DATA ACTIVATION CENTER TERMS AND CONDITIONS OF DATA PLAN SERVICES
1. Applicability These Terms and Conditions of Data Plan Services (the “Terms”) apply to and govern all sales of rights of access to and use of data plans (the “Plan Services”) offered by Data Activation Center, Inc., a Florida corporation (“DAC”) to customers (“Customer”) placing orders for Plan Services that are accepted by DAC as provided in these Terms. DAC and Customer are each a “Party” and are referred to collectively as the “Parties” in these Terms.
2. Orders Customer may order Plan Services by issuing purchase orders in conformity with quotations issued by DAC or through online ordering processes established by DAC (“Orders”). Orders will be binding upon DAC only if accepted by DAC, which may be communicated through written confirmation or by the provision of Plan Services. The agreement between the Parties for any Order (the “Agreement”) consists of: (i) these Terms; (ii) the data plan access prices, quantities, and payment terms as set forth in the Order; and (iii) and any modifications or additions to these Terms accepted in writing by DAC.
3. Modification of Orders Subject to the other terms and conditions hereof, all Orders shall remain in effect until a request for a new Order is made by Customer and accepted by DAC in which case the prior Order shall be canceled and new Order term commenced. For yearly plans, there are no refunds due to early termination of service.
4. Prices Taxes and Associated Charges All prices quoted by DAC are valid only for Orders placed within the period of validity set forth in the DAC quotation and are otherwise subject to change at any time. Prices are subject to correction for clerical and typographical errors. All prices quoted by DAC are quoted exclusive of duties, fees, tariffs or other governmental charges, all as they may apply to any Order. All such amounts are payable by Customer and will be reimbursed to DAC at its cost if paid by DAC. If the Plan Services are or become subject to sales, use, value added, excise or other taxes and unless Customer provides DAC with a valid exemption certificate from any such taxes, DAC shall include any such taxes as a separate line item on the invoice for the Order and Customer shall pay such amounts when due.
Payments are delinquent if not received by DAC in full within fifteen (15) days after the beginning of a billing cycle. In such case, a $15 late fee will be assessed by DAC to Customer. If payment has not been received by DAC in full within thirty (30) days after the beginning of a billing cycle, DAC may suspend Plan Services. In such case, a $20 restoration fee will be imposed to re-activate Plan Services. If payment is not made in full by Customer within forty-five (45) days after the beginning of a billing cycle, DAC shall have the right, but not the obligation, at the option of DAC, to terminate the Plan Services.
DAC may, to the extent permitted by applicable law, charge a returned check fee of $50. Customer has no right of offset for disputed charges or otherwise unless the amount due is adjusted by DAC prior to the due date because of error. Customer must pay the full amount reflected in the invoice when due, even if Customer is disputing certain charges. DAC may, at its sole discretion, require payment by certified check or money order. If DAC accepts late or partial payments, or payments marked “Paid in full” or with similar notations, such acceptance will not waive any of DAC’s rights under the Agreement.
In the event Customer’s equipment is lost, stolen or otherwise absent from Customer’s possession or control in an unauthorized manner, Customer shall nevertheless be liable for all charges until Customer suspends Plan Services.
5. Permitted Use of Plans Customer may use the Plan Services solely in connection with the operation of machine-to-machine (“M2M”) communication systems with such devices (“Supported Devices”) installed within the service area (“Permitted Use”). Supported Devices on mobile data plans may use the roaming services of DAC’s carrier’s roaming partners but may not be permanently located in roaming areas.
Plan Services will be delivered in accordance with the specifications set forth in the Order and may be changed, modified or amended by DAC upon written notice to Customer delivered at least forty-eight (48) hours prior to the effectuation of such change, if possible; provided that, except for changes or modifications resulting from emergencies or force majeure conditions, such change, modification or amendment does not substantially degrade the functioning or performance of the Plan Services.
DAC may suspend or terminate Plan Services if the use of Plan Services by Customer violates the terms and conditions of any agreement DAC may have with a third party.
6. Provisioning and Support Services Upon its acceptance of an Order, DAC shall take steps required to provide the Plan Services and will notify Customer when the Plan Services are available and provide direction to Customer to establish access. DAC will provide support for Customer use of the Plan Services including technical support helpline services and billing services as directed by DAC (“Support Services”). The manner of delivery of Support Services may be adjusted by DAC from time-to-time.
