Data Plan Master Service Agreement Terms and Conditions
1.1 Active Device: Each Equipment that has been activated that contains and/or utilizes EW's Wireless Services. Activation occurs at the earlier of either Customer's use of Enabled Device or Customer's purchase of Wireless Services from EW. End User: An entity or person who is the ultimate user of Customer's Products and/or Wireless Services.
1.2 Contract Service Term: The minimum period of Active Devices from the Effective Date outlined in Exhibit (A).
1.3 Services: Each and every radio service provided directly or indirectly by EW as defined in Exhibit A.
1.4 SIM Cards: The SIM (subscriber identity module) is a card used to establish GSM Cellular Services.
1.5 IMEI: An IMEI (International Mobile Equipment Identity) is a numeric number that uniquely identifies a GSM or UMTS cellular device.
1.6 ESN: An ESN (Electronic Serial Number) is a numeric identifier that uniquely identifies a CDMA cellular device and used to establish Service.
1.7 Equipment: SIM Cards, Wireless data modems, mobile device, M2M device, and similar products and ancillary accessories used in conjunction with Wireless Service.
1.8 Territory: The geography outlining Wireless Service coverage that is permitted in this Agreement.
1.9 Authorized Use: The use of the M2M Lines of Wireless Service that is permitted under this Agreement.
1.10 Machine-to-Machine or M2M: The transmission of data using the Service between wireless devices and computer servers or other machines, or between wireless devices, with limited or no manual intervention or supervision.
1.11 M2M Line: An individual line of Service used for Machine-to-Machine transmission.
1.12 Embedded Device: An M2M Line is "Embedded" if it: (i) is used exclusively for Machine-to-Machine data transmissions, and (ii) is used only within the functionality of the Customer Product or Service.
1.13 MTN: Mobile telephone number.
2 SERVICES AND SUPPORT:
2.1 Upon shipment from EW's origination point, title and risk of loss with respect to the Equipment and/or SIM Card shall pass to Customer (except for any embedded software, which is provided solely for use in connection with the Service and for which all ownership rights are retained by EW and its licensor(s), and Customer shall be responsible thereafter. Customer will pay all charges in connection with such shipment, including without limitation transportation charges, insurance premiums, duties, costs of compliance with export and import controls and regulations, and other governmental assessments.
2.2 Upon receipt of Customer's properly executed purchase order for Equipment, EW shall within a commercially reasonable time, prepare and ship the ordered Equipment to Customer, F.O.B. EW's origination, Delivered Duty Unpaid (DDU) (Incoterms 2000).
2.3 Customer's End User Support. Customer shall be solely responsible at its own cost for providing End User customer and technical support, including, but not limited to, handling all issues with respect to the Customer Product or Service and wireless connectivity, End User credit verification, deposits, billing, collection, consolidation, rebilling, complaints, equipment procurement and related issues, customer service, toll/long distance charges and bad debts. EW shall not support End Users in any manner.
3 RESTRICTIONS AND RESPONSIBILITIES:
3.1 This is a contract for Services, any Software associated with the Services will be installed, accessed and maintained only by or for EW for use solely in connection with the Services and no separate license is granted thereto. Customer will not, directly or indirectly (and will not allow any third party to): reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, SIM Cards or data related to the Services ("Software", which term shall be deemed to include any user documentation); modify, translate, or create derivative works based on the Services or any Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party, except for authorized end users of Customer; or remove any proprietary notices or labels with respect to the Services. EW owns and retains all right, title and interest in and to the Services and Software and all related intellectual property rights (except title to the tangible SIM Cards (excluding software) delivered to Customer.
3.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with EW's standard policy then in effect, the terms of which are set forth in Exhibit A attached hereto, and all applicable laws (including but not limited to policies and laws related to spamming, privacy, intellectual property, consumer and child protection, obscenity or defamation). Although EW has no obligation to monitor the content provided by Customer or Customer's use of the Services, EW may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.3 Customer further represents, warrants, and agrees: (a) not to disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software or Service; (b) that neither this Agreement nor the performance of or exercise of rights under this Agreement, is restricted by, in conflict with, requires registration or approval or tax withholding under, or affects EW's proprietary rights under, or will require any termination payment or compulsory licensing under, any law or regulation of any organization, country, group of countries or political or governmental entity located within or including all or a portion of the applicable territory; (c) to comply with the U.S. Foreign Corrupt Practices Act and all applicable laws and regulations. If Service is provided to any unit or agency of the United States Government ("U.S. Government"), the following provisions shall apply (and Customer shall ensure that the following provisions are included in the applicable end user agreement): All software and accompanying documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the software and accompanying documentation by the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms herein. Customer and its End User customers are not entitled to receive any source code or source documentation relating to the Software; and (d) to use, in addition to and without in any way limiting Customer's other obligations hereunder, all methods to protect EW's rights with respect to the Services and Software as it uses to protect its own or any third party's services, software, confidential information or rights of a similar nature.
3.4 Customer or End Users shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the GSM or CDMA modules (collectively, "Equipment"). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and Customer shall be fully responsible for all uses of Services (and all associated Fees) or the Equipment, with or without Customer's knowledge or consent and whether or not authorized by Customer.
