BY ACCESSING OR MAKING ANY USE OF THE ALARM AND COMMUNICATION SERVICE PROVIDED THROUGH THE MEMRABLE® 2I DEVICE (“THE DEVICE”) YOU ARE AGREEING THAT YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS.
IN PARTICULAR YOU ATTENTION IS DRAWN TO THE SECTIONS HEADED “WHAT WE ARE NOT RESPONSIBLE FOR” AND “OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU” WHICH SETS OUT LIMITATIONS AND EXCLUSIONS IN RELATION TO OUR LIABILTY TO YOU FOR USE OF THE DEVICE AND THE SERVICE.
IF YOU DO NOT AGREE TO THESE TERMS YOU SHOULD NOT USE THIS DEVICE OF THE SERVICE.
THESE TERMS MAY BE SUBJECT TO CHANGE FROM TIME TO TIME AND WILL BE UPDATED ON OUR WEBSITE. YOU ARE ADVISED TO CHECK OUR WEBSITE REGULARLY WHEN USING THE SERVICE.
1. WHO WE ARE AND WHAT THIS AGREEMENT DOES
1.1 We, Medpage Limited t/a Easylink UK, a company incorporated in England and Wales (company number 05468599) having its registered office at 3 Weekley Wood Lane Close, Kettering NN14 1UQ license you to use:
• the MemRabel® 2i Device (the Device) and the associated software, the data supplied with it and any updates or supplements to it;
• the related online documentation (the Documentation); and
• the alarm and communication service (the Service) provided via the Device which allows a user of our smartphone or handheld device to download an app (the Mobile App) to transfer data, messages and media files to the Device via our secure server and/or to set up alarms and reminders, provided you have given it permission to do so via the Device;
as permitted in these Terms. MemRabel® is a registered trademark of Medpage Limited t/a Easylink UK.
1.2 Please read this Agreement carefully, as it sets out the basis upon which we license the Device and our software for you to use the Service.
1.3 By using the Device for the Service, you accept the terms and conditions which come with the Device for its use and as shown on our website. These may change from time to time and you should check regularly for updates.
1.4 We will also ask users of the Mobile App to agree to the terms that apply to the Mobile App when they download it. You must also give consent to the user of the Mobile App to send messages to the Device as described below.
1.5 In order for the Mobile App to communicate with the Device both the Mobile App and the Device must be set in pairing mode. If the Device receives a request to pair from the Mobile App, you will need to confirm that you accept the pairing in accordance with the instruction manual. If you confirm the pairing, the user of the Mobile App will be notified that the pairing has been accepted so Mobile App can send messages to the Device.
1.6 Each time a message is sent from a Mobile App to your Device, our servers will verify that the Mobile App has permission to communicate with your Device before transmitting messages to you. Users of the Mobile App are asked to confirm as part of the licence terms they agree to that they will not use it to control or attempt to control or communicate with any Device which they do not have permission to use.
2. THE SERVICE
2.1 The Device is a smart clock device which allows someone using the Mobile App to set alarms, reminders and send messages to the Device (in various media formats – videos, images, audio or recorded speech)(Messages) to prompt the owner, controller or user of the Device to perform certain activities. If the Device is turned on and has access to power and the internet, the Device will play these Messages as instructed by the Mobile App. For each Message sent from the Mobile App, our server verifies that permission has been given to the App user using the relevant Mobile Device to communicate with your Device.
2.2 The user of the Mobile Device on which the Mobile App is installed, must have an active subscription to the Service to be able to communicate with your Device by sending new Messages. If the user of the Mobile App does not have an active subscription to communicate with your Device, you will not be able to receive new Messages from that user of the Mobile App. However, if repeat Messages have previously been set up via the Mobile App you will continue to receive these until these are stopped.
2.3 Although there is no restriction on the number of communications Messages the Device can receive from a user of the Mobile App, there may be restrictions on the size of Message sent (particularly with video files as image resolution size various for different smartphones and mobile devices). We will not be responsible if a Message is not delivered because it exceeds the size limit.
2.4 The features of the Service may change from time to time and the Service may be suspended during periods of maintenance, updating, upgrading or other support relating to the Service (such as security checks and updates).
