Your (“Customer”) use of DataXoom, Inc (“DX”) Products and Services (“DX Services), are subject to the Terms and Conditions (“Agreement”) listed below.
The Customer desires to engage DX as a Mobility Services and Solutions Provider for purpose built mobile services and solutions, and DX is willing to provide the Customer access to their platform to manage its services for its mobile device fleet. The Customer desires to enter into this AGREEMENT in order to enable DX to provide DX Services.
DX provides Mobility Services and Solutions via their proprietary mobility platform and via direct API connectivity (the “DX Services”). These Mobility Services and Solutions may include 3G and 4G/LTE wireless Internet access services (Mobile Data) provided by DX’s third-party licensors, including but not limited to AT&T, Verizon, Sprint, T-Mobile, Rogers Wireless, and Telus (also referred to herein, individual, and/or collectively, as “Carrier” or “Carriers”). DataXoom is not a Carrier but may provide wireless services as part of their DX Services. DX provides the DX Services to Customers throughout the United States. DX Services, in whatever form, and any derivatives thereof, is the sole property of DX and as such, DX retains all rights to the DX Services.
- “ACCEPTANCE”. Your AGREEMENT with DX starts when you do any of the following, (a) providing written or electronic approval; (b) activating DX Service(s); (c) using your DX Service(s), (d) using your DX Service(s) after you make a change or addition; or (e) paying for the DX Service(s) or device. If you do not wish to enter into this Agreement with DX, then do not do any of these things.
- If you sign for an organization, you represent that you are authorized to sign. You represent that you are at least eighteen years old. You agree to pay any access and usage charges, taxes, fees and other charges that were accepted or processed through your Device ("Charges"). You may designate others, including third parties, to manage or make changes to your account ("Authorized User"). You and Authorized Users will have access to all account information. If you give your personal account validation information to someone, they can access and make changes to your account just as you can. Those changes will be binding on you. You may request to switch to another data plan, and if we authorize the change, a transfer fee may apply. Changes may increase or decrease the cost of your service.
- Customer Contributions. Customer is responsible for all devices and other equipment assigned to Customer and/or its Corporate Responsible User (CRUs) under Customer’s account. Equipment must be compatible with and certified by the carrier to operate on the carrier network and must comply with all applicable laws, rules, and regulations. Equipment not certified by the carrier (a) may not provide some or all of the features included in the carrier service; and (b) may not allow use of features and functions when off of Carrier’s wireless network, and CALLS TO 911 MAY NOT GO THROUGH ON ANY NETWORK. The carrier may periodically program Customer’s equipment remotely with system settings, to direct Customer’s equipment to use network services most appropriate for Customer’s CRU’s typical usage, and other features that cannot be changed manually. Customer is solely responsible for complying with U.S. Export Control laws and regulations and the import laws and regulations of foreign countries when CRUs are traveling internationally with Customer’s equipment. Call timers included in the equipment are not an accurate representation of actual billed usage.
- Price & Payment Terms: DX Services must remain active for one full billing cycle. In exchange for the DX Services, unless otherwise stated in a separate agreement or Master Services Agreement (MSA), the Customer will pay DX the fees in accordance with DX’s standard pricing. Standard pricing is available upon request and is subject to change without notice. DX shall provide the Customer with a written account and invoice monthly that sets forth the fees for the DX Services provided and any related expenses in accordance with this. The Customer shall pay this amount monthly and all charges, unless otherwise stated in a separate agreement or MSA, are payable on receipt.
- DX Charges: Customer must pay all charges, including, without limitation, airtime, roaming, recurring monthly service, equipment supplemental services, and any other charges billed to a CRU’s phone number. Customer may be billed for multiple types of usage simultaneously. Customer must also pay administrative and late payment fees, restoral and reactivation charges, and any other monthly charges. For any termination, Customer will be responsible for payment of all fees and charges through the end of the billing cycle in which termination occurs.
