Third Party Terms in End User Agreement
By accepting the above terms, you also accept these Third Party Terms. Our Products contain or function in connection with various devices, software, services and other products (collectively “Third Party Products”) made or offered by companies that are not affiliated with us (“Third Parties”), many of which require us to pass through their terms to you and/or require you to accept their terms as a condition to your use of their Third Party Product(s). These Third Party Terms contain license and use limitations; limitations of liability; disclaimers; choice of law, arbitration and forum selection clauses; and other important terms and conditions that affect your rights and obligations. Some of the Third Parties reserve the right to amend their terms from time to time, as specified in the applicable Third Party Terms and by accepting such Third Party Terms as part of the above terms, you agree to accept amended versions of such Third Party Terms.
A. Wireless Terms
The following terms apply if you have subscribed for wireless communication services. “You” means the legal entity that you represent that has subscribed for wireless communication services to be used in connection with the services provided by Element Financial Corporation (“us” or “we”). References to the “underlying carrier” refer to the provider of the wireless communication services and references to “reseller” refer to any reseller of services provided by an underlying carrier from whom we procure wireless communication services.
1. You acknowledge that the services provided to us by the underlying carrier are made available only when the Products are in operating range of the facilities of the underlying carrier. In addition, the services of the underlying carrier may be temporarily refused, interrupted, or limited at any time because of: (a) limitations to facilities or services of the underlying carrier or its vendors; (b) transmission limitations caused by atmospheric, topographical, terrain, other natural or artificial conditions or other factors or causes outside of the underlying carrier’s reasonable control; or (c) usage concentrations, capacity constraints, modifications, upgrades, relocations, repairs, and other similar activities necessary for the proper or improved operation of the services provided to us by the underlying carrier. Individual data transmissions may be involuntarily disconnected or delayed for a variety of reasons, including without limitation atmospheric conditions, topography, weak batteries, system over-capacity, movement outside a geographic locations in which the services are available from time to time and gaps in coverage within said geographic locations. None of us, our suppliers, an underlying carrier or a reseller shall be responsible or incur any liability for the failure to provide adequate services, including any coverage gaps, or for any content, including information, opinions, advice, statements or services that are provided by third parties and accessible through the services or any damages resulting therefrom. The underlying carrier and/or the reseller thereof reserve the right, in their sole discretion and without any obligation, to make improvements to, or correct any error or omission in any portion of the underlying carrier’s network, which may or may not affect your access thereto. You acknowledge that services may be temporarily suspended or permanently terminated upon little or no notice in the event that our agreement with the reseller or the underlying carrier is suspended or terminated or in the event of any violation of the underlying carrier’s acceptable use policy or other rules or policies. You waive any and all claims against us, our suppliers, the reseller and the underlying carrier for such suspension or termination.
2. You acknowledge that: (a) it is possible for third parties to monitor wireless transmissions and data traffic over the facilities of the underlying carrier and neither privacy nor security can be guaranteed; (b) transmissions to an internet address or through the internet or other use of the internet may result in the transmission of your number or other information over the internet; (c) if you desire to secure transmission of data, you must provide for your own means of doing so; and (d) you assume full responsibility for the establishment of appropriate security measures to control access to your own respective equipment and information. YOU UNDERSTAND THAT WE, OUR SUPPLIERS, THE RESELLER AND THE UNDERLYING CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS, AND THAT NONE OF US, OUR SUPPLIERS, THE RESELLER OR THE UNDERLYING CARRIER WILL BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SERVICES.
3. The wireless communication services are furnished to you subject to the condition that there will be no unauthorized, abusive or fraudulent use of such services, the facilities used to provide such services or the Products (collectively the “Unauthorized Use”). You agree to make good faith efforts to minimize Unauthorized Use, to promptly report to us and the underlying carrier any Unauthorized Use of which you become aware, and to fully cooperate in any investigation or prosecution. Unauthorized Use includes, but is not limited to: (a) attempting or assisting another to access, alter or interfere with the communications of and/or information about another user of such services or the facilities used to provide such services; (b) tampering with or making an unauthorized connection to such facilities; (c) using or assisting another to use any scheme, false representation or false credit device, or other fraudulent means or devices in connection with such services; (d) installing any amplifiers, enhancers, repeaters, or other devices that modify the radio frequencies used to provide the services; (e) attempting or permitting anyone to attempt to use such services or facilities in such a manner so as to avoid incurring charges for usage, including without limitation the use of any mobile VOIP solution over such facilities; (f) using such services so as to interfere unreasonably with the use of such services by other users thereof, impair the quality of such services or interfere with our, the underlying carrier’s or the reseller’s ability to provide such services; (g) using the such services to convey information that is obscene, salacious, abusive, prurient or unlawful; (h) excessive data usage. Upon our discovery of any Unauthorized Use by you, we reserve the right to notify the underlying carrier and reseller to order you to cease (and you agree to cease) from engaging in such acts of interference. You acknowledge that services or SIMs may be suspended, limited, restricted, deactivated or cancelled without notice if we, the reseller or the underlying carrier, in our or its sole discretion, determine that you have engaged in any Unauthorized Use or there is a reasonable suspicion of Unauthorized Use. None of us, our suppliers, the reseller or the underlying carrier have any liability to you as a result of any such suspension, limitation, restriction, deactivation or cancellation. You further acknowledge that the underlying carrier may temporarily block automatic roaming in a particular portion of the territory in which the underlying carrier services are experiencing fraudulent usage. You shall have sole liability for charges, costs or damages resulting from: (a) any abuse or fraud facilitated by you, your employees, agents or persons authorized by you to use the services; (b) using or assisting another to use any scheme, false representation, or false credit device, or other fraudulent means or devices in connection with the services (“Subscription Fraud”); or (c) any failure to give prompt notice of suspected abuse or fraudulent use based on information available to you. You shall immediately notify us in writing of any abuse or fraudulent or illegal use of the wireless communication services that becomes known to you through your exercise of reasonable diligence. You agree that none of us, our suppliers, any reseller or any underlying carrier are liable for any illegal, fraudulent or negligent use of the wireless communication services relating to any Identifiers activated for you, and shall indemnify, defend and hold harmless us, our suppliers, any reseller or any underlying carrier and the officers, employees and agents of each of them from any damages incurred in any such event.
