HelpWatch Terms of Service Agreement
Last Modified: February 02, 2020
This Terms of Service Agreement (this "Agreement") is a binding contract between (the "User," “you,” or “your”) and HelpWatch Technologies, Inc. ("HelpWatch," "we," "us," or “our”).
This Agreement governs your access to and use of the HelpWatch Service, which includes HelpWatch Devices and associated firmware, applications, software, websites, APIs, products, and services. In consideration of the mutual terms and conditions described below and intending to be legally bound hereby, HelpWatch and User agree as follows:
BY CLICKING THE ''ACCEPT'' BUTTON, USER (A) ACKNOWLEDGES THAT
YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENTS AND
WARRANTS THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER
INTO THIS AGREEMENT; AND (C) ACCEPTS THIS AGREEMENT AND AGREES THAT
YOU ARE LEGALLY BOUND BY ITS TERMS. YOU MUST ACCEPT THESE TERMS TO
CREATE A HELPWATCH ACCOUNT AND TO ACCESS OR USE THE HELPWATCH
SERVICE. IF YOU DO NOT HAVE AN ACCOUNT, YOU ACCEPT THESE TERMS BY
USING ANY PART OF THE HELPWATCH SERVICE. IF YOU DO NOT ACCEPT THESE
TERMS, YOU MAY NOT ACCESS OR USE THE HELPWATCH SERVICES.
(a) “Authorized Contacts” are persons designated by each Resident to receive alerts or information from the HelpWatch Services.
(b) “HelpWatch Account” means the account created by User on the HelpWatch Platform.
(c) “HelpWatch Device” means a device that is approved, distributed, sold or provided by HelpWatch to User for the use with and as a part of the HelpWatch Services. A list of approved devices is attached as Exhibit “C.”
(d) “HelpWatch Platform” means the web-based interface designed by HelpWatch for User’s use to input data and utilize the HelpWatch Services.
(e) “HelpWatch Service” includes the HelpWatch Devices, associated firmware, applications, software, websites, APIs, products and services.
(f) “User Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from a User or an Authorized Contact by or through the HelpWatch Services.
(g) “Resultant Data” means data and information related to User’s use of the HelpWatch Services that is obtained and used by HelpWatch in an aggregate and anonymized manner.
(h) “Vital User Information” includes, but is not limited to, the following User information: name, address, phone number, height, weight, race, eye color, hair color, gender, known medical conditions, allergies, dietary restrictions, medication list.
2. Payment By User.
(a) User agrees to pay monthly, via automatic billing of their credit card, for the duration of use pursuant to this Agreement.
(b) The duration of the agreement shall be no less than 24 months, at which time it may be cancelled without recourse. If User cancels prior to the 24th month, HelpWatch reserves the right to charge User the remaining monthly payments.
3. Storage and Use of Data. User Data, Vital User Information and Resultant Data (collectively, “Data”) shall be stored by HelpWatch in a manner compliant with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) within the Google Cloud Platform or similar HIPAA-compliant cloud computing service. HelpWatch shall have ownership and use of the Resultant Data.
4. Vital User Information. User is solely responsible for verifying the accuracy and completeness of User’s vital medical information on file with HelpWatch. It is User’s sole responsibility to input and update the Vital Resident Information through the HelpWatch Platform.
Storing User’s vital medical information on file with HelpWatch is not a substitute for carrying that vital medical information on your person in the form of a medical alert card, bracelet, necklace, or the like. User should display additional medical information on a refrigerator or other accessible location.
5. User License. HelpWatch grants to User a limited, non-exclusive, non-transferable, without the right to sublicense, revocable license to (i) access and use the HelpWatch Services, (ii) access and use the software and mobile applications provided by the HelpWatch Services, and (iii) use the software embedded into the HelpWatch Device as authorized by this Agreement.
Except to the extent permitted by law, User may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the HelpWatch Services: (i) use, display, mirror, or frame the HelpWatch Services or any individual element within the HelpWatch Services, including the layout and design of any page, without HelpWatch’s express written consent; (ii) use HelpWatch’s name, any HelpWatch trademark or logo, or any HelpWatch proprietary information without HelpWatch’s express written consent; (iii) access or tamper with non-public areas of the HelpWatch Service, HelpWatch computer systems, or the technical delivery systems of HelpWatch’s providers; (iv) test the vulnerability of any HelpWatch system or breach any security or authentication measures; (v) circumvent any technological measure implemented by HelpWatch or any of HelpWatch’s providers or any other third party (including another user) to protect the HelpWatch Service; (vi) access the HelpWatch Service or User Data through the use of any mechanism other than through the use of a HelpWatch Connection or HelpWatch Service; or (vii) modify, decompile, disassemble, reverse engineer, tamper with, or otherwise attempt to derive the source code of any software that HelpWatch provides to Subscriber or any other part of the HelpWatch Service.