- Cancellation and Returns. DEVICES. Contact us at help@DX.com for Device return requirements and instructions. If you purchased your Device through a party other than DX, that party's return policy may differ from DX's policies. SERVICE. There will be no refund of Service fees once the Service has been activated. Any services disconnected in a current monthly invoice cycle, will continue to bill charges to the end of that monthly invoice cycle
- Our Rights to Make Changes. Your service is subject to our business policies, practices, and procedures, which we can change without further notice. Unless expressly prohibited by law, we can change prices, charges and any terms in the at any time. If we materially modify these terms in a way that is materially adverse to you, you may terminate your service (which is your only remedy) by notifying us within 7 (seven) days after you receive the notice. If you fail to terminate within those 7 (seven) days, you accept the changes.
- Your Wireless Device & Compatibility with Carrier Networks. Your wireless device must comply with Federal Communications Commission regulations, be certified for network use, and be compatible with carrier. By activating Service that uses a SIM (Subscriber Identity Module) card, you agree we own the intellectual property and software in the SIM card, that we may change the software or other data in the SIM card remotely and without notice, and we may utilize any capacity in the SIM card for administrative, network, business and/or commercial purposes.
- Service Availability. You acknowledge and agree that service may not be available in all areas in which you travel. Coverage maps only approximate our anticipated wireless coverage area outdoors; actual Service area, coverage and quality may vary and change without notice depending on a variety of factors including network capacity, terrain and weather. You agree that we are not liable for Service availability or problems related to quality.
- Roaming and International Calling. You acknowledge and agree that domestic and international roaming will not be utilized or consumed unless Customer receives written approval from DX. Extra fees will apply to additions or supplements to your Service Plan. Customer should request international pricing rates at least 7 days prior to international usage is incurred. Regardless of whether Customer received written approval from DX, Customer is responsible for all international charges generated by Customer’s device, mobile phone number, or related services. International charges are often billed via a “pay-per-use” rate structure. International charges vary by location and service, it is Customer’s sole responsibility to identify charges that may fall outside of charges defined within this, and Customer assumes liability for all charges incurred by international usage, including charges not explicitly defined, herein.
- Taxes and Fees. Unless otherwise specified in a rate plan, you agree to pay all taxes, fees, and surcharges ("Taxes & Fees") imposed by the government. Carriers may not always give advance notice of changes to these items. Unless otherwise specified in a Service Order, you agree to pay all other charges carriers assess to recover or defray governmental charges or costs we incur in connection with the services we provide, such as Federal Universal Service, regulatory and administrative charges, or gross receipts taxes, without regard to whether these governmental charges or costs fund programs that provide benefits to you or in your location. The carrier sets these charges; they are not taxes, they are not required by law, they are not necessarily related to anything the government does, they are kept by the carrier in whole or in part, and the amounts and what they pay for may change.
- Payments. All payments are due upon receipt. If we do not receive payment in full by the due date, DX may immediately suspend or cancel your Service. The due date is two (2) business after your invoice is available on the DX portal. The monthly due date will remain consistent, but may vary by one (1) or more days per cycle. If payment is received by this date, the account will be in “current” states. If a payment is not received by this date, the account will be in “past-due” status. Accounts in past-due status will be charged a late fee equal to 1.5% of the total amount outstanding as of that date, and then every month thereafter until the account is in current status. If service is suspended for a payment related issue, a per device reactivation fee of up to $4.75 may be charged. Change requests including, activation, deactivation, and change of service can only be made when the account is in current status.
- Your Right to Dispute Charges. If you have a dispute regarding your charges to your account, you agree to notify us of the dispute within 14 (FOURTEEN) days after the date you first receive the disputed bill or charge ("Dispute Period"), unless otherwise provided by law. If you do not notify us of your dispute in writing within this time period, you may not pursue a claim in arbitration or in court. If you accept a credit, refund or other compensation or benefit to resolve a disputed bill or charge, you agree that the issue is fully and finally resolved.