4. You may use the services for web browsing, messaging, and similar activities on equipment approved by the underlying carrier and not on any other equipment. Unless explicitly permitted by the plan for your services, other uses, including for example, tethering a 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, or peer-to-peer (P2P) file-sharing applications that are broadcast to multiple servers or recipients, “bots” or similar routines that disrupt net user groups or email use by others or other applications that denigrate network capacity or functionality; (b) any activity that adversely affects the ability of other users or systems to use either the underlying carrier’s services or the network-based resources of others, including the generation or dissemination of viruses, malware or “denial of service” attacks or which interferes with the reseller’s or underlying carrier’s ability to provide services; (c) any activity that the underlying carrier in its sole discretion deems may harm its transmission facilities in any way, including any use of the services that interfere unreasonably with the underlying carrier’s ability to provide the services; (d) accessing, altering or interfering with, the communications, information, accounts or devices of others, confidential information or subscriber information or any activity relating to or causing a security breach, or to penetrate, or to attempt to penetrate, the underlying carrier’s or another entity’s network or systems or attempting or assisting another with any of the foregoing; (e) abuse or fraudulent use, including, without limitation: (i) tampering with or making an unauthorized connection to the underlying service provider’s network; (ii) installing any amplifiers, enhancers, repeaters, or other devices that modify the radio frequencies used to provide the services; (iii) Subscription Fraud; (iv) using the services to convey obscene, salacious or unlawful information; (v) using the services without permission on a stolen or lost device; (vi) any unauthorized use of services which includes the practices generally referred to as “counterfeiting,” “cloning fraud,” or “tumbling fraud” ; (vii) using the services to provide voice over IP services; (viii) extensive use of the services outside of the areas where the underlying carrier is licensed to provide the services and is providing the services, which area changes from time to time, in such a manner as to unreasonably increase the costs of the underlying carrier; (ix) excessive data usage; (x) remote medical monitoring; or (xi) use in a manner prohibited by the applicable plan, option, feature or application.
5. You understand and acknowledge that we or our suppliers are bound by certain obligations under a written agreement with the underlying carrier and that the underlying carrier has also established rules, policies and procedures governing the provision of the wireless communication services and may, from time to time, develop and adopt new rules, policies and procedures. You agree to comply with all such obligations, rules, policies and procedures, new or otherwise, related to any of the foregoing, as we request from time to time.
6. You will be fully responsible for all SIM Cards purchased from us. You agree not to remove such SIM Cards from the Products or use such SIM Cards in connection with any services other than the wireless communication services provided by us and the reseller and/or underlying carrier from whom such SIM Card is procured. You understand that the reseller or the underlying carrier retains ownership of the SIM Cards. You must not insert a SIM Card into any device other than the Product for which it has been designated and which has been approved by the underlying carrier, including without limitation any device bearing the mark of an underlying carrier or purchased from any underlying carrier where the device was packaged with an underlying carrier SIM Card. You must not provide, sell or transfer in any manner any SIM Card, whether separately or together with any device, to any individual or entity or program, reprogram, or tamper with any SIM Card in any manner. You will be responsible for any and all charges and other fees incurred with respect to the SIM Cards supplied to you by us, including fees for unauthorized services (e.g. voice services). You understand and acknowledge that you may not use any Product or any SIM Cards for any voice calls and the underlying carrier has implemented measures to block voice calls. In the event you are able to make any voice calls, you understand and acknowledge that additional fees will be payable for same.
