Different from a public network which is based on open and static IP modems, Lynxspring’s Private Wireless Network is purpose-built for data traffic only, avoiding the inherent risks of unsolicited traffic from the public internet, malware and viruses. Furthermore, you can trust that your data is safe. Data transmission is encrypted.
Lynxspring's Private Wireless Network also delivers the larger bandwidth capability that you have come to expect on private networks.
Additional advantages include:
Smart systems, edge devices, intelligent equipment and machine-to-machine applications are characterized by a diversity of use cases and business models. Lynxspring’s Easy Data Service Plan is designed specifically to meet your high and low volume data transmission needs.
The Lynxspring Easy Data Service Plan is scalable. As you identify new requirements, you can quickly provision additional routers for connectivity. The Easy Plan provides an ideal, cost-effective solution for businesses that require reliable, secure wireless data communications and delivers many benefits including:
Lynxspring offers a simple service plan that suits your situation and your applications. Only pay for the data you use. The plan includes up to 1 GB per month with incremental, affordable data usage rates per gigabyte available. There are no restrictions on the number of devices you can use on a single plan.
Lynxspring Easy Data Service Plan Agreement
This Service Agreement (“Agreement”) is made between Lynxspring, Inc. (“Lynxspring”) and the company or individual accepting this Agreement (“Customer”) and is effect as of the date of acceptance by Customer. Each of Lynxspring and Customer may be referred to individually herein as a “Party,” and collectively, as the “Parties.”
Recitals
WHEREAS, Lynxspring is the owner of or has the right to distribute certain hardware, software products, and services and Lynxspring desires to provide certain services related thereto;
WHEREAS, in particular, Lynxspring provides cellular routers on a platform and has obtained M2M wireless services (the “Wireless Service”) from Cellco Partnership, doing business as Verizon Wireless (“Verizon Wireless”), in order to enable the creation of a managed, private wireless network service for use by Customer, which Lynxspring will manage through a management center (the “Management Services”) (the Wireless Services and the Management Services are collectively referred to herein as the “Services;” and WHEREAS, Customer desires to obtain the Services for the fees set forth in Exhibit A.
NOW, THEREFORE, in consideration of the premises and the mutual promises and covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Definitions
Authorized Third Parties: Any entity or person affiliated with Customer and authorized by Customer to use a Customer Product or Service.
Authorized Use: The use of the M2M Lines of Wireless Service that is permitted under this Agreement.
Customer Product or Service: Any Customer product or service that Customer sells, leases or otherwise provides to Authorized Third Parties and in which Customer has Embedded M2M Lines purchased under this Agreement.
Embedded: 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.
Equipment: Wireless data routers and modems and similar devices and ancillary accessories used in conjunction with Wireless Service.
Legal Notice: Notice given in accordance with the requirements for “Legal Notices” set forth in the “Notices” section below.
Machine-to-Machine or M2M: The transmission of data using the Wireless Service between wireless devices and computer servers or other machines, or between wireless devices, with limited or no manual intervention or supervision.
M2M Line: An individual line of Wireless Service used for Machine-to-Machine transmission.
Wireless Service: Each and every radio service provided directly or indirectly by Lynxspring Wireless Service.
Term of Agreement
Term of Agreement: This Agreement will have an initial term of 30 days from the date it is executed by both Parties (“Effective Date”). The Agreement shall continue on a month-to-month basis until terminated by either Party with at least 30 days’ Legal Notice. After termination, Wireless Service will continue for any active M2M Lines under the terms and conditions of this Agreement.
Authorized Use and Fraudulent Use
Lynxspring shall provide M2M Lines to Customer only under the terms and conditions set forth herein and any additional terms and conditions agreed to by the Parties and added to this Agreement from time-to-time. The additional terms and conditions shall include, among other terms and conditions, the pricing details and the Authorized Use of the M2M Lines.
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.
Fraudulent or Unauthorized Use: It is Customer’s obligation to prevent (i) use of the Wireless Service by Customer or Authorized Third Parties in violation of Section 3.1 or 3.2, and (ii) fraudulent or other unauthorized use of the Wireless Service or an M2M. Customer shall promptly notify Lynxspring in writing if there is actual or suspected use of the Wireless Service in violation of this Section 3.
Acknowledgement
Customer acknowledges and agrees:
that Lynxspring may at any time be engaged directly or indirectly, including through or in connection with products and services of its other customers, in soliciting actual or prospective customers for Wireless Service or other services, products or Equipment that could be the same as or similar to and compete with a Customer Product or Service; and
that Customer has had the opportunity to independently investigate the Wireless Service for use in connection with the Customer Product or Service and the Authorized Use and is not relying on any representation, guarantee, or statement of Lynxspring.