2.5 Technical support is provided via email, telephone and such other means as we decide in order to provide a proper service to users. Our contact details are set out in clause 11.2 below.
3. YOUR PRIVACY
3.2 Please be aware that internet transmissions are never completely private or secure and that any message or information sent to you using the Mobile App or the Service may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 All intellectual property rights in the Device and the underlying software, the Documentation, the Mobile App and the Service throughout the world belong to us (or our licensors) and the rights given to you to use them are licensed (not sold) to you.
4.2 You have no intellectual property rights in, or to, the Device and the underlying software, the Documentation, the Mobile App and the Service other than the right to use them in accordance with these Terms.
5. RESPONSIBILITY FOR THE CONTENT OF MESSAGES
The user of the Mobile App who sends Messages to the Device using the Service is responsible for ensuring that the Messages and their content complies with the “Restrictions on What you are allowed to do with the App” and “Acceptable Use Restrictions set out in the Mobile App Terms which can be found at [Include a Link to App Subscription terms].
6. RESTRICTIONS ON USE OF THE DEVICE AND THE SERVICE
You agree that in using the Device and the Service you will not, except to the extent permitted by law or as agreed by us:
(a) reproduce, redistribute, create derivative works from, decompile, reverse engineer, alter, archive, or disassemble any part of our software used by our Device or the Service or attempt to circumvent any of our security measures used by us as part of the Service; or
(b) take any actions to manipulate, interfere with, or damage our Service.
7. CONTENT MONITORING
7.1 Users of the Mobile App agree to abide by our rules relating to content of Messages and how the Service can be used when they download the Mobile App. However, we do not monitor or assume any responsibility for Messages that are set up on or sent to the Device or the content of Messages sent using the Service.
7.2 If at any time we decide to monitor the Service on any occasion, it does not mean that we assume responsibility for removing any content or the conduct of any users at the time or at any time in the future.
7.3 If any Message links to or refers to content on other websites or elsewhere or other services we are not responsible for that content or other services.
8. WHAT WE ARE NOT RESPONSIBLE FOR
8.1 You use the Service at your own risk. You are responsible for ensuring that there is internet access available for the Device to use the Service and that the Device is set in pairing mode where pairing with a Mobile App is being set up.
8.2 You acknowledge that complex software is never wholly from defects, errors or bugs or from security vulnerabilities so that we make no promise that the software or the Service provided using the Device, the Mobile App and the underlying software will be wholly free of defects, errors and bugs or that they will be entirely secure.
8.3 Except as set out in these Terms, to the maximum extent permitted by the applicable law in your jurisdiction, no warranties or representations concerning the Device and the Services will be implied into these Terms. In particular, we give no representation or warranty that:
(a) the Service or any part of it will be available or permitted in the jurisdiction in which you are based or be accessible from all devices or browsers; or
(b) the content or Messages sent to a Device will be appropriate and effective for the purpose for which it is sent or that the content of any Messages will not infringe any third party rights (as we do not monitor the content of any Messages); or
(c) that we will continue to support any particular feature of the Service or maintain compatibility with any third party software or mobile phone or device; or
(d) all Messages sent will be delivered as this will be subject to matters beyond our control such as, by way of example only, Message size, availability of the internet and telecommunications services, power being available for use by the Device.
8.4 The Service, the Device and the Mobile App have not been developed to meet your individual requirements. It is your responsibility to check that the Service, the Device and the Mobile App (as described on our website and in the Documentation) meet your requirements.
8.5 We are not responsible for the set up and the successful paring of the Device and the Mobile App or delivery of any Messages sent via the Service (except Messages sent by us to the Mobile App) or the failure of any Messages to arrive on time or at all. The user of the Mobile App sending Messages to the Device is responsible for all Messages he or she may send using the Service or the failure to set up the pairing for any such Messages or to properly record and/or transmit any Messages to the Device.