3.5 Use with Customer Product or Service Required. This Agreement specifically contemplates the purchase of M2M Lines of Wireless Service by Customer to be an Embedded Device in the Customer Product or Service. Customer shall not provide Wireless Service to End Users independent of the Customer Product or Service. Except upon written agreement between the Parties, third parties (including agents, contractors or contract employees, and franchisees of Customer or of Customer's parents and affiliates) may not purchase Wireless Service under this Agreement.
4 EQUIPMENT REQUIREMENTS:
4.1 Each Active Device model requires mobile carrier certification prior to use with the Services. Customer is responsible for obtaining End-User Enabled devices to validate for certification. Minor changes to certified Equipment Device models that do not impact either the (i) antenna (ii) modem model, or (iii) device operating system, will generally not require re-certification. Customer will perform all such certification testing in good faith and in accordance with current requirements.
4.2 EW shall have no obligation to provide or sell Equipment to Customer hereunder and Customer shall provide its own Equipment.
4.3 Customer shall ensure that all Equipment and applications utilized by its End Users in connection with the Wireless Service and each End User's use thereof shall at all times comply with the requirements outlined in Exhibit B. Customer's failure to do so may cause Customer's transmissions to fail, be blocked or misrouted. Use of Wireless Service not intended by Customer and/or be subject to additional charges beyond those set forth in this Agreement. Customer hereby agrees to pay such additional charges. EW shall have no liability for Customer's Equipment or Customer's failure to maintain or meet requirements applicable to Customer's Equipment. Under no circumstances shall EW be responsible for or obligated to make any changes to its equipment, operations, network or systems to accommodate Customer or any End User.
4.4 Initial Enabled Devices to be certified and subsequently sold by Customer shall be those listed in Exhibit A.
4.5 Customer shall provide evidence that the device has regulatory approval for use in its intended geography of operation and is standards compliant. Such evidence for regulatory approval shall include, for example, an FCC label and certificate for US operation, IC label and certificate for Canadian Operation and CE marking and certificate for Operation in EU countries, and evidence for standards compliance shall include, for example, CTIA/CCF certificate for US/Canada operation.
5 AUTHORIZED USE AND ACKNOWLEDGEMENT:
5.1 EW shall provide M2M Lines to Customer only under the terms and conditions set forth herein or signed by the Parties and added to this Agreement from time to time.
5.2 Use of Wireless Service for Remote Medical Monitoring Prohibited: Customer shall not use the Wireless Service for remote medical monitoring which, if agreed to by the Parties, would require additional terms and conditions.
5.3 Fraudulent or Unauthorized Use. It is Customer's obligation to prevent (i) use of the Wireless Service by End Users and other third parties in violation of this section, and (ii) fraudulent or other unauthorized use of the Wireless Service or an MTN. Customer shall promptly notify EW in writing if there is actual or suspected use of the Wireless Service in violation of this section.
5.4 Violation of Authorized Use. If EW determines that M2M Lines have been used in a manner not permitted by the Authorized Use and Customer fails to cure such violation within thirty (30) days following Legal Notice from EW informing Customer of such violation, then, in addition to such other rights as EW may have under this Agreement or at law or in equity, EW shall have the following rights:
- to suspend or terminate such M2M Lines on notice to Customer;
- to retroactively bill Customer charges for such M2M Lines at EW's standard non-discounted rates applicable to lines used in the manner such M2M Lines were used by Customer. Such charges shall be paid by Customer within thirty (30) days of the date of EW bill;
- if Customer continues using M2M Lines other than for the Authorized Use, EW may deny activation to new M2M Lines or may terminate this Agreement and any or all M2M Lines.
6 PROVISIONS FOR WIRELESS SERVICE (CDMA ONLY):
This section pertains to Customers who are using CDMA based Equipment and Wireless Service, which EW may enforce to comply with rules instituted by either Mobile Carriers and/or local, state, federal laws.
6.1 EW, at any time upon written notice, modify the requirements in this section including the introduction of additional or replacement program(s), terms and conditions in connection with MTN resources.
6.2 If Customer is using geographic MTNs, but Customer's needs can be satisfied with a non-geographic number solution (e.g. 5XX numbers where the NPA begins with a "5" and there is no rate center associated with the MTN), Customer shall migrate to a non-geographic number solution for all new activations when EW offers such a solution. The Customer's existing lines using geographic numbers shall be eliminated through attrition only.
6.3 Customer may port its geographic MTNs from EW to another carrier, however Customer does not have any property right in the MTN. Customer may not port its non-geographic MTNs from EW to another carrier because non-geographic MTNs are not portable. EW may change, reassign or eliminate an MTN upon reasonable notice to Customer under certain circumstances, including fraud prevention, area code changes, and regulatory or statutory law enforcement requirements. Customer shall bear the cost of reprogramming End User and Customer Equipment, systems, Products and Services in connection therewith. Customer's failure to perform such reprogramming may adversely affect Customer's ability to provide its Products or Services, but Customer shall still be obligated to pay for the M2M Lines and Wireless Service as provided in this Agreement.
