Terms & Conditions
TERMS AND CONDITIONS
The Client is a participant in the iBac Alcohol Monitoring Program (the “Program”). This Program involves the use of an iBac Alcohol Monitoring unit (“iBac”) consisting of a pocket sized iBac breathalyzer paired with clients Smartphone (System). The Program monitors the use and function of the System by means of periodic or random reminders, having monitor checks performed and events log information retrieved at regular set or random intervals, and providing the appropriate authorities responsible for administration of the Program (the “Administering Authorities”) with periodic reports as to the Client’s compliance or non-compliance with the requirements of the Program. Maximum monitoring periods are established by the Administering Authorities.
The function of the System is to monitor the Client’s consumption of alcohol and to record any resulting BrAC 24/7/365. The System requires periodic breath tests by sending text message to clients Smartphone. Client must provide a breath test within set time period or a text/email will be sent to monitor for violation. Clients are required to have the iBac inspected and monitored as scheduled. If the iBac is not returned for inspection and servicing in accordance with the Program, the System will prevent the Client from performing further required periodic breath alcohol tests.
The iBac® device is intended to be utilized as an assessment tool and screening device to access your “Individual Breath Alcohol Content” Unless specifically contracted in writing by iBac as your Monitoring Agency, we will not analyze or interpret the testing results, reporting histories, or provide an opinion as to whether the User had consumed alcohol. It is the responsibility of the User, if required, to retain a monitoring agency or third party to review, analyze, interpret or adjudicate testing results and related data. There is a direct relationship between the concentration of alcohol in the blood and in the breath. Consumed alcohol is absorbed in the bloodstream and exchanged to the breath in the deep lung region. Through a calculated conversion, the iBac® device determines the BAC level of alcohol in the body by its concentration in the breath, also known as breath alcohol concentration (“BrAC”). The concentration of alcohol is subject to the User’s compliance with the Precautions and may further be subject to applicable procedures set by the concerned parties, monitoring agencies and governing authorities. BrAC depends on a number of variables including, but not limited to, the amount of alcohol consumed, environmental influences, the rate at which alcohol was consumed, body size, age, physical health and the rate of which the User metabolizes alcohol.
The System is owned by, and shall remain the sole and exclusive property of, the Service Provider (unless purchased for personal use). The Client shall not, directly or indirectly, encumber or otherwise impair the Service Provider’s title to the System.
The iBac® device utilizes a professional grade fuel cell sensor. The iBac® device is calibrated during manufacturing using advanced alcohol calibration equipment. Known alcohol concentrations are passed through the fuel-cell sensor to set baseline values for testing. The accuracy of breathalyzers can fluctuate after twelve (12) months of normal use, depending on operating conditions and the number of tests performed. The iBac® device tracks the number of tests performed. iBac will notify the User, Concerned Party and/or other authorized Contacts when the iBac® device is ready for re calibration.
Avoid using the iBac® device in the presence of substances that contain methyl alcohol, isopropyl alcohol, or any other outside agent that contains alcohol or similar substances or ingest such substances fifteen (15) minutes before using the iBac® device. These substances or agents may interfere with test results and yield a false positive or unreliable report. In most instances, positive test results attributed to a foreign substance or outside agent will dissipate shortly after the initial test, and subsequent retesting will yield test results of 0.00 BrAC. In the event of a positive test result believed to be caused by a foreign substance or outside agent, User must continue to retest as prompted until there is a compliant result. Failing to retest as prompted may be considered a violation of testing procedures. Examples of common foreign substances or outside agents that may influence test results include, but are not limited to: certain prescription drugs; certain medications and herbal remedies; medicinal alcohol; household cleaners and disinfectants; lotions; body washes; perfumes; colognes; toothpaste; breath fresheners; hand sanitizers; or other alcohol-based hygiene products and inhalants.
Wait at least fifteen (15) minutes after drinking, eating, or smoking before using the iBac® device. Failure to observe this waiting period may cause inaccurate readings and damage the IBac® device’s fuel cell sensor.
- Prevent outside agents such as colognes and perfumes, alcohol-based substances or hand sanitizers from being stored near the iBac® device at all times.
- Do not blow smoke, food, or liquids into the iBac® device, as this can damage the sensor.
