FallCall Solutions, LLC
ElderCheck Now
Terms of Service
United States, Canada, United Kingdom, Ireland, Australia, New Zealand Version
Valid as of 08/21/2024

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 16 Surrey Lane, 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 or Apple Watch¹ 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 https://www.fallcall.com/Docs/ElderCheck-Now-HIPAA-Compliant-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 https://www.fallcall.com/Docs/ElderCheck-Now-HIPAA-Compliant-Privacy-Policy. By using ElderCheck Now, you are consenting to the processing of information in accordance with our https://www.fallcall.com/Docs/ElderCheck-Now-HIPAA-Compliant-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 https://www.fallcall.com/Docs/ElderCheck-Now-HIPAA-Compliant-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 affect 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;
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 https://www.fallcall.com/Docs/ElderCheck-Now-HIPAA-Compliant-Privacy-Policy, you should not use ElderCheck Now. Please save and/or print a copy of these Terms of Service and our https://www.fallcall.com/Docs/ElderCheck-Now-HIPAA-Compliant-Privacy-Policy for your future reference.

3. Updates to Terms of Service

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, trademark, or other proprietary rights notice from ElderCheck Now.

5. Limitations to our use of content

5.1 Subject to the terms of our https://www.fallcall.com/Docs/ElderCheck-Now-HIPAA-Compliant-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.

WE ARE NOT AN INSURER AND INSURANCE COVERING PERSONAL INJURY,INCLUDING DEATH, AND REAL OR PERSONAL PROPERTY LOSS OR DAMAGE SHALL BE OBTAINED BY YOU; WE MAKE NO GUARANTEE, REPRESENTATION OR WARRANTY INCLUDING, WITHOUT LIMITATIOIN, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; FALLCALL LITE AND THE SERVICES PROVIDED ARE DESIGNED TO REDUCE, BUT NOT ELIMINATE, CERTAIN RISKS OF INJURY OR DAMAGE AND THE AMOUNTS BEING CHARGED BY US ARE NOT SUFFICIENT TO WARRANT OR GUARANTEE THAT EITHER NO OR LESS INJURY OR DAMAGE WILL OCCUR. Therefore, the collective liability of us, our officers, directors, employees and representatives under this Agreement shall not exceed all payments received by us from the subscriber under this Agreement. 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.

6.4 ElderCheck Now relies on your Bluetooth® /Wi-Fi/Cellular services to operate. These services are essential for connectivity between iPhone, Apple Watch, the internet and cellular phone service. ALTHOUGH FALLCALL LITE CAN FUNCTION THROUGH ACTIVE WIFI OR CELLULAR SERVICES ON IPHONE, AND APPLE WATCH, DEVICES MUST BE CHARGED TO A BATTERY LIFE > 20% TO ENSURE THAT ELDERCHECK NOW HAS THE MAXIMAL CHANCE TO TRANSMIT AND RECEIVE INFORMATION. ADDITIONALLY, IPHONE AND APPLE WATCH MUST BE POWERED ON AND CONNECTED BY BLUETOOTH TO ENSURE THAT ELDERCHECK NOW HAS THE MAXIMAL CHANCE TO TRANSMIT AND RECEIVE INFORMATION. If any of these services are out of order or disconnected, ElderCheck Now may not operate until service is restored. We have no control over your Bluetooth/Wi-Fi/Cellular services. Additionally, We will not know if your service is not working. Therefore, the app cannot provide the ElderCheck Now service during that time or notify your Caregiver that your Bluetooth/Wi-Fi/Cellular services are out of order. Also, please be aware that any communication provided via the internet, broadband, VoIP, or any other cellular service presents risks for non-transmission of the signals from and between ElderCheck Now and the Caregiver and may not operate as intended

6.5 We assume no liability if there is wireless network interference due to atmospheric or topographical conditions, busy cells, capacity limitations, equipment problems, equipment maintenance, public utility failure, acts of war, government actions, terrorism, civil disturbances, system failures, inc luding internet, computer, telecommunication or other system failures, and other factors and conditions. We assume no liability for or relating to the delay, failure, interruption or corruption of any voice, call quality, or data transmitted while using the Wireless Service, nor for theaccuracy or precision of location information. As with all location-based services, it may not always be possible to determine your location. Multi-level buildings, parking garages, and even dense urban areas can make it difficult for satellite and cell phone towers to locate your exact location.

7. Payment

You will pay the fees described in the Apple App Store® along with any sales tax or additional FallCall Lite services you later order. Fees are subject to change upon 30 days’ prior written notice to Payer. For details regarding iTunes, refer to “Apple Media Services Terms and Conditions”: https://www.apple.com/ca/legal/internet-services/itunes/ca/terms.html.

8. Indemnification

You hereby indemnify, defend, waive jury trial, and hold us harmless from and against all claims, demands, liabilities, damages, losses, expenses, including attorney’s fees and lawsuits that may be asserted against or incurred by us by or due to any person(s) not a party to this Agreement, including your 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 of communications, operation or non-operation of ElderCheck Now, due to the sole, joint or several negligence (including gross negligence) of us or our agents, servants, officers, directors, 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 at law or in equity.

9. 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.

10. Governing Law

10.1 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. Notwithstanding the foregoing, our Privacy Policy is governed by the patient privacy laws of the country where ElderCheck Now is intended for use if such laws are stricter than the HIPAA Privacy Rule or HIPAA Security Rule.

10.2 Any and all disputes that may arise between 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 theAmerican 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 arbitrator’s fees and expenses initially shall be shared equally between you and us and the arbitration shall be conducted either in-person or virtually via Zoom or other virtual meeting mobile app 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 in U.S. Dollars 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.

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.

11. 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.

12. 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.

Apple, the Apple logo, iPhone, and Apple Watch are trademarks of Apple Inc., registered inthe U.S. and other countries and regions. App Store is a service mark of Apple Inc.

The Bluetooth® word mark and logos are registered trademarks owned by Bluetooth SIG, Inc. and any use of such marks by FallCall Solutions is under license. Other trademarks and trade names are those of their respective owners.

2024©FallCall Solutions, LLC. All rights reserved