6.4 Equipment Location. All Equipment activated on M2M Lines at a fixed location must be located by Customer and End Users within the areas served by the EW owned and operated network. Equipment activated on M2M Lines which are mobile may roam on the networks of EW'S roaming partners but shall not be permanently located in the roaming area.
7 SERVICE ORDERING, BILLING AND FEES:
7.1 All purchase orders issued pursuant to this Agreement shall be governed exclusively by the terms and conditions of this Agreement and there shall be no force or effect to any different or additional terms contained in any such purchase order.
7.2 Customer will pay EW the fees for the Services as set forth in Exhibit A (the "Fees"). If Customer or its End Users use of the Services in any given month exceeds the maximum monthly data usage allotment (which includes data overages, SMS, and roaming fees, etc.) as set forth in Exhibit A, Customer shall be billed for the excess usage and Customer agrees to pay the additional fees with respect to such excess usage. All Fees are non-cancelable and non-refundable. EW reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Contract Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). In addition, EW may, from time to time, introduce new features and functionalities which may be made available to Customer and may require additional fees.
7.3 EW will bill through an invoice which may be delivered via electronic mail. The purchase of Equipment and SIM Cards will be invoiced prior to shipment to Customer. All EW Services (pre-paid plans, data usage, SMS, data overages, activations, deactivations, suspended plans, etc.) shall be invoiced to Customer within the same month which Customer purchased Service. EW shall bill for invoice in full whether Service was provided for a full or partial calendar month.
7.4 Billing: Monthly access fees and feature charges are generally billed in advance, while airtime overage and other usage charges are billed in arrears. Monthly billing cycles vary and may not correspond to calendar months. Full payment for invoices issued in any given month must be received by EW ten (10) days after the date of the invoice via wire transfer, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 3% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. If payment by check or similar negotiable instrument is returned by a bank for any reason, EW will charge Customer a returned check fee. Customers who qualify for monthly billing shall be invoiced in advance, for all active plans at the beginning of each current month.
7.5 Taxes, Surcharges and Exemptions: If any federal, state, local or foreign tax, fee, assessment or other charge is required by law to be collected by EW (each, a "Tax"), or a serving carrier charges Tax on a roaming call, then EW may bill such Tax to Customer, and Customer shall pay such Tax. If EW incurs a tax (other than a net income tax) or other expense to comply with legal or governmental requirements, or other expense to provide or improve service to its customers, and EW bills a surcharge to recover or offset the cost of such expense (a "Surcharge"), then Customer shall pay such Surcharge. Taxes and Surcharges may change from time to time. With respect to any Tax other than a Tax charged by a serving carrier on a roaming call, if Customer provides EW with an exemption certificate in the form provided by law, or with other evidence of exemption acceptable to EW, then that specific Tax will not be collected from Customer. If an exemption applied by EW at Customer's request is found not to apply, then Customer shall upon demand pay EW the uncollected Tax and all related interest, penalties and additions to the Tax. EW shall not issue credits for a Tax that is billed prior to EW's receipt of evidence of exemption.
7.6 Failure to Pay: EW may, upon prior written notice to Customer, suspend or terminate Wireless Service to some or all M2M Lines or deny new activations due to Customer's failure to either make payment or dispute charges in accordance with the foregoing provisions regardless of any deposit provided by Customer. If EW sends Customer's account to a collection agency, EW may also charge Customer for any fees that EW is charged by the collection agency, if it is permitted by the law of the state where Customer's billing address is located.
8.1 Except as otherwise expressly stated in this Agreement, EW shall have the right to terminate this Agreement for default if:
- Customer fails to comply with any material term, condition, or obligation of this Agreement;
- EW provides Legal Notice to the Customer specifying the default; and
- Customer fails to cure such default within thirty (30) days after receipt of such notice.
Notwithstanding the foregoing, there shall be only a ten (10) day cure period with respect to a default by Customer based on:
- a violation of any Federal Communications Commission rule or regulation that could adversely affect any Federal Communications Commission spectrum license held by Service Provider or any of its affiliates in the Wireless Service area;
- failure to certify or re-certify Equipment as required by Sections 4 and 5, or
- Customer's failure to make payments under this Agreement.
Customer shall nevertheless remain responsible for all accrued charges incurred for Wireless Service, up to and including the effective date of termination, as well as any applicable ETFs for each M2M Line that was not directly affected by the breach. All sections of this Agreement which by their nature should survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. However, upon any such termination, Customer's right to use the Service shall promptly terminate, Customer shall cease using the Services, and each party shall return to the other all Proprietary Information of the other party.
8.2 When a Customer M2M Line is terminated, Customer shall ensure that the Equipment that was activated on that Line ("Terminated Equipment") does not register or attempt to register on the EW network. Customer shall immediately inform EW of all M2M Lines and Equipment that are terminated. If Terminated Equipment continues to attempt to register on the EW network, (i) Customer will incur and shall pay additional charges and fees, and (ii) if Customer fails to prevent Terminated Equipment from attempting to register within 30 days after notice from EW,
EW shall have the right to charge Customer and Customer shall pay a monthly thirty-five dollars ($35) fee for each unit of Terminated Equipment until the failure is corrected.