7. SUBJECT TO NUMBER PORTABILITY RULES UNDER APPLICABLE LAW, YOU HAVE NO PROPERTY RIGHT IN ANY CODE OR IDENTIFIER (INCLUDING ANY NUMBER, PHONE NUMBER, IMEI, IMSI, UNIQUE NETWORK IDENTIFIER, INTERNET PROTOCOL (IP) ADDRESSES, PERSONAL IDENTIFICATION NUMBER OR E-MAIL ADDRESS) ISSUED TO, ASSIGNED TO OR ASSOCIATED WITH YOU OR ANY PRODUCT USED BY YOU IN CONNECTION WITH THE SERVICES PROVIDED TO US BY THE UNDERLYING CARRIER (EACH, AN “IDENTIFIER”). YOU ACKNOWLEDGE THAT THE UNDERLYING CARRIER MAY CHANGE ANY IDENTIFIER AT SUCH TIME OR TIMES AS THE UNDERLYING CARRIER CONSIDERS NECESSARY WITHOUT ANY LIABILITY WHATSOEVER, WHETHER ON OUR PART OR THE PART OF THE UNDERLYING CARRIER. YOU FURTHER ACKNOWLEDGE AND AGREE THAT DYNAMIC IP ADDRESSES MAY BE USED WITH RESPECT TO THE PRODUCTS WHICH IP ADDRESSES WILL CHANGE WHENEVER A PRODUCT IS DISCONNECTED FROM AND THEN RECONNECTED TO THE FACILITIES OF THE UNDERLYING CARRIER OR AFTER AN ELAPSED PERIOD OF TIME. YOU ACKNOWLEDGE THAT THE ASSIGNMENT OF NUMBERING RESOURCES IS SUBJECT AT ALL TIMES TO AVAILABILITY FROM APPLICABLE NUMBERING AUTHORITIES.
8. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOU HAVE NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH OUR SUPPLIERS, THE UNDERLYING CARRIER OR THE RESELLER OR ANY AFFILIATES OR CONTRACTORS THEREOF, AND THAT YOU ARE NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN US OR OUR SUPPLIERS AND THE UNDERLYING CARRIER, BETWEEN US OR OUR SUPPLIERS AND ANY RESELLER OF ANY UNDERLYING CARRIER, OR BETWEEN ANY RESELLER AND ANY UNDERLYING CARRIER. YOU ALSO UNDERSTAND AND AGREE THAT ANY AGREEMENT BETWEEN US OR OUR SUPPLIERS AND A RESELLER DOES NOT CREATE A CONTRACTUAL RELATIONSHIP BETWEEN US OR OUR SUPPLIERS AND THE UNDERLYING CARRIER OF SUCH RESELLER. IN ADDITION, YOU EXPRESSLY UNDERSTAND AND AGREE THAT OUR SUPPLIERS, THE UNDERLYING CARRIER, ANY RESELLER OF ANY UNDERLYING CARRIER OR ANY AFFILIATES OR CONTRACTORS THEREOF MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER AND EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES: (a) REGARDING THE PROVIDER, SCOPE OR NATURE OF CONTENT OR SERVICES THAT WILL BE AVAILABLE BY DEFAULT TO YOU FROM THIRD PARTIES THROUGH THE SERVICES; (b) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USE, TITLE OR NON-INFRINGEMENT) OR (c) REGARDING RESULTS TO BE OBTAINED BY YOU IN CONNECTION WITH THE USE OF THE WIRELESS COMMUNICATION SERVICES OR THAT ACCESS TO OR USE OF THE WIRELESS COMMUNICATION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, AND SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO YOU, INCLUDING WITHOUT LIMITATION FOR ANY DAMAGES WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, REGARDLESS OF THE FORM OF THE ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, IN TORT OR OTHERWISE AND YOU HEREBY WAIVE ANY AND ALL CLAIMS OR DEMANDS THEREFOR. THE UNDERLYING CARRIER IS NOT LIABLE TO YOU FOR ANY CLAIM OR DAMAGE RELATED TO OR ARISING OUT OF OR IN CONNECTION WITH ANY COVERAGE MAP INFORMATION, INCLUDING THE ACCURACY THEREOF.
9. You expressly understand and agree that the liability and obligations of us, our supplier or the underlying carrier to you are strictly controlled and limited by the underlying carrier’s tariff, if any, and the laws, rules and regulations of the governmental authorities which from time to time have jurisdiction.