8.6 We are not responsible for:
(a) any failure in the pairing of a Mobile App with a Device and its communication with any Device either because the devices were not in pairing mode or because a pairing was not confirmed;
(b) any Messages sent to or programmed into the Device that are inappropriate, inaccurate or misleading; or
(c) any Messages or alarms times or dates that are incorrect or do not playback for reasons beyond our control; or
(d) any failure of the Device that is caused by loss of power, loss of internet or mobile connection or the failure of any Messages caused by lack of mobile data or internet connectivity or that is caused because a pairing with a particular Mobile App is not set up; or
(e) the failure of the Device to play back any Messages due to loss of power to the Device or damage to the Device, however this is caused; or
(f) any failure to carry out periodic testing of the Device or operate the Device in accordance with its operating instructions; or
(g) the failure of by the user of the Device to delete Messages that are no longer required resulting in the limitation of storage on the Device; or
(h) any medical complications caused by a user of a Device misunderstanding or repeating a task as a result of any Message sent using the Service; or
(i) any death, personal injury or other loss resulting from any failure in the Service or the Device, except where this is caused by our negligence or that of our employees, agents or sub-contractors.
8.7 We are not responsible for any Messages not being sent to the Device on time or at all which are due to reasons beyond our reasonable control.
9. OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU
9.1 Nothing in these Terms will:
(a) limit or exclude any liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit or exclude any liability that we cannot excluded or limited as a matter of law.
9.2 The limitations and exclusions of liability set out in this clause 9 and elsewhere in these Terms are:
(a) subject to clause 9.1; and
(b) govern all liabilities arising under these Terms, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty or otherwise and any indirect or consequential loss whatsoever.
9.3 If we fail to comply with these Terms, we will be responsible for foreseeable loss or damage you suffer is a foreseeable result of our failing to comply with these Terms or failing to use reasonable skill and care, provided that our liability shall not exceed whichever is the greater of:
(a) £1000; and
(b) the total amount of subscription fees paid or payable by you to us under these Terms in the 12 months immediately preceding the event giving rise to the claim.
9.4 We are not liable to you for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time you accepted these terms, both we and you knew that it might happen.
9.5 We will have no liability to you for any special, indirect or consequential loss or damage or loss of revenue, loss of profits, loss of savings or anticipated savings.
9.6 If any digital content that we have provided as part of the Service damages a device or digital content that belongs to you, we will either repair the damage or pay you compensation. However, we will not be liable for damage that you could have avoided by following our advice to apply any update offered to you free of charge or for damage that was caused by you failing to correctly following installation instructions or to have in place the minimum system requirements advised by us.
9.7 The Device, the Mobile App and the Service and the underlying software are provided for domestic and private use. If you use them for any commercial, business or resale purpose, we will have no liability to you for any loss of profit, loss of business, business interruption or loss of business opportunity.
9.8 We will not be liable to you for any damage or losses suffered by you arising out of an event that is outside our reasonable control (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the laws, disasters, explosions, fires, floods, riots, terrorist attacks or wars).
10. YOU AGREE TO COMPENSATE US FOR THIRD PARTY CLAIMS
You agree to compensate us in full from any losses, damages, costs, fees, liability or claim (including legal expenses and amounts paid in settlement of legal claims) which we suffer or incur as a result of a claim made by any third party as a result of your breach of these Terms whilst using the Service.
11. SUPPORT FOR THE DEVICE AND HOW TO TELL US ABOUT PROBLEMS
11.1 If you want to learn more about the Device or the Service or have any problems using them please take a look at our support resources on our website.
11.2 If you think the Device or the Services are faulty or mis-described or you wish to contact us for any other reason please email our customer service team at email@example.com or call them on +44 (0) 1536 264869. You may also contact us by post by writing to Medpage Limited t/a Easylink UK, 3 Melbourne House, Corby Gate Business Park, Corby, Northamptonshire, UK, NN17 5JG.
11.3 If we have to contact you we will do so using any contact details you provide to us for this purpose.
12. CHANGES TO THESE TERMS
12.1 We may need to change these terms to reflect changes in law or best practice or to deal with additional features which we introduce to the Device or the Service.
12.2 Any changes to these Terms will be posted on our website. You should check our website regularly when using the Service to ensure that you are aware of any changes. If you do not agree to those changes you should not continue to use the Device.
13. UPDATES TO THE DEVICE AND CHANGES TO THE SERVICE
From time to time the Device may need to be updated and we may change the Service to improve performance, enhance functionality, reflect changes to the operating system or address security issues. Where reasonably practicable, this will be done by automatic updates but in some cases this may require you to do take some action to update the Device.