8.3 EW shall have the right to use over-the-air means to access Terminated Equipment for the purpose of downloading software or PRLs designed to disable Terminated Equipment to prevent attempts to contact the EW network.
9 BANKRUPTCY / INSOLVENCY / CREDITWORTHINESS:
Either Party may terminate this Agreement upon Legal Notice if:
- the other Party makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts as they mature;
- a trustee or receiver of any substantial part of the other Party's assets is appointed by any court;
- a proceeding is instituted under any provision of the Federal Bankruptcy Laws by or against the other Party, and such proceeding is acquiesced in or is not dismissed within 60 days or results in an adjudication in bankruptcy.
- Notwithstanding the above, Customer's right to terminate pursuant to this section may only be invoked if EW is unable to provide Customer with Wireless Service under this Agreement as a result of the foregoing.
- If Customer terminates the Agreement pursuant to this section, it shall not be relieved of its obligation to pay for any Wireless Service used. At any time during the term of this Agreement, EW may require Customer to provide a deposit to secure payment based upon Customer's creditworthiness or payment history with EW. Any such deposit shall not relieve Customer of its obligation to pay any EW bills. EW shall pay any interest required by law on such deposit.
10 WARRANTY DISCLAIMER:
EW AND ITS AFFILIATES AND CONTRACTORS MAKE NO WARRANTIES WHATSOEVER, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, AS TO THE SUITABILITY, DURABILITY, FITNESS FOR USE, QUALITY, PERFORMANCE OR NON-INFRINGEMENT OF THE WIRELESS SERVICE OR EQUIPMENT OR THEIR USE IN CONNECTION WITH THE CUSTOMER PROVIDED EQUIPMENT OR THE CUSTOMER PRODUCT OR SERVICE. WITH RESPECT TO EW, CUSTOMER PURCHASES THE EQUIPMENT "AS IS." EQUIPMENT PURCHASED UNDER THIS AGREEMENT SHALL BE SUBJECT TO ANY WARRANTIES PROVIDED TO CUSTOMER BY THE EQUIPMENT MANUFACTURER.
11 LIMITATION OF LIABILITY:
EW AND ITS AFFILIATES AND CONTRACTORS WILL HAVE NO LIABILITY TO CUSTOMER OR ANY END USER:
- IF CHANGES IN THE WIRELESS SERVICE OR IN THE EW NETWORK, SYSTEMS, OPERATIONS, EQUIPMENT, POLICIES OR PROCEDURES RENDER OBSOLETE OR OUTDATED ANY EQUIPMENT, HARDWARE, DEVICES OR SOFTWARE PROVIDED BY CUSTOMER TO END USERS IN CONJUNCTION WITH THEIR USE OF THE CUSTOMER PRODUCT OR SERVICE;
- FOR ANY CAUSES OF ACTION, LOSSES OR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF (I) MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS, OR DEFECTS IN FURNISHING WIRELESS SERVICE, (II) FAILURES OR DEFECTS IN THE EW NETWORK OR SYSTEMS, (III) USE OF THE CUSTOMER PRODUCT OR SERVICE OR CUSTOMER'S EQUIPMENT, OR (IV) DISABLING OF EQUIPMENT PURSUANT TO SECTION 8.
- FOR ANY INJURY TO PERSONS OR PROPERTY, LOSSES (INCLUDING ANY LOSS OF BUSINESS), DAMAGES, CLAIMS OR DEMANDS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, USE OR INABILITY TO USE THE WIRELESS SERVICE OR EQUIPMENT, RELIANCE BY ANY END USER OR CUSTOMER ON ANY DATA PROVIDED OR OBTAINED THROUGH USE OF THE WIRELESS SERVICE OR EQUIPMENT, ANY INTERRUPTION, DEFECT, ERROR, VIRUS, OR DELAY IN OPERATION OR TRANSMISSION, ANY FAILURE TO TRANSMIT OR ANY LOSS OF DATA ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT SHALL EW OR ITS VENDORS BE LIABLE FOR LOSSES, DAMAGES, CLAIMS OR EXPENSES OF ANY KIND ARISING OUT OF THE USE OR ATTEMPTED USE OF, OR THE INABILITY TO ACCESS, LIFE SUPPORT OR MONITORING SYSTEMS OR DEVICES, 911 OR E911, OR OTHER EMERGENCY NUMBERS OR SERVICES.
12 LIMITATION OF DAMAGES:
IN NO EVENT SHALL EW, ITS AFFILIATES AND CONTRACTORS BE LIABLE TO CUSTOMER, ANY END USER, OR ANY OF THEIR RESPECTIVE EMPLOYEES OR AGENTS, OR ANY THIRD PARTY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.
13.1 Mutual Indemnification: Each Party shall defend, indemnify, and hold harmless the other Party from any and all losses and damages claimed by a third party in any action or proceeding, against the indemnified Party alleging bodily injury (including death) or damage to property, caused by or alleged to have been caused by the negligence or other wrongful acts or omissions of the indemnifying Party, its employees and authorized agents while on the other Party's premises, including any final monetary judgments, settlements, reasonable costs and reasonable attorneys' fees awarded therein.