- Remove sunglasses and Head wear during the testing process
- Hold your cell phone eye level and look directly into the device’s camera lens. While delivering a breath sample into the iBac® device
- Do not use the iBac® device in temperatures below 32 ºF or above 122 ºF.
- If a breath test result is out of compliance, the iBac® device will warn of retest requirement and the User will receive a text message prompting to retest
Upon termination of this Agreement the Client shall return the iBac unit to Service Provider within 7 days or a charge will be applied to client’s credit card on file. In the event that the Client does not comply with this provision, the Service Provider shall have the right to recover possession of the System from the Client wherever it is located. The Client appoints the Service Provider as his/her lawful agent for such purpose, with full authority to gain lawful access to remove the System from the Client’s home or place of employment, by whatever means required. It is expressly acknowledged and agreed that the Service Provider shall not be liable for any loss or damage occasioned thereby, and the Client hereby undertakes to indemnify and save harmless the Service Provider from and against any liability arising there from.
- TERM OF AGREEMENT:
This Agreement will continue until the termination date unless sooner terminated as provided below. In the event this Agreement has not terminated and Client’s participation in the Program is extended, the Term of this Agreement shall be extended accordingly.
The Client agrees to pay the Service Provider, by payment card held on account, for all fees and charges arising under this Agreement as detailed on the fee schedule published from time to time by the Service Provider, and subject to change on 15 days’ notice; however, the Monitoring Fee is fixed for the Term of this Agreement.
By the use of the iBac® device and/or the provision of the Service, and providing or designating a Payment Method, you authorize iBac to charge you periodical and/or recurring monthly fees, and any other charges you may incur in connection with your use of the Service to your Payment Method, until cancelled in writing by you. You acknowledge that the amount billed each month may vary from month to month for reasons that may include differing days per month, promotional offers, and/or changing or adding a Service, and you authorize us to charge your Payment Method for such varying amounts, which may be billed monthly in one or more charges.
This charge is for use of the System, scheduled monitoring based on the minimum number of monitoring days detailed on the Fee Schedule, including retrieval of events log information, and regular periodic reporting to the Administering Authorities. Any final report required by the Administering Authorities will be billed as published on the Fee Schedule.
This deposit, if required by the Service Provider, is due and payable upon installation of the System and will be returned, without interest, to the Client at the end of the Term provided that the System is returned in accordance with this Agreement in the same condition as when installed, normal wear and tear excepted.
Miscellaneous Service Charges:
These charges cover servicing of the System at times and/or places other than regularly scheduled monitoring, or at the end of the Program, as well as other charges not specified in this Section 3. No charge for service will be assessed where the need for service is due to System failure.
Loss Protection Plan:
This charge limits the Client’s responsibility, subject to the provisions of Section 9, for any damage to or loss of the System to a maximum of $125.00 for the first occurrence and $200.00 for subsequent occurrences.
Violation/Data Reporting Fee:
These charges cover the requirement to send violation reports when client fails to take or fails a scheduled breath test or request additional data reports.
The Client will pay all charges, costs and expenses incurred by or on behalf of the Service Provider if a representative of the Service Provider is requested to appear or provide information for a hearing, investigation, deposition or attorney consultation. Time required will be billed at $100.00 per hour. Preparation and travel time is billable at full rate. The minimum charge for attending a hearing will be $350.00. Out-of-pocket expenses will be billed at cost plus 15% with mileage at the rate of $0.55 per mile and photocopies at the rate of $1.00 each. Payment of an estimated bill is required in advance regardless of who requests the Service Provider to attend.
Shipping / Handling Fee:
The Client is responsible for all costs of shipping the device to/from the Service Provider plus a handling charge. The prices for this service are set by the Service Provider and will be more than the direct costs from shipping agencies
The Client is responsible for all taxes assessable on charges payable by the Client.
The Client will pay all charges, costs and expenses incurred by or on behalf of the Service Provider in collecting or attempting to collect fees due under this Agreement or otherwise taking steps to enforce this Agreement, including the recovery of the System.
All payments are to be made by the Client in the form of payment cards kept on file with service provider. Acceptable payment card types are credit, debit, bank, gift. The Monitor Fee through to the next scheduled monitor date, together with applicable Taxes, is due and payable in full each month in advance on scheduled monitor date. Payment for any other charges, including applicable Taxes thereon, is due in full in advance at the time the costs are incurred. The Client acknowledges that the Service Provider is under no obligation to perform any services until payment for such services, together with any outstanding payment if applicable, is made. The Client further acknowledges that if the System is not serviced as required, it will enter a LOCKOUT state and no further breath alcohol tests can be performed.
