Liberate Subscription Agreement
1. BINDING EFFECT. THIS IS A BINDING AGREEMENT BETWEEN YOU AND TRANQUILITY LIFESTYLE SOLUTIONS, INC. (“TLS”, “WE” OR “OUR”). BY CLICKING ON THE “ACCEPT” BUTTON, AND REGISTERING AND CREATING YOUR ACCOUNT ON THE LIBERATE™ SERVICE (“LIBERATE”), YOU AGREE TO BECOME A PARTY TO AND TO ABIDE BY THIS SUBSCRIPTION 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 LIBERATE. SELECTING “ACCEPT” WILL BE THE LEGAL EQUIVALENT OF YOUR SIGNATURE ON A WRITTEN CONTRACT, AND EQUALLY BINDING. YOU MUST AGREE TO THIS AGREEMENT IN ORDER TO BE ABLE TO SUBSCRIBE TO LIBERATE.
2. LIBERATE DOES NOT PROVIDE MEDICAL ADVICE. THE CONTENTS OF LIBERATE ARE MADE AVAILABLE TO YOU FOR INFORMATIONAL PURPOSES ONLY. LIBERATE DOES NOT PROVIDE MEDICAL DIAGNOSES OR RECOMMENDATIONS REGARDING MEDICAL TREATMENT. LIBERATE AND ITS CONTENTS, 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 LIBERATE.
3. AGREEMENT TO PROVIDE SERVICES. We agree to provide to you Liberate 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 Liberate services, you will need to create an account and subscribe to a monitoring plan. By creating your account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use Liberate on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to your account. You agree to provide complete and accurate information for all relevant sections of your Liberate account, including, but not limited to, your family tree, with names, email addresses and telephone numbers of all Responders you desire to receive notification of Alert Conditions. All changes and revisions to your family tree, Responder information and other account details shall be made directly on the Client Account section of the Liberate app.
5. SUBSCRIPTION FEES. Our then-current subscription plans and subscription 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 Liberate will require you to make payment of the corresponding subscription fees for your subscription plan and you agree to pay TLS the subscription fee applicable for your subscription plan. Payments of subscription fees you make are final and non-refundable. You are responsible for providing accurate, up to date billing information to TLS’ payment processor, to process your payment of subscription fees. You will be charged a $25.00 fee for any instance of a credit card being declined. You authorize TLS to submit through its payment processor the subscription fee charges for the subscription you select using the payment method you specify at the time of purchase. TLS may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has credit available for your intended purchase. In the event your subscription fees are being paid by a third party, you acknowledge that Liberate will only be provided for as long as your account is in good standing. In the event your account becomes delinquent TLS will notify you and you will have the option of assuming the payments. In the event of any termination of this Agreement, TLS will prorate unused subscription fees as applicable. For renewals of your subscriptions you authorize TLS to submit through its payment processor, upon each renewal date until you cancel your subscription, the corresponding subscription fees using your then current payment method. TLS reserves the right to establish, remove, and/or revise prices, fees, taxes, and/or surcharges for Liberate 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: Liberate relies upon and interoperates with various third party sensors and monitoring device (“Devices”). TLS will provide you access to the Liberate 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 address you provide using our choice of carrier. Upon your receipt of the Devices, you agree 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. You 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 home. Devices must be installed correctly and in good operating condition to interoperate with Liberate. 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 Liberate or any Devices. You agree to use the Devices and Liberate only in accordance with the terms and conditions of this Agreement not to use the Devices and Liberate for any other purposes.
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 SERVICES. TLS makes no promise of commencement of Liberate services by any particular date. Services will commence only after (i) all required information to be provided by you is entered into the Liberate app; (ii) all Devices are installed and an acceptable test of the Devices is received by the TLS platform; and (iii) TLS receives the initial payment required subscription fee payment. In addition, following the above, Liberate and certain Devices will undergo a two (2) week soak period to acclimate to your environment 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 laws, rules, regulations and ordinances of governmental authorities, utilities, businesses, homeowners associations and other entities may affect your rights or ability to use Liberate 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 Liberate service including, but not limited to, any requirements for providing notice to Responders.
9. TESTING, MAINTENANCE OF DEVICES AND LIBERATE. 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 Liberate 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 LIBERATE ERRORS OR FAILURES
10. SERVICES. Liberate consist solely of alerting the designated persons in your family tree (“Responders”) upon receipt by the TLS platform of data or other communication from a Device at your location indicating an abnormal condition (an “Alert Condition”). Following receipt of notice of an Alert Condition, Liberate will send a notice to the Responders using their Liberate app, email address, and/or phone number, based on the contact information we receive for such Responders. 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 Liberate 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 Liberate app. In addition, if you have free roaming pets, Liberate services can be disrupted or generate multiple unreliable Alert Conditions. If you have a pet living in your premises either prior to commencement of the services hereunder, or later acquire any pets during the term of this Agreement, you must notify TLS. Failure to notify us of any pets as required will invalidate all obligations hereunder to provide Liberate. TLS’ obligation to provide Liberate services 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 Liberate app contact the TLS platform, for the duration of such interruption; (d) your failure to notify us of any pets permanently living in your premises, 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 Liberate, in the event of your default in performance of this Agreement or in event of power failures or your Devices sending excessive miscommunications.
11. ABNORMAL CONDITION DETECTION. You acknowledge that Liberate, 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 Liberate 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 Liberate detects multiple persons (including any children or pets) in a room and an abnormal condition, Liberate will not issue any notification of the Alert Condition. TLS shall have no liability in connection with any Alert Condition, whether Liberate 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 Liberate 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 Liberate 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 Liberate.