Equipment
All Equipment purchased by Customer from Lynxspring is subject to the Lynxspring Terms and Conditions of Sale, which Lynxspring may amend from time to time, in Lynxspring’s sole discretion. Customer shall ensure that all Equipment and applications utilized by Customer and any Authorized Third Parties in connection with the Wireless Service and Customer's and its Authorized Third Parties use thereof shall at all times comply with the requirements provided by Lynxspring from time to time. Customer’s or any Authorized Third Party’s failure to do so may cause Customer’s or Authorized Third Party’s transmissions to fail, be blocked or misrouted, use 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. Lynxspring shall have no liability for Customer’s or any Authorized Third Party’s Equipment or Customer’s failure to maintain or meet requirements applicable to Customer’s Equipment. Under no circumstances shall Lynxspring be responsible for or obligated to make any changes to its equipment, operations, network or systems to accommodate Customer or any Authorized Third Party. To the extent that Customer authorized an Authorized Third Party to use the Equipment, Customer shall ensure that such Authorized Third Party complies with the terms and conditions of this Agreement and Customer shall remain fully responsible for any actions or omissions of such Authorized Third Party.
Customer’s Support
Customer acknowledges and agrees that Lynxspring shall provide customer support and Verizon Wireless will not support Customer in any manner.
Purchases by Customer (Authorized Contact(s))
Customer shall identify representatives authorized to purchase Wireless Service under this Agreement and to act on its behalf (“Authorized Contact(s)”) by providing their name(s), telephone number(s), and business and e-mail address(es) in writing to Lynxspring. An Authorized Contact shall have full authority to handle all matters contemplated by the Agreement or relating to Customer’s account(s), unless otherwise specified by Customer in writing to Lynxspring.
Customer Billing and Payments
Payment Terms: Customer shall pay all undisputed charges within 30 days of the date of each bill. Past due amounts shall be, to the extent permitted by the law of the state where Customer’s billing address is located, subject to a late payment fee of 1½% per month (18% annually) or $5 per month, whichever is greater. If payment by check or similar negotiable instrument is returned by a bank for any reason, Lynxspring will charge Customer a returned check fee.
Disputed Charges: In the event of disputed charges, Customer must, as soon as practicable following identification of such dispute, but not to exceed 60 days from the due date of the bill, provide written notice to Lynxspring, which shall include the date of the bill, disputed amounts, the reason for the dispute, and any supporting documentation. The Parties will use their good faith efforts to reconcile any disputed charges within 30 days of the date of notification, after which the Parties may invoke the process set forth in the “Dispute Resolution” section below.
Failure to Pay: Lynxspring 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 Lynxspring sends Customer’s account to a collection agency, Lynxspring may also charge Customer for any fees that Lynxspring is charged by the collection agency, if it is permitted by the law of the state where Customer’s billing address is located.
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 Lynxspring (each, a “Tax”), or a serving carrier charges Tax on a roaming call, then Lynxspring may bill such Tax to Customer, and Customer shall pay such Tax. If Lynxspring 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 Lynxspring bills a surcharge to recover or offset the cost of such expense (a “Surcharge”), then Customer shall pay such Surcharge. With respect to any Tax other than a Tax charged by a serving carrier on a roaming call, if Customer provides Lynxspring with an exemption certificate in the form provided by law, or with other evidence of exemption acceptable to Lynxspring, then that specific Tax will not be collected from Customer. If an exemption applied by Lynxspring at Customer's request is found not to apply, then Customer shall upon demand pay Lynxspring the uncollected Tax and all related interest, penalties and additions to the Tax. Lynxspring shall not issue credits for a Tax that is billed prior to Lynxspring's receipt of evidence of exemption.
Bankruptcy/Insolvency/Credit Worthiness
Either Party may terminate this Agreement upon Legal Notice if: (a) the other Party makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts as they mature; (b) a trustee or receiver of any substantial part of the other Party’s assets is appointed by any court; or (c) 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 Lynxspring 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, Lynxspring may require Customer to provide a deposit to secure payment based upon Customer’s creditworthiness or payment history with Lynxspring. Any such deposit shall not relieve Customer of its obligation to pay any Lynxspring bills. Lynxspring shall pay any interest required by law on such deposit.
WARRANTY DISCLAIMER. LYNXSPRING 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 LYNXSPRING, CUSTOMER PURCHASES THE EQUIPMENT "AS IS." EQUIPMENT PURCHASED UNDER THIS AGREEMENT SHALL BE SUBJECT TO ANY WARRANTIES PROVIDED TO CUSTOMER BY THE EQUIPMENT MANUFACTURER.