- Notices and Customer Communications. You may contact our Customer Care department at www.dataxoom.com, or by calling (855) 533-2829. Notices from us to you are considered delivered when we send them to your Device or by email. Notices from you to us are considered delivered when you send an email and you receive confirmation from DX that this email has been received.
- Lost or Stolen Equipment. To avoid unauthorized use of your DX Service, if your Device is lost or stolen you may notify us by visiting our website or by calling DX at (855) 533-2829. Upon receiving notice that your Device is lost or stolen, DX will temporarily deactivate your Service. To re-activate your DX SERVICE you must notify us that you have purchased a new DX SIM card or replacement device and wish to resume your DX Service. The suspension period will not alter the expiration date of the Service for which you have paid prior to your Device being lost or stolen (the "Expiration Date"). The time period for which you have paid will continue to run and your Service will expire on the Expiration Date. If your Service has expired prior to you notifying DX that you have purchased a new SIM card or replacement device and wish to re-activate then you will be required to pay for the full 30 day cost of the Service plan you select at time of re-activation.
- Disclaimer of Warranties. To the extent permitted by law, the services and devices are provided on an “as is” and “with all faults” basis and without warranties of any kind. We make no representations or warranties, express or implied, including any implied warranty of merchantability or fitness for a particular purpose concerning your service or your device. We can't promise uninterrupted or error- free service and don't authorize anyone to make any warranties on our behalf. This doesn't deprive you of any warranty rights you may have against anyone else. We do not guarantee that your communications will be private or secure;
- It is illegal for unauthorized people to intercept your communications, but such interceptions can occur.
- Waivers and Limitations of Liability. Unless prohibited by law, we each agree to limit claims for damages or other monetary relief against each other to direct and actual damages. This limitation and waiver will apply regardless of the theory of liability, whether fraud, misrepresentation, breach of contract, personal injury, products liability, or any other theory. This means that neither of us will seek any indirect, special, consequential, treble, or punitive damages from the other. This limitation and waiver also applies to any claims you may bring against any other party to the extent that we would be required to indemnify that party for such claim. Our liability for monetary damages for any claims you may have against us is limited to a refund or rebate of the prorated monthly or other charges you paid or owe us for the applicable service or device. You agree we are not liable for problems caused by you or a third party. Except to the extent prohibited by law, all claims must be brought within 2 years of the date the claim arises.
- Use and Misuse of Service or Device. Your Service is intended for Web browsing, messaging, and similar activities on your device and not on any other equipment. Unless explicitly permitted by your Service Order, other uses, including for example, tethering your device to a personal computer or other hardware, are not permitted. Examples of prohibited uses include but are not limited to: (a) server devices or host computer applications, including continuous Web camera posts or broadcasts, automatic data feeds, automated machine-to-machine connections or peer-to-peer (P2P) file-sharing applications that are broadcast to multiple servers or recipients, "bots" or similar routines that could disrupt net user groups or email use by others or other applications that denigrate network capacity or functionality; (b) reselling or rebranding the Service or a DX Device or tampering with, reprogramming or altering DX Devices; (c) as a substitute or backup for private lines or dedicated data connections; (d) any activity that adversely affects the ability of other users or systems to use either DX services or the network- based resources of others, including the generation or dissemination of viruses, malware or "denial of service" attacks; (e) accessing, or attempting to access without authority, the information, accounts or devices of others, or to penetrate, or attempt to penetrate, DX or another entity's network or systems; or (f), running software or other devices that maintain continuously active Internet connections when a computer's connection would otherwise be idle, or "keep alive" functions. For example, you cannot use your service for Web broadcasting, or for the operation of servers, telemetry devices and/or supervisory control and data or (g) engaging in atypical web usage behavior; (h) "spamming" or engaging in other abusive or unsolicited communications, or any other mass, automated voice or data communication for commercial or marketing purposes; (i) assisting or facilitating anyone else in any of the above activities. Unless authorized by DX, you agree that you won't install, deploy, or use any regeneration equipment or similar mechanism (for example, a repeater) to originate, amplify, enhance, retransmit or regenerate a transmitted RF signal; or (j) using the Service or Device to engage in unlawful activity, or in conduct that adversely affects our Customers, employees, business, or any other person(s), or that interferes with our operations, network, reputation, or ability to provide quality service, including but not limited to the generation or dissemination of viruses, malware or "denial of service" attacks.