12. SERVICE LIMITATIONS. You acknowledge and agree that we do not represent or warrant that Liberate will prevent death, bodily or personal injury or damage to you, or others who may use Liberate. We make no representation of warranty as to the accuracy of Liberate’s detection of Alert Conditions or the promptness of notices sent to Responders, and we have no control over the response time or capability of any Responders who may be notified as a result of notifications generated by Liberate. You further understand, that Liberate 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 Liberate. YOU UNDERSTAND THAT TLS WILL NOT SEND ANY PERSONNEL TO YOUR PREMISES IN RESPONSE TO ANY ALERT CONDITION. WE DO NOT PROVIDE MEDICAL SERVICES. NOT ALL FUNCTIONALITY OF LIBERATE, INCLUDING THE ABILITY TO DETECT ALARM CONDITIONS OR SEND MESSAGE TO RESPONDERS, IS AVAILABLE AT ALL TIMES, PARTICULARLY WHEN YOUR CONNECTIVITY CANNOT OR DOES NOT PROVIDE AN ADEQUATE SIGNAL OR SERVICE, YOUR LIBERATE 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 Liberate and you shall be solely responsible for any fees, costs or fines associated with any of the foregoing.
14. DISCLAIMER. YOUR USE OF LIBERATE AND DEVICES CONNECTED THERETO, AND SERVICES THEREIN ARE AT YOUR OWN RISK. LIBERATE 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 LIBERATE AND THE DEVICES CONNECTED THERETO, OR SERVICES THEREIN. WITHOUT LIMITING THE FOREGOING, NEITHER TLS NOR ANYONE ASSOCIATED WITH TLS REPRESENTS OR WARRANTS THAT LIBERATE, 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 LIBERATE, 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.
15. LIMITATION OF LIABILITY. You understand: (a) we are not an insurer of you, the personal safety of any person in your home or your property; (b) you should provide any insurance on yourself and any other person who may use Liberate; (c) the amount you pay to us is based only on the value of the services we provide; (d) Liberate and our monitoring service may not always operate properly for various reasons; (e) it is difficult to determine, in advance, how fast your Responders, or others will respond to an Alert Condition; (f) Liberate, 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 Liberate. THEREFORE YOU AGREE THAT (A) THAT EVEN IF A COURT OR OTHER TRIBUNAL DECIDES THAT OUR BREACH OF THIS AGREEMENT, OR A FAILURE OF LIBERATE, DEVICES, OR OUR NEGLIGENCE CAUSED OR ALLOWED ANY HARM OR DAMAGE (WHETHER PROPERTY DAMAGE, PERSONAL INJURY OR DEATH) TO YOU OR ANYONE IN YOUR HOME, TLS’ ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR LIBERATE DURING THE PRECEDING THREE (3) MONTHS OR U.S. $500.00, 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 DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, LIBERATE, INCLUDING THE LIBERATE APP, ANY DEVICES, ANY CONTENT ON LIBERATE OR ANY SERVICES OR ITEMS OBTAINED THROUGH LIBERATE, INCLUDING ANY DIRECT, 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. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
16. INDEMNITY. You agree to and shall 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 against and alleged to be caused by (a) our breach of this Agreement, or (b) a failure of Liberate, including any of our apps, or any Devices, to function correctly or according to specifications or at all; (c) our negligence; (d) any other improper or careless activity of TLS in providing Liberate; or (e) a claim for subrogation, indemnification or contribution. You will pay to TLS any amount which a court orders us to pay or which we reasonably agree to pay, and the amount of our reasonable attorney’s fees and any other loss or costs that we may pay or incur in connection with the harm or damages.
17. RELEASE. YOU HEREBY WAIVE, RELEASE AND DISCHARGE TLS OF ANY LIABILITY ASSOCIATED WITH YOUR USE OF LIBERATE, THE DEVICES CONNECTED THERETO, AND SERVICES THEREIN AND OUR FAILURE, OR THE FAILURE OF YOUR RESPONDERS, TO TRANSMIT AND/OR RECEIVE ALERT CONDITIONS.
18. TERM. The term of this Agreement shall commence on the date that you accept this Agreement and shall continue until the earlier to occur of (i) the seventh (7th) day following TLS’ receipt of your written notice of termination; or (ii) the thirtieth (30th) day following the date of TLS’ written notice of termination sent to you; or (iii) an earlier termination in accordance with the terms hereof. On the effective date of termination of this Agreement, TLS will disconnect your access to Liberate. YOU AGREE THAT UPON ANY TERMINATION OF THIS AGREEMENT, TLS SHALL BE PERMITTED TO DISCONTINUE ALL LIBERATE SERVICES.
19. TERMINATION. In addition to the above, TLS may terminate this Agreement in the event that you fail to make payment of required subscription fees or breach any other provisions hereof, and fail to cure such payment or other breach within five (5) business days of the date of TLS’ notice.
20. 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.
21. 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.
22. 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 subscription fees you pay, excluding taxes based solely upon TLS’s income.
23. 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.
24. 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.
25. 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. You agree that there are no third-party beneficiaries of this contract.
26. JURY TRIAL WAIVER. WHERE PERMITTED BY LAW, YOU HEREBY WAIVE TRIAL BY JURY IN ANY ACTION AGAINST TLS RELATED TO THIS AGREEMENT.
27. ARBITRATION. At TLS’ sole discretion, it may require you to submit any disputes arising from this Agreement or Liberate, 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.
28. 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 LIBERATE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
29. 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.
30. 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 LIBERATE.
Last Updated: 8/16/2022 V-1.0