14 COLLECTION OF DATA ABOUT YOUR USE OF THE SERVICE
14.1 We may collect technical data about your use of the Device and the Service so that we can compile usage statistics.
14.2 By using the Device or the Service, you agree to us collecting and using technical information about the Device and how you use it with and related software, hardware and peripherals to improve our products and to provide any Service to you.
14.3 Where you ask us to provide you with support in relation to the Service or your use of the Device, you agree to us collecting and processing your name, email and/or contact details as necessary to provide that support to you.
15. ACCESS TO THE SERVICE AND BACKUPS
15.1 The Service is provided on an “AS IS” and “AS AVAILABLE” basis.
15.2 We do not store or backup any Messages sent via the Service on our server by any user of the Mobile App.
16. SUSPENSION OR ENDING YOUR USE OF THE SERVICE
16.1 For the Device to be able to receive Messages from a Mobile App via the Service, the user of the Mobile App must have a current subscription to the Service and you must have confirmed via the Device that you wish to receive Messages from the Mobile App. If that subscription comes to an end, any Messages which are repeat messages or reminders will continue to played by the Device but the user of the Mobile App will not be able to set up new Messages unless or until they have renewed their subscription to the Service.
16.2 The Services may also be suspended or terminated at any time with or without prior notice, if you or the user of the Mobile App sending Messages to your Device are in breach of these Terms in a serious way or if we suspect that this is the case and we need to investigate this. We will notify the user of the Mobile App of any suspension of the Service if this is case and will allow them an opportunity to put things right to the extent that it is reasonable to do this.
16.3 You can also choose to terminate your use of the Service at any time. If you do so you will not be entitled to a refund unless the Device is faulty or the Device or the Service is not as described in the Documentation provided to you or you are otherwise entitled to it as a matter of law.
16.4 If no-one Mobile App user has an active subscription to the Service to communicate with your Device the Device will still play Messages which have already been set up until they are terminated or deleted but you will not receive any further Messages unless or until a new subscription is set up by the user of the Mobile App that wants to communicate with your Device.
16.5 Some clauses within these Terms are intended to survive after the termination of the agreement between you and us set out in these Terms. These include, but not are not limited to clauses 3, 4, 5, 6, 7, 8, 9, 10, 11, 14, 16 to 23.
17. TRANSFER OF THESE TERMS TO SOMEONE ELSE
17.1 We may transfer our rights and obligations under these Terms to another organisation. If we do transfer our rights and obligations under these Terms to someone else, we will include a notice to this effect on our website and we will ensure that the transfer will not affect your rights under this Agreement.
17.2 You may only transfer your rights or your obligations under these Terms to another person if you have asked us to agree to this and we agree to this in writing.
18. NO RIGHTS FOR THIRD PARTIES
These Terms and the agreement between you and us does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of these Terms.
19.1 If a court finds part of these Terms illegal, the rest will continue in force.
19.2 Each of the clauses of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining provisions will remain in full force and effect.
20. DELAY IN ENFORCING THESE TERMS
20.1 Even if we delay in enforcing these Terms, we can still enforce them later.
20.2 If we do not insist immediately that you do anything you are required to do under these Terms, or if we delay in taking steps against you in respect of your breaking these Terms, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
21 CONSUMER RIGHTS ACT 2015
If there is any conflict between these Terms and that Act, the Consumer Rights Act shall apply if you are using the Device and the Service as a consumer and not as part of your business.
22 ALTERNATIVE DISPUTE RESOLUTION
22.1 Alternative dispute resolution is a process where an independent body considers the facts of a dispute and seeks to resolve it, without you having to go to court. If you are not happy with how we have handled any complaint, you may want to contact the alternative dispute resolution provider we use.
22.2 You can submit a complaint to the European Commission Online Dispute Resolution platform at https://ec.europa.eu/consumers/odr. If you are not satisfied with the outcome you can still bring legal proceedings.
23. GOVERNING LAW AND JURISDICTION
23.1 These terms are governed by laws of England and Wales and you can bring legal proceedings in respect of the products in the English courts.
23.2 If you live in Scotland you can bring legal proceedings in respect of the products in either the Scottish or the English courts.
23.3 If you live in Northern Ireland you can bring legal proceedings in respect of the products in either the Northern Irish or the English courts.