7. Service Level and Dependencies DAC shall provide Plan Services and Support Services applying its diligent, commercially reasonable efforts. Customer acknowledges that Plan Services are subject to interruption due to interruption of networks and is available only within the applicable plan coverage areas, within operating range of wireless systems and with equipment. Further, the performance of each Party under the Agreement will be excused only for the duration of any condition or event outside of its reasonable control making performance commercially impractical such as disruptions due to natural disasters, acts of war, riots, strikes or supply chain shortages or delays.
Customer’s wireless device must comply with Federal Communications Commission regulations, be certified for use on the network utilized by DAC, and be compatible with Customer’s Plan Services. DAC may change Customer’s wireless device’s software, applications or programming remotely, without notice. This could affect Customer’s stored data, or how Customer has programmed or used Customer’s wireless device. By activating Plan Services that use a SIM (Subscriber Identity Module) card, Customer agrees that DAC owns the intellectual property and software in the SIM card that DAC may change the software or other data in the SIM card remotely and without notice, and DAC may utilize any capacity in the SIM card for administrative, network, business and/or commercial purposes. Customer acknowledges that cellular carriers have the right to discontinue support of older technology resulting in the hardware utilizing the old technology standards inoperable. DAC shall have no liability to Customer in the event DAC’s carrier discontinues support of hardware utilized by Customer resulting in the inability of DAC to provide Plan Services to Customer.
Customer acknowledges that wireless devices use radio transmissions. Thus, Customer cannot receive Plan Services if Customer’s device is not in range of a transmission signal. Customer acknowledges that despite the foregoing, many circumstances can affect the availability and quality of Plan Services, including but not limited to, network capacity, Customer’s device, facilities limitations, transmission limitations caused by atmospheric, terrain, buildings, foliate, weather, 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 DAC’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 equipment modifications, upgrades, relocations, repairs, and other similar activities necessary for the proper or improved operations of Plan Services.
Customer acknowledges that the network has many complex elements and is not guaranteed against eavesdroppers, hackers, denial of service attacks, viruses, or interceptors. Customer agrees that DAC will not be liable to Customer for any lack of privacy or security, provided that DAC has maintained commercially reasonable safeguards consistent with customary industry practices.
8. Privacy DAC’s carrier may collect personal information about Customer. Customer consents to such data collection. If there are specific advertising and marketing practices for which Customer’s consent is necessary, Customer’s consent (such as through privacy-related notices received when Customer purchases or uses products and services) shall be deemed to have been provided.
Customer acknowledges that commercial mobile radio systems use radio channels to transmit data communications over a complex network and as a result, privacy cannot be guaranteed. Customer agrees that DAC shall not be liable to Customer for any lack of privacy experienced.
9. Disclaimer of Warranties To the maximum extent permitted by law, DAC makes no representations or warranties, express or implied, any warranty of merchantability or fitness for a particular purpose, and non-infringement about the Plan Services, Customer’s wireless device(s), or any applications Customer accesses through Customer’s wireless device(s). DAC does not warrant that Customer’s wireless device(s) will work perfectly or will not need occasional upgrades or modifications, or that it will not be negatively affected by network-related modifications, upgrades or similar activity. If Customer downloads or uses applications, services or software provided by third parties (including voice applications), 911 or E911, or other calling functionality, such services may work differently than services offered by DAC, or may not work at all. Customer agrees to review all terms and conditions of such third party products. DAC is not responsible for any third party information, content, applications or services Customer accesses, downloads or uses on Customer’s device(s). Customer shall be responsible for maintaining virus and other internet security protections when accessing these third-party products or services.
10. Limitations of Damages and Remedies The liability of DAC for any claims, whether based in contract, warranty, tort or otherwise, arising from or relating to the Plan Services are limited to direct damages incurred by Customer not to exceed the purchase price paid for the Plan Services involved in such claim. In no event shall DAC be liable for indirect, special, consequential or punitive damages, and the prices of the Plan Services are set as a consideration for these limits. In addition to the preceding limits, DAC fully disclaims any liability of any type, whether express or implied, arising from or relating to the use of the Plan Services in applications where disruption or failure of the Plan Services could result in loss of life, including, but not limited to medical devises, life safety applications, controls in nuclear facilities, and air traffic control applications. The Plan Services are not intended for use in such applications.
11. Exclusion of Liability Customer expressly understands and agrees that Customer is not a third party beneficiary of any agreement between DAC and its underlying carrier. In addition, Customer acknowledges and agrees that its underlying carrier and its affiliates and contractors shall have no legal, equitable, or other liability of any kind to Customer and Customer hereby waives any and all claims or demands therefore.
12. Compliance Each Party confirms and agrees to maintain compliance with all laws and regulations applicable to it in any way related to the Plan Services. Customer agrees to supply to DAC such information regarding the usage of the Plan Services by Customer as DAC’s carrier may legally require of DAC.
13. Authorized Disclosures DAC disclosures to its carrier and government authorities of information related to use of the Plan Services by Customer as legally required of DAC are hereby authorized by Customer.
14. Term and Termination:
i. Term The Term of this Agreement commences the date DAC accepts the Order (the “Acceptance Date”), and shall continue for so long as any Order remains outstanding, unless sooner terminated as provided in this Section 14. The term of each Order shall be as set forth in that accepted Order.
ii. Termination The Agreement may be terminated:
a) Upon written notice from the non-breaching Party to the other Party if that other Party materially breaches the terms of the Agreement and has failed to cure such breach in all material respects within thirty (30) days after receipt of written notice from the non-breaching Party identifying that default; such right of termination is optional and an addition to any other rights not inconsistent with termination;
b) By a Party immediately upon written notice to the other Party, in the following circumstances (A) the other Party becomes or applies for insolvency, bankruptcy, reorganization or liquidation, (B) a receiver is appointed for its business or assets or applied for by the other party, (C) a third party files, or has filed an action under (A) or (B) above against the other Party, (D) an order for relief under the applicable bankruptcy or insolvency law has been issued or applied for by other Party;
c) For any other good cause, provided that the non-defaulting party so advises the defaulting party in writing of the event of default and the defaulting party does not remedy the default within thirty (30) days after written notice thereof is received, unless such default cannot by its nature be cured within such time period and the defaulting party is diligently proceeding to cure such default, including, but not limited to: (1) if Customer: (a) breaches the Agreement; (b) resells the Plan Services without the prior consent of DAC; (c) uses Plan Services for any illegal purpose, including use that violates trade and economic sanctions and prohibitions promulgated by any US governmental agency; (d) installs, deploys or uses any regeneration equipment or similar mechanism (for example, a repeater) to originate, amplify, enhance, retransmit or regenerate an RF signal without DAC’s permission; (e) does not pay Customer’s bill in a timely manner; (f) incurs charges larger than a required deposit or billing limit, or materially in excess of Customer’s monthly access charges (even if DAC has not yet billed the charges); or (g) provides credit information DAC cannot verify; or (2) if Customer, or any user of Customer’s device(s) or any line of service on Customer’s account: (a) threatens, harasses, or uses vulgar and/or inappropriate language toward DAC representatives; (b) interferes with DAC’s operations; (c) “spams,” or engages in other abusive messaging or calling; (d) modifies Customer’s device from its manufacturer’s specifications; or (e) uses Plan Services in a way that negatively affects the network or other customers. DAC can also temporarily limit Plan Services for any operational or governmental reason.
In no event shall the defaulting party be given more than sixty (60) days, from date of initial notice, to cure said default. Except as otherwise provided by the Agreement, such termination shall be effective upon the expiration of the thirty (30) day period, or upon expiration of the longer period, if applicable.
15. Effect of Termination Termination of this Agreement shall terminate the obligations of the Parties under any Orders outstanding as of the termination date. Upon termination of the Agreement or any Order, Customer shall cease using the Plan Services. Upon termination of this Agreement or any Order for any reason Customer shall pay DAC for Plan Services provided through the effective date of termination of the Order or Agreement as the case may be. DAC shall not be obligated to provide Plan Services or perform any Support Services following termination of this Agreement.
16. Intellectual Property Except as expressly provided in the Agreement, the sale of Plan Services does not constitute a grant of any license in or other right to use any patent, copyright, trademark or other proprietary right (“IP”) of DAC or its suppliers. All rights associated with the IP are expressly reserved by DAC. Customer shall not remove or alter any trademark, copyright notice or other designation of IP interest contained in or on the documentation or other material supplied by DAC to Customer.
17. Indemnities Customer hereby indemnifies and agrees to hold DAC and its shareholders, employees, officers, directors, agents, affiliates and suppliers harmless from any claims and resulting costs, expenses, loss of damage related to the use of the Plan Services in any manner inconsistent with the Agreement, or resulting from any failure of Customer to comply with applicable laws, regulations or industry standards applicable to Customer’s use of the Plan Services.
18. Resolution of Disputes Controlling Law If either Party asserts the other has failed to perform its obligations under the Agreement (a “Claim”) it may provide written notice to the other Party specifying the basis for that Claim. If such circumstances are not fully corrected within thirty (30) days after delivery of such notice, the claiming Party may commence proceedings to resolve that Claim as provided in this Section 17. Customer and DAC both agree to resolve disputes only by arbitration or in small claims court. Customer understands that by this Agreement, Customer is giving up the right to bring a claim in court or in front of a jury. Customer and DAC also both agree that:
(A) The Federal Arbitration Act applies to the Agreement. Except for small claims court cases, any dispute that in any way relates to or arises out of the Plan Services and the Agreement or from any equipment, products and other services Customer receives from DAC, including any disputes Customer has with DAC’s employees or agents, will be resolved by one or more neutral arbitrators before the American Arbitration Association (“AAA”). This agreement to arbitrate continues to apply even after Customer has stopped receiving service from DAC.
(B) The Agreement does not allow class or collective arbitrations even if the AAA procedures or rules would. Notwithstanding any other provision of the Agreement, the arbitrator may award money or injunctive relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. No class or representative or private attorney general theories of liability or prayers for relief may be maintained in any arbitration held under the Agreement. Any question regarding the enforceability or interpretation of this paragraph B shall be decided by a court and not the arbitrator.
(C) An arbitration award and any judgment confirming it apply only to that specific case; it cannot be used in any other case except to enforce the award itself.
(D) If for any reason a claim proceeds in court rather than through arbitration, Customer and DAC agree that there will not be a jury trial. Customer and DAC unconditionally waive any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to the Agreement in any way. In the event of litigation, this paragraph may be filed to show as written consent to a trial by the court.
All Claims shall be governed by the laws of the State of Florida without reference to choice of law or conflict of law principles. Any Claim in any form based on any cause of action or legal theory must be brought within one (1) year after the date the cause of action underlying that Claim first accrued.
19. Electronic Interchange Notice Each Party agrees that notices provided to the other related to the Agreement will be valid if sent by email to authorized addresses set forth in the Agreement (notwithstanding any failure of the recipient’s email system, spam filters or similar impediments) or by courier service or regular U.S. mail to the authorized address set forth in the Agreement or through subsequent notice to the other Party. Emails constitute writings and electronic facsimiles of original signatures constitute written approval for purposes of the Agreement.
20. General The Agreement constitutes the entire agreement between the Parties hereto and supersedes any and all prior agreements, discussions, negotiations, arrangements, or understandings, whether written, oral or implied, with respect to the subject matter of the Agreement. This Agreement may not be modified or amended without the prior written consent of each Party for accepted Orders as evidenced by a mutually signed written amendment hereto. DAC may alter these Terms at any time and such alterations will apply to any Orders accepted after the date of that modification. Should any one or more parts of this Agreement be declared invalid by any court of competent jurisdiction for any reason, such decisions shall not affect the validity of any remaining portions, which shall remain in full force and effect as if this Agreement had been executed with the invalid parts thereof eliminated. The relationship between the Parties under this Agreement is that of independent contractors. This Agreement does not grant authority for either Party to act for the other in any agency or any other capacity nor to make commitments of any kind for the account of or on behalf of the other Party. The employees or agents of one Party shall not be deemed to be employees or agents of the other Party for any purpose. This Agreement shall be binding upon and inure to the benefit of each Party and their respective successors and permitted assigns. Failure to insist upon strict compliance of any of the terms of the Agreement shall not be deemed a waiver of such term. The validity, construction and performance of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida. Headings to articles and paragraphs of this Agreement are to facilitate reference only, and do not form a part of this Agreement, and shall not in any way affect the interpretation hereof. No rights or obligations hereunder shall be assigned or delegated, in whole or in part directly or indirectly by operation of law or otherwise, by Customer to any other person, firm or corporation without the prior written consent thereto by DAC. Customer acknowledges that DAC is not prohibited or restricted from assigning DAC’s rights or participation hereunder, or any portion thereof, to another party. The Parties’ performance under this Agreement shall be excused on a day-to-day basis if such nonperformance is due to war, fire, labor difficulties, strikes, slowdown, governmental orders, equipment failure, inability or delay in securing equipment or sites, civil commotions, acts of nature, weather disturbances or adverse weather conditions, adverse geographic or topographical conditions or any other circumstances beyond the reasonable control of the Party affected.
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