13.2 Customer Indemnity: EW shall not be liable for, and Customer shall defend, indemnify, hold harmless and forever discharge EW from, all damages (including personal injury or death and damage to property), claims, actions, losses, liabilities and other expenses (including reasonable attorneys' fees), regardless of the time when they occur, that arise out of any action brought by an End User or other third party in connection with
- its or Customer's use of Wireless Service or the Customer Product or Service (used independently or in conjunction with the Wireless Service) or any Equipment or software used in conjunction therewith;
- communications with End Users as provided in Section 8;
- any disabling of Equipment by EW pursuant to Section 8;
- any breach or violation of this Agreement by Customer including any representations and warranties provided herein.
13.3 Notice and Defense: The Party seeking indemnification shall:
- provide the other Party with prompt Legal Notice of the claim;
- allow the indemnifying Party to control the defense and settlement of the claim, provided, however, that the indemnifying Party shall not agree to any injunctive relief or settlement that obligates the indemnified Party to perform any obligation, make an admission of guilt, fault or culpability, or incur any expense, without such indemnified Party's prior written consent, which shall not be unreasonably withheld, delayed or conditioned;
- have the right to obtain its own counsel at its own expense; and
- provide reasonable cooperation to the indemnifying Party.
14 DISPUTE RESOLUTION AND MANDATORY ARBITRATION:
Should a dispute arise under this Agreement, the Parties shall meet within 30 days after Legal Notice of such dispute is given to attempt to resolve the matter in good faith. Thereafter, the Parties agree to arbitrate any dispute arising out of this Agreement. Such arbitration shall be held before an independent arbitrator pursuant to the Wireless Industry Arbitration ("WIA") rules in effect at the time of the dispute, as modified by this Agreement and administered by the American Arbitration Association ("AAA"). The United States Arbitration Act, 9 USC §§1–16, as amended, shall govern the arbitration. In the event of any conflict, the WIA rules shall govern. No arbitration between the Parties may proceed on a class basis or be consolidated with any other arbitration without the written consent of all Parties. If the prohibition on class arbitrations set forth above is deemed unenforceable, then neither Party shall be required to arbitrate. Any award shall be accompanied by a written opinion of the arbitrator giving the reasons for the award and shall be binding upon the Parties with no right of appeal. If for any reason the provisions of this Agreement requiring arbitration are declared unenforceable, void, or voidable, or if any action or judicial proceeding is permitted, each Party waives any right it may have to trial by jury. Notwithstanding the above, either Party may seek preliminary and final injunctive relief in the event of the unauthorized disclosure of such Party's Confidential Information or intellectual property infringement.
15 COMPLIANCE WITH LAWS:
15.1 Customer shall comply with all federal, state and local laws, treaties, rules, regulations and ordinances applicable to the Customer Product or Service, including (i) all Federal Communications Commission rules and regulations, (ii) all privacy and security requirements, including those, if applicable, pertaining to medical devices or location-based services, and (iii) all consumer protection rules and regulations. Without limiting the scope of the foregoing, Customer agrees as follows:
- it shall comply with Department of Treasury's Office of Foreign Assets Control (OFAC) regulations to not provide the Wireless Service to any individual or entity appearing on the OFAC Specially Designated Nationals (SDN) list or that is the subject of an embargo or sanction;
- all functionality provided by Customer does and will comply in all respects with the Communications Assistance for Law Enforcement Act ("CALEA"). Customer shall certify in writing on each anniversary of the Effective Date or on EW's reasonable request, that it is in compliance with its obligations under this section;
- Customer shall comply with any federal, state and local laws, rules, regulations or legal requirements that apply to the manufacturing, marketing, sale or distribution of medical applications or medical devices in the United States, including the following and any related amendments, if applicable:
- the Health Insurance Portability and Accountability Act ("HIPAA");
- the Health Information Technology for Economic and Clinical Health Act ("HITECH Act");
- the Federal Food, Drug and Cosmetic Act ("FDC Act");
- orders, rulings, guidance documents, policies, regulations and requirements of the U.S. Department of Health and Human Services and the U.S. Food and Drug Administration adopted under HIPAA, the HITECH Act or the FDC Act;
- the Federal Trade Commission Act;
- orders, rulings, guidance documents, policies, regulations and requirements of the U.S. Federal Trade Commission; (vii) state laws and regulations regarding the adoption of policies and procedures to protect the privacy and security of personal information;
- state laws and regulations regarding the encryption of personal information; and
- state laws and regulations governing the unauthorized disclosure or breach of personal information, including breach notification laws.
