Subject to this Agreement, Eversound grants Member only a right to use the services (“Services”) and related equipment to which they are subscribed during the Term of membership.
II. Online Services
As part of the Services during the Term, Eversound will provide a members-only online service that provides online resources for Members of the Eversound System. These include information and guidelines for effective use of Eversound in Member environments such as assisted living and memory care facilities, as well as an online learning management system. Online services may include an optional Member's Programming that includes live and recorded programming services available at fees as defined the Agreement.
Eversound will provide assistance to Member via telephone, email or other mutually agreed medium during the hours of 9:00 AM to 5:00 PM Eastern US time on business days, excluding federal holidays and weekends.
All equipment provided by Eversound under this Agreement is and shall remain the property of Eversound, and Eversound retains all intellectual property rights in anything developed or delivered by Eversound under this Agreement. Member only has the rights to use the equipment in connection with the Services during the Term and shall immediately return same to Eversound after the end of the Term.
V. Breakage Replacement
Eversound will replace equipment provided under this Agreement that is broken or non-working at Eversound’s cost, provided that such breakage or failure to work was not caused intentionally or due to gross negligence of the Member or any of Member’s staff.
VI. Limited Loss Replacement
In the event that any piece of Eversound equipment provided under this Agreement in the possession of Member is lost or stolen, Member agrees to immediately notify Eversound. Eversound will replace at its cost individual headphones that become lost during the Term, with the limit of a maximum of one such loss replacement during any six-month period of membership. Otherwise, Member is strictly liable for the replacement of, at its cost, any lost or stolen Eversound equipment. The cost of replacing any such equipment is $120 per headphone, $600 per transmitter, $800 per carry case and $60 per microphone, which will be added to the next monthly invoice of Member after shipment of the replacement equipment.
VII. Technology Refresh
If the Agreement has remained in effect, at three years after equipment delivery, or at another date that is mutually agreed upon by the Parties, Eversound will replace the equipment at Eversound’s cost with the then-current most equivalent generally available Eversound product. Eversound will provide Member 60 days’ notice of the intent to replace. Member will return the original equipment to Eversound within 30 days of the replacement. After such time, the equipment will be considered lost, and Member will be responsible for all replacement costs.
THE INITIAL TERM (“INITIAL TERM”) OF THIS AGREEMENT IS TWELVE (12) MONTHS STARTING ON THE EFFECTIVE DATE, AFTER WHICH THE AGREEMENT WILL AUTOMATICALLY RENEW FOR SUCCESSIVE RENEWAL PERIODS OF TWELVE (12) MONTHS, (THE INITIAL TERM TOGETHER WITH ANY SUCH RENEWAL TERM BEING REFERRED TO AS THE “TERM”) UNLESS EITHER PARTY ELECTS NOT TO RENEW WITH WRITTEN NOTICE AT LEAST 30 DAYS PRIOR TO THE END OF THE INITIAL TERM OR ANY RENEWAL TERM, AS THE CASE MAY BE.
This Agreement can be terminated by Member for any reason effective on the annual anniversary of the contract Term with a 30-day prior written notice before the end of the Initial Term or before any subsequent Term. Also, if either Party breaches its obligations under this Agreement, and fails to correct such breach within thirty (30) days following receipt from the other Party of written notice of such specifying the nature of the breach in reasonable detail, the non-breaching Party may terminate this Agreement by giving the breaching Party written notice of such termination.
X. Invoices and Payments
Eversound will invoice for Services upon the date that related equipment is shipped from Eversound or the date such Services are otherwise made available to Member. Payment is due within thirty (30) days of receipt of Eversound’s invoice.
After the Initial Term, Member may downgrade (i.e., reduce) Service quantities by giving Eversound 30-day advance written notice for any such downgrade, except that the minimum subscription period for any Service added to this contract after its initial execution is 6 months for each such element of Service and also that the minimum Membership quantity for any given site is at least one "Initial" type Service option from the list in Exhibit A such as an Activity Package - Initial.