LIMITATION of LIABILITY. LYNXSPRING AND ITS AFFILIATES AND CONTRACTORS will have no liability to customer or any of CUSTOMER’S AUTHORIZED THIRD PARTIES:
if changes in the Wireless Service or in the Lynxspring network, systems, operations, equipment, policies or procedures render obsolete or outdated any equipment, hardware, devices or software provided by Customer to AUTHORIZED THIRD PARTIES 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 Lynxspring network OR SYSTEMS, (III) use of the customer product or service or customer’s equipment, OR (iv) DISABLING OF EQUIPMENT PURSUANT TO SECTION 7.5(b).
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 AUTHORIZED THIRD PARTY 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 LYNXSPRING 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.
Limitation of DAMAGES. IN NO EVENT SHALL LYNXSPRING, ITS AFFILIATES AND CONTRACTORS BE LIABLE TO CUSTOMER OR ANY AUTHORIZED THIRD PARTY, OR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS OR OTHER THIRD PARTY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.
ACKNOWLEDGMENT.CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT IT HAS NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING WIRELESS SERVICE PROVIDER OR ITS AFFILIATES OR CONTRACTORS AND THAT CUSTOMER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN LYNXSPRING AND THE UNDERLYING CARRIER. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE UNDERLYING CARRIER AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO CUSTOMER AND CUSTOMER HEREBY WAIVES ANY AND ALL CLAIMS OR DEMANDS THEREFORE.”
Indemnification
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.
Customer Indemnity. Lynxspring shall not be liable for, and Customer shall defend, indemnify, hold harmless and forever discharge Lynxspring 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 a third party in connection with (i) 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, (ii) any disabling of Equipment by Lynxspring pursuant to Section 7.5(b), or (iii) any breach or violation of this Agreement by Customer including any representations and warranties provided herein.
Notice and Defense: The Party seeking indemnification shall: (a) provide the other Party with prompt Legal Notice of the claim; (b) 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; (c) have the right to obtain its own counsel at its own expense; and (d) provide reasonable cooperation to the indemnifying Party.
Customer’s Records and Audit
Audit. Within five (5) days after written request from Lynxspring, Customer shall provide photocopies of all business records evidencing Customer’s compliance with its obligations pursuant to this Agreement that Lynxspring may reasonably request including, but not limited to, records verifying the manner in which Customer uses the Wireless Service.
Violation of Authorized Use. If Lynxspring determines that M2M Lines have been used in a manner not permitted by the Authorized Use and Customer fails to cure such violation within fifteen (15) days following Legal Notice from Lynxspring informing Customer of such violation, then, in addition to such other rights as Lynxspring may have under this Agreement or at law or in equity, Lynxspring shall have the following rights:
Should a dispute arise under or relate to 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. The Federal Arbitration Act, 9 USC §§1-16, as amended, shall govern the interpretation and enforcement of this provision. The 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”). 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.
Compliance with Laws
Customer and any Authorized Third Party 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 and any Authorized Third Party agree as follows:
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, 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. Lynxspring may share Confidential Information with Verizon Wireless and its affiliates (together with Lynxspring, the “Verizon Companies”) solely for the purpose of offering Customer current and future products and services available from the Verizon Companies. 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.
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. Lynxspring 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 a Lynxspring service to Customer involves the hosting, transport or other similar handling of such information.
No Agency: The Parties are independent contractors. Customer is not authorized to act as an agent for or legal representative of Lynxspring and does not have and shall not represent that it has any authority to assume or create any obligation on behalf of Lynxspring.
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 plan coverage area, within the operating range of the wireless systems, and with Equipment that is authorized to operate on Lynxspring’s network.
Enhancement of Wireless Service: Due to regulatory requirements regarding Lynxspring’s network licenses, Customer shall obtain Lynxspring’s prior approval and written agreement before it may install, deploy or use any regeneration equipment or similar mechanism (for example, a repeater) to originate, amplify, enhance, retransmit or regenerate Wireless Service. Lynxspring may terminate lines and, upon Legal Notice, may terminate this Agreement and pursue any other available remedies if Customer violates this section.
Use of Wireless Service and Equipment: In order to protect the Lynxspring network, operations and other customers, Lynxspring 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 Lynxspring’s network, operations or customers. If Customer continues using the Wireless Service in such a manner, Lynxspring may deny activation to new M2M Lines or, upon Legal Notice, may terminate this Agreement.
Assignment: 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 Lynxspring without the prior written consent of Lynxspring. 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.