10. YOU ACKNOWLEDGE AND AGREE THAT, REGARDLESS OF THE FORM OF ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, IN TORT OR OTHERWISE, YOUR EXCLUSIVE REMEDY AGAINST US, AND OUR EXCLUSIVE REMEDY AGAINST OUR SUPPLIERS, AN UNDERLYING CARRIER OR A RESELLER THEREOF, AND THE TOTAL LIABILITY OF US, OUR SUPPLIERS AND ANY RESELLER, THE UNDERLYING CARRIER OR ANY SUPPLIER OF SERVICES TO YOU FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO THOSE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES, IN CONNECTION WITH OUR AGREEMENT WITH AN UNDERLYING CARRIER OR A RESELLER THEREOF, OR ANY FAILURE OR DISRUPTION OF SERVICES, IS LIMITED TO PAYMENT OF DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY YOU TO US FOR THE SERVICES DURING THE ONE (1) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE. IN NO EVENT SHALL WE, OUR SUPPLIERS, ANY RESELLER OR THE UNDERLYING CARRIER BE LIABLE FOR ANY COST, DELAY, FAILURE OR DISRUPTION OF SERVICE, LOST PROFITS (DIRECT OR INDIRECT) OR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL WE, OUR SUPPLIERS, ANY RESELLER OR THE UNDERLYING CARRIER BE LIABLE FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO THE FAILURE OR INCOMPATIBILITY OF EQUIPMENT UTILIZED BY YOU IN CONNECTION WITH THE SERVICES; INTEROPERABILITY, ACCESS OR INTERCONNECTION OF THE SERVICE WITH APPLICATIONS, EQUIPMENT, SERVICES, CONTENT OR NETWORKS PROVIDED BY US OR THIRD PARTIES; SERVICE DEFECTS, SERVICE LEVELS, DELAYS OR INTERRUPTIONS; ANY INTERRUPTION OR ERROR IN ROUTING OR COMPLETING CALLS OR OTHER TRANSMISSIONS (INCLUDING CALLS TO ANY EMERGENCY SERVICES NUMBER); LOST OR ALTERED MESSAGES OR TRANSMISSIONS; OR UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS, OR DESTRUCTION OF YOUR OR THIRD PARTIES’ APPLICATIONS, CONTENT, DATA, PROGRAMS, INFORMATION, NETWORK, OR SYSTEMS. YOU SHALL USE EQUIPMENT AT YOUR OWN RISK AND, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE THAT THE UNDERLYING CARRIER IS NOT RESPONSIBLE FOR THE OPERATION, TESTING OR MAINTENANCE OF ANY PRODUCT OR DEVICE USED IN CONNECTION WITH THE SERVICES.
11. YOU SHALL INDEMNIFY, DEFEND (IF REQUIRED BY US, OUR SUPPLIERS OR THE UNDERLYING CARRIER) AND HOLD HARMLESS US, OUR SUPPLIERS, THE RESELLER AND THE UNDERLYING CARRIER, AND THE OFFICERS, EMPLOYEES, AND AGENTS OF EACH OF THEM FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, LOSSES, EXPENSES, LIABILITY OR DAMAGES (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS), INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL, SLANDER, INFRINGEMENT OF COPYRIGHT, PROPERTY DAMAGE OR PERSONAL INJURY OR DEATH, ARISING IN ANY WAY DIRECTLY OR INDIRECTLY IN CONNECTION WITH ANY AGREEMENT BETWEEN US OR OUR SUPPLIERS AND THE RESELLER OR THE UNDERLYING CARRIER OR THE USE, MISUSE, FAILURE TO USE, OR INABILITY TO USE THE SERVICES OR ANY IDENTIFIER OR THE UNLAWFUL USE OF THE WIRELESS COMMUNICATION SERVICES. THIS INDEMNITY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. THIS PROVISION WILL SURVIVE THE TERMINATION OF ANY SERVICES PROVIDED TO YOU AND ANY RELATED AGREEMENT FOR SAME. YOU ACKNOWLEDGE THAT SUCH AGREEMENT IS ASSIGNABLE BY US.
12. Subject to the terms of the Agreement, unless you provide express consent or disclosure is pursuant to a legal power, all information kept by us, our suppliers, the reseller or the underlying carrier regarding you, other than your name, address and listed telephone number, is confidential and may not be disclosed by us, our suppliers, the reseller or the underlying carrier to anyone other than: (a) you; (b) the underlying carrier or the reseller; (c) a person who, in our reasonable judgment or that of the underlying carrier or the reseller, is seeking the information as your agent; (d) another telecommunications carrier, telephone company or other person providing services to a telecommunications carrier, provided the information is required for establishment of, or the efficient and cost-effective provision of services and disclosure is made on a confidential basis with the information to be used only for that purpose; (e) a company involved in supplying you with telephone or telephone directory related services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose; (f) an agent retained by us, our suppliers, the reseller or the underlying carrier in the collection of your account, or to perform other administrative functions for us, the reseller or the underlying carrier, provided the information is required for and is to be used only for that purpose; (g) to a law enforcement agency whenever we or the underlying carrier has reasonable grounds to believe that you have knowingly supplied us or the underlying carrier with false or misleading information or you are otherwise involved in unlawful activities; or (h) a public authority or agent of a public authority, if in our reasonable judgment or that of our supplier or the underlying carrier, it appears that there is imminent danger to life and property which could be avoided or minimized by disclosure of the information. Express consent may be taken to be given by you where you provide: (i) written consent; (ii) oral confirmation by an independent third party; (iii) electronic confirmation through the use of a toll-free number; (iv) electronic confirmation via the internet; (v) oral consent, where an audio recording of the consent is retained by us; or (vi) consent through other methods, as long as an objective documented record of customer consent is created by us or by an independent third party.