Customer shall also comply with any applicable laws, rules, regulations and policies related to software applications in any other countries where they are available. Customer agrees that it shall not seek any regulatory determination or decision relating to the medical applications and medical devices that may impose any legal obligations or restrictions on EW;
- Customer acknowledges that the export, import, and use of certain hardware, software, and technological data provided under this Agreement is regulated by the United States and other governments and agrees to comply with all applicable laws and regulations, including the U.S. Export Administration Act, the regulations promulgated thereunder by the U.S. Department of Commerce, and any other applicable laws or regulations such as those that prohibit Equipment or Wireless Service from being used in or accessed by a national of Cuba, Iran, North Korea, Sudan, Syria or any other sanctioned or embargoed country. If Customer chooses to access or use the Equipment or Wireless Service or any website or portal maintained by EW from locations outside the United States, Customer does so on its own initiative and will be solely responsible for compliance with all applicable local use controls, laws and regulations, including those relating to the transmission of technical data exported from or imported to the United States or the country in which Customer is accessing or using the Equipment or Wireless Service or such website or portal.
Customer acknowledges that EW has made no representations concerning the appropriateness or availability of the content on any website or portal maintained by EW when accessed in locations outside the United States, and accessing same from locations where their contents are illegal is prohibited; and
- if Customer elects to receive government funds,
- Customer shall comply in all respects with any and all federal and state laws, rules, regulations and orders that apply to carriers receiving such funds, including, but not limited to, any exempting any certain class of End Users from assessment of any tax, fee, duty, surcharge or other tax-like charge (including, but not limited to, any restriction on the assessment of universal service fund surcharges or number portability fees against qualified, low-income subscribers),
- EW shall have no obligation to Customer to make modifications or changes to any of its processes or procedures, the Wireless Service or the EW network used by Customer, in satisfaction of any federal or state requirements related to receipt of government funds, and
- EW shall have no obligation to Customer to furnish, maintain or retain information in satisfaction of any federal or state requirements related to Customer's receipt of government funds in the form of reports, records, maps, certifications, documentation or other forms of data.
15.2 EW shall comply with all federal, state and local laws, rules, regulations and ordinances to the extent applicable to the provision of Wireless Service under this Agreement.
16.1 Use and Disclosure: Each Party shall hold in confidence Confidential Information received from the other Party for the term of this Agreement and a period of 2 years thereafter. "Confidential Information" means information (in written, graphic, oral or other tangible or intangible form) concerning the disclosing party's business, customers, products, services, costs, pricing, trade secrets and personnel, and designated as confidential by the disclosing party (if tangible information) by conspicuous markings or (if oral information) by announcement at the time of initial disclosure and written documentation thereof within 30 days thereafter, or if not so marked or announced and documented should reasonably have been understood as being confidential information of the disclosing party either because of other legends or markings, the circumstances of disclosure or the nature of the information itself. Confidential Information may include proprietary material as well as material subject to and protected by laws regarding secrecy of communications or trade secrets and may include information acquired by the disclosing party from a third party under an obligation of confidentiality. Confidential Information also shall include the pricing and other terms and conditions of this Agreement, which both Parties shall be required to hold in confidence. Neither Party shall disclose Confidential Information of the other Party to any third party or use Confidential Information of the other Party for any purpose other than as specified in this Agreement. The Parties may disclose Confidential Information of the other Party to their agents that have a need to know under this Agreement and are bound by non-disclosure obligations that are substantially similar to those set forth herein. Customer's agents are subject to the additional requirements set forth in the "Customer's Use of Third Parties" section below. Notwithstanding anything to the contrary set forth herein, Customer must obtain EW's written permission prior to disclosing any Confidential Information of EW to any direct competitor of EW.
16.2 General Exclusions: The foregoing restrictions shall not apply to information to the extent that it: (a) is or becomes publicly available through no act or omission of the receiving Party; (b) was already in the lawful possession of the receiving Party without an obligation of confidentiality; (c) is lawfully disclosed to the receiving Party by a third party without restriction; (d) is required to be disclosed by subpoena or other legal process, limited to the extent required by the terms of such subpoena or other legal process; (e) is approved in writing by the disclosing Party for further disclosure; (f) is independently developed without reference to the Confidential Information and is so documented by the receiving Party; or (g) is required to port telephone numbers. EW shall not be deemed to have received Confidential Information of Customer solely because Customer receives, transmits, obtains or otherwise exchanges such information through the use of the Wireless Service, or EW service to Customer involves the hosting, transport or other similar handling of such information.
16.3 Permitted Usage and Disclosure of Confidential Information: Nothing contained herein shall prevent either Party from using or disclosing Confidential Information for the purposes of disclosing general information about this Agreement in limited internal announcements to its employees.
17 NO AGENCY:
The Parties are independent contractors. Customer is not authorized to act as an agent for or legal representative of EW and does not have and shall not represent that it has any authority to assume or create any obligation on behalf of EW.
18 WIRELESS SERVICE AVAILABILITY:
Wireless Service uses radio technologies and is subject to transmission and service area limitations, interruptions and dropped calls caused by atmospheric, topographical or environmental conditions, cell site availability, Equipment or its installation, governmental regulations, system limitations, maintenance or other conditions or activities affecting Wireless Service operation. Wireless Service and/or features may not be available in all areas. Wireless Service is only available within each applicable calling plan coverage area, within the operating range of the wireless systems, and with Equipment that is authorized to operate on EW's network.
