This AED SENTINEL MONITORING SERVICES AGREEMENT (this “Agreement”) is between the Person (as defined below) accessing and using AED Sentinel products and services (as defined below) (the “User”) and Readiness Systems, LLC (“Company”). By accessing and using AED Sentinel products and services, the User agrees with the Company as follows:
1. Definitions. Capitalized terms not otherwise defined in the body of this Agreement have the meanings given to them in this Section 1.
1.1 “AED” means automated external defibrillator.
1.2 “AED Accessory” means an AED’s battery(ies) and/or pads.
1.3 “AED Accessory Status” means the current state of an AED’s battery(ies) or pads as signified by expiration date. AED Accessory Status states may include AED battery ready for use, AED battery replacement required, AED pads ready for use or AED pads replacement required.
1.4 “AED Cabinet” means a cabinet used to store an AED.
1.5 “AED Cabinet Door Status” means the current state of an AED Cabinet door. AED Cabinet Door Status states may include AED cabinet door closed or AED cabinet door opened.
1.6 “AED Sentinel®” means, collectively, the AED Sentinel Remote Monitoring Hardware, the AED Sentinel Monitoring Services, AED Sentinel Manager, and such other related products and services as may be developed and offered by the Company during the Term.
1.7 “AED Sentinel Manager™” means the Company’s web-based information hub that enables a Subscriber, or a Distributor on behalf of a Subscriber, to manage account and user information, set Asset Status Notification preferences, view a dashboard and details of Asset Status information, generate Asset Status and other reports and access other related features and services.
1.8 “AED Sentinel Monitoring Services” or “Services” means access and use of the Company’s AED Sentinel Remote Monitoring Hardware, servers, databases, software and systems to monitor Asset Status, transmit Asset Status Notifications, enable Subscriber – or a Distributor on behalf of a Subscriber – access to AED Sentinel Manager, transmit Asset Status data to third-party databases as requested and authorized and provide such other related services as may be developed by the Company during the term of this Agreement.
1.9 “AED Sentinel Remote Monitoring Hardware” means the Company’s monitoring hardware that is installed in an AED Cabinet in proximity to an AED.
1.10 “AED Sentinel Remote Monitoring Hardware Status” means the current state of AED Sentinel Remote Monitoring Hardware. AED Sentinel Remote Monitoring Hardware Status states may include actively monitoring, battery replacement required, or service required.
1.11 “AED Status” means the current state of an AED’s electronics, battery(ies) and/or pads as signified by the AED’s Visual Status Indicator or AED Accessory Status. AED Status states may include AED ready for use or AED service required.
1.12 “Asset Status” means, as applicable in the context in which it is used, AED Status, AED Cabinet Door Status, AED Accessory Status and AED Sentinel Remote Monitoring Hardware Status.
1.13 “Asset Status Notification” means Asset Status state information communicated to a Subscriber, or a Distributor on behalf of a Subscriber, via email, text messaging or other similar method.
1.14 “Distributor” means a Person authorized by the Company to sell AED Sentinel to a Subscriber.
1.15 “Person” means any individual or any general partnership, limited partnership, limited liability company, corporation, joint venture, trust, business trust, cooperative or association, government entity, or any other legally recognized organization type.
1.16 “Service Order” means the invoice, order acknowledgment, purchase order, or other document describing the AED Sentinel subscription purchased by a Subscriber, or by a Distributor on behalf of a Subscriber, from the Company or a Distributor that includes the number of AEDs covered in the subscription (“Subscription AEDs”), the length of the subscription term (“Subscription Term”) and the subscription fee (“Subscription Fee”). The Service Order is hereby incorporated into this Agreement by reference.
1.17 “Subscriber” means the Person who has purchased, either directly from the Company or through a Distributor, and who is the ultimate beneficiary of, the Services.
1.18 “Visual Status Indicator” means a component on an AED that visually communicates the status of the AED’s electronics, battery(ies) and/or pads using one or more light-emitting diode (LED) or liquid crystal display (LCD) lights or icons.
2. Services. Subject to the terms of this Agreement, the Company agrees to provide AED Sentinel Monitoring Services to or for the benefit of Subscriber for the Subscription AEDs during the Subscription Term for the Subscription Fee.