13. This section applies only to the provision of emergency services on a mandatory basis. In respect of the provision of emergency services on a mandatory basis, we, our suppliers and the underlying carrier are not liable for: (a) libel, slander, defamation or the infringement of copyright arising from material or messages transmitted over the network provided by us, our suppliers or the underlying carrier from your property or premises or recorded by your equipment or our equipment; (b) damages arising out of your act, default, neglect or omission in the use or operation of equipment provided by us; (c) damages arising out of the transmission of material or messages over the network provided by us, our suppliers or the underlying carrier on your behalf which is in any way unlawful; or (d) any act, omission or negligence of other companies or telecommunications systems when their facilities are used in establishing connections to or from your facilities and equipment. Furthermore, except in cases where negligence on our, our suppliers or the underlying carrier’s part results in physical injury, death or damage to your property or premises, our, our suppliers’ and the underlying carrier’s liability for negligence related to the provision of emergency services on a mandatory basis is limited to the greater of $20 and three times the amount (if any) we would otherwise be entitled to receive as a refund for the provision of defective service. However, subject to the terms of the Agreement, our, our suppliers’ and the underlying carrier’s liability is not limited by this section in cases of deliberate fault, gross negligence or anti-competitive conduct on our part or in cases of breach of contract where the breach results from our gross negligence.
14. YOU HEREBY ACKNOWLEDGE THAT WE ARE ACTING AS AGENT TO THE UNDERLYING CARRIER SUPPLYING SERVICES TO US FOR THE LIMITED PURPOSE OF SECURING PERFORMANCE OF THE PROVISIONS IN THESE TERMS.
15. THE UNDERLYING CARRIER’S SERVICES DO NOT INCLUDE ANY VOICE SERVICES.
16. THE SIM SUPPLIED WITH THE PRODUCTS WE, OUR SUPPLIERS OR OUR RESELLERS HAVE SUPPLIED TO YOU AND MAY ONLY BE USED IN SUCH PRODUCTS AND IN NO OTHER WIRELESS DEVICE.
17. YOU MAY ONLY ROAM INCIDENTALLY TO YOUR USE OF THE SERVICES IN YOUR COUNTRY OF RESIDENCE. THE UNDERLYING CARRIER MAY, AT ITS DISCRETION, AND TO THE EXTENT PERMITTED UNDER ITS AGREEMENTS WITH ITS VENDORS, PROVIDE CERTAIN ROAMING SERVICES TO YOU IN OTHER TERRITORIES THAT THE UNDERLYING CARRIER HAS MADE AVAILABLE TO US. THE FOREGOING MAY NOT APPLY FOR RESIDENTS OF CERTAIN COUNTRIES. ANY SUCH ROAMING SHALL BE SUBJECT TO THE RESTRICTIONS THAT MAY EXIST IN THE RESPECTIVE AGREEMENTS BETWEEN SUCH PERSONS AND APPLICABLE LAW OR REGULATION. THE UNDERLYING CARRIER OR ITS VENDORS MAY IN THEIR SOLE DISCRETION SUSPEND ROAMING PRIVILEGES TO YOU IF THEY DISCOVER OR SUSPECT THAT THE SERVICES ARE BEING USED IN A FRAUDULENT MANNER. THE UNDERLYING CARRIER SHALL BE ENTITLED FROM TIME TO TIME AND AT ANY TIME, AT ITS SOLE DISCRETION, TO: (A) ADD, MODIFY OR REMOVE TERRITORIES WHERE ROAMING SHALL BE AVAILABLE TO YOU; (B) SUBSTITUTE ROAMING PARTNERS; AND/OR (C) PASS THROUGH ANY APPLICABLE INCREASES IN THE COSTS OF THE WIRELESS COMMUNICATION SERVICES IN RESPECT OF SUCH CHANGES. YOU ACKNOWLEDGE THAT NOT ALL WIRELESS COMMUNICATION SERVICES ARE AVAILABLE IN EACH TERRITORY WHERE ROAMING IS AVAILABLE AND ROAMING IN CERTAIN TERRITORIES IS ONLY AVAILABLE FOR USE WITH PRODUCTS USING CERTAIN FORMS OF TECHNOLOGY. None of us, our suppliers, an underlying carrier or a reseller thereof makes any warranties or representations as to the availability or quality of roaming service provided by other wireless carriers, where available, and none of us, our suppliers, an underlying carrier or a reseller thereof shall have any liability whatsoever for any errors, outages, failures, suspension or termination of roaming services or any increases to the charges as a result of any of the foregoing. You acknowledge that not all features and/or functionalities are available in each territory where roaming is available and roaming in certain territories is only available for use with Products using certain forms of technology. You understand and acknowledge that the services may not be used for devices to be permanently deployed outside your country of residence.
