1.1 “ Carrier ” means Verizon Wireless, unless otherwise noted.
1.2 “ Contract Period ” means the period during which Services are provided, pursuant to the terms hereof and of the Vendor Plan Policies, for a specific Line by Vendor to Customer during the Customer’s (x) Initial Term plus all applicable Renewals for a Fixed Period Option, or (y) the first full month plus all applicable Renewals for a Variable Period Option, in each case of the subsections (x) and (y), as applicable.
1.3 “ Corporate Subscribers ” means an employee of Customer utilizing Services under this Agreement whose account is set up in Customer's name and for which Customer bears responsibility.
1.4 “ Customer Representative ” means the authorized agent or employee of Customer identified to Vendor prior to a Delivery who shall generally be available to Vendor for logistical or other issues regarding a particular Delivery. Each Customer Representative should identify to Vendor an alternative Customer Representative should Customer Representative not be available to Vendor at any time during a Contract Period.
1.5 “ Data Services ” means the Express M2M Service Plan providing the transfer of data over a Carrier network.
1.6 “ Delivery ” means, as applicable, either providing access to or shipment of Express M2M Services or Plans along with corresponding Products, or, in the event that Products are not purchased, providing Customer with provisioning information for an MTN.
1.7 “ Delivery Date ” means (A) the earlier of (x) for Services, the date on which the Vendor provides Services and (y) for Products, the date on which Vendor ships such Products to Customer, as applicable; or (B) if no Delivery is necessary, the effective date of the relevant Order Schedule accepted by Vendor for such applicable Products or Services requested by Customer.
1.8 “ Delivery Location ” means the physical location address at which the Delivery shall take place which shall be identified by Customer on the Order Schedule.
1.9 “ Documentation ” means the user guides, Product specifications, the training manuals, or any other instruction or educational materials provided in connection with Products or Services, except for an OEM’s own provided documents included with any Products which were not drafted by Vendor (collectively, “ Manufacturer Documents ”), that Vendor makes available to Customer in connection with this Agreement in connection with any Delivery or any Order Schedules. Such Documentation is included in and remains at all times part of Vendor’s Intellectual Property Rights (as defined hereafter), and shall be subject to the use restrictions thereon.
1.10 “ Equipment ” means the hardware, including but not limited to Wireless Data Modems and similar devices and ancillary accessories used in conjunction with Services provided to Customer and required in connection with the provision of Services, as designated in a relevant Order Schedule, which Customer purchases pursuant to this Agreement.
1.11 “ ETFs ” means any applicable early termination fees assessable by Vendor to Customer for any cancellation or termination of Services or any Line prior to the end of the Initial Term for a Fixed Contract Option.
1.12 “ Express M2M Service Plan ” or “ Plan ” means the specifics of a bundle of Services for a single MTN. These may include device provisioning, support services, data connectivity, among others, and as defined by the Express M2M Plan package purchased by the Customer and in the Vendor Plan Policies. The Express M2M Plan has a defined amount of data services, and defined overage charges for that Plan.
1.13 “ Feature(s) ” means Services provided as part of an Express M2M Service Plan chosen by Customer including monthly data allowances, data overages, and other Services.
1.14 “ Fixed Period Option ” means the Customer’s election in this Agreement to engage Services for a fixed Initial Term, including any applicable Renewals.
1.15 “ Initial Term ” means, as applicable, for each of the Customer’s Express M2M Services Plans for each Line, starting on the Effective Date of this Agreement for the initial Line(s) ordered hereunder, and then for each additional Line ordered hereunder, on the first day of Services or Plan for such subsequent Line ordered, either (x) that one or two year period of time, as applicable, as set forth in this Agreement, during which ETF’s shall be applicable for any early termination or cancellation of a Plan prior to the conclusion of such Initial Term for such Line, or (y) that first full month of Services for such Line pursuant to a Variable Period Option.
1.16 “ Intellectual Property Rights ” means all tangible and intangible rights to and for any and all patents, copyrights, trademarks, trade secrets, know-how and any other intellectual property rights in whatever form.
1.17 “ Line ” means an individual Corporate Subscriber's line of Service(s) for a single device, each associated with a single MTN, whether such line of service utilizes Provisioning Service, Customer Service, Data Service or any or all of these, or any other service provided by Vendor as set forth in the Agreement with Customer.
1.18 “ MTN ” means the single mobile telemetry number associated with each Line.
1.19 “ Manufacturer ” means that third party Equipment creator, deSigner, manufacturer, or producer (other than and apart from Vendor) from which Products are sourced and then supplied to Customer pursuant to this Agreement.
