Monitoring Services Terms (Beacon Holder)

These Monitoring Services Terms (“Monitoring Service Terms”) apply to Monitoring Services provided by Silent Beacon, LLC (“SBL”) or its third party agents to you (“you” or “Beacon Holder”) on behalf of your employer or other third party who provided you the Beacon (“Company”).   

1. Use and Service.
   • Use of Service. By accessing or using the Monitoring Services provided through SBL by a third-party monitoring service (“Call Center”) in connection with your Silent Beacon (“Beacon”) and mobile application (“App”), you are accepting and agreeing to be bound by the terms and conditions set forth herein. SBL may modify the Monitoring Service Terms (including, without limitation, rates, fees, prices, charges or features) at any time, in its sole discretion. If you continue to use the Monitoring Services after the Monitoring Service Terms have been modified, you are agreeing to be bound by the modified Monitoring Service Terms. Because the Beacon and App continue to evolve, SBL may change or discontinue all or any part of the Monitoring Services, at any time and without notice, in its sole discretion.

1.2 Customer and Call Center.  You agree that SBL has satisfied the obligation to provide Monitoring Services by contracting with the Call Center to provide such Monitoring Services, and SBL shall not have any additional obligation to arrange for or provide Monitoring Services.

1.3 Definition of Services.  The Monitoring Services consist solely of a Call Center notifying the person(s), identified in advance by you in writing (the “Contact List”) and emergency response authorities (“First Responders”) upon the Call Center’s receipt of a phone call from you reporting conditions that require assistance (a “Response Condition”) within a reasonable period of time (i) under the circumstances at Call Center’s facilities, and (ii) the priority of the Response Condition as determined by the Call Center upon receipt of the information.  Call Center will use commercially reasonable efforts to determine the appropriate First Responder contact information, but SBL and Call Center are relieved of all liability related to failure to obtain, obtaining and using the First Responder contact information, even if Call Center or SBL is negligent in any such respect.  Customer understands, acknowledges and agrees that (i) following a Response Condition but before contacting any First Responders, Call Center may, in its sole and absolute discretion and without any liability, contact or attempt to contact you or your Contact List as frequency as Call Center deems appropriate to verify the need to notify First Responders of the Response Condition, and (ii) after receiving verbal advice from you, any person on the Call List, any person at or about the location, or any person who communicates with us through the system, to disregard the Response Condition, Call Center may, in each case, and in its sole and absolute discretion and without any liability, refrain from contacting First Responders or advise First Responders of the receipt of such advice to disregard the Response Condition.

1.4 No Service Situations. No Monitoring Services shall be rendered for (i) signals that have not been specified and defined in advance in writing by SBL, (ii) voice communication from you which, in the sole and absolute discretion of Call Center, does not clearly reveal the necessity for services, or (iii) voice communication from you or any person on your behalf, which does not request assistance.  You and/or the Company are solely liable for any activation or use of the system and any costs, expenses, losses, damages and liabilities arising out of or from or related to Monitoring Services and actions requested of Call Center in connection with this Agreement, even if you are not the one activating or using the system or making the request of Call Center, and even if the activation or use of the system or the request of Call Center is unauthorized by you or the Company.

1.5 Communications.  Call Center’s efforts to communicate with the Contact List or with First Responders shall be satisfied by (a) reporting of a Response Condition to any person on the Contact List or any First Responder, or (b) if efforts to communicate are unsuccessful, one attempt to contact (i) each person on the Contract List, and (ii) the applicable First Responder(s).  The Monitoring Services are only available in the United States.  The Services ARE NOT A SUBSTITUTE FOR 9-1-1, and in fact, if Call Center conferences in 9-1-1 emergency services on your behalf, there could be a delay in reaching 9-1-1 emergency services.