18. You have no right to receive, and we have no obligation to provide to you, a separate bill for wireless communication services provided by the underlying carrier or otherwise show such services as a separate item on our price quotes, pricing schedules or our invoices to you.
19. You will only use the wireless communication services for customary purposes and in compliance with law, and will comply with any policies, rules or guidelines communicated to you by us, including safe driving and health and safety guidelines.
20. You will not use the wireless communication services to operate an e-mail, web or news service (provided for greater certainty that the use of our tracking and fleet management solution does not constitute such a service), use the wireless communication services to transmit or send any annoying, inappropriate, improper, excessive, threatening or obscene material or to otherwise harass, offend, threaten, embarrass, distress or invade the privacy of any person; engage in any activity that could compromise the security of or disrupt or interfere with the wireless communication services or any network or computers on the Internet or disrupt or interfere with the services of any Internet access provider; reproduce, alter, adjust, repair or tamper with any signaling, identification (including the MIN, ESN, IMEI, IMSI, and other numbers) or transmission function or component of any device used with the wireless communication services, and will not permit anyone other than a person authorized by the underlying carrier to do so.
21. THE WIRELESS COMMUNICATION SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Your use of the wireless communication services is at your sole risk
22. We, our suppliers and the underlying carrier are not responsible for and shall not have any liability to you for (a) libel, slander, defamation or the infringement of copyright arising from material or messages transmitted over our telecommunications network or that of the underlying carrier or recorded on our equipment or that of the underlying carrier; (b) damages arising out of your act, default, neglect or omission in the use or operation of equipment activated on our telecommunications networks or those of the underlying carrier; (c) damages arising out of the transmission of material or messages over our telecommunications network that of underlying carrier on your behalf which is in any way unlawful; or (d) any act, omission or negligence of other companies or telecommunications systems in relation to the provision of the wireless communication services when the facilities of such other companies or telecommunications systems are used in establishing connections to or from facilities and equipment controlled by you.
23. When roaming outside of the underlying carrier’s coverage area, you are responsible for all applicable charges, and are subject to the terms and conditions of service (including limitations of liability) imposed by the wireless service provider providing the roaming services. Charges for roaming calls may be billed in the months after the calls were made.
24. You will indemnify us, our suppliers and the underlying carrier against all manner of actions, claims, damages, liabilities and judgments (including legal fees and courts costs) (collectively, “Claims”) sustained by or made against us, our suppliers or the underlying carrier by a third party in connection with the use of our fleet tracking and management solution or the wireless communication services by you or any other person including any Claims sustained by or made against us or the underlying carrier arising out of or in connection in any way with your inability or the inability of any other person to use the wireless communication services or any failure or interruption of the wireless communication services.
25. As a condition of your use of any HSPA wireless communication services provided by Telus or any of its affiliates, you represent, warrant and covenant that: (a) your billing address is and will remain in Canada; (b) your billing address is not outside of Telus’ wireless service area in or around Winnipeg in the province of Manitoba (as documented at http://www.telusmobility.com/en/MB/hspa/canada3gmaps.shtml as such webpage may change or move from time to time); (c) you are not a wireless operating company and do not, directly or indirectly, own all or part of a wireless operating company, which includes, but is not limited to, any person or entity in the business of operating and offering PCS, cellular communication, iDen, GSM, CDMA, HSPA, LTE, WiMax or satellite networks; and (d) you are not person or entity that, in the reasonable opinion of Telus, will, directly or indirectly, re-sell such wireless communication services.
26. You must read all collateral materials concerning service and use of the equipment, including, without limitation, any welcome guide, plan brochures, coverage maps, and materials related to equipment and accessories and any additional printed materials and consumer information specified by the underlying carrier from time to time, including any acceptable use policy, which may be found at the underlying carrier’s website. Use of the service is subject to restrictions and prohibitions described in the foregoing. The underlying carrier may revise any of the foregoing at any time without notice. You must provide your place of primary use ("PPU") when ordering service in connection herewith, which must be your residential or business street address and which must be within the underlying carrier’s service area.
29. You acknowledge that you are acquiring the services for your use only and not for the purposes of re-licensing, resale, or redistribution without integration with other products and/or services. You must not resell the wireless communication services (either as part of our fleet management and tracking solution or otherwise).
30. We or our suppliers may terminate the provision of wireless communication services to you without notice or any further obligation or liability if the agreement with the underlying carrier governing the provision thereof expires or terminates.
31. If the agreement with an underlying carrier or a reseller thereof is terminated, you may be able to continue the provision of services, provided however that such continued provision may be subject to such underlying carrier’s or reseller’s then-current terms and conditions.
