Privacy and Security Statement
FOR CELLULAR DATA2-U SERVICE
This is an Agreement for Cellular and Internet DATA2-U Service ("Service")
between the party whose name appears on the Sales Order Form or Purchase
Order Form and DATA2-U Inc. In this document, "you" or "your" refers
to the individual or entity who signs the Sales Order Form or Purchase
Order Form, and "we", "us", or "our" refers
to Data2-U Inc.
If at any time you elect to have your Service number or Internet site assumed
by some other person or entity, you are still responsible for any and all charges
incurred under this Agreement up to the date your number is assumed. No assumption
of Service will be effective without our consent.
TERMS AND CONDITIONS
This Agreement shall take effect when we have approved your request for Service
and activated your cellular RTU number. Important: Regardless of the Service
Plan you select, by signing the Sales Order Form or Purchase Order Form, you
agree to a minimum Service period with us (the "Minimum Term") of one
(1) year, two (2) years, or three (3) years (depending on the type of Service
Plan you selected). The Minimum Term starts when this Agreement takes effect. Regardless
of the type of Service Plan you have selected, the Agreement shall remain in
effect throughout the defined Minimum Term.
RATES AND CHARGES:
You agree that as long as you subscribe to our Service, you will pay the
applicable Service rates for the Service Plan you select, along with all
charges properly billed to your account.
Such charges may
include (but are not limited to) a one-time activation fee, charges for
features, support services, applicable airtime charges, applicable late
payment charges, tolls, taxes, governmental fees, and ANY APPLICABLE EARLY
CANCELLATION FEES. The first year service, plus appropriate charges as
described above is due at the time of sign up. Subsequent years of the
term contract signed will be invoiced 60 days prior to the yearly anniversary
date. Payment for the next year is required by the due date to keep the
service active. At the end of the contract term this agreement will automatically
renew for one-year terms; prices are subject to change.
In the event that you use more than the monthly contracted number of transmissions
in any given month; you will be responsible for the over usage charges.
Over usage charges are billed at the rate of $1.00 per occurrence. Data2-u
will invoice these charges on an as required basis. Billing, depending
on the overage volume, will take place on an as needed basis as determined
by Data2-u and will occur at least once per year. Charges are due when
LATE PAYMENTS: Payment
of your Service bill is due on the date indicated on the bill. Failure to
make a timely payment will result in the shutdown of your service. A reactivation
fee of $150 per RTU will be charged to reactivate the service.
can modify or amend this Agreement at any time by sending you notice in your
yearly bill or separately. If you do not agree to the changes made to this
Agreement, you must notify us in writing to cancel Service within thirty
(30) days of our notice to you and pay all outstanding charges owed to us;
otherwise you will be conclusively deemed to have agreed to the changes described
in our notice. Such changes may include, without limitation, service rates
and charges, Service Plans, billing practices, late charges and any or all
other terms and conditions of this Agreement.
FEE: Early Cancellation Fees vary according to the Minimum Term and
Service Plan chosen. If you select any one- (1) year Service Plan and cancel
Service during your Minimum Term, then you are responsible for the entire
years service charge in addition to all other outstanding charges
on your account. If you select any two- (2) year Service Plan and cancel
Service during your Minimum Term, then you are responsible for two years
service charges in addition to all other outstanding charges on your account.
If you select any three- (3) year Service Plan and cancel Service during
your Minimum Term, then you are responsible for three years service charges
in addition to all other outstanding charges on your account.
CHANGES: At the end of your Minimum Term your line will be renewed
on the same Service Plan for successive one-year terms until you either
instruct us to change your Service Plan, renew your Service Agreement,
or disconnect Service.
SERVICE: Service shall not be used for any purpose that violates the
law or in any manner that interferes with the use of Service by other customers.
Unlawful or interfering uses are grounds for cancellation of your Service.
Furthermore, the operating characteristics of your RTU must not interfere
with the Service we offer to our customers. We can also cancel your Service
if you have made any false statement for purposes of inducing us to extend
Services to you. We may also cancel this Agreement if cellular service
ceases to be available from the Company affiliate servicing your area.
