ElderCheck Now™ Terms of Service

FallCall Solutions, LLC

Terms of Service

Valid as of 02/01/2016

 

Welcome to the ElderCheck Now® user-to-user communication application (“ElderCheck Now”), which sends messages between two devices that includes heart rate data and the GPS location from one device to the other.

 

1. Introduction

 

1.1 Please read the following Terms of Service carefully.

 

1.2 In these Terms of Service:

 

  1. "we", "our" and "us" means Fall Call Solutions, LLC, a limited liability company formed in the State of Connecticut, U.S.A. Our mailing address is 929 White Plains Road, #403, Trumbull, CT 06611.
  2. "you" and "your" means a user of ElderCheck Now, which includes both one (1) or multiple Caregivers for one (1) Elder, or one(1) or multiple Elders for one (1) Caregiver, as used with the iPhone(s) or Apple Watch(es)1 and supported by the website at http://www.fallcall.com, and its subdomains and online interfaces (the "Website").
  3. ElderCheck Now enables a Caregiver to ask his or her associated Elder via a Push Notification Service the question, “Are you ok?” and enables the Elder to reply “yes” or “no” (I’m ok / Call me), with the Caregiver being able to store the last 100 of these responses for later reference.
  4. “User Content” means any content, including messages and responses, submitted by you to ElderCheck Now or generated through your use of ElderCheck Now.
  5. “information” means personal data about you, including health information obtained through User Content, other than “Protected Health Information” as this term is defined under the HIPAA Privacy Rule and HIPAA Security Rule. See Definitions section of our Privacy Policy for further reference.

 

1.3 These Terms of Service set out the terms and conditions on which we agree to make available and you agree to access and use ElderCheck Now.

 

2. Acceptance of the Terms of Service

 

2.1 By using ElderCheck Now, you acknowledge and agree to be legally bound by these Terms of Service and also by our Privacy Policy located at http://www.fallcall.com/Docs/ElderCheckNowHIPAACompliantPrivacyPolicy/tabid/1209/Default.aspx. By using ElderCheck Now, you are consenting to the processing of information in accordance with our Privacy Policy

 

​2.2  You expressly acknowledge and agree that:

 

  1. You grant us permission to use User Content submitted or obtained through your use of ElderCheck Now, subject to our Privacy Policy and the limitations set forth below;
  2. The application may collect and process information about you, whether obtained through ElderCheck Now or a third party, including without limitation information about your personal habits, past and present physical location, personal contacts, and identifying information about you;
  3. We have the right to manage ElderCheck Now to protect our rights and property and those of others and to facilitate the proper functioning of ElderCheck Now, including use by us or third parties of User Content to administer, maintain, update, improve, test, access, and use ElderCheck Now, and disabling your account;
  4. You will not use ElderCheck Now for any purpose where an accurate verification of identity has life-threatening, financial or other critical consequences;
  5. We may discontinue or change ElderCheck Now at our discretion without liability. If we discontinue or change ElderCheck Now, we will announce it through our Website or usual channels for such announcements such as blog posts and forums;
  6. We do not grant you any intellectual property rights in ElderCheck Now that are not specifically stated in these Terms of Service. For example, these Terms of Service do not provide the right to use any of our copyrights, trade names, trademarks, service marks, logos, domain names, or other distinctive brand features;
  7. You grant us permission to transmit User Content as may be necessary to effect any business transition of us, whether of corporate status, management or otherwise;
  8. We reserve the right to use the User Content to comply with any applicable law or governmental request;
  9. YOU SHOULD CONSULT WITH A PHYSICIAN PRIOR TO USING THIS APPLICATION IF YOU, EITHER AS THE ELDER OR THE CAREGIVER, HAVE ANY HEALTH-RELATED QUESTIONS REGARDING THE USE OF THE APPLICATION TO ENSURE THAT SUCH USE DOES NOT CONSTITUTE A DANGER TO YOUR HEALTH; and
  10. YOUR USE OF THE APPLICATION IS ENTIRELY AT YOUR OWN RISK AND WE HAVE NO LIABILITY FOR PERSONAL INJURY OR BODILY HARM THAT MAY RESULT FROM YOUR USE OF THE APPLICATION.

 

2.3 If you do not agree with these Terms of Service and our Privacy Policy, you should not use ElderCheck Now. Please save and/or print a copy of these Terms of Service and our Privacy Policy for your future reference.

 

3. Updates to Terms of Service

 

3.1 We may update these Terms of Service from time to time, for example to address a new feature of ElderCheck Now or to clarify a provision. If we do, we will publish the changes on the Website. It is your responsibility to check the Website periodically for changes to these Terms of Service. The date at the top of this page indicates when these Terms of Service were last updated. Your continued use of ElderCheck Now after the effective date of such changes constitutes your acceptance of such changes. To make your review more convenient, we will post an effective date at the top of this page. These terms may not be modified or cancelled without our written agreement. If you do not agree with the amended Terms of Service, you must not continue to use ElderCheck Now after the date on which the amendments take effect.

 

4. Your obligations

 

4.1 You agree not to:

 

  1. Use or access ElderCheck Now for any fraudulent or unlawful purpose;
  2. Use or access ElderCheck Now to impersonate any person or entity;
  3. Interfere with or disrupt the operation of ElderCheck Now or access to it;
  4. Transmit or otherwise make available in connection with ElderCheck Now or access to it any virus, worm, Trojan horse, time bomb, spyware, or other harmful computer code, file, or program;
  5. Restrict or inhibit the ability of any other person to access or use ElderCheck Now;
  6. Modify, adapt or translate any portion of ElderCheck Now; or
  7. Remove, obscure or modify any copyright, trade mark, or other proprietary rights notice from ElderCheck Now.

 

5. Limitations to our use of content

 

5.1 Subject to the terms of our Privacy Policy, we agree not to:

 

  1. Use information gained through your use of ElderCheck Now for advertising or similar services.
  2. Disclose any information gained through your use of ElderCheck Now to a third party without express permission from you, and even with permission, will only share information to a third party if they are also providing a health or fitness service to you.
  3. Sell information gained through your use of ElderCheck Now to advertising platforms, data brokers or information resellers.
  4. Share with any third party for medical research any information gained through your use of ElderCheck Now, without your consent.

 

6. Legal disclaimer

 

6.1 EXCEPT AS REQUIRED BY LAW, NEITHER WE NOR OUR OFFICERS, DIRECTORS, EMPLOYEES, OR REPRESENTATIVES WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THESE TERMS OF SERVICE OR THE USE OF OR INABILITY TO USE THE APPLICATION, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, AND IPHONE, APPLE WATCH, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH SUCH CLAIM IS BASED. The collective liability of we, our officers, directors, employees and representatives under this Agreement will not exceed the purchase price paid for ElderCheck Now, not to exceed US$25.00. Some jurisdictions do not allow the exclusion or limitation of incidental, consequential, or special damages, so this exclusion and limitation may not apply to you.

 

6.2 This Application is provided “as is” with all faults. To the extent permitted by law, we, for our officers, directors, employees, and representatives, hereby disclaim all warranties, whether express or implied, including without limitation warranties that ElderCheck Now is free of defects, merchantable, fit for a particular purpose, and non-infringing. You bear the entire risk as to selecting ElderCheck Now for your purposes and as to the quality and performance of ElderCheck Now, including without limitation the risk that your user data is deleted or corrupted or that someone else uses your username and password to access confirmations of your identity. This limitation will apply notwithstanding the failure of essential purpose of any remedy. Some jurisdictions do not allow the exclusion or limitation of implied warranties, so this disclaimer may not apply to you.

 

6.3 You also acknowledge and agree that the operation of ElderCheck Now is dependent upon the proper and effective functioning of User Content stored in the cloud via APNS Push Notification Service, and other third party equipment and services, and that we do not guarantee and will not be liable for these in any way.

 

7. Intellectual Property Rights

 

The intellectual property rights in ElderCheck Now and copyright in all material stored, displayed and accessible on ElderCheck Now is either owned by us or duly licensed by third parties. All such rights are reserved.

 

8. Governing Law

 

8.1 You agree that:

 

  1. These Terms of Service will be construed and enforced in accordance with the laws of the State of Connecticut including its conflicts of law provisions.
  2. Any and all disputes that may arise between the you and us shall be submitted (together with any counterclaims and disputes under or in connection with other agreements between the you and us) to final and binding arbitration heard by a single arbitrator in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (the “AAA”), except as such rules may be modified by the following terms:
  1. All matters within the scope of the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) shall be governed by this Act.
  2. The arbitrator shall have ten (10) or more years of legal experience and knowledge of or experience in the telecommunications, computer or consumer electronics industries.
  3. The arbitration shall be conducted in Hartford, Connecticut in the English language.
  4. The arbitrator shall allow such discovery of relevant information as is appropriate to accomplish the fair, speedy and cost-efficient resolution of the dispute within a maximum of 120 days after the AAA's appointment of the arbitrator.
  5. The award shall include a written statement of findings of fact and conclusions of law and the reasons on which it is based. It also shall include an award of legal fees, costs and expenses, including reasonable attorneys' fees and the arbitrator's fees and expenses, to the prevailing party.
  6. Subject to any terms contained in these Terms of Service limiting or excluding damages, the arbitrator may award any relief that the arbitrator deems proper, including but not limited to equitable relief, provided that no award of exemplary, special, consequential or punitive damages shall be permitted.
  7. The award shall be final and binding and enforceable in any court of competent jurisdiction.

 

You agree that the terms of this section shall continue in full force and effect even though these Terms of Service have terminated or are no longer in effect.

 

9. Assignment

 

These Terms of Service and any rights granted hereunder may not be assigned or otherwise transferred by either you or us (by operation of law or otherwise) without prior written consent of the other; provided however, that we may assign these Terms of Service in connection with the merger, change of control or sale of all or substantially all of our assets. Any assignment in violation of this Section shall be null and void.

 

10. Miscellaneous

 

These Terms of Service constitute the entire agreement between you and us concerning your use of ElderCheck Now and supersede any prior agreements between you and us with respect to your use of ElderCheck Now. If any portion of these Terms of Service is held to be invalid or unenforceable, the remaining portions will remain in full force and effect. Our failure to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision in that or any other instances.

2016©FallCall Solutions, LLC

1 iPhone and Apple Watch are registered trademarks of Apple Inc.

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