2. Compliance with Law and Limitations Due to Problems. The Monitoring Services (i) are subject to all applicable laws, rules, regulations, policies and tariffs (collectively “Laws”), and (ii) may be subject to transmission limitations, delays and other problems inherent in the use of any communication path including, without limitation, the failure, malfunction or interruption of any communication path due to human or natural causes including, without limitation, telephone, cellular, radio, global positioning system, location services, satellite and internet connectivity problems or provider problems, radio, satellite or cellular transmission interference caused by, among other reasons, atmospheric or topographical conditions, and force majeure events (collectively “Problems”).  Neither SBL nor Call Center is responsible for or liable for any delays, delivery failures, loss or damage resulting from Laws or Problems. In addition, the number or frequency of communications from the system (including from improper installation of equipment, system or software) or from you may be deemed to be excessive transmissions by Call Center in its sole and absolute discretion (“Excessive Communications”). Call Center’s determination of Excessive Communications may result in the suspension or deactivation of all or certain methods of communication with a call services facility, in each case, as determined in the sole and absolute discretion of Call Center and without any duty or liability of Call Center or SBL of any kind as a result of any such suspension or deactivation even if Call Center or SBL is negligent. 
3. Responsibility for Costs. You and/or the Company have the sole responsibility to maintain, and pay all costs related to, your cell phone connected to the Beacon. Company and/or you are responsible for all alarm permits and permit fees, agree to file for and maintain any permits required by applicable law and indemnify or reimburse SBL for any fines relating to permits or false alarms.  SBL and Call Center shall have no liability for permit fees, false alarms, false alarm fines, police or fire response, any damage to personal or real property or personal injury caused by policy or fire department response to an alarm, whether false alarm or otherwise, or the refusal of the police or fire department or other First Responder to respond.  In the event of termination of police or fire response by the municipal police or fire department, this contract shall nevertheless remain in full force and the Company shall remain liable for all payment provided for herein.  Should SBL be required by existing or hereinafter enacted law to perform any service or furnish any material not specifically covered by the Monitoring Service Terms, Company agrees to pay SBL for such service or material. Company and/or you shall pay, without any right to be reimbursed by Call Center or SBL, all fines, fees, costs, expenses and penalties assessed against Company, you, Call Center or SBL by any court or governmental agency for the failure to company with all laws applicable to Company and/or you or the system, including, but not limited to, related to the use of the First Responders.
4. Transfer, Third-party Beneficiary and Subcontract of Services. You authorize SBL to disclose and transfer to any third-party providing call center services any and all information provided by Company and/or you, including access to your account. The Call Center is a third-party beneficiary of these Monitoring Service Terms and has the right to enforce these Monitoring Service Terms against you.  You agree that SBL is authorized and permitted to subcontract any services to be provided by SBL to third parties who may be independent of SBL, and that SBL shall not be liable for any loss or damage sustained by Company and/or you by reason of fire, theft, burglary or any cause whatsoever caused by the negligence of third parties, except that SBL shall not obligate you and/or the Company to make any payments to such third parties. You appoint SBL to act as your agent with respect to such third parties, except that SBL shall not obligate you and/or the Company to make any payments to such third parties. 
5. Termination by SBL. SBL may terminate Monitoring Services without cause, in which case we will give your Company notice 30 days prior to the effective date of termination after which your Company’s and your accounts will be deactivated and Monitoring Services will terminate.  This means that we can decide to cease providing the Monitoring Services to you at any time and for any reason, even for reasons unrelated to your Company’s and your account with SBL.  Also, SBL may terminate your Monitoring Services without prior notice to Customer for any good cause.  This means, for example, SBL can terminate  Monitoring Services immediately if your Company or you breach any part of these Monitoring Service Terms or other agreements between your Company and SBL, your Company fails to pay amounts that are due to SBL, your Company interferes with SBL’s efforts to provide Monitoring Services, interferes with SBL’s business, or if your Company’s or your Monitoring Services or wireless phone number is used for illegal or improper purposes.  Neither your Company nor you have any right to have the Monitoring Service reactivated, even if your Company and you cure any of these problems.  Whether SBL allows your Company and you to have Monitoring Services again will be entirely up to SBL.  SBL can suspend your Company’s and/or your Monitoring Services for any reason.  SBL can also suspend Monitoring Services for network or system maintenance or improvement, of if there is network congestion, or if SBL suspects your Company’s and your Monitoring Services are being used for any illegal, improper or unauthorized purpose.   
6. Personal Use. You may only use the Monitoring Services for your own personal safety. Only you may use the Beacon to call the Call Center.
7. Consent for Call Center to Contents and Communications. You hereby consent to the Call Center recording, storing and using the contents of all signals and all communications, including but not limited to, the geolocation of your Beacon and mobile device, in the ordinary course of the Call Center’s business pursuant to these Monitoring Service Terms, including sharing that information with your Company, SBL and First Responders.