Termination: Except as otherwise expressly stated in this Agreement, either Party shall have the right to terminate this Agreement for default if (i) the defaulting Party fails to comply with any material term, condition, or obligation of this Agreement; (ii) the non-defaulting Party provides Legal Notice to the defaulting Party specifying the default; and (iii) the defaulting Party fails to cure such default within thirty (30) days after receipt of such notice. If the defaulting Party has commenced to cure the default but it cannot reasonably be cured within the thirty (30) day period, then the non-defaulting Party may not terminate this Agreement as long as the defaulting Party takes appropriate steps to cure the default at the earliest reasonable time. Notwithstanding the foregoing, there shall be only a ten (10) day cure period with respect to a default by Customer based on (a) a violation of any Federal Communications Commission rule or regulation that could adversely affect any Federal Communications Commission spectrum license held by Lynxspring or any of its affiliates in the Wireless Service area; (b) failure of Equipment to meet the requirements set forth in Section 5, or (c) Customer’s failure to make payments under this Agreement. If Lynxspring, as the defaulting Party, fails to cure as provided above, and Customer exercises its right of termination, 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.
Force Majeure: Lynxspring will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by an act or event beyond our reasonable control, including without limitation acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack, war, fire, explosion, storm, flood, earthquake, epidemic or other natural disaster, failure of public or private telecommunications networks, failure of third party wireless networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
Notices: 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.
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 Missouri, 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 Kansas City, Missouri, and waives all objections to a Missouri venue.
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.
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.
Severability: 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.
Survival: 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.
Entire Agreement
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 Lynxspring.
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.
REGULATORY DISCLOSURES
Customer Consent to Use CPNI: [Not Applicable to Arizona customers.] The Verizon Companies or Lynxspring may need Customer’s permission to share information about Customer as described below. The Federal Communications Commission (“FCC”) and various states require the Verizon Companies or Lynxspring to protect certain information that is made available to it solely by virtue of Customer’s relationship with it. This information is known as Customer Proprietary Network Information ("CPNI"), and it includes information relating to the quantity, technical configuration, type, destination, location, and amount of use of Customer’s telecommunications services purchased (including specific calls Customer makes and receives) and related local and toll billing information. CPNI does not include subscriber lists or published information (listed or unlisted), such as Customer’s name, telephone number and address; such information is not subject to the CPNI rules’ use limitations. The Verizon Companies and Lynxspring acknowledge that Customer has a right under federal and state law to protect the confidentiality of Customer’s CPNI, and to direct the Verizon Companies and Lynxspring not to use Customer’s CPNI or to limit use and disclosure of and access to it, and the Verizon Companies and Lynxspring have a duty to comply with the limitations Customer designates. By its signature on this Agreement, Customer grants the Verizon Companies and Lynxspring permission, solely for the purpose of offering Customer current and future products and services available from the Verizon Companies and Lynxspring, to use, to permit access to and to disclose Customer’s CPNI among the Verizon Companies and to their agents, contractors, and partners. Customer has a right to disapprove of these uses of CPNI, and may withdraw or limit this consent at any time by e-mailing Lynxspring at [email protected]. Customer’s consent will remain valid until Lynxspring receives such a notice withdrawing consent. Customer’s refusal or withdrawal of consent will not affect the provision of services to which Customer subscribes.
YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY CLICKING THE “I ACCEPT” or “I AGREE” or Similar ICON DISPLAYED IN CONNECTION WITH THE SUBMISSION OF YOUR ORDER. PLEASE READ THIS AGREEMENT CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. IF YOU DO NOT AGREE TO THE AGREEMENT, THEN YOU SHOULD NOT CLICK THE ICON AND YOU SHOULD NOT SUBMIT YOUR ORDER.
EXHIBIT A
Plan:
Each Lynxspring Easy Data Service Plan (Cellular Service Customer Account with Lynxspring) shall agree to a Service Plan. The Lynxspring Easy Data Service Plan current terms are:
The Plan includes up to 1GB of data usage per month. When the aggregated usage of a Plan exceeds 1 GB the customer shall be invoiced the additional usage at rates defined below:
Each Plan can have an unlimited number of devices included. A device us activated when purchased and/or shipped from Lynxspring. Activation fees are invoiced annually upon its activation anniversary of $60.00 per device.
Usage Rates:
Customers are invoiced monthly at the data usage rates listed above. Data usage is measured per gigabyte (GB) and as customer data usage exceeds the individual incremental usage rates listed in a given month, the customer is charged for that data at its respective data usage rate.
Any Plan not paid within 30 days of invoice date shall be terminated immediately along with all devices within that Plan.
Reinstatement of a Plan that has been terminated shall be subject to a $25.00 fee for each 30 days past due. Reinstatement of any device that has been terminated shall be subject to a $5.00 per device fee for each 30 days past due.