users you desire to receive notification of Alert Conditions. Customer shall additionally provide to TLS, at no charge, such technical assistance and cooperation as TLS may from time to time request to support, test and troubleshoot the Service, Devices and Customer’s access and use of the Service. All changes and revisions to your End User information and other account details shall be made directly by your Administrators on the Client Account section of the Service app.
5. SERVICE FEES. Our then-current subscription plans and service fees are set forth on the subscription pages of our app and website. The subscription plan you select will automatically renew until you cancel the renewal as described below. Subscription to the Service will require you to make advance monthly payment of the corresponding service fees for your subscription plan and you agree to pay TLS, each month, the monthly service fee applicable for your subscription plan. Payments of service fees you make are final and non-refundable. TLS will issue a monthly invoice in advance for the service fees due in each month. TLS’ invoices are payable upon receipt. Acceptance of any partial payment shall not constitute a waiver of TLS’ right to payment in full of all amounts owing from you. In the event of any termination of this Agreement, TLS will prorate unused service fees as applicable. TLS reserves the right to establish, remove, and/or revise prices, fees, taxes, and/or surcharges for the Service at any time. TLS may also, in its sole discretion, make promotional offers with different features and different rates to any or all of our customers. Unless made to you, these promotional offers will have no bearing on your obligation to pay the amounts charged. In the event TLS refers any overdue balance to an attorney, to recover such amounts you owe TLS, you agree that the amount recovered, shall include interest at the rate of 1½% per month from the date payment is due (or the highest permitted rate under law, if lower), and you shall pay TLS’ legal fees in such action.
6. DEVICES; INSTALLATION. The Service relies upon and interoperates with various third party sensors and monitoring device (“Devices”). TLS will provide you access to the Service app for your mobile devices and will sell you or facilitate your purchase of Devices. Devices we sell and their then-current price are set forth on our website. Payment for Devices we sell you, including any sales taxes which we are required to collect and shipment charges, shall be due up-front with order and is non-refundable. DEVICES ARE NON-RETURNABLE AND ANY DEVICE FAILURES ARE SUBJECT TO THE APPLICABLE THIRD PARTY MANUFACTURER’S WARRANTY AND REPAIR TERMS. We are not responsible for any damage to Devices we sell you which are caused by shipment, mishandling or abuse. Devices will be shipped to the facility address(es) you provide using our choice of carrier. Upon your receipt of the Devices, you agree to cause your End Users to review the User’s Guide, Quick Start Guide, Installation Instructions, and/or Trouble Shooting Guide for your specific Devices found online on our website (“Device Instructions”). In addition, you agree to cause your Administrators to review the official Service user manual, including the technical and functional specifications therein, which is generally made available by TLS to Customer, as may be supplemented or updated from time-to-time by TLS (“Documentation”). You and your End Users can also call TLS with any questions or concerns at our customer support number found on our app and website. TLS contracts with third party independent companies for the provision of assistance with installation of Devices in your facility. Devices must be installed correctly and in good operating condition to interoperate with the Service. You agree to test the Devices and confirm that Devices are capable of communicating with the TLS platform and to establish communications as required for TLS to function, in accordance with the instructions provided. You agree not to tamper with, remove or otherwise interfere with the Service or any Devices. Customer and its End Users must use the Service and Devices only in accordance with the terms and conditions of this Agreement and only in compliance with our EULA and with all Applicable Laws. Customer is responsible for use of the Service by its End Users and for the security of its End Users’ credentials to sign into the Service.
7. DELAY IN INSTALLATION; DEVICE FAILURES. TLS shall not be liable for any damage or loss sustained by you or any third party as a result of delay in installation or delivery of Devices, damage to Devices, Device failure, or for interruption of service due to electric failure, communication failure, acts of God, or other causes, and you shall not be relieved from payments due under this Agreement for any corresponding period of delay. Following our determination, or receipt of notice from you, that Devices have been damaged or otherwise are not functioning properly, TLS shall make available to you replacement Devices for purchase. TLS IS NOT A MANUFACTURER OF THE DEVICES AND ANY WARRANTY OR SERVICE ISSUES SHALL BE WITH THE APPLICABLE THIRD PARTY MANUFACTURER. TLS makes no representation, promise, warranty or guarantee that there will be no interruptions of service or delay in replacement of Devices.