19 USE OF WIRELESS SERVICE AND EQUIPMENT:
In order to protect the EW network, operations and other customers, EW may suspend or terminate service to affected lines if Customer uses the Wireless Service or Equipment: (a) in an illegal or unauthorized manner (including "spamming" or other abusive messaging); (b) in a manner prohibited by the applicable plan, option, feature or application; or (c) in a manner that has an adverse impact on EW's network, operations or customers. If Customer continues using the Wireless Service in such a manner, EW may deny activation to new M2M Lines or, upon Legal Notice, may terminate this Agreement.
Provided an assignee possesses the financial and operational capabilities to perform under this Agreement and agrees in writing to assume and fully discharge all of the duties and obligations of the assignor arising under this Agreement, either Party may assign this Agreement in its entirety, without the other Party's consent, to either of the following: (a) any entity that controls, is controlled by or is under common control with the assigning Party; or (b) a successor in interest to all or substantially all of the assets and business of the assigning Party. Customer may not assign its rights or delegate its duties under this Agreement to any direct competitor of EW without the prior written consent of EW. Except for the foregoing, neither Party may assign its rights under this Agreement to any other entity without the prior written consent of the other Party, which shall not be unreasonably withheld, delayed or conditioned. Subject to the provisions of this section, this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns, if any, of the Parties hereto.
21 FORCE MAJEURE:
Any failure of EW to perform hereunder shall be excused if caused by failure of a third-party wireless or telecommunications provider serving a particular area, power failure, national emergency, interference by any governmental agency, acts of God, strikes, other labor disturbance, severe weather conditions, fire, terrorism, riots, war, earthquakes, or any other causes beyond EW's reasonable control.
Whenever this Agreement calls for a "Legal Notice" to be given, notice shall be given in writing and shall be valid and sufficient if dispatched by: (a) registered or certified mail, postage prepaid, (b) hand delivery or (c) a nationally recognized express courier, and addressed to the address(es) for the receiving Party designated on the cover page of this Agreement (as may be updated in writing from time to time by Legal Notice). Notice to Customer may be made to Customer's designated Authorized Contact(s). Any notice given in accordance with the foregoing requirements shall be deemed effective upon delivery. All other notices and communications related to this Agreement may be made via mail or e-mail to an Authorized Contact, mail to the billing address on the account, and/or message with Customer's monthly bill.
23 GOVERNING LAW, VENUE AND JURISDICTION:
Subject to the provisions of the "Dispute Resolution and Mandatory Arbitration" section above, the validity, construction and performance of this Agreement shall be governed and interpreted in accordance with the laws of the State of California, without reference to its conflict of laws or other rules that would require the application of the laws of another jurisdiction. Each Party submits to personal jurisdiction exclusively in Santa Clara County, Santa Clara California, and waives all objections to a Santa Clara County venue.
24 COUNTERPARTS AND ADMISSIBILITY OF COPIES:
This Agreement may be executed in counterparts each of which when executed and delivered shall be deemed to be an original and all of which together shall constitute one and the same instrument. An electronic or facsimile copy of the executed Agreement or counterpart shall be deemed and shall have the same legal force and effect as, an original document.
25 NO WAIVER:
Any forbearance or delay on the part of either Party in enforcing any rights under this Agreement shall not be construed as a waiver of such rights. Any grant of a waiver in one instance shall not be construed as a continuing waiver in all similar instances. No provision of this Agreement shall be considered waived unless expressly waived in writing, signed by the party against whom enforcement of such provision is sought.
If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall remain in full force and effect. Moreover, the Parties agree that the invalid, illegal or unenforceable provision shall be enforced to the maximum extent permitted by law in accordance with the intention of the Parties as expressed by such provision.
Termination of this Agreement shall not affect either Party's accrued rights or obligations under this Agreement as they exist at the time of termination, or any rights or obligations that either expressly or by implication continue after this Agreement has ended.
28 ENTIRE AGREEMENT:
28.1 This Agreement including any attachments and the terms and conditions of any plans, options, features, and applications (collectively, "Service Offerings") selected by Customer, constitute the entire agreement between the Parties with respect to the subject matter hereof. The terms and conditions of this Agreement shall prevail over any conflicting terms and conditions of a Service Offering, except for terms and conditions that are specific to the use of the selected service. This Agreement shall not be amended or modified without specific written agreement signed by both Parties. In no event shall any terms and conditions be added or modified by purchase order. This Agreement supersedes all prior agreements for the provision of Embedded M2M Lines of Wireless Service between Customer and EW.
28.2 If Customer has an existing agreement governing telemetry or M2M Lines which are not embedded in a Customer Product or Service, the terms and conditions therein are independent of this Agreement, and such provisions shall continue to apply to Customer's other telemetry lines under that Agreement unless otherwise expressly noted herein.
Embedded Works Standard Usage Policies
All Customer Equipment shall comply with the following requirements.
1) The Equipment shall meet all industry standards and technical requirements for compatibility.
2) The Equipment shall be Certified, as defined below, by EW for use on its network and participating carriers according to its specifications which EW may change from time to time.
- If Customer Equipment is uncertified, EW shall work with Customer's designated vendors selected from EW's approved vendor list ("Vendor") to determine if the Equipment can be Certified. Customer shall submit samples of the Equipment to the Vendor and EW for the certification process. Any fees or costs charged by the Vendor shall be borne by Customer.