6. Proprietary Rights. Subscriber acknowledges and agrees that the Resultant Data and any raw data is and shall remain the sole and exclusive property of HelpWatch or certain third parties from whom the Resultant Data or raw data is compiled, including, but not limited to, all property rights, trademarks, patents, trade secrets, and any other intellectual property or proprietary rights inherit therein, appurtenant thereto, or associated therewith, whether now existing or which may hereafter come into existence. Except for the license granted pursuant to Section 5, Subscriber has no right, title, or interest in or to the Resultant Data or raw data, and has no right to sell, assign, sublicense, or otherwise transfer any right, title, or interest in or to the Resultant Data or raw data. Subscriber acknowledges that its license to use the Resultant Data and raw data is subject to the rights of HelpWatch to fully utilize the Resultant Data and raw data and to grant additional licenses to use the Resultant Data and raw data, to other parties.
7. Self-Protection/User’s Duties. The User understands that the HelpWatch Services are used to help the User protect his or her person. It does not assure nor guarantee such protection. HelpWatch does not assure nor guarantee such protection. User is encouraged, and agrees, whenever practical, to use all other safety and medical devices and techniques available to the User for such protection. Available devices and techniques are too numerous to list but include at a minimum: (a) basic health precautions; and (b) adherence to physicians' directions and recommendations.
Furthermore, the HelpWatch Services are not intended to diagnose, treat, cure, or prevent any disease.
Prolonged contact with any wearable device, including HelpWatch devices, may contribute to skin irritation or allergies in some Residents using those devices. HelpWatch urges User to provide device and skin care information to Residents using wearable devices and have each Resident consult with a doctor before using the HelpWatch Services.
8. Cellular or Wireless Network Coverage; GPS or Navigation Data. User is solely responsible for obtaining adequate cellular or wireless internet coverage in the area where the HelpWatch Services are being used. User understands that cellular and internet-based solutions rely on third party services from wireless carriers such as but not limited to AT&T, Cingular, Sprint, T-Mobile and Verizon. Cellular service, wireless internet coverage, GPS or navigation data, including data relating to your current location, may be unavailable, inaccurate, or incomplete.
9. Testing of the HelpWatch Device and HelpWatch Service. The Parties agree that the HelpWatch Devices will be in the exclusive possession and control of the User and that it is the User's sole responsibility to test the operation of the HelpWatch Devices. User agrees to test the HelpWatch Device and HelpWatch Services monthly.
10. Interruption of Services. HelpWatch assumes no liability for delays in equipment installation, interruption of services due to strikes, riots, floods, fires, acts of God, mechanical or electrical equipment failures, or any cause beyond the control of HelpWatch, and will not be required to supply service while any interruption of services may continue.
11. Medical or Related Expenses. In the event User uses the HelpWatch Services to send a signal, whether intentionally or unintentionally, User authorizes the HelpWatch Device to seek to notify or obtain assistance. User shall be obligated for and agrees to pay any costs and expenses incurred including, but not limited to, ambulance, physician, or other medical assistance in obtaining that assistance, or whatever costs are incurred as a result of the User’s use of the HelpWatch Services.
12. Misuses and Abuse of HelpWatch Services or HelpWatch Device. In the event the User violates any part of this Agreement, misuses, willfully tampers with or damages the equipment or the HelpWatch Services or HelpWatch Device, or causes an excessive number of false alarms, HelpWatch may suspend all service and terminate this Agreement upon giving 30 days written notice to the User.
13. HelpWatch’s Enforcement Rights. HelpWatch may, but is not obligated to, monitor access or use of the HelpWatch Service for the purposes of operating the HelpWatch Service, to ensure compliance with this Agreement, and to comply with applicable laws or legal requirements. HelpWatch may consult with and disclose unlawful conduct to law enforcement authorities to prosecute violations of applicable law.
14. Disclaimer of Warranties and Representations. HELPWATCH DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM MAY NOT BE COMPROMISED OR CIRCUMVENTED OR THAT THE SYSTEM WILL PREVENT PERSONAL INJURY, LOSS OF LIFE OR PROPERTY, OR DAMAGE, OR THAT THE SYSTEM WILL IN ALL CASES PROVIDE THE PROTECTION FOR WHICH IT IS INTENDED. THE HELPWATCH SERVICES ARE PROVIDED "AS IS" AND HELPWATCH SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. HELPWATCH SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE USER ACKNOWLEDGES THAT ANY AFFIRMATION OF FACT OR PROMISE MADE BY HELPWATCH OR ITS AGENTS, SERVANTS OR EMPLOYEES SHALL NOT BE DEEMED TO CREATE AN EXPRESS WARRANTY UNLESS INCLUDED IN THE AGREEMENT IN WRITING.