8. No Warranty; Disclaimers.
   • YOU ACCEPT THE MONITORING SERVICES “AS IS, WHERE-IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY OR SUITABILITY FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY DISCLAIMED. YOUR USE OF THE MONITORING SERVICES ARE AT YOUR SOLE RISK, AND YOU ASSUME ALL LIABILITY ARISING FROM YOUR USE OF THE MONITORING SERVICES.
   • YOU SHALL ONLY USE THE BEACONS IN DIRECT CONNECTION WITH THE MONITORING SYSTEM SET UP BY YOUR COMPANY (“SYSTEM”) AND FOR NO OTHER PURPOSE.
   • THE SYSTEM ONLY OPERATES WHEN BEACONS ARE IN OPERATING RANGE OF YOUR MOBILE PHONE AND WHERE YOUR MOBILE PHONE HAS NETWORK CONNECTIVITY, BLUETOOTH CONNECTIVITY AND CELLULAR ACCESS. IN ADDITION, THE SYSTEM AND BEACON CONNECTIVITY TO THE SERVICES MAY BE TEMPORARILY INTERRUPTED, REFUSED, OR LIMITED AT ANY TIME BECAUSE OF TRANSMISSIONS LIMITATIONS CAUSED BY THIRD PARTY NETWORK, CARRIER, ATMOSPHERIC AND TOPOGRAPHICAL FACTORS OUTSIDE OF SBL’S OR SERVICE PROVIDER’S CONTROL, OR EQUIPMENT MODIFICATIONS, UPGRADES, REPAIRS OR SIMILAR OTHER ACTIVITIES. INDIVIDUAL DATA TRANSMISSIONS MAY BE INVOLUNTARILY DELAYED FOR A VARIETY OF REASONS, INCLUDING THE ABOVE, WEAK BATTERIES, SYSTEM OVER-CAPACITY, AND YOUR MOVEMENT OUTSIDE OF THE CARRIER’S SERVICE AREA.
   • SBL MAKES NO REPRESENTATION OR WARRANTY AS TO THE PROMPTNESS OF SBL’S OR ITS AGENT’S RESPONSE, AND SBL HAS NO CONTROL OVER THE RESPONSE TIME OR CAPABILITY OF ANY AGENCY OR PERSON WHO MAY BE NOTIFIED AS A RESULT OF THE SYSTEM BEING USED. YOU FURTHER UNDERSTAND THAT SBL MAY IMPROPERLY PERFORM THE SERVICES, OR MAY FAIL TO PROPERLY RESPOND TO THE RECEIPT OF AN EMERGENCY SIGNAL FROM THE SYSTEM, OR THAT THE SYSTEM MAY FAIL TO FUNCTION PROPERLY AND THAT SBL SHALL NOT BE LIABLE.   
9. Limitation of Liability.

9.1       YOU ACKNOWLEDGE THAT (I) THE RISK OF LOSS OR BODILY HARM, INJURY OR DEATH, AND THE POTENTIAL LIABILITY FOR SUCH LOSSES, EXISTS BEFORE, AND IS INDEPENDENT OF, THE PROVISION OF THE SYSTEM AND SERVICES BY SBL TO YOU, (II) PERSONAL SAFETY AND MONITORING SYSTEMS DO NOT CREATE, NOR DO THEY INCREASE, THE RISK OR EXTENT OF SUCH LOSSES, (III) SBL DOES NOT AND CANNOT CONTROL THE SITUATIONS OR EVENTS THAT GIVE RISE TO THE OCCURRENCES (MEDICAL EMERGENCIES, FIRES, CRIMINAL ACTIVITY, ETC.) OR THE CONSEQUENCES THEREOF (PROPERTY LOSS, PERSONAL INJURY, ETC.) THAT THE SYSTEM IS INTENDED TO AVERT OR DETECT, AND (IV) BECAUSE OF THE UNIQUE NATURE OF THE SYSTEM, THE PARTIES HAVE AGREED THAT SBL’S LIABILITY SHOULD BE LIMITED IN ACCORDANCE WITH THE PROVISIONS OF THESE TERMS.