8. START OF THE SERVICE. TLS makes no promise of commencement of the Service by any particular date. The Service will commence only after (i) all required information to be provided by you is entered into the Service app by your Administrators; (ii) all Devices are installed and an acceptable test of the Devices is received by the TLS platform; and (iii) TLS receives the initial required service fee payment. In addition, following the above, the Service and certain Devices will undergo a two (2) week soak period to acclimate to the environment of your facility and adjust to the ambient conditions. YOU UNDERSTAND THAT NO NOTIFICATION OF ALERT CONDITIONS WILL BE GENERATED DURING THE 2 WEEK SOAK PERIOD. You further understand, acknowledge and agree that certain Applicable Laws, and rules, regulations and ordinances of governmental authorities, utilities, businesses, associations and other entities may affect your rights or ability to use the Service and Devices, including fees or assessments for false alarms or other restrictions. You agree to obtain and maintain all licenses, permits and other authorizations or consents necessary for the installation and use of Devices and the Service at your facility.
9. TESTING, MAINTENANCE OF DEVICES AND THE SERVICE. You agree that Devices are in your exclusive possession and control, and that it is your sole responsibility to test the operation of the Devices and the Service and to provide any required maintenance of Devices. YOU ARE SOLELY RESPONSIBLE FOR THE MAINTENANCE AND REPAIR OF THE DEVICES AND FOR ANY CONSEQUENCES OF INADEQUATE REPAIR OR MAINTENANCE OF DEVICES WHICH CAUSE ANY SERVICE ERRORS OR FAILURES
10. SERVICE. The Service consist solely of alerting your End Users upon receipt by the TLS platform of data or other communication from a Device at your facility indicating an abnormal condition (an “Alert Condition”). Following receipt of notice of an Alert Condition, The Service will send a notice to the End Users using their Service app, email address, and/or phone number, based on the contact information your Administrators provide us. You acknowledge that signals which are transmitted over cellular networks, telephone lines, internet, VOIP, or other modes of communication pass through communication networks beyond the control of TLS and are not maintained by TLS, and therefore TLS shall not be responsible for any equipment failure which prevents transmission signals from reaching the TLS platform and/or your Service app or damages arising as a result thereof, or for data corruption, theft or viruses to your mobile devices (e.g. smartphone or tablet) if connected to the TLS platform via the Service app. In addition if your facility allows free roaming pets, the Service can be disrupted or can generate multiple unreliable Alert Conditions. If your facility allows patients or residents to have resident pets you must notify TLS prior to each such pet being brought to the facility. Failure to notify us of pets residing in your facility as required will invalidate all obligations hereunder to provide the Service with respect to the affected areas where such pets will reside. TLS’ obligation to provide the Service shall automatically be suspended as of (a) the date you remove or disconnect any of the Devices at your premises, until such Device is restored or reconnected; (b) interruption of any communications system or interface through which your Devices and Service app contact the TLS platform, for the duration of such interruption; (d) your failure to notify us of pets permanently living in your facility, until we are made aware of such pets; or (d) termination of this Agreement. TLS may, without prior notice, suspend or terminate your access to the Service, in the event of (i) your default in performance of this Agreement or in event of power failures or your Devices sending excessive miscommunications; (ii) if an End User violates this Agreement or the EULA or uses the Service in a manner contrary to the foregoing or contrary to Applicable Laws. You and your End Users are not entitled to use the Service or to cause its use in a manner other than permitted hereunder, in particular (i) to rent, to lease, to borrow, to reproduce, to resell or to distribute in any other way, to give to a third party or to grant third parties access to (ii) to use for the development of other products/services; (iii) to transfer the rights to use to third parties or to grant third parties access to; (iv) to change the source code, to translate, to reproduce, to decompile, to examine its functions, unless provided by mandatory statutory law; and (v) to remove, hide or change any legal notes relating to copyrights, trademarks or other intellectual property rights of TLS.
11. ABNORMAL CONDITION DETECTION. You acknowledge that the Service, in conjunction with Devices, is designed to detect Alert Conditions but may (a) not detect all abnormal conditions, and (b) be activated even if no abnormal condition exists. You acknowledge that the Service may falsely report Alert Conditions in the event of children and/or pets running, falling or jumping on the ground. You additionally acknowledge that in the event that the Service detects multiple persons (including any children or pets) in a room and an abnormal condition, the Service will not issue any notification of the Alert Condition. TLS shall have no liability in connection with any Alert Condition, whether the Service fails to detect such condition or if an Alert condition is identified by the TLS platform when no abnormal condition exists. You should not rely exclusively on the Service but should also use a telephone to dial 911 or any other emergency number for assistance. You further acknowledge and agrees that the Devices and the Service together or separately, are not a signal denoting any medical emergency, requiring TLS to contact or dispatch any medical, hospital, ambulance, or other like entity, person or service. You agree that it is your sole responsibility to: (a) prepare for any medical emergency, and (b) contact or dispatch, and/or make other arrangements to contact or dispatch, medical assistance if and when necessary, by means other than through the Service.