15. Limitations of Liability. IN NO EVENT SHALL HELPWATCH BE LIABLE TO USER FOR ANY DAMAGES WHATSOEVER UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LIABILITY FOR ANTICIPATED OR LOST PROFITS OR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR CONTINGENT DAMAGES OF ANY KIND, WHETHER ARISING IN CONTRACT, TORT, PRODUCT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH ANTICIPATED OR LOST PROFITS OR DAMAGES. IN NO EVENT SHALL HELPWATCH BE LIABLE TO USER FOR ANY DAMAGES OR OBLIGATIONS IN EXCESS OF THE AMOUNTS PAID TO HELPWATCH under this Agreement. THIS LIMITATION OF LIABILITY APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, INFRINGEMENT, MISREPRESENTATIONS, AND OTHER TORTS. EXCEPT AS PROVIDED HEREIN, HELPWATCH MAKES NO GUARANTEE, REPRESENTATION OR WARRANTY INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE.
16. Indemnification. User agrees to indemnify, defend and hold harmless HelpWatch from and against all claims, demands, liabilities, damages, losses, expenses, including attorney's fees and lawsuits which may be asserted against or incurred by HelpWatch by or due to any person not a Party to this Agreement, insurance or bonding company, for any expense, loss or damage including, but not limited to, statutory civil damages, personal injury, death and/or property damage, real or personal, arising out of the design, sale, lease, installation, repair, service, dispatch, maintenance, monitoring, recording or communications, operation or non-operation of the HelpWatch Services, whether due to the sole, joint or several negligence (including gross negligence) of HelpWatch or its agents, servants, employees, suppliers, or subcontractors, breach of contract, express or implied, breach of warranty, express or implied, product or strict liability, and/or any claim for contribution or indemnification, whether in contract, tort or equity.
17. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
18. Assignment. It is specifically agreed that the User shall not be permitted to assign this Agreement without the prior written consent of HelpWatch, and any such assignment without such prior approval shall be deemed a breach of this Agreement. HelpWatch shall have the right to assign this Agreement and upon such assignment, HelpWatch shall be relieved of any obligations created therein.
19. Dispute Resolution.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
User and HelpWatch expressly agree that any dispute arising out of or relating to this Agreement, the HelpWatch Services, the HelpWatch Device, or any other HelpWatch products or services (collectively, “Disputes”) will be governed by the arbitration procedure included below.
(a) Governing Law: This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice of conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania.
(b) Informal Dispute Resolution: User agrees to attempt to resolve any Dispute informally by contacting HelpWatch at [EMAIL] before proceeding to file a claim against HelpWatch. HelpWatch will contact you through email in an effort to resolve the Dispute informally. If a Dispute is not resolved within 15 days of submission, you or HelpWatch may bring a formal proceeding.
(c) Agreement to Arbitrate: Arbitration is a cost effective and time saving method of resolving disputes without involving the courts. In using arbitration, the disputes are heard and decided by a private individual called an arbitrator. The dispute will not be heard or decided by a judge or jury. Except as set forth in Section 19, User and HelpWatch agree to resolve any Disputes through final and binding arbitration.
(d) Opt-out of Agreement to Arbitrate: User may opt-out of this agreement to arbitrate by contacting HelpWatch at [EMAIL] within 30 days of accepting this Agreement. Your email must include your first and last name and expressly state that you decline this arbitration agreement.
(e) Arbitration Procedure: The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Section 19. (The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
(f) Arbitration Fees: The AAA rules will govern payment of all arbitration fees. HelpWatch will be responsible for paying User’s initial arbitration filing fees. Neither party will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that the claim is frivolous.
(g) Exceptions to the Agreement to Arbitrate: Either party may assert claims, if they qualify, in small claims court in Philadelphia, Pennsylvania, or any United States County where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the HelpWatch Service or HelpWatch Device, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
(h) No Class Action: You may only resolve Disputes with HelpWatch on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are prohibited under this Agreement.
(i) No Jury Trial: If this Agreement is found to be unenforceable and arbitration is not compelled, then as a default, the Parties agree that the disputes shall be resolved solely by a judge via a bench trial. Under no circumstances will a jury decide any dispute.
(j) Judicial Forum for Disputes. Except as otherwise required by applicable law, in the event that the agreement to arbitrate is found not to apply to you or your claim, you and HelpWatch agree that any judicial proceeding will be brought in the United States District Court for the Eastern District of Pennsylvania or the state courts within that District. Both you and HelpWatch consent to venue and personal jurisdiction there.
(k) Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the HelpWatch Device or HelpWatch Service must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
20. Right of Cancellation. THE USER MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE SEVENTH BUSINESS DAY AFTER THE DATE OF USER ACCEPTS THIS AGREEMENT.
21. Updates. HelpWatch may post updates and addendums to these Terms and Conditions on its websites (www.helpwatch.life/consumer-terms-of-service) and may also mail updated Terms and Conditions to the User address on file.
22. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
23. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
24. Invalid Provisions Severable. In the event that any of the terms or provisions of this Agreement shall be invalid or inoperative, all of the other terms thereof shall remain in full force and effect.
25. Full Agreement. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.