32. Our suppliers, the underlying carrier and/or its reseller are third party beneficiaries of these terms, and may take any equitable or legal action required to enforce same.
33. We may change, modify or amend these terms at any time in accordance with the terms of the Agreement, provided however the notice period applicable will be 15 days.
B. Internet Bandwidth Services - Acceptable Use Policy
1. With respect to any Internet Bandwidth Services, you shall not use and shall not permit such Internet Bandwidth Services or any related Services to be used, including any use by your employees, agents, representatives, clients, contractors, end-users and any third parties who use or access such Services (collectively, “Users”), in any manner which: (i) could cause loss or degradation of our service or our service providers’ service to any of other of our or their customers or Internet users; (ii) could compromise the security or integrity of others’ computer systems or software; (iii) creates, collects, transmits, stores or exchanges any material in violation of any applicable laws; or (iv) would be reasonably expected to constitute grounds for our or our service providers’ exposure to civil or criminal liability.
2. The acts and omissions of Users shall be deemed to be your acts and omissions for the purposes hereof (including for purposes of liability) and you shall be held directly accountable for any actual or attempted contravention of this Acceptable Use Policy (“AUP”) by any User. If we or our service providers detect or becomes aware of any use of any Internet Bandwidth Services in contravention of this AUP, we and our service providers will favour responses that address the breach while minimizing any disruption of the Internet Bandwidth Services or other Services. For example, if the contravention is ongoing and the contravention puts the ongoing operation of our or our service providers’ data centres or the provision of Services to our or our service providers’ other customers in jeopardy, or exposes us or our service providers to civil or criminal liability, we or our service providers may suspend the Internet Bandwidth Services and any related Services and inform you of the suspension. If the contravention does not put the ongoing operation of us or our service providers’ data centres or the provision of Services to us or our service providers’ other customers in jeopardy or expose us or our service providers to civil or criminal liability, we will inform you of the contravention. Once informed of any such contravention, you will take reasonable steps to promptly stop any ongoing contravention and mitigate the effect of the contravention.
3. We and our service providers reserve the right to change this AUP from time to time and will notify you by posting a revised copy of the AUP at our website or by such other method of communication as we or our service providers determine appropriate.
C. Posted Speed Limit Data - End-User Terms
The posted speed limit data (“Data”) is provided for your personal, internal use only and not for resale. It is protected by copyright, and is subject to the following terms and conditions which are agreed to by you, on the one hand, and us, our suppliers and our licensors (including their licensors and suppliers) on the other hand. © 20XX NAVTEQ. All rights reserved. The Data for areas of Canada includes information taken with permission from Canadian authorities, including: © Her Majesty the Queen in Right of Canada, © Queen's Printer for Ontario, © Canada Post Corporation, GeoBase®. NAVTEQ holds a non-exclusive license from the United States Postal Service® to publish and sell ZIP+4® information. ©United States Postal Service® 20XX. Prices are not established, controlled or approved by the United States Postal Service®. The following trademarks and registrations are owned by the USPS: United States Postal Service, USPS, and ZIP+4.
Terms and Conditions
Internal Business Use Only. You agree to use this Data together with our Products and Services for the internal business purposes for which you were licensed, and not for service bureau, time-sharing or other similar purposes. Accordingly, but subject to the restrictions set forth in the following paragraphs, you may copy this Data only as necessary for your internal business use to (i) view it, and (ii) save it, provided that you do not remove any copyright notices that appear and do not modify the Data in any way. You agree not to otherwise reproduce, copy, modify, decompile, disassemble, create any derivative works of, or reverse engineer any portion of this Data, and may not transfer or distribute it in any form, for any purpose, except to the extent permitted by mandatory laws.
Restrictions. Except where you have been specifically licensed to do so by us, and without limiting the preceding paragraph, you may not (a) use this Data with any products, systems, or applications installed or otherwise connected to or in communication with vehicles, capable of vehicle navigation, positioning, dispatch, real time route guidance, fleet management or similar applications; or (b) with or in communication with any positioning devices or any mobile or wireless-connected electronic or computer devices, including without limitation cellular phones, palmtop and handheld computers, pagers, and personal digital assistants or PDAs.
Warning. The Data may contain inaccurate or incomplete information due to the passage of time, changing circumstances, sources used and the nature of collecting comprehensive geographic data, any of which may lead to incorrect results.
No Warranty. This Data is provided to you “as is,” and you agree to use it at your own risk. We, our suppliers and our licensors (and their licensors and suppliers) make no guarantees, representations or warranties of any kind, express or implied, arising by law or otherwise, including but not limited to, content, quality, accuracy, completeness, effectiveness, reliability, fitness for a particular purpose, usefulness, use or results to be obtained from this Data, or that the Data or server will be uninterrupted or error-free. Disclaimer of Warranty: WE, OUR SUPPLIERS AND OUR LICENSORS (INCLUDING THEIR LICENSORS AND SUPPLIERS) DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Some States, Territories and Countries do not allow certain warranty exclusions, so to that extent the above exclusion may not apply to you.