3. Distributor Representations and Warranties. If the User is a Distributor managing one or more Subscription AEDs on behalf of a Subscriber through the Services, then that User (a) represents and warrants to the Company that it has been authorized in writing by the Subscriber to access and use the Services for and on behalf of the Subscriber to manage one or more of the Subscriber’s Subscription AEDs, (b) agrees to be bound by this Agreement as fully as if it was a “Subscriber” under this Agreement and to perform, or to cause the Subscriber to perform, all obligations of Subscriber under this Agreement, and (c) makes the acknowledgments of the Subscriber set forth in this Agreement for and on behalf of the Subscriber for whom the Distributor is accessing and using the Services with respect to one or more Subscription AEDs.
4. Payment for Services. The Company’s obligation to provide the Services is conditioned upon receipt of the Subscription Fee from Subscriber or the Distributor from whom Subscriber purchased the Services.
5. Transfer of Services. Subscriber may not transfer the Services or this Agreement to a third-party.
6. Subscriber Obligations. Subscriber agrees to do the following during the term of this Agreement:
6.1 Properly install, activate and maintain AED Sentinel Remote Monitoring Hardware in proximity to each Subscribed AED in accordance with the Company’s instructions.
6.2 Properly set up and manage account information, user information, and Asset Status Notification preferences in AED Sentinel Manager in accordance with the Company’s instructions.
6.3 Promptly and properly respond to Asset Status Notifications communicated to Subscriber by the Company.
6.4 With the aid of AED Sentinel Monitoring Services, properly inspect and maintain Subscription AEDs in reasonable accordance with industry standards, AED laws, and manufacturer guidelines.
7. AED Inspection Compliance Certification. So long as Subscriber meets the obligations set forth in Section 6, the Company certifies that Subscriber is in reasonable compliance with industry standards, AED laws and manufacturer guidelines relating to AED inspections.
8. Cellular Network Limitations. AED Sentinel utilizes AT&T’s cellular network and is subject to the following limitations described by the carrier: Subscriber acknowledges that service is made available only within the operating range of the networks. The Services may be temporarily refused, interrupted, or limited because of: (a) facilities limitations; (b) transmission limitations caused by atmospheric, terrain, other natural or artificial conditions adversely affecting transmission, weak batteries, system overcapacity, movement outside a service area, or gaps in coverage in a service area and other causes reasonably outside of AT&T’s control such as, but not limited to, intentional or negligent acts of third parties that damage or impair the network or disrupt service; or (c) equipment modifications, upgrades, relocations, repairs, and other similar activities necessary for the proper or improved operation of service.
9. Limited Warranty and Disclaimers.
9.1 Limited Warranty. The Company represents and warrants to Subscriber that (a) the Company shall perform the Services in a professional and workmanlike manner and in accordance with generally accepted industry practices, and (b) during the Subscription Term, the AED Sentinel Remote Monitoring Hardware will be free from defects in materials or workmanship – AED Sentinel Remote Monitoring Hardware containing defects in materials or workmanship will be repaired or replaced (at the Company’s complete discretion) at no cost to Subscriber.
9.2 DISCLAIMER OF WARRANTIES.EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES. THE SERVICES ARE PROVIDED "AS-IS, WHERE-IS" AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY IMPLIED INDEMNITIES. THE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE QUALITY, SUITABILITY OR ADEQUACY OF THE SERVICES FOR ANY PURPOSE OR USE.
9.3 LIMITATIONS OF LIABILITY. BY ACCESSING OR USING THE SERVICES, SUBSCRIBER AGREES THAT UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF THE COMPANY OR ITS RESPECTIVE EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, DISTRIBUTORS, SUCCESSORS, OR ASSIGNS FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT, INCLUDING GROSS NEGLIGENCE, OR OTHERWISE, EXCEED DIRECT DAMAGES EQUAL TO THE SUM TOTAL OF SUBSCRIPTION FEE AMOUNTS PAID OR PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE SUBSCRIPTION TERM IN EFFECT AT THE TIME OF THE EVENT FOR WHICH DAMAGES ARE CLAIMED. IN NO EVENT SHALL THE COMPANY BE LIABLE TO OR ON BEHALF OF SUBSCRIBER OR TO ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY DISTRIBUTOR ACCESSING OR USING THE SERVICES FOR OR ON BEHALF OF SUBSCRIBER) FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR COSTS OF PROCURING SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Relationship of the Parties
11. Term and Termination.
11.1 Term and Renewal. The term of this Agreement (“Term”) begins on the Effective Date and continues for the Subscription Term. Prior to the expiration of the then-current Subscription Term, Subscriber may purchase a Subscription Term renewal from the Company or a Distributor to extend the Term.