CHANGE OF SERVICE
PLANS: If you change Service Plans you must complete your current Minimum
Term to avoid an Early Cancellation Fee unless you change to a new Service
Plan with a Minimum Term that is greater than the amount of time remaining
on your current Minimum Term. If you change to a plan that requires fewer
transmissions or data points anytime during your Minimum Term, a $100.00
Service Transfer Fee will be charged to your account.
you do not pay any charges owed to us or if you violate any of the terms
of this Agreement, in addition to any and all rights and remedies available
to us at law or equity, we have the right to discontinue or restrict any
and/or all of your Service either temporarily or permanently. In either case,
we shall incur no liability whatsoever. If we refer your account to an attorney
or agency for collection, you agree to pay our actual collection costs, including
court costs and reasonable attorneys' fees, unless prohibited by law. For
each check returned unpaid, we will impose a charge of $75.00 or the highest
amount that is allowed by law, whichever is less. If any Service is interrupted,
a restoring fee will apply.
CELLULAR RTU: We
are not responsible for the installation, operation, quality of transmission
or reception or for the maintenance of your cellular RTU. You must provide
your own cellular RTU and maintain it. You must also ensure that it is technically
and operationally compatible with our system and that it complies with the
rules and regulations of the Federal Communications Commission.
CELLULAR NUMBER: Subject
to any applicable law or regulation, you have no property right or interest
in your cellular telephone number. We reserve the right to change your number
or to assign it to someone else when we alone consider such a change or assignment
necessary to the conduct of our business.
will use our best efforts to provide you with quality Service, without interruption.
Service is available to working cellular RTUs when those units are within
the range of cell sites located in a Cellular Geographic Service Area ("Service
Area") included within our plan. Service is subject to transmission
limitations caused by atmospheric and various other conditions beyond our
and our service providers control. Service may be temporarily unavailable
or limited because of the cellular system's capacity limitations. Service
to any or all customers may be temporarily interrupted or curtailed because
of equipment modifications, upgrades, relocations, repairs and similar activities
necessary for the proper operation of Service.
Where subject to
state regulations, Service is offered pursuant to tariffs on file with the
local regulatory commissions. Unregulated service is offered pursuant to
such terms and conditions as may be determined from time to time by local
cellular service providers.
EXCLUSION: You acknowledge that the service provided by us hereunder
is based upon MicroBurst Service furnished to us by Aeris Communications,
Inc. or some other Service provider, and utilizes cellular telephone service
that is furnished to Aeris or other Service Provider by one or more Participating
Carriers pursuant to agreements between Aeris or other Service Providers
and such Participating Carriers and is subject to the terms, conditions
and limitations therein set forth. You further acknowledge that participating
carriers disclaim all liability of any nature to you, whether direct, indirect,
incidental or consequential, arising out of use of Service, and you agree
that you shall have no claims against participating carriers of any kind
with respect thereto.
COVERAGE AVAILABILITY: Data2-U will provide you with at least 90-day
notice in advance of the termination of service coverage availability in
any geographic area of the Territory where such service had previously
been available. At the end of the 90-day period, unless Data2-U has rescinded
such notice, any geographic area described in such notice will no longer
be part of the territory. Data2-U and our Service Providers will use its
best efforts to maintain Service Coverage throughout the Territory and
will further use best efforts to replace any coverage that becomes unavailable
for any reason. In the event that coverage territory is permanently unavailable,
making transmission to the Data2-U Internet site impossible, Data2-U will
refund and unused portion of the prepaid service fee. You acknowledge that
Data2-U disclaims all liability of any nature to you, whether direct, indirect,
incidental or consequential, arising out of use of Service or discontinuation
of service, and you agree that you shall have no claims against Data2-U
of any kind with respect thereto.
OUR ONLY LIABILITY
TO YOU IS AS FOLLOWS:
DATA2-U SHALL NOT BE RESPONSIBLE FOR ANY CLAIMED DAMAGES, INCLUDING INCIDENTAL
AND CONSEQUENTIAL DAMAGES, WHICH MAY ARISE FROM DATA2-U SERVERS GOING OFF-LINE
OR BEING UNAVAILABLE FOR ANY REASON WHATSOEVER. FURTHERMORE, DATA2-U SHALL NOT
BE RESPONSIBLE FOR ANY CLAIMED DAMAGES, INCLUDING INCIDENTAL OR CONSEQUENTIAL
DAMAGES, RESULTING FROM THE CORRUPTION OR DELETION OF ANY WEB SITE FROM ONE OF
DATA2-U SERVERS. DATA2-U CANNOT BE HELD LIABLE FOR SYSTEM DOWNTIME, CRASHES,
OR DATA LOSS.