1.20 “ OEM ” means any original equipment Manufacturer.
1.21 “ Order(s) ” means any request by a Customer for Products and Services to be provided by Vendor, which shall be incorporated into a Purchase Order and Order Schedule in order to be acknowledged for fulfillment by Vendor.
1.22 “ Order Schedule ” means the standard Vendor form by which a Customer specifies release dates for specific Products, Delivery, or Services with multiple Delivery draw down options for smaller quantities of aggregate Product or Services ordered.
1.23 “ Parties ” means collectively the Vendor and the Customer, each a “ Party ” hereto.
1.24 “ Products ” means Equipment and any add-ons, as applicable, purchased pursuant to this Agreement and the relevant Order Schedule.
1.25 “ Purchase Order ” means a written order issued by Customer, or a like document acceptable to Vendor, issued in connection with an Order Schedule, if applicable, outlining the portion of desired Products and Services being purchased by Customer at the time of issuance to Vendor.
1.26 “ Renewal(s) ” means, for each applicable Line of such Customer, collectively each subsequent full month, commencing on the first date after the expiration of either (x) the Initial Term for a Fixed Period Option Agreement or (y) the first full month after the Effective Date of a Variable Period Option Contract, and in each case of the subsections (x) and (y) of this definition, as applicable, continuing until such Termination, which such Renewal is an automatic full month’s extension of Services or Plan based on the same Agreement terms applicable to subsection (x) above, except for ETFs which are addressed below, or to subsection (y) above.
1.27 “ Reports ” means those Product reports generated by Vendor for Customer during the Term as part of the Express M2M Program which assist Customer in tracking asset activity and Data usage.
1.28 “ Subscriber Service Authorization ” means a Company provided document listing customer requested Services and/or Plans which is executed by Customer and returned to Vendor to authorize Line(s).
1.29 “ Support ” means the proprietary system and techniques for support and maintenance services designed by Vendor for Products, all of which is included in Vendor’s Intellectual Property Rights, and provided to Customer pursuant to the terms and conditions of the Plan including phone, email and online support services.
1.30 “Term” The term for each Line begins on the date Express M2M Service is activated for that particular Line and continues until the later of (i) the Line deactivation by Vendor at the conclusion of a Contract Period, or (ii) for a period of (A) one or two years, as set forth herein, unless otherwise provided under this Agreement (the “ Fixed Period Option ”), or (B) one month, with automatic monthly Renewals (the “ Variable Period Option ”). When the Line Term expires, Data Service continues on a month-to-month Renewal basis or until such time as all Services have been terminated by Vendor or between Vendor and Customer, inclusive of the Initial Term and any and all Line Terms and subsequent Renewals, as applicable.
1.31 “ Variable Period Option ” means Customer’s period of month to month contracted Services or Plan pursuant to the Variable Period Option of this Agreement.
1.32 “ Vendor Plan Policies ” shall mean those policies of Vendor applicable to each Plan which are set forth at http://usatcorp.com/express-m2m-policy which shall be updated and revised periodically by Vendor and which Customer hereby agrees to be bound by pursuant to the terms and conditions hereof and thereof.
2. Orders and Purchasing
2.1 Orders and Order Acceptance . Customer may place Orders under this Agreement by signing and returning Subscriber Service Authorizations, Order Schedules or issuing Customer Purchase Orders. The terms and conditions set forth in this Agreement and in any Order Schedule attached hereto will control in the event that there are different or additional terms set forth in any Purchase Order or any other ordering document submitted by Customer. The terms and conditions of any Order Schedule will control over any conflicting terms and conditions set forth in this Agreement. On or before the effective date of the relevant Order Schedule, Customer will issue a Purchase Order or signed Subscriber Service Authorization. Vendor must have received such Purchase Order or signed Subscriber Service Authorization prior to scheduling a Delivery Date with Customer. No Orders shall be effective or valid against Vendor if such Order has not been incorporated into an accepted Order Schedule or Subscriber Service Authorization or Purchase Order by Vendor in writing.
2.2 Order Changes . Unless otherwise specified in this Agreement or an Order Schedule, any changes to an Order Schedule or Purchase Order must be mutually agreed upon by the Parties in writing, and may require a change in fees (reflecting the inclusion, deletion or substitution of Products and Services as well as Vendor’s costs of processing such changes). No Order change shall be effective or valid against Vendor if such Order change has not been accepted by Vendor in writing.