- If Customer proposes modifications to previously Certified Equipment, such Equipment, including the proposed modifications, shall be submitted for re-certification, which may be subject to a fee payable to EW as reasonably determined by EW. Customer shall be responsible for any fees or costs charged by its designated Vendor.
- No less than ninety (90) days, but not more than one hundred eighty (180) days prior to the third one-year anniversary of certification (or re-certification if applicable) of Equipment, Customer or the manufacturer of the Equipment shall resubmit the Equipment for re-certification in accordance with EW'S then current process. If EW does not re-certify such Equipment, Customer may not activate any units of such Equipment not already activated on the EW network after the third one-year anniversary of its certification (or re-certification if applicable).
- IN CERTIFYING EQUIPMENT PURSUANT TO THIS AGREEMENT, EW MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, CONCERNING THE SUITABILITY, DURABILITY, FITNESS FOR USE, MERCHANTABILITY, NON-INFRINGEMENT, CONDITION OR QUALITY OF THE EQUIPMENT, AND EXPRESSLY DISCLAIMS ALL WARRANTIES.
- For purposes of this Agreement, "Certified" means that a sample of a particular model of Equipment has been evaluated in accordance with the EW Equipment testing process and the model represented by such sample has been determined to be acceptable for use on the EW network. Certified does not mean that EW has made any determinations as to the call quality or other functionality of such Equipment or in any way represents or warrants that such Equipment will operate: (i) without error on the EW network (including the network of any other carrier accessed while roaming or otherwise); (ii) on such network without periodic upgrades or modifications; or (iii) indefinitely on such network.
3) The Equipment shall:
- have a Type Acceptance Certificate from the FCC, pursuant to Part 22 of Title 47 of the United States Code of Federal Regulations;
- comply with all Cellular Telecommunications & Internet Association ("CTIA") guidelines for radio frequency ("RF") emissions and specific absorption rate ("SAR") level disclosure;
- be authenticatable in compliance with CTIA guidelines for random A-Key authentication as such guidelines may be amended from time to time.
4) At the time of activation, the Equipment shall be programmed with EW's then current preferred roaming list ("PRL"). EW may update its PRL and shall provide or make available such updated PRL to Customer. Customer shall implement such updates in all new Equipment manufactured after receipt of such updated PRL. Customer shall implement such updated PRL in Equipment already manufactured within thirty (30) days of receipt of any updated PRL. Customer acknowledges that there may be and it shall be responsible for any loss of Wireless Service or higher rates than those set forth herein as a result of its failure to update the PRLs in its Equipment.
5) In accordance with EW'S Equipment Requirements and compliance test plan documents, Customer shall ensure that all Equipment activated on the EW network is assigned a unique Equipment ID. Notification of Equipment IDs shall be provided to EW at least thirty (30) days prior to activation of any Equipment ID, and Customer shall provide EW with (1) a complete list of Equipment IDs for all Equipment; and (2) a quarterly audit and/or reconciliation of the Equipment IDs by Customer if requested.
6) All Equipment must be capable of Over the Air Parameter Administration ("OTAPA") and Over the Air Service Provisioning ("OTASP") capable. EW shall have the right to access Equipment via OTAPA for purposes, including but not limited to: (1) terminating interference with the EW network, and (2) updating the PRL.
7) CUSTOMER FURTHER ACKNOWLEDGES THAT EW SERVICES MAY BE TEMPORARILY REFUSED, INTERRUPTED, CURTAILED OR OTHERWISE LIMITED BECAUSE OF TRANSMISSION LIMITATIONS CAUSED BY ANY FACTOR, INCLUDING ATMOSPHERIC, ENVIRONMENTAL OR TOPOGRAPHICAL CONDITIONS, PARTICIPATING CARRIER FACILITIES LIMITATIONS OR CONSTRAINTS OR FACILITIES CHANGES, MODIFICATIONS, UPDATES, RELOCATIONS, REPAIRS, MAINTENANCE OR OTHER SIMILAR ACTIVITIES NECESSARY FOR THE PROPER OR IMPROVED OPERATION OF THE PARTICIPATING CARRIER FACILITIES. EW AND PARTICIPATING CARRIERS ARE NOT LIABLE TO CUSTOMER WITH RESPECT TO ANY CLAIM OR DAMAGE RELATED TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY COVERAGE GAP, OR (II) ANY EW NETWORK SERVICE REFUSAL, INTERRUPTION, CURTAILMENT OR OTHER LIMITATION DESCRIBED HEREIN. CUSTOMER FURTHER ACKNOWLEDGES THAT EW AND PARTICIPATING CARRIERS DISCLAIM ALL LIABILITY OF ANY NATURE TO CUSTOMER, WHETHER DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL, ARISING OUT OF CUSTOMER'S USE OF AN EW SERVICE, AND CUSTOMER AGREES THAT SERVICE USER SHALL HAVE NO CLAIMS AGAINST EW OR PARTICIPATING CARRIERS OF ANY KIND WITH RESPECT THERETO.