- Protective Measures To provide a good experience the carriers may take measures including temporarily reducing data throughput for a subset of Customers who use a disproportionate amount of bandwidth. Additionally, in the event that a Customer is in violation of the Permissible and Prohibited Data Uses listed above, carriers may reduce your data speed for the remainder of that billing cycle or terminate data service without notice or refund. We may also suspend, terminate, or restrict your data session, Plan, or service if you use your Service in a manner that interferes with other Customers' service, carrier’s ability to allocate network capacity among Customers, or that otherwise may degrade service quality for other Customers.
- AGREEMENT Term. The initial term of this AGREEMENT shall commence on the date of “Acceptance” and shall continue for a period of one (1) year (the “Initial Term”). Upon completion of the Initial Term, this AGREEMENT shall be automatically renewed for successive one (1) year terms (the Initial Term and any renewal term being referred to herein collectively as the “Term”) unless either party hereto delivers written notice to the other party hereto of its intent not to renew this AGREEMENT. Such notice must be delivered no later than thirty (30) days prior to the conclusion of the then existing Term. If renewed, then this AGREEMENT shall continue until terminated in accordance with the provisions of this AGREEMENT.
- DX Charges. Customer must pay all charges, including, without limitation, airtime, roaming, recurring monthly service, equipment supplemental services, provisioning charges, and any other charges.
- AGREEMENT Termination. Notwithstanding anything herein to the contrary, this AGREEMENT may be terminated by either Party upon notice to the other Party if the other Party breaches any provision, warranty, or covenant set forth in this AGREEMENT, provided that (i) the Party giving notice already has given the other party written notice of such breach, and (ii) if such breach is able to be remedied, then the other Party has failed to (a) remedy such breach within thirty (30) days after such notice, or (b) commence in good faith and diligently pursue completion of a remedy if more than thirty (30) days is reasonably required to remedy such breach. Any termination of this AGREEMENT shall not affect any liability or other obligation which shall have accrued prior to the termination date and termination of this AGREEMENT shall in no way prevent either party from pursuing any other remedies provided at law or in equity which may be available as a result of any breach by the other party.
- Customer Representative. The Customer shall appoint a representative who shall have the authority to grant all approvals necessary for the completion of the DX Services. The Customer acknowledges that any Change Orders requested must be in writing.
- Approvals. Significant Customer input and certain Customer approvals may be necessary during the course of the delivery of the DX Services and the implementation of the DAS Solutions. The Customer shall make itself available to DX as DX shall reasonably request and on a timely basis in order to allow DX to provide the DX Services in an efficient and timely manner.
- Confidential Information. Unless otherwise stated in a separate agreement or an “MSA”, the parties agree to terms and conditions stated in DX’s Mutual Non-Disclosure Agreement. If you do not agree with any of the terms and conditions stated in DX’s Mutual Non-Disclosure Agreement, DX Services should not be accepted. In addition, the Parties agree that any and all information exchanged between them and their employees, representatives, agents and contractors is proprietary including, but not limited to, DX’s designs, technology, ideas, concepts, costs, fees and charges and any information relating to the negotiation, execution and delivery of this AGREEMENT or the DX Services. Any and all such information, whether marked “confidential” or not shall not be further disclosed by either party except in furtherance of the DX Services to be rendered hereunder. In the event that either Party is requested by applicable law, regulation or legal process to disclose any propriety information, then such Party shall promptly notify the other in order that the applicable Party may seek an appropriate protective order or other appropriate remedy. If ordered by a court of competent jurisdiction and venue to disclose propriety information, then the disclosing Party shall only disclose that portion of the proprietary information as may be legally required in order to comply with such order.