2.3 Purchases by Customer (Customer Representative(s)): Customer shall identify representatives authorized to purchase Services and Equipment under this Agreement and to act on its behalf (“ Customer Representative(s) ”) by providing their name, telephone number, business address and e-mail address in writing to Vendor. A Customer Representative shall have full authority to handle any and all matters contemplated by the Agreement or relating to Customer's account(s). Customer may elect to designate a third party as an Customer Representative provided it complies with the requirements set forth in the “Customer's Use of Third Parties” section below.
2.4 Express M2M Service Plan Purchases by Parents and Affiliates : Customer's qualifying parents and affiliates identified in writing by Customer and verified by Vendor, may purchase Service and Equipment under this Agreement, and the Corporate Subscribers of any participating parent or affiliate will count towards Customer's Attainment Tier. Each such parent or affiliate, including Customer's wholly-owned affiliates that operate as a distinct legal entity, may purchase under this Agreement provided that either: (a) Customer has and exercises the legal authority to bind such parent or affiliate to the terms and conditions of this Agreement, or (b) such parent or affiliate executes a Vendor parent/affiliate agreement. Customer shall be responsible for payment of all charges due from parents and affiliates under this Agreement if such parent or affiliate defaults on their payment obligations. Customer's qualifying parents are those entities that own at least 50% of the equity interest in Customer, and Customer's qualifying affiliates are those entities in which Customer or Customer's qualifying parent owns, directly or indirectly, at least a 25% equity interest. Customer shall use good faith efforts to notify Vendor in writing if a participating parent or affiliate no longer qualifies hereunder. Upon request, Customer shall confirm that any participating parent or affiliate still qualifies pursuant to this section. Customer hereby authorizes and directs Vendor, on behalf of its affiliates that participate under this Agreement, to disclose an affiliate's customer proprietary network information (“CPNI”) to Carrier upon Carrier's request. Either Party may disclose this Agreement in whole or in part to any qualifying parent or affiliate to facilitate participation.
3. Term of Agreement, Line Term, and Early Termination Fees
3.1 Term of Agreement. The Term of the Agreement shall continue for the full Contract Period until all Lines ordered hereunder have been deactivated by Vendor at the conclusion of a Contract Period, unless otherwise subject to Renewals, or terminated earlier pursuant to the terms and conditions set forth herein.
(a) Fixed Option Period. Vendor shall provide Services to Customer for an Initial Term of One (1) year or Two (2) years for each of all Lines ordered hereunder, as indicated here by an [X] in front of the elected option, from the date this Agreement is executed by both Parties (“ Effective Date ”), and thereafter the Services shall continue as a Renewal on a month-to-month basis until terminated by either Party with at least 30 days Legal Notice with termination taking place at the beginning of the Line’s next bill cycle, as set forth in the “Legal Notices” section below. After termination, Services will continue for any active Corporate Subscribers under the terms and conditions of their respective agreements until such Lines are terminated; however, Vendor may remove discounts and other benefits of this Agreement from any active Lines after either the conclusion of the Initial Term or the issuance by Customer or receipt by Vendor of a termination notice; or
(b) Variable Option Period. Vendor shall provide Services to Customer for an initial period of One (1) month for each of all Lines ordered hereunder, as indicated here by an [X] in front of the elected option, from the date this Agreement is executed by both Parties (“ Effective Date ”), and thereafter the Services shall continue as a Renewal on a month-to-month basis until terminated by either Party with at least 30 days Legal Notice with termination taking place at the beginning of the Line’s next bill cycle after this period, as set forth in the “Legal Notices” section below. After termination, Services will continue for any active Corporate Subscribers under the terms and conditions of their respective agreements until such Lines are terminated; however, Vendor may remove discounts and other benefits of this Agreement from any active Lines after either the conclusion of the Initial Term or the issuance by Customer or receipt by Vendor of a termination notice.
3.2 Term of Lines. The applicable term for each Line begins on the Invoice date for each Line and continues for the period required by the Express M2M Service Plan or Equipment selected for that Line (usually 1 or 2 years) (collectively the “ Line Term ”) as indicated in Section 3.1 above. Line Term extensions are required when Corporate Subscribers: (a) take advantage of promotions or services that require a Line Term extension; or (b) purchase or upgrade Equipment except for ancillary accessories used in conjunction with Services. When the Line Term expires, Line service continues on a month-to-month basis. The terms of this Agreement shall be applicable so long as any Line is active, and such Line has not be terminated pursuant to the terms and conditions of this Agreement.