IN NO EVENT SHALL
WE BE LIABLE FOR INTERRUPTIONS OR DELAYS IN TRANSMISSION / INTERNET SERVICES
OR FOR ERRORS OR DEFECTS IN TRANSMISSION / INTERNET SERVICES; NOR FOR FAILURE
TO TRANSMIT / PRESENT DATA WHEN ANY SUCH PROBLEMS ARE CAUSED BY ACTS OF GOD,
FIRE, WAR, RIOTS, GOVERNMENT AUTHORITIES OR BY OTHER CAUSES BEYOND OUR CONTROL.
NO CREDIT ALLOWANCE WILL BE GIVEN FOR INTERRUPTIONS CAUSED BY YOUR NEGLIGENCE
OR BY YOUR WILLFUL ACTS, OR FOR INTERRUPTIONS CAUSED BY FAILURE OF SERVICE
OTHER THAN OUR SERVICE, OR EQUIPMENT FAILURE OF ANY KIND.
IF SERVICE IS EVER
INTERRUPTED FOR REASONS BEYOND YOUR CONTROL FOR MORE THAN A CONTINUOUS FORTY-EIGHT
(48) HOUR PERIOD, AS YOUR SOLE REMEDY, WE WILL MAKE A CREDIT ALLOWANCE, AT
YOUR REQUEST IN THE FORM OF A PRORATA ADJUSTMENT OF THE FIXED YEARLY CHARGES
WE BILL YOU. THE PRO RATA ADJUSTMENT WILL BE COMPUTED BY DIVIDING THE LENGTH
OF THE SERVICE INTERRUPTION (MEASURED IN 24-HOUR DAYS FROM THE TIME THE INTERRUPTION
IS REPORTED TO US) BY A STANDARD 360-DAY YEAR AND THEN MULTIPLYING THAT RESULT
BY OUR FIXED ANNUAL CHARGE FOR EACH INTERRUPTED CELLULAR NUMBER. INTERRUPTIONS
OF LESS THAN FORTY-EIGHT (48) HOURS TOTAL DURATION WILL NOT BE CREDITED.
IN NO CASE SHALL THE CREDIT EXCEED THE FIXED YEARLY CHARGE. THIS IS OUR COMPLETE
AND ONLY LIABILITY TO YOU FOR SERVICE INTERRUPTION.
COMPANY WILL NOT
BE LIABLE FOR ANY ACCIDENTS OR INCIDENTS WHICH RESULT FROM THE PRESENCE OF
A CELLULAR RTU OR ITS USE BY A CUSTOMER OR ANY OTHER PERSON. CUSTOMER SHALL
INDEMNIFY COMPANY AGAINST ANY CLAIMS FOR SUCH EVENTS. THE USE OF A CELLULAR
RTU MAY BE PROHIBITED OR RESTRICTED IN SOME AREAS. IT IS THE CUSTOMER'S RESPONSIBILITY
TO CONFORM TO ALL SUCH LAWS OR REGULATIONS AND THE CUSTOMER SHALL INDEMNIFY
US FROM CLAIMS ARISING FROM ANY SUCH UNLAWFUL USE. IN NO EVENT SHALL WE BE
LIABLE FOR LOST PROFITS, ACTUAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.
THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
RESPECTING THIS AGREEMENT AND THE SERVICE PROVIDED.
WE MAKE NO REPRESENTATION OR WARRANTY REGARDING THE PRIVACY OF ANY
USE OF SERVICE. WE SHALL NOT BE LIABLE FOR DAMAGES FOR ANY DELAYS OR INTERRUPTIONS
OF SERVICE ARISING OUT OF CAUSES BEYOND OUR REASONABLE CONTROL.
GOVERNING LAW. The parties agree that this Agreement is entered into in
and is to be governed by the laws of the State of Illinois.
TERMINATION FOR ACTS OF INSOLVENCY. Either party may terminate this Agreement
by written notice if the other party becomes insolvent, makes a general assignment
for the benefit of creditors, suffers or permits the appointment of a receiver
for its business or assets, becomes subject to any proceeding under any bankruptcy
or insolvency law, whether domestic or foreign, or has wound up or liquidated,
voluntarily or otherwise.
PROPRIETARY RIGHTS. You acknowledge that no proprietary rights shall
accrue to you in any software, programs, drawings, specifications, or other
materials or services provided by us, and that all such items shall remain
January 28, 2001
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