In the event that an invoice is disputed, Member must give notice of the dispute within 5 days of receipt of such invoice. Any dispute not raised within this 5-day period will be considered waived, and all amounts will be deemed undisputed and due within 30 days of the receipt of the invoice.
Member is solely responsible for the costs of any and all duties, taxes, levies or fees (including any value-added, sales, use or withholding taxes) imposed on or in connection with the rental or sale of any equipment, or provision of any portion of the Services, by Eversound to Member or to a third party on behalf of Member, or these Terms or the Eversound’s Services by any authority (excluding taxes based on Eversound’s net income), and the Member agrees to pay same when due, and if Member cannot pay same directly, it shall be paid by Member to Eversound who shall remit same. The Member agrees to and shall indemnify Eversound for all amounts due under this provision.
XII. Late Payment
Unpaid balances exceeding 30 days from receipt of Member’s undisputed invoice will accrue interest at 12% per annum (or if lower the maximum legal rate then in effect).
Eversound shall have no obligation to refund to Member any amounts paid by Member to Eversound hereunder.
XIV. Use of Name
Member hereby grants Eversound the limited right to use Member’s name and any related logo to identify Member as a customer of Eversound in listings of its customers, including in its marketing materials or websites.
Member agrees to help enable the successful implementation and adoption of the Services and Equipment at each of Member’s location(s). Member agrees that all locations and staff adhere to Eversound’s onboarding process. As part of onboarding, Eversound will provide online training resources and webinars on products to which Member has subscribed. Member will pay an Onboarding Fee as defined in Exhibit A that includes coverage for training, shipping and other initial community onboarding activities. If within the first 30 days after equipment delivery, a Community has at least one staff member utilize training resources associated with their subscribed products and then pass an associated quiz (75% or better correct score), then the Community will be issued a $100 credit against their Onboarding Fee.
XVI. Notifying Eversound of Staff Turnover
Member has staff turnover at any community or location, which affects the use of Eversound at your community, Member agrees to promptly let the Eversound Community Success Director know within 10 business days of this staff transition. Member will make every effort to introduce the Eversound Community Success Team to your new staff.
XVII. Limitation of Liability & Warranty Disclaimers
The Services offer varied content. It is the Member, and applicable Site’s, obligation and responsibility to ensure that the content viewed through the subscription is appropriate for the individual users in such Site. As part of the Services, depending on the subscription chosen by the Member, its Network, Sites and residents may have the ability to access and use programming and content which is targeted to provide, or may be used in connection with, physical fitness, exercise, stretching, mobility, or other health and wellness and related topics. Member agrees that it will not allow access to or use of any of such content, until the Member and/or individual Site has performed an evaluation of each potential user and determined if such user is physically prepared for such physical exercise, activities, regime, routine, program, and/or other activities, including, if required the advice of a physician prior to engaging in same.
Eversound shall not be liable to Member, Network or any Site, with respect to physical injury, death or property damage incurred through the use of the Services.
In no event shall Eversound be liable for special, consequential or indirect damages, regardless of whether arising from tort, contract or any other theory of liability and regardless if Eversound was made aware of the possibility or probability of such damages in advance. Further, Eversound’s liability with respect to any Party to this Agreement is limited to the sum of the amount actually received by Eversound for the six-month period directly prior to the event or omission which would render Eversound liable.
The Services and equipment provided by Eversound are offered "AS IS" and Eversound makes no representations of any kind, whether express or implied or otherwise regarding the Services or equipment except as explicitly set forth in this Agreement. EVERSOUND DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. Member agrees that Member, Network, Sites and end users (of the foregoing) shall use the Services solely at their own risk. The Services may include content which is produced, created, promoted, or provided by third parties and Eversound makes no warranties of any kind with respect to any content or programs.
Eversound shall indemnify, defend and hold harmless Member from and against all losses, claims, damages or other costs of any nature or kind whatsoever arising directly or indirectly out of (i) the breach of any warranty or representation or provision of this Agreement made by Eversound to Member in this Agreement, or (ii) any inf