12. SERVICE LIMITATIONS. You acknowledge and agree that we do not represent or warrant that the Service will prevent death, bodily or personal injury or damage to patients or residents of your facility, or any other persons who may use the Service. We make no representation of warranty as to the accuracy of the Service’s detection of Alert Conditions or the promptness of notices sent to End Users, and we have no control over the response time or capability of any End Users who may be notified as a result of notifications generated by the Service. You further understand that the Service or any Devices service may fail to function properly. You understand that this is not a security system, or a fire warning system and the police or fire department will not be notified in the event an appropriate Alert Condition is detected by the Service. YOU UNDERSTAND THAT TLS WILL NOT SEND ANY PERSONNEL TO YOUR FACILITY IN RESPONSE TO ANY ALERT CONDITION. WE DO NOT PROVIDE MEDICAL SERVICES. NOT ALL FUNCTIONALITY OF THE SERVICE, INCLUDING THE ABILITY TO DETECT ALARM CONDITIONS OR SEND MESSAGE TO END USERS, IS AVAILABLE AT ALL TIMES, PARTICULARLY WHEN YOUR CONNECTIVITY CANNOT OR DOES NOT PROVIDE AN ADEQUATE SIGNAL OR SERVICE, YOUR SERVICE APP IS NOT RUNNING OR IS NOT ACTIVE OR ACTIVATED OR YOUR DEVICES IS OR ARE NOT ACTIVE OR ACTIVATED.
13. ALERT CONDITIONS. TLS shall have no liability for police, fire or EMT non-response, response, or any damage to person or property in connection with any Alert Condition detected by the Service and you shall be solely responsible for any fees, costs or fines associated with any of the foregoing. You are solely responsible for your End Users’ response to any Alert Conditions, and the timing and the consequence of such response. You are responsible to train your End Users in the correct use of the Service, the monitoring of the Service for Alert Conditions and the proper sequence of verification and reaction to Alert Conditions. WE HAVE NO RESPONSIBILITY FOR YOUR END USER TRAINING AND THE VERIFICATION AND RESPONSE PROTOCOLS FOLLOWED BY YOUR END USERS IN USING THE SERVICE.
14. DATA. TLS will be providing certain administrative services to Customer, including, storage of patient and resident information on Customer’s behalf and accordingly TLS may be deemed to be a “business associate” or similar service provider of Customer, as such term is defined under the administrative simplification section of the Health Insurance Portability and Accountability Act of 1996, Pub. Law 104-191 (Aug. 21, 1996), its implementing regulations, the Health Information Technology for Economic and Clinical Health Act (HITECH) and its implementing regulations or other Applicable Laws. To comply with such Applicable Laws, the parties may be required to enter into a separate business associate agreement or similar agreement. ALL CONFIDENTIALITY AND SECURITY OBLIGATIONS WITH RESPECT TO NON-PUBLIC HEALTH INFORMATION OR OTHER INFORMATION OTHERWISE CONTROLLED OR COVERED BY SUCH APPLICABLE LAWS SHALL BE SET FORTH IN THE SEPARATE BUSINESS ASSOCIATE AGREEMENT OR OTHER SIMILAR AGREEMENT BETWEEN THE PARTIES HERETO.
15. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY. TLS owns or is the exclusive holder of all right, title and interest in and to the Service, including the Service app and all other elements and components thereof. Customer shall retain all right, title and ownership rights to the data uploaded into and stored within the Service by Customer and its End Users. Both parties agree that during the performance of this Agreement, TLS may disclose to Customer and its End Users confidential information relating to the Service, including any know-how, inventions, technical data, ideas, uses, processes, methods, research and development activities, work in process, or any marketing, business plan, financial or personnel matter relating to the Service (whether or not marked confidential) (“Confidential Information”). Customer shall not, and shall ensure that its End Users do not, in any way disclose, copy, modify, distribute or otherwise transfer the Confidential Information, or any part thereof, to any other person or entity at any time, except as specifically permitted by this Agreement. Customer has the right to disclose the Confidential Information only to its employees who have a specific need to know in order to perform Customer’s obligations hereunder, but Customer shall be responsible for all of its employees’ actions. Customer shall use the Confidential Information only to properly fulfill its obligations hereunder, and not for any other purpose. Upon request or upon termination of this Agreement, of later, Customer shall immediately return to TLS the originals and all copies of any Confidential Information. The foregoing obligations of confidentiality and nonuse shall not apply to information (a) that was lawfully in your possession prior to the date that such information is disclosed or learned, as evidenced by your contemporaneous written records; (b) becomes public or available to the public without your fault or omission; (c) has been lawfully obtained by you from a third party which is in lawful possession of such information without any obligation of confidentiality; or (d) is required to be disclosed by law, in which case you will give TLS as much advance notice of the proposed disclosure as is practical (including a copy of any written request or order), and will cooperate with TLS in any effort to limit or restrict such disclosure, via a protective order or otherwise
16. LIMITED WARRANTY. TLS warrants that the functionality of the Service will substantially conform to the then current Documentation, provided that: (i) Customer and its End Users have used the Service in accordance with the Documentation, this Agreement, the EULA and Applicable Laws; (ii) installation of the Devices and Service has been made in accordance with the Device Instructions and the Documentation; (iii) the Devices meet the inspection and maintenance requirements and intervals set forth in the Documentation and the Service has only been used with Devices; (iv) any deviation that may occur is not caused by the Devices and/or other third party hardware, software or data or from Customer or its End Users’ or other third party actions; and (v) any deviation that may occur materially affects the functionality of the Service. The above limited warranty only applies provided that Customer (i) notifies TLS in writing of any such deviations from the Documentation within five (5) days from discovery of such deviation, and (ii) sends at its own cost any necessary material needed to assess the deviation to TLS or TLS’ designee. Subject to the foregoing, TLS will use commercially reasonable efforts to remedy the deviation as soon as practicable, considering the nature of the deviation and any other circumstances at hand. IN THE EVENT OF A BREACH OF THE ABOVE WARRANTY, TLS’ SOLE OBLIGATIONS AND CUSTOMER’S SOLE REMEDIES ARE FOR TLS TO REPAIR OR REPLACE THE FAULTY SOFTWARE SERVICE SO AS TO CAUSE THE SERVICE TO SUBSTANTIALLY CONFORM TO THE DOCUMENTATIONS. EXCEPT AS EXPRESSLY STATED IN THE ABOVE LIMITED WARRANTY, YOUR USE OF THE SERVICE AND DEVICES CONNECTED THERETO, AND SERVICES THEREIN ARE AT YOUR OWN RISK AND THE SERVICE AND ANY DEVICES WE SELL YOU ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER TLS NOR ANY PERSON ASSOCIATED WITH TLS MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICE AND THE DEVICES CONNECTED THERETO, OR SERVICES THEREIN. WITHOUT LIMITING THE FOREGOING, NEITHER TLS NOR ANYONE ASSOCIATED WITH TLS REPRESENTS OR WARRANTS THAT THE SERVICE, THE DEVICES CONNECTED THERETO, OR SERVICES THEREIN, WILL BE RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT ANY OF THE FOREGOING ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICE, THE DEVICES CONNECTED THERETO, OR SERVICES THEREIN, WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. TLS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
17. LIMITATION OF LIABILITY. You understand: (a) we are not an insurer of you, the personal safety of any patient, resident or other person in your facility or your property; (b) you should provide any insurance on yourself and End Users and any other person who may use the Service; (c) the amount you pay to us is based only on the value of the services we provide; (d) the Service and our monitoring service may not always operate properly for various reasons; (e) it is difficult to determine, in advance, how fast your End Users, or others will respond to an Alert Condition; (f) the Service, Devices and all communication protocols and transmission lines are limited; (g) it is difficult to determine, in advance, what portion, if any, of any property loss, personal injury or death would be proximately caused by our failure to perform, our negligence, or a failure of the Service. THEREFORE YOU AGREE THAT (A) THAT EVEN IF A COURT OR OTHER TRIBUNAL DECIDES THAT OUR BREACH OF THIS AGREEMENT, OR A FAILURE OF THE SERVICE, DEVICES, OR OUR NEGLIGENCE CAUSED OR ALLOWED ANY HARM OR DAMAGE (WHETHER PROPERTY DAMAGE, PERSONAL INJURY OR DEATH) TO YOU OR ANY PATIENT OR RESIDENT IN YOUR FACILITY, TLS’ ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICE DURING THE PRECEDING THREE (3) MONTHS OR U.S. $10,000.00, AND THIS SHALL BE YOUR ONLY REMEDY REGARDLESS OF WHAT LEGAL THEORY IS AVAILABLE TO DETERMINE THAT TLS WAS LIABLE FOR THE INJURY, DAMAGE OR LOSS; AND (B) IN NO EVENT WILL TLS, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DEATH, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICE, INCLUDING THE SERVICE APP, ANY DEVICES, ANY CONTENT ON THE SERVICE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE. Notwithstanding anything to the contrary herein and except to the extent prohibited by Applicable Laws, Customer shall be obliged to take adequate measures to avert and mitigate losses and damages. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the above disclaimers and limitations of liability may not apply to Customer. To the extent that TLS may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of TLS’s liability shall be the minimum permitted under such Applicable Law.