Disclaimer of Liability: WE, OUR SUPPLIERS AND OUR LICENSORS (INCLUDING THEIR LICENSORS AND SUPPLIERS) SHALL NOT BE LIABLE TO YOU: IN RESPECT OF ANY CLAIM, DEMAND OR ACTION, IRRESPECTIVE OF THE NATURE OF THE CAUSE OF THE CLAIM, DEMAND OR ACTION ALLEGING ANY LOSS, INJURY OR DAMAGES, DIRECT OR INDIRECT, WHICH MAY RESULT FROM THE USE OR POSSESSION OF THE DATA; OR FOR ANY LOSS OF PROFIT, REVENUE, CONTRACTS OR SAVINGS, OR ANY OTHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE DATA, ANY DEFECT IN THE DATA, OR THE BREACH OF THESE TERMS OR CONDITIONS, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF WE, OUR SUPPLIERS OR OUR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some States, Territories and Countries do not allow certain liability exclusions or damages limitations, so to that extent the above may not apply to you.
Export Control. You agree not to export from anywhere any part of the Data provided to you or any direct product thereof except in compliance with, and with all licenses and approvals required under, applicable export laws, rules and regulations.
Entire Agreement. These terms and conditions constitute the entire agreement between us (and our suppliers and licensors, including their licensors and suppliers) and you pertaining to the subject matter hereof, and supersedes in their entirety any and all written or oral agreements previously existing between you and us with respect to such subject matter.
Governing Law. The above terms and conditions shall be governed by the laws of the State of Illinois, without giving effect to (i) its conflict of laws provisions, or (ii) the United Nations Convention for Contracts for the International Sale of Goods, which is explicitly excluded. You agree to submit to the jurisdiction of the State of Illinois for any and all disputes, claims and actions arising from or in connection with the Data provided to you hereunder.
Government End Users. If the Data is being acquired by or on behalf of the United States government or any other entity seeking or applying rights similar to those customarily claimed by the United States government, this Data is a “commercial item” as that term is defined at 48 C.F.R. (“FAR”) 2.101, is licensed in accordance with these End-User Terms, and each copy of Data delivered or otherwise furnished shall be marked and embedded as appropriate with the following “Notice of Use,” and shall be treated in accordance with such Notice:
NOTICE OF USE CONTRACTOR (MANUFACTURER/SUPPLIER) NAME: NAVTEQ
CONTRACTOR (MANUFACTURER/SUPPLIER) ADDRESS: 425 West Randolph Street, Chicago, Illinois 60606
This Data is a commercial item as defined in FAR 2.101 and is subject to these End-User Terms under which this Data was provided. © 20XX NAVTEQ – ALL RIGHTS RESERVED.
If the Contracting Officer, federal government agency, or any federal official refuses to use the legend provided herein, the Contracting Officer, federal government agency, or any federal official must notify NAVTEQ prior to seeking additional or alternative rights in the Data.
D. Mapping Terms
You acknowledge that your use of Third Party Products providing mapping information is subject to the terms and conditions of the mapping information, and it is your responsibility to review and comply with such terms. Without limiting the generality of the foregoing, you understand and acknowledge that map and related data or services provided by or through: (a) Microsoft Bing (the “Microsoft Service”), is subject to Microsoft’s applicable terms and conditions, as amended from time to time by Microsoft, available through the Microsoft Bing website (http://go.microsoft.com/fwlink/?LinkId=21969) or such successor website as Microsoft may designate from time to time; (b) Microsoft’s MapPoint software, is subject to Microsoft’s terms and conditions which accompany such software, as amended from time to time; and (c) OpenStreetMap, is provided subject to the terms and conditions, as amended from time to time, available through the OpenStreetMap website (http://openstreetmap.org/) or such successor site as may be designated from time to time. You agree not to use the Microsoft Service: (i) in connection with the transmission, sale, license or delivery of any infringing, defamatory, offensive, or illegal products, services or materials; (ii) to copy, store, archive, or create a database of any maps, images and other data and third party content that you are authorized to access via the Microsoft Service, except that geocodes may be stored locally when used in conjunction with the software; (iii) in violation of local, state, federal or equivalent privacy or other laws or regulations; (iv) in any way that threatens the integrity, performance, or availability of the Microsoft Service; or (v) in violation of any applicable U.S. Export Administration Regulations or end-user, end-use and destination restrictions issued by U.S. and other governments. The Microsoft Service is subject to U.S. export jurisdiction. You acknowledge and agree that Microsoft may collect information such as, but not limited to, your IP address, request, time of submission and the results returned to you, in connection with transaction requests to the Microsoft Service. All such information collected will be subject to, and used in accordance with, the data practices described in the then-current Microsoft Online Privacy Statement, a current copy of which is available at http://privacy.microsoft.com/en-us/fullnotice.aspx.