9.2          IN NO EVENT WILL SBL BE LIABLE TO YOU OR ANY THIRD PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES IN CONNECTION WITH THE MONITORING SERVICES TERMS, THE SYSTEM OR THE PERFORMANCE OR NONPERFORMANCE OF SERVICES, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SBL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL SBL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS FROM PERSONAL INJURY OR DEATH, LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR LOSS OF DATA, ARISING OUT OF YOUR USE OF, OR INABILITY TO USE, THE SYSTEM, OR THE PERFORMANCE OR NONPERFORMANCE OF SERVICES.

9.3          SBL’S MAXIMUM AGGREGATE LIABILITY TO YOU AND ANY THIRD-PARTY SHALL BE LIMITED TO TWO HUNDRED DOLLARS ($200.00).

9.4          You and SBL specifically understand that (i) SBL, in providing the System, may serve as a conduit for information and services provided by third parties and that SBL may rely on such information and services, (ii) the System communicates with the SBL monitoring facility over internet, (iii) these transmission systems are beyond the control of SBL and are maintained and serviced solely by the applicable network or telecommunications provider, (iv) the transmission systems may not always be reliable, and (v) any changes made to these transmission systems may disrupt communication from the System or between Beacons, without notice, SBL will have no way to know of such problem. YOU UNDERSTAND THAT SBL WILL NOT RECEIVE SIGNALS FROM THE SYSTEM IF YOUR COMPANY’S TRANSMISSION SYSTEM IS NOT SET UP, NOT WORKING PROPERLY, LOSSES POWER OR CONNECTIVITY OR IF CHANGES IN THE TRANSMISSION SYSTEM PREVENT COMMUNICATION WITH SBL. YOUR COMPANY IS RESPONSIBLE FOR TESTING THE SYSTEM ON A WEEKLY BASIS, AS WELL AS IMMEDIATELY FOLLOWING ANY CHANGE TO THE TRANSMISSION SYSTEM. You will immediately notify your Company of any problems with the System or loss of connectivity.  SBL assumes no responsibility or liability for the accuracy, completeness, propriety, or legality of information which may be provided, directly or indirectly, by or on behalf of you or any third party, or of the Monitoring Services to which such information may relate. 

10. Term and Termination. The Monitoring Services shall begin on the day you accept these terms and conditions on your Beacon and will continue until the day that your right to use the System has been terminated by either your Company or SBL or the day you receive notice by your Company that these Monitoring Services have been terminated.
11. Dispute Resolution, Mediation, Arbitration, Court of Jurisdiction.

11.1     Good Faith Attempt to Resolve.  The Parties hereby agree that they will attempt in good faith to resolve any controversy or claim arising out of or relating to these Monitoring Services Terms. Any final decision mutually agreed to in writing by such officers shall be conclusive and binding on the Parties. If we are unable to resolve the matter through negotiations within fourteen (14) days after such matter was first referred to them, either Party may submit the dispute to mediation in accordance with Section 11.2.

11.2      Mediation.  If the Parties hereto are unable to satisfactorily resolve any dispute, each Party hereby agrees to submit to mediation under the American Arbitration Association (“AAA”) mediation rules then in effect.  Such mediation shall be conducted by a single mediator in Rockville, Maryland and if the dispute remains unresolved after such mediation, then either Party may submit the dispute to arbitration in accordance with Section 11.3.  The cost of the mediation shall be equally shared by the Parties.