3.3 Early Termination Fees. An early termination fee (“ ETF ”) of $75.00 applies to each Line terminated prior to the expiration of the individual Line Term. For each Line activated or Line Term extended under this Agreement, the ETF will be reduced by $5.00 for each full month of service completed toward such Line Term. All billing and fees for any terminated Line, regardless of when a Line is terminated, shall include the final full month’s fees, pursuant to the terms of this Agreement and the notice provisions hereof, for such applicable Services without any proration for any portion of the month then terminated. ETF’s shall not be charged for termination or cancellations during a Renewal or if Customer has selected a Variable Contract Option, except that any termination prior to month’s end shall at a minimum include such applicable fee for the total month, in addition to any other applicable termination fees, if any, at such time of termination.
4. Pricing and Equipment
4.1 Rates and Charges: The Express M2M Service Plan and any selected options and Features, determine the applicable rates, charges, allowance of kilobytes or megabytes, line allowance sharing if any, and Data Service coverage area for each Line. Corporate Subscribers activating new service or changing Express M2M Service Plans will receive the then-current Express M2M Service Plan rates, terms and conditions. Customer agrees to refer to http://usatcorp.com/express-m2m-policy for current Vendor Plan Policies, updates and amendments to this Agreement, and additional information about Express M2M Service Plans and their associated rates, terms, conditions and features before activating new Service or changing Express M2M Service Plans. The monthly access fees and non-promotional allowance of kilobytes, megabytes, or gigabytes for each Line will not change during the Line Term as long as the Express M2M Service Plan is not changed on that Line. Other rates, charges and fees, including but not limited to options, and Feature charges, may vary following 30 days written communication (which may be by mail, e-mail, and/or message with Customer's monthly bill). Vendor and Carrier may change or discontinue generally available business or consumer Express M2M Service Plans for new Corporate Subscribers.
(a) Attainment Tier and Monthly Access Fee Discount: Provided Customer maintains a minimum of 5 Corporate Subscriber Lines on Eligible Express M2M Service Plans, Corporate Subscribers shall receive the monthly access fee discount on Eligible Express M2M Service Plans based on Customer's Attainment Tier (defined above).
(b) Attainment Tier and Discount Changes: If Customer does not achieve at least the lower end of its initial Attainment Tier within 180 days after the Effective Date ("Grace Period") or thereafter falls below the lower end of its Attainment Tier for 2 consecutive months, Vendor may adjust the monthly access fee discount for both Corporate Subscribers and other benefits under this Agreement, consistent with the applicable lower Attainment Tier. If Customer exceeds its Attainment Tier for at least 2 consecutive months, it may request in writing that Vendor adjust the Corporate Subscriber monthly access fee discount and other benefits under this Agreement, consistent with the applicable higher Attainment Tier. Any such Attainment Tier adjustment may take one to two bill cycles to become effective and will not result in any retroactive discounts, credits, or charges.
5. Equipment Not Provided by Vendor
Customer may utilize Equipment procured from a third party, provided that such third-party Equipment is on Vendor’s and Carrier’s approved device list at the time of activation. Third-party Equipment providers (including those that sell Carrier-labeled Equipment) do not represent Vendor or Carrier with respect to the sale of Equipment. Third-party Equipment providers establish their own terms and conditions for the sale of Equipment and neither Vendor nor Carrier has any control over such third parties' charges, terms of purchase or return policies. Neither Vendor nor Carrier shall be responsible for any claims or losses related to any Equipment provided by such third parties, or Customer's use thereof, including but not limited to loss, damage or replacement of such Equipment. Some services and features of Express M2M Services or Plans may not be available for Customer Provided Equipment.
6. Lost or Stolen Equipment
If Customer's Equipment is lost or stolen, Customer may request that Vendor suspend service and billing to the affected Line for the lesser of 30 days or until the date of replacement or recovery of the Equipment, after which service and billing for such Line shall resume. The time of any suspension will not count toward satisfying the Line Term. Vendor may request reasonable documentation in support of such suspension. Until Vendor receives Customer's notification, Customer will be responsible for all charges associated with the Line.
7. Equipment Modifications
If Customer, either on its own or through a third party, adds, changes, integrates or uses hardware or software to or with the Equipment (“ Modifications ”), then all Vendor warranties shall be null and void and Vendor shall not be responsible for defects, malfunctions, repair, replacement or any claims for any Products resulting from such Modifications. Customer will be responsible for any increased usage and charges resulting from such Modifications. Vendor shall have no liability for any losses or damages arising from any Modifications or from Customer's illegal or unauthorized use of the Data Service or Equipment.