The Client’s obligation to pay Monitor Fees, together with any other amounts payable during the Term hereof, shall continue in full force and effect, notwithstanding termination of this Agreement, until the System has been returned to the Service Provider in good condition subject only to reasonable wear and tear.
The Client authorizes the Service Provider to charge the Client’s credit card for any amounts due to the Service Provider including charges for the value of the unit should the Client fail to return the device as specified in this Agreement.
- MONITOR REPORTS:
iBac will provide reports to the monitoring authority as required. In the event of a violation or additional data request, the provider will send requested report to the monitoring authority and a violation/Data reporting fee will be charged to clients account.
- SERVICE PROVIDER’S RESPONSIBILITY:
The Service Provider agrees to program and service the System in a good and workmanlike manner. The liability of the Service Provider shall be limited to repair or replacement of defective components. Such replacement shall be done during normal business hours at the Designated Service Center. In no event shall the Service Provider (including its employees and agents) be liable for any consequential loss or damage to the person or property of the Client or anyone else.
THE FOREGOING IS IN LIEU OF ANY WARRANTY BY THE SERVICE PROVIDER, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO, AND THERE ARE NO COLLATERAL REPRESENTATIONS OR WARRANTIES EXCEPT AS EXPRESSLY SET OUT HEREIN.
Without limiting the generality of the foregoing, the Client understands that the Service Provider does not warrant the ability of the Client or other permitted users of the iBac to operate a Vehicle safely after breath-testing with the System. Operation of any Vehicle is the sole responsibility of the Client. The Client also understands that the Service Provider does not warrant the ability of the System to prevent the Client or any other user from starting and/or operating any Vehicle in violation of a Federal, State or Municipal law while in an alcohol impaired condition. THE CLIENT SHOULD NOT ATTEMPT TO START OR OPERATE ANY VEHICLE AFTER CONSUMING BEVERAGE ALCOHOL.
The Client agrees to indemnify and hold harmless the Service Provider (including its employees and agents) from any and all claims, demands, actions, costs and expenses whatsoever that may arise, directly or indirectly, out of any act or omission of the Client, other users , or persons under their care, custody or control, relating to the Client’s participation in the Program. Such indemnification shall continue after termination of this Agreement. The Service Provider (including its employees and agents) shall not be liable nor responsible for any bodily or personal injury or property damage of any nature whatsoever that may be suffered by the Client, or any other person, resulting directly or indirectly from the Client’s participation in the Program.
- EARLY TERMINATION:
This Agreement may be terminated by Client at any time prior to the end of the Term upon notice to the Service Provider. This Agreement shall terminate immediately if the Service Provider receives notification from the Administering Authorities that the Client’s participation in the Program has been revoked, suspended, canceled or otherwise terminated.
In addition to the above, this Agreement may be terminated by the Service Provider at any time prior to the end of the Term, upon notice to the Client, in the following circumstances:
- Failure by Client to pay any fees or other charges arising under this Agreement when due;
- Failure by Client to return the IBAC to the Designated Service Center within 7 days after any scheduled monitor date;
- Damage to or loss of the System caused by a willful act or omission on the part of the Client or a permitted user of the IBAC;
- Any evidence, in the sole discretion of the Service Provider, of tampering with or attempting to circumvent the System;
- Any other material breach of this Agreement by the Client.
In the event of a normal or early termination of this Agreement, the Client shall not be entitled to any refund of prepaid fees or other charges and the Early Termination Fee shall become immediately due and payable, if applicable. All terminations, whether initiated by the Client, the Service Provider, or the Administering Authorities will be reported to the Administering Authorities. The Client acknowledges that early termination of this Agreement may result in a loss of driving privilege or other court-imposed sanctions.
iBac and any and all manufacturers, retailers, distributors and sellers of iBac® devices make no warranties, express or implied, as to the ability of the iBac® device to determine whether a user of this device is legally intoxicated and iBac expressly disclaims any liability for incidental, special, or consequential damages of any nature
Decisions and/or actions based upon the reading of the iBac® device shall be entirely at the User and Concerned Party’s (if any) own risk.
iBac and any and all manufacturers, retailers, distributors, service providers and sellers of iBac® devices make no warranties, express or implied, that any modification or adjustment thereof is a legal protector or evidence or defense against any police or public procedure or judicial or investigative proceedings in any jurisdiction.
One Year Limited Warranty
iBac’s warranty obligations for the iBac® device (the “Limited Warranty”) are expressly limited to the following: iBac warrants the iBac® device against defects in materials and workmanship under normal use for a period of ONE (1) YEAR from the date of purchase by the original end-user purchaser or the date the iBac® device was first put in use, whichever date is earlier (the “Warranty Period”). Except as provided herein, iBac provides the iBac® device “as is.” If a defect arises and a valid claim is received by iBac within the Warranty Period, iBac will, at its option, either (1) repair the iBac® device, (2) exchange the iBac® device with a iBac® device that is new or which has been manufactured from new or serviceable used parts and is at least functionally equivalent to the original iBac® device, or (3) refund the purchase price of the iBac® device. When a refund is given, the iBac® device for which the refund is provided must be returned to iBac and becomes iBac’s property. This Limited Warranty is limited to the original end-user purchaser and is not transferable to, or enforceable by, any subsequent owner. Any such transfer shall void the Limited Warranty provided hereunder. This Limited Warranty does not apply: (a) to consequences caused by accident, abuse, tampering, misuse, flood, fire, earthquake or other external causes; (b) to consequences caused by operating the iBac® device outside the permitted or intended use described by iBac; (c) to consequences caused by, or arising from, service, repair, modification or alteration performed by anyone who is not a representative of iBac or a iBac Authorized Service Provider; (d) to a iBac® device or part that has been modified to alter functionality or capability without the written permission of iBac; or (e) by the failure to report or to timely report testing results as a result of any telecommunication related problems, whether caused by third parties, the User, or iBac®. No iBac Service Provider, manufacturer, distributor, re-seller, agent, representative, or employee is authorized to make any modification, extension, or addition to the Limited Warranty. If any term is held to be illegal or unenforceable, the legality or enforce-ability of the remaining terms shall not be affected or impaired.
Exclusions, Limitations, and Disclaimers
iBac makes no warranties, express or implied, as to the ability of the iBac® device to determine whether, or the extent to which, a User’s mental or physical functioning, or judgment, may be impaired, including whether the User is intoxicated under any definition of that word. iBac expressly disclaims any liability for direct, indirect, incidental, special, or consequential damages of any nature under any legal theory. Any act or failure to act based on a reading from this device shall be at the User’s own risk or upon those who rely upon such reading. iBac assumes no responsibility for consequences to, or of, Users who use this device and later are shown to have been under the influence of alcohol or have had their judgment or any mental or bodily function impaired by alcohol. Correlation between breath alcohol content and blood alcohol concentration depends on many variables, including environmental factors (such as air quality, wind, humidity, temperature, etc.) and health conditions of the User. A low BrAC reading does not mean that the User’s physical or mental performance or judgment can respond to an emergency. The concentration of alcohol in the blood of a User cannot be exactly determined by using a breath alcohol-screening device. iBac does not warrant that the operation of the device will be error-free. iBac is not responsible for any consequences arising from the failure to follow instructions related to the device’s use. Because of the variables involved in the dissipation of alcohol consumption, individual metabolism, and self-administration, the User and associated third parties agree: (1) not to hold iBac or its agent and representatives, the manufacturer, dealer, wholesaler, or distributor, responsible for the consequences of any decision, based on the use of this device to operate a vehicle, boat, or aircraft or other equipment; and (2) to hold iBac or its agent and representatives harmless from the claims of others arising out of any such decision.
TO THE EXTENT PERMITTED BY THE LAW, THIS WARRANTY AND THE REMEDIES SET FORTH ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL OR WRITTEN, STATUTORY, EXPRESS OR IMPLIED. AS PERMITTED BY APPLICABLE LAW, IBAC SPECIFICALLY DISCLAIMS ANY AND ALL STATUTORY OR IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS. IF IBAC CANNOT LAWFULLY DISCLAIM STATUTORY OR IMPLIED WARRANTIES, THEN TO THE EXTENT PERMITTED BY LAW, ALL SUCH WARRANTIES SHALL BE LIMITED IN DURATION TO THE DURATION OF THE EXPRESS WARRANTY AND TO THE REPAIR OR REPLACEMENT SERVICE AS DETERMINED BY IBAC. IN ITS SOLE DISCRETION.
EXCEPT AS PROVIDED IN THIS WARRANTY, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IBAC IS NOT RESPONSIBLE FOR DIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO: LOSS OR USE; LOSS OF REVENUE OR INCOME LOSS OF ACTUAL OR ANTICIPATED PROFITS (INCLUDING LOSS OF PROFITS FROM A CONTRACT), LOSS OF THE USE OF MONEY LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; OR LOSS OF REPUTATION. Some countries, states, and provinces do not allow the exclusion or limitation of incidental or consequential damages or allow limitations on how long an implied warranty or condition may last, so the above limitations or exclusions may not apply to you. This warranty gives you specific legal rights, and you may also have other rights that vary by country, state, or province. This Limited Warranty is governed by and construed under the laws of the country in which the product purchase took place.
Obtaining Warranty Service
If you feel that your device requires warranty service, please follow these instructions: Obtain a Return Merchandise Authorization (“RMA”) number by calling 855-755-5200 or by emailing [email protected]. When shipping the device back to the designated iBac address, please package the IBAC® device carefully and ship using a major carrier (UPS, FedEx, USPS, etc.). To ensure proper credit for a returned item, be sure to obtain a delivery confirmation on the return shipment. If we do not receive the iBac® device and you do not have proof of delivery to us, you and/or the Concerned Party (if any) may be assessed a replacement cost. Please include the following information with your returned device:
- Your RMA number (issued by iBAC)
- Name, address, and phone number as stated at the time of order
- MAC Address of iBac device (located inside cover)
- A copy of your original sales receipt (if applicable)
- GENERAL PROVISIONS:
Service Provider employees have no authority to vary the terms of this Agreement. Client may not rely upon, and Service Provider will not be bound by, any variations or representation, whether oral or written, made by Service Provider employees pertaining to this Agreement. No term of this Agreement may be waived or changed except by written agreement between Client and Service Provider.
In the event of default by the Client, the Service Provider may, but is not obligated, to avail itself of any legal or equitable remedy that may be available to it in order to enforce this Agreement, and shall not be required to exhaust any remedies before pursuing any other remedies. No actions by the Service Provider shall result in an estoppel or waiver of rights and shall not preclude the Service Provider from requiring full and strict compliance with this Agreement at any time.
If any provision of this Agreement is prohibited by law, or found to be invalid, it shall not affect the remaining provisions.
Section headings are included in this Agreement for convenience only and have no independent meaning or effect.
Any notice given pursuant to this Agreement shall be sufficient if in writing and delivered personally or sent by ordinary prepaid mail to the address of the Service Provider or the Client, as the case may be. In the event that notice is given by mail as aforesaid, it shall be deemed to have been received on the third business day after mailing.
- LOSS PROTECTION PLAN (where available):
The Client acknowledges financial responsibility for any damage to or loss of the System, however caused, provided that upon payment of the Loss Protection Plan fee, the Client’s financial responsibility for damage to or loss of the System shall be limited to a maximum of $125.00 for the first occurrence and $200.00 for each subsequent occurrence. Service Provider reserves the right to terminate the Loss Protection Plan if the Client has two (2) or more claims under the plan. Notwithstanding the foregoing, purchase of the Loss Protection Plan shall not limit the Client’s financial responsibility for damage to or loss of the System caused by a willful act or omission on the part of the Client or other permitted users of the Vehicle. The Client must present a copy of the police report, along with any other evidence of loss, and pay the applicable liability limit within 72 hours of loss. If the Client declines the Loss Protection Plan the Client is responsible for any loss or damage to the unit to a maximum cost for a complete loss as detailed on the Fee Schedule.
Fees and charges payable include:
Orientation and Enrollment Charge: This charge covers entering personal client information into the iBAC data base system and scheduling required program test times per instruction of the Monitoring authority and training to familiarize the Client with its use and function. The Charge does not include charges to recover possession of the System in the event that the System is not returned pursuant to the terms of this Agreement. Any changes to Testing schedule during the Term of this Agreement shall Not result in additional charges.