18. INDEMNITY. You will defend, indemnify and hold harmless TLS, its employees, agents and subcontractors, from and against all third party claims, lawsuits, including reasonable attorneys’ fees, and losses asserted by a third party against TLS and its affiliates arising from, caused by or in any way related to (a) your or your End User’s use of the Service contrary to Applicable Laws or the Documentation or in violation of the EULA or this Agreement; or (b) any claim for subrogation, indemnification or contribution. TLS will defend, indemnify and hold harmless Customer, its employees, agents and subcontractors, from and against all third party claims, lawsuits, including reasonable attorneys’ fees, and losses asserted by a third party against Customer and its affiliates arising from, caused by or in any way related to (i) the Service, including the Service app, as delivered and used in compliance with Applicable Laws and the Documentation, and consistent with the EULA and this Agreement, infringes or misappropriates any intellectual property right of the third party. In no event will TLS have any obligations or liability under this section arising from: (i) use of the Service in a modified form or in combination with materials not furnished by TLS, except for Devices sold by TLS or approved for use with the Service in writing by TLS in the Documentation; or (ii) any data provided by Customer or its End Users. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (ii) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE CUSTOMER’S ONLY REMEDY AND TLS’ SOLE LIABILITY UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
19. RELEASE. YOU HEREBY WAIVE, RELEASE AND DISCHARGE TLS OF ANY LIABILITY ASSOCIATED WITH YOUR AND YOUR END USERS’ USE OF THE SERVICE, THE DEVICES CONNECTED THERETO, AND SERVICES THEREIN AND OUR FAILURE, OR THE FAILURE OF YOUR END USERS, TO TRANSMIT AND/OR RECEIVE ALERT CONDITIONS.
20. TERM. The term of this Agreement shall commence on the date that you accept this Agreement and shall continue for the period of one (1) year unless terminated earlier. This Agreement and the subscription to the Service will automatically renew at the end of the initial one (1) year period and each subsequent renewal period, in each case for a one (1) year renewal period unless either party provides the other with a non-renewal notice no less than 30 days prior to the lapse of the then-current period. On the effective date of termination of this Agreement, TLS will disconnect your access to the Service. YOU AGREE THAT UPON ANY TERMINATION OF THIS AGREEMENT, TLS SHALL BE PERMITTED TO DISCONTINUE ALL SERVICES.
21. TERMINATION. This Agreement shall automatically terminate without notice upon the occurrence of any of the following: (i) the breach by the Customer or any of its End Users of any of the terms contained herein or in the EULA, which is not cured within thirty (10) days after notice by TLS; or (ii) the cessation of business by Customer. Customer shall have the right to terminate this Agreement at any time by sending TLS a written notice of termination at least thirty (30) days before the end of the then current subscription period. For the avoidance of doubt, the requirement of a written notice may be satisfied by sending a notice in the same manner and using the same medium in which this Agreement was accepted, to the extent allowable under applicable laws. For example, should this Agreement be entered into electronically within a secure session through the Internet as may be permitted under applicable laws then written notice shall include sending a notice via electronic means using the Internet.