8.1 Delivery . Vendor will make commercially reasonable efforts to fulfill Orders on the requested Delivery date specified in the relevant Order Schedule. All Products provided hereunder will be shipped to the Customer Delivery location address designated in the relevant Purchase Order or Order Schedule. In the absence of specific Delivery routing instructions, Vendor reserves the right to select the common carrier and method of shipment for the Products in Vendor’s reasonable discretion.
8.2 Risk of Loss . All Products provided hereunder will be delivered to Customer on a F.O.B. (Origin) basis.
8.3 Delivery Scheduling . Vendor will make commercially reasonable efforts to accommodate the schedule as agreed upon with the Customer Representative.
9. Customer Billing, Charges, Payment
9.1 Fees and Charges . Vendor reserves the right to modify its published list prices for Products and Services (“ Standard Prices ”) at any time during the term of this Agreement. Standard Prices may also include one-time or installment payments (for example, for Equipment, Delivery, Support and Training services or licenses) and recurring fees (for example, periodic charges for Support). Customer agrees to pay Vendor’s Standard Prices, subject to the following:
(a) Customer Discount . Vendor will sell the Products and Services to Customer at Standard Prices, unless discounted prices with Customer are negotiated (“ Customer Discount ”). In such event, Vendor will continue to provide Products and Services to Customer at the Customer Discount pursuant to the terms and conditions set forth herein, unless and until Customer fails to meet the designated volume for any negotiated period, at which time the Standard Prices will automatically again apply;
(b) Unanticipated Costs . Should Vendor encounter any unanticipated costs attributable to Customer, or unavoidable additional costs attributed to Product suppliers or OEMs, over and above the applicable price quoted to Customer, Customer agrees to pay such additional and unanticipated charges as invoiced by Vendor. In any event, Vendor, while not liable for such charges or costs, shall make commercially reasonable efforts to minimize or avoid such unanticipated costs; and
(c) Overages . Should Customer exceed established Data allowances for a Line (each instance, an “ Overage ”), then the Overage rate listed in Standard Prices will automatically apply for the Overage amount, and Customer hereby agrees to be liable for such Overage, regardless of how such Overage was incurred by Customer. Customer Discounts do not apply to data Overage charges, and such Overages are due and payable upon the invoiced terms dispatched to Customer.
9.2 Monthly Bills, Invoicing and Payment Terms . Vendor bills on a monthly basis during the Term, and Customer is liable for all fees and charges, including any applicable Taxes and Surcharges, on Corporate Subscriber Lines. Monthly access fees and feature charges are generally billed in advance, while Data Service overage and other usage rates or charges are billed in arrears. Monthly billing cycles vary and may not necessarily correspond to calendar months. Lines activated will be assessed prorated charges for partial months through the next billing cycle date. Unless otherwise agreed, Vendor may invoice for all fees as of the date of shipment of Product, or, in the case of Services provided hereunder, within one month of the date such Services are provided, or, in the case of renewal of Support, up to sixty (60) days prior to the end of the current Support period. Lines activated but not shipped by Customer request, may have Express M2M Services billed as of the date of activation. Subject to Customer establishing and maintaining a credit status satisfactory to Vendor, all fees will be due and payable within thirty (30) days of the invoice date. Any amounts payable by Customer hereunder that remain unpaid after the due date will be subject to a late charge. Past due amounts shall be, to the extent permitted by applicable law, subject to a late payment fee of up to 1.5% per month (18% annually) or $25 per month, whichever is greater. If payment by check or similar negotiable instrument is returned by a bank for any reason, Vendor will charge Customer a returned check fee equal to the lesser of one and one-half percent (1.5%) per month and the maximum rate allowable by law from the due date until such amount is paid. Restrictive endorsements or other statements on checks accepted by Vendor will not apply.
9.3 Disputed Charges. In the event of disputed charges, Customer must, as soon as practicable following identification of such dispute, notify Vendor in writing, including the date of the bill, disputed amounts, the reason for the dispute, and any supporting documentation. Customer has 90 days from the invoice date to dispute charges. Customer may withhold payment of a disputed charge, up to the amount of the dispute, only if it disputes such charge on or before the applicable bill due date; otherwise Vendor may take any action permitted for Customer's failure to pay in full. The Parties will use their good faith efforts to reconcile any disputed charges within 60 days of the date of notification, after which the Parties may invoke the process set forth in the "Dispute Resolution" section below.
9.4 Failure to Pay. Vendor may, upon prior communication to Customer (which may be by mail, e-mail, and/or message with Customer's monthly bill), suspend or terminate Express M2M Services, including but not limited to Data Services, to some or all Corporate Subscