Mobile Defender User Guide
Page 16
amount permitted by applicable law.
You agree that Evolution Wireless may contact you to collect unpaid past due
charges using any mailing address, telephone number, wireless number, or any
e-mail address, that you have provided, or may in the future provide, to
Evolution Wireless. You agree that in addition to individual persons attempting
to communicate directly with you, any type of contact described above may be
made using pre-recorded or artificial voice messages delivered by an automatic
telephone dialing system, pre-set e-mail messages delivered by an automatic e-
mailing system, or any other pre-set electronic messages delivered by any other
automatic electronic messaging system.
We do not waive our rights to collect the full balance owed to us by accepting
partial payment. We will apply the partial payment to the outstanding charges
in the amounts that we deem appropriate.
Billing Disputes
If you have any charges to dispute, you must call customer service within 60
days of the date of the bill or you’ll have waived your right to dispute the bill
and to participate in any legal action raising such dispute.
Limited Liability:
IT WILL BE EXTREMELY DIFFICULT TO DETERMINE THE ACTUAL DAMAGES
THAT MAY RESULT FROM OUR FAILURE TO PERFORM OUR DUTIES UNDER
THIS AGREEMENT. IF YOU INCUR ANY LOSS, DAMAGE, INJURY OR OTHER
CONSEQUENCE ARISING DIRECTLY OR INDIRECTLY FROM ANY OF THE
SERVICES OR FROM THE DEVICE PROVIDED YOU UNDER THIS AGREEMENT,
OR IF IT IS DETERMINED THAT WE OR ANY OF OUR AGENTS, EMPLOYEES,
SUBSIDIARIES, AFFILIATES ARE DIRECTLY OR INDIRECTLY RESPONSIBLE FOR
ANY SUCH LOSS, DAMAGE, INJURY OR OTHER CONSEQUENCE, YOU AGREE
THAT DAMAGES SHALL BE LIMITED TO THE TOTAL MONTHLY SERVICE
CHARGES THAT YOU HAVE PAID TO US UNDER THIS AGREEMENT. THESE
AGREED UPON DAMAGES ARE NOT A PENALTY; RATHER, THEY ARE YOUR
SOLE REMEDY FOR ANY LOSS, DAMAGE, INJURY OR OTHER CONSEQUENCE,
EVEN IF CAUSED BY OUR NEGLIGENCE, FAILURE TO PERFORM DUTIES UNDER
THIS CONTRACT, STRICT LIABILITY, FAILURE TO COMPLY WITH ANY
APPLICABLE LAW, OR OTHER FAULT.
WE DO NOT GUARANTEE YOU UNINTERRUPTED SERVICE OR COVERAGE. WE
CANNOT ASSURE YOU THAT, IF A CALL IS PLACED, THAT RESPONDERS WILL
BE SUMMONED OR THAT YOU WILL BE FOUND. EVOLUTION WIRELESS
MAKES NO WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, ACCURACY, SECURITY,
OR PERFORMANCE REGARDING ANY PRODUCTS, AND IN NO EVENT SHALL
EVOLUTION WIRELESS BE LIABLE, WHETHER OR NOT DUE TO ITS OWN
NEGLIGENCE, for any:
(a) act or omission of a third party, whether a Third Party Service Provider or
other third party;
(b) mistakes, omissions, interruptions, errors, failures to transmit, delays, or
defects in the Services provided by or through us;
(c) damage or injury caused by the use of the Products;
(d) claims against you by third parties, whether a Third Party Service Provider
or other third party;
(e) damage or injury caused by a suspension or termination of the Products by
Evolution Wireless; or
(f) damage or injury caused by failure or delay in contacting any emergency
service or Caregiver and/or Contacts or sending text or email notifications to
same.
Unless prohibited by law, Evolution Wireless is not liable for any indirect,
special, punitive, incidental or consequential losses or damages that you or any
third party may suffer by use of, or inability to use the Products provided by or
through Evolution Wireless, including loss of business or goodwill, revenue or
profits, or claims of personal injuries or death.
For added clarity, Evolution
Wireless is not responsible for any losses, financial or otherwise, of any
Commercial Clients using the Products for their own business and
customer needs.
To the full extent allowed by law, you hereby release, indemnify, and hold
Evolution Wireless and its officers, directors, employees and agents harmless
from and against any and all claims of any person or entity for damages of any
nature arising in any way from or relating to, directly or indirectly, service
provided by Evolution Wireless or any person’s use thereof (including, but not
limited to, personal injury), INCLUDING CLAIMS ARISING IN WHOLE OR IN
PART FROM THE ALLEGED NEGLIGENCE OF Evolution Wireless, or any
violation by you of this Agreement. This obligation shall survive termination of
your use of the Products with Evolution Wireless. Evolution Wireless is not
liable to you for changes in operation, equipment, or technology that cause your
Products to be rendered obsolete or require modification.
Evolution Wireless is not responsible for damages, and disclaims any
warranties, express or implied, including but not limited to claims relating to
GPS, water resistance, battery, coverage of wireless service, or issues related to
emergency services dispatch, or any alerts sent via texts or emails to your
caregiver or other contacts. In particular, Evolution Wireless does not
manufacture the Device provided to you and thus provides no warranties,
whether express or implied, regarding your Device.
Limited Product Warranty:
For the purchasers and users of Caretrak Mobile Defender, the limited product
warranty is as follows:
Evolution Wireless Inc. warrants the Device against defects in materials and
workmanship for a period of ONE (1) YEAR from the customer activation date
applicable to such Device. If a defect exists, Evolution Wireless may exchange the
Device with a new replacement product or a product which has been
manufactured from new or serviceable used parts and is at least functionally
equivalent to the original Device. The warranty is rendered null and void with
respect to any Device that has been modified in any way, has been used in a way
contrary to the instructions provided or if customer is in breach of the customer
end user agreement. Within the limited warranty period, Evolution Wireless will,
at its sole option, repair or replace any such returned Devices or components
therein that fail in normal use. Such repairs or replacement will be made at no
charge to customer for parts and/or labor. The warranty does not apply to, (i)
cosmetic damage, arising out of ordinary use, such as scratches, nicks and dents;
(ii) consumable parts, such as batteries, unless (a) Device damage has occurred
due to a defect in materials or workmanship, or, (b) battery failure; (iii) damage
caused by accident, abuse, misuse, water, flood, fire, or other acts of nature or
external causes; (iv) damage caused by service performed by anyone who is not
authorized by Evolution Wireless, Inc.; or (v) damage to a product that has been
modified or altered in any way. Evolution Wireless, Inc., reserves the right to
refuse warranty claims against its Devices that are obtained and/or used in
contravention of the laws of any country.
Indemnification:
IF ANYONE OTHER THAN YOU (INCLUDING ANYONE WHO MAY USE THE
PRODUCTS), ASKS EVOLUTION WIRELESS OUR EVOLUTION WIRELESS’
AGENTS, EMPLOYEES, SUBSIDIARIES, OR AFFILIATES TO PAY FOR ANY HARM
OR DAMAGES (INCLUDING PROPERTY DAMAGE, PERSONAL INJURY OR
DEATH, OR INVASION OF PRIVACY OR ANY SIMILAR TORT) CONNECTED WITH
OR RESULTING FROM (i) A BREACH OF THIS AGREEMENT OR A FAILURE OF
THE PRODUCTS, (ii) EVOLUTION WIRELESS’ NEGLIGENCE, (iii) ANY OTHER
IMPROPER OR CARELESS ACTIVITY OF EVOLUTION WIRELESS IN PROVIDING
THE PRODUCTS, OR (iv) A CLAIM FOR INDEMNIFICATION OR CONTRIBUTION,
YOU WILL PAY US (A) ANY AMOUNT WHICH A COURT ORDERS US TO PAY OR
WHICH WE REASONABLY AGREE TO PAY, AND (B) THE AMOUNT OF OUR
REASONABLE LEGAL FEES AND ANY OTHER LOSSES OR COSTS THAT WE MAY
PAY IN CONNECTION WITH THE HARM OR DAMAGES EVEN AFTER THE
TERMINATION OF THIS AGREEMENT.
AS NOTED ABOVE, YOU ALSO AGREE TO INDEMNIFY EVOLUTION WIRELESS