11.3      Arbitration.  If the Parties hereto are unable to satisfactorily resolve a dispute, then any Party may submit the dispute to binding arbitration before a single arbitrator selected in accordance with the rules of the AAA utilizing the AAA’s expedited procedures and applying Maryland law.  The arbitration proceeding shall be conducted in Rockville, Maryland.  Each Party shall submit its own written submission recommending in support of the position advanced by it, such reports to be submitted no later than twenty (20) days after the arbitrator has been retained.  The Parties shall provide the arbitrator with such additional information as the arbitrator may request in his/her discretion.  No later than sixty (60) days after the arbitrator is retained, he/she shall render his/her decision in a written report which shall be final, binding and enforceable in a court of law having adequate jurisdiction and shall not be subject to legal challenge.  The cost of arbitration shall be borne in such proportion as the arbitrator shall decide.  The arbitrator may award legal fees and costs to the prevailing party if and when appropriate.  

12. Right to Seek Injunctive Relief. Notwithstanding the above provisions of Section 11, either Party may seek injunctive relief in any court of competent jurisdiction at any time in relation to any dispute under or in connection with the Agreement.
13. One Year Statute of Limitation. 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 Beacon, App and/or Monitoring Services 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.
14. Suspension of Services. The Call Center’s and SBL’s obligations hereunder are suspended automatically without notice to you and Call Center, SBL and their representatives are released for and from all expense, loss or damage to you in the event (i) the Call Center or SBL, any facilities necessary to operate the Call Center or SBL, or any equipment, network or technology used to transmit data or voice to or from the Call Center or SBL, is destroyed, damaged, malfunctions or is inoperable for any reason whatsoever, or (ii) due to unforeseen circumstances or to causes beyond SBL’s reasonable control; including, but not limited to acts of God, national health emergencies, epidemics or pandemics, government actions, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, failure to obtain export licenses or shortages or failures of communications, internet, transportation, facilities, fuel, energy, labor or materials.  In the event of any such delay, SBL shall have no obligation to provide substitute services during the period equal to the time of such delay.
15. Miscellaneous.
    • Assignment. These Monitoring Services Terms may not be assigned or transferred by you without the prior written consent of SBL and your Company.  The provisions hereof shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. 

15.2.     Waiver.  The waiver by either party of any default by the other shall not waive subsequent defaults of the same or different kind.

15.3.     Applicable Law.  These Monitoring System Terms shall be governed and construed and interpreted in accordance with the laws of the State of Maryland, without reference to principles of conflict of laws.

15.4.        Notices.  All legal notices and demands by you shall be in writing and shall be deemed effective either: (a) on the date personally delivered to the address indicated herein, as evidenced by written receipt therefor, whether or not actually received by the person to whom addressed; (b) five (5) days following deposit in the United States mail if by certified or registered mail, return receipt requested, addressed to the intended recipient at the address indicated herein; or (c) one (1) business day following the day deposited into the custody of a nationally recognized overnight delivery service such as Fed Ex for overnight next day delivery, addressed as set forth below:

Silent Beacon, LLC

9200 Corporate Blvd., Suite 250

Rockville, MD 20850

Attention:  Legal Department

   15.5  Enforcement Costs.  If any legal action or other proceeding is brought by SBL in connection with any provision of these Monitoring Service Terms, SBL shall be entitled to recover from you reasonable attorneys’ fees, costs and expenses, sales and use taxes, incurred in that action or proceeding.

• Severability. In the event that any provision of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible, and the remaining portions of this Agreement shall remain in full force and effect. 

15.7   Entire Agreement.  These Terms of Service constitute the complete and exclusive agreement between you and SBL pertaining to the subject matter hereof and supersede all written or oral agreements previously existing between the parties.

• Headings and Captions. The headings and captions of these Monitoring System Terms have been inserted for identification and reference purposes only and shall not be used to construe or interpret these terms.
• Waiver of Jury Trial. THE PARTIES HERETO MUTUALLY AND WILLINGLY WAIVE THE RIGHT TO A TRIAL BY JURY OF ANY AND ALL CLAIMS MADE BETWEEN THEM WHETHER NOW EXISTING OR ARISING IN THE FUTURE, WHETHER ARISING FROM OR RELATED TO THE NEGOTIATION, EXECUTION AND PERFORMANCE OF THE TRANSACTIONS TO WHICH THIS DOCUMENT RELATES.