11.2 Automatic Termination. This Agreement and the Services will automatically terminate upon expiration of the then-current Subscription Term if Subscriber does not purchase a Subscription Term renewal.
11.3 Termination by Subscriber. Subscriber may not cancel this Agreement or the Services prior to the expiration of the then-current subscription term. Notwithstanding the foregoing, Subscriber may terminate this Agreement for cause if the Company ceases to provide the Services, breaches a material term of this Agreement and fails to cure within 30 days of receiving a notice of breach, or becomes insolvent.
11.4 Termination by the Company. The Company may terminate this Agreement by giving notice to Subscriber at least 30 days prior to the expiration of a then-current Subscription Term or at any time during the Subscription Term for any of the following reasons:
11.4.1 Subscriber becomes involved in any voluntary or involuntary bankruptcy or other insolvency proceeding, or ceases to be actively engaged in business or becomes financially incapable of fulfilling its obligations under this Agreement;
11.4.2 Subscriber fails to pay the Subscription Fee in accordance with the Service Order terms; or
11.4.3 Subscriber fails to abide by the terms and conditions set forth in this Agreement.
12.1 General. Each party will indemnify, defend, and hold harmless the other party from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses, arising from any negligent, reckless or intentionally wrongful act of such party, or such party’s breach of this Agreement.
12.2 Conditions to Indemnification. The obligations set forth in this Section 12 shall apply only if (a) the party to be indemnified notifies the indemnifying party in writing of a claim promptly upon learning of or receiving the same; (b) the indemnified party provides the indemnifying party with reasonable assistance requested by the indemnifying party, at the indemnifying party’s expense, for the defense and settlement, if applicable, of any claim; (c) the indemnified party provides the indemnifying party with the exclusive right to control the defense and the authority to settle any claim, provided, however, that the indemnified party shall have the right to participate in the matter at its own expense; and (d) the indemnified party does not admit fault or liability of indemnifying party or of itself.
13.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon, without giving effect to its conflicts of law rules.
13.2 Arbitration Required. Any dispute or claim that arises out of or that relates to this
Agreement, or to the interpretation or breach thereof, shall be resolved by arbitration in accordance with the then effective arbitration rules of (and by filing a claim with) Arbitration Service of Portland, Inc., and judgment upon the award rendered pursuant to such arbitration may be entered in any court having jurisdiction thereof. The prevailing party shall be awarded reasonable attorneys’ fees, together with any costs and expenses, to resolve the dispute and enforce the final judgment. Nothing in this Section 13.2 shall preclude an action for equitable relief by either party, including proceedings to enforce a party’s rights relating to confidential business information. Either party may request a court to issue such temporary or interim relief (including temporary restraining orders and preliminary injunctions), either before or after arbitration is commenced. The temporary or interim relief may remain in effect pending the outcome of mediation or arbitration. No such request is a waiver of the right to submit any dispute to arbitration.
13.3 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, if not, then on the next business day, (c) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the address, email address or facsimile number designated by the receiving party.
13.4 Assignment. Subscriber may not assign or transfer any of the rights or obligations under this Agreement without the prior written consent of the Company. Any prohibited assignment will be null and void. The Company may assign this Agreement without Subscriber’s consent, including in connection with a merger, acquisition, stock sale, or other change of control transaction. Subject to the foregoing, the terms and conditions of this Agreement shall bind and inure to the parties’ successors and assigns.
13.5 Entire Agreement. This Agreement constitutes the entire agreement between Subscriber and the Company regarding the subject matter herein, and all prior or contemporaneous agreements and negotiations, either written or verbal.
13.6 Amendment and Waiver. No waiver of any breach or default shall constitute a waiver of any subsequent breach or default. Any amendment to this Agreement must be in writing and signed by both parties.
13.7 Severability. If any term, provision or covenant or condition of this Agreement is held invalid, void or unenforceable, the remaining terms and provisions of this Agreement shall remain in full force and effect.
13.8 Counterparts; Facsimile. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Delivery of an executed signature page to this Agreement by facsimile or electronic transmission shall be as effective as delivery of a manually signed counterpart hereof.
13.9 Survival. The provisions of Sections 1, 3, 5, 9.2, 9.3, 12, 13, and Subscriber’s obligations for payment pursuant to Section 4, shall survive any termination of this Agreement.
13.10 Interpretation. The headings used in this Agreement shall not be considered in the interpretation of this Agreement.