- Press Release. DX shall have the right to issue a press release or otherwise identify or market the DX Services (or services substantially similar thereto), provided that the Customer has been given ten (10) days prior notice and the opportunity to review such announcement or marketing materials.
- Mutual Indemnification. Each Party agrees to indemnify, defend and hold the other Party harmless from and against any and all losses, damages, or fees incurred (collectively, “Losses”) as a result of any action, claims, or demands (collectively, “Claims”) arising from the other Party’s negligent, willful or wrongful acts. Customer shall additionally indemnify, defend and hold DX harmless from and against any and all Losses as a result of any Claims arising from Customer’s disclosure of DX’s Confidential Information resulting in the use of such Confidential Information by any third party whether or not such disclosure was approved by DX. Notwithstanding the foregoing, DX will not be liable for indirect, incidental, punitive or consequential damages resulting from any defects in the product or the delivery of the DX services. Any claim made by the Customer for direct damages shall be limited to the project cost paid by Customer to DX.
- Force Majeure. The Parties understand and agree that in the event an act of the government, terrorism, war conditions, fire, flood, or other circumstances beyond the reasonable control of DX or the Customer that adversely affects the performance by DX or the Customer under the provisions of this AGREEMENT, such nonperformance by DX or the Customer shall not be considered grounds for breach of this AGREEMENT. Financial ability shall never be deemed to be a cause beyond a Party’s reasonable control and in no event shall either Party be excused or delayed in the payment of any money due under this AGREEMENT.
- Entire. All attachments hereto, and subsequent Change Orders, are incorporated in this AGREEMENT by reference. This AGREEMENT constitutes the entire understanding of the Parties, and revokes and supersedes all prior or contemporaneous s between the Parties. This AGREEMENT shall not be modified or amended except by a writing of subsequent date hereto which is signed by the Parties hereto and specifically referring to this AGREEMENT.
- Relationship of the Parties. This AGREEMENT shall not create a joint venture, partnership, employment or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity.
- Assignment. This AGREEMENT may not be assigned by either Party without the prior written consent of the other and such consent will not be unreasonably withheld. However, either Party may, without the other Party's consent, assign this AGREEMENT to an affiliate or to any entity that acquires substantially all the Party's business or stock and DX may assign its right to receive payments hereunder. Subject to the foregoing, this AGREEMENT will be binding upon the assignees of the respective Parties.
- Governing Law. This AGREEMENT shall be governed, construed, interpreted by and enforced in accordance with the laws of the State of Delaware without reference to its choice of law rules or rulings. The Parties hereto agree that any dispute arising hereunder shall be resolved exclusively in applicable Delaware or federal courts in the District of Delaware of proper jurisdiction and venue.
- No Violation. The Parties hereto warrant and represent to one another that their entrance into this AGREEMENT does not violate any other contracts, s, or any other arrangements of any nature whatsoever that either of them may have with any third parties and that all requisite corporate authority was properly obtained to authorize the entrance into this AGREEMENT.
- Binding Effect. This AGREEMENT is binding upon, and shall inure to the benefit of, the heirs, executors, administrators, successors and permitted assigns of the Parties hereto.
- No Waiver. Any consent or waiver, express or implied, by either Party to any breach or violation by the other Party of any term, covenant or condition of this AGREEMENT will not constitute a waiver by such Party of the same or any prior or succeeding breach by the other Party of the same or any other covenant or condition of this AGREEMENT.
- Severability. If any term, clause or provision of this AGREEMENT is judicially determined to be invalid and/or unenforceable by a court of competent jurisdiction and venue, then the validity and/or enforceability of any other term, clause or provision in this AGREEMENT will not be affected thereby.