22. GOVERNING LAW. This Agreement will be governed by and interpreted in accordance with the law of the State of New Jersey without reference to its choice of law rules. This Agreement shall be deemed to be performed in New Jersey. Both parties irrevocably submit to the jurisdiction of the federal district court located in Trenton, New Jersey for any action or proceeding regarding this Agreement, and both parties waive any right to object to the jurisdiction or venue of the united states district court in Trenton, New Jersey. In the event a dispute arises regarding this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees and expenses incurred in addition to any other relief to which it is entitled. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
23. ASSIGNMENT. You shall not assign or otherwise transfer your rights or obligations under this Agreement to a third party unless such assignment is approved in writing by TLS. This Agreement shall inure to the benefit of and bind the parties’ successors and permitted assigns.
24. TAXES. You shall be responsible for all sales, use and other taxes and all applicable duties, levies and export fees and similar charges imposed by any federal, state or local government entity on the service fees you pay, excluding taxes based solely upon TLS’s income.
25. SEVERABILITY. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be deleted and re-interpreted to the extent necessary to comply with law and interpreted and substituted to accomplish the objectives of such provision to the greatest extent possible under applicable law. The remaining provisions of this Agreement will continue in full force and effect.
26. FORCE MAJEURE. Other than for your payment obligations, neither party shall be liable for any delay or nonperformance due to acts of God, natural casualties, pandemics and delays due to pandemics, war, terrorism, material shortages, transportation and communications delays, energy shortages and disruptions, trade embargoes, governmental regulations, strikes, civil unrest and/or other causes beyond the reasonable control of a party (a “Force Majeure Event”). If a Force Majeure Event occurs, the party whose performance is affected shall give the other party written notice within ten (10) days of such occurrence, detailing the circumstances of the Force Majeure Event and an estimate of the anticipated delay in performance. The party whose performance is affected will use commercially reasonable efforts to develop a mutually acceptable work around plan in an attempt to minimize the impact of the Force Majeure Event. Performance shall be promptly resumed upon termination of the Force Majeure Event.
27. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties. Unless expressly accepted in writing by a party in a manner that specifically references this Agreement, any terms on any purchase order or similar document submitted by one party to the other party that purport to amend, alter, modify or add to this Agreement are hereby deemed to be offers to amend this Agreement that are rejected by the receiving party, and such terms will have no force or effect. NO TERM OR CONDITION SET FORTH IN ANY OF CUSTOMER’S SOLICITATIONS, RFPs OR PURCHASE ORDERS SHALL BECOME PART OF ANY ORDER OR OTHERWISE BECOME BINDING ON TLS UNLESS EXPRESSLY AGREED TO IN WRITING BY TLS. ANY CUSTOMER PURCHASE ORDER IS ACCEPTED SOLELY ON THE CONDITION THAT CUSTOMER EXPRESSLY ACCEPTS AND ASSENTS TO THE TERMS AND CONDITIONS CONTAINED HEREIN. You agree that there are no third-party beneficiaries of this Agreement. Without limiting this section, neither Customer’s End Users nor any patients or residents at your facility are third-party beneficiaries to Customer’s rights under this Agreement.
28. JURY TRIAL WAIVER. WHERE PERMITTED BY LAW, YOU HEREBY WAIVE TRIAL BY JURY IN ANY ACTION AGAINST TLS RELATED TO THIS AGREEMENT.
29. ARBITRATION. At TLS’ sole discretion, it may require you to submit any disputes arising from this Agreement or the Service, including disputes arising from or concerning the interpretation, violation, invalidity, nonperformance, or termination of this Agreement, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying New Jersey law.
30. LIMITATION ON TIME TO FILE CLAIMS. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
31. SUBCONTRACTING. You agree that TLS is authorized and permitted to subcontract any services to be provided by TLS to third parties who may be independent of TLS, and that TLS shall not be liable for any loss, damage or injury sustained you sustain by reason of any other cause whatsoever caused by the negligence of third parties. You acknowledge that this Agreement, and particularly those paragraphs relating to TL’ disclaimer of warranties, exemption from liability, even for its negligence, limitation of liability and indemnification, insure to the benefit of and are applicable to any assignees and subcontractors of TLS.
32. AUTHORITY. The persons accepting this Agreement on behalf of Customer represent and warrant that they have the authority from their respective governing body to enter into this Agreement and to bind Customer to all the terms and conditions of this Agreement.
33. ACKNOWLEDGEMENT. BY CLICKING “ACCEPT” AND REGISTERING AND CREATING YOUR ACCOUNT, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT; THAT YOU UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU MUST AGREE TO THIS AGREEMENT IN ORDER TO BE ABLE TO SUBSCRIBE TO THE SERVICE.
Last Updated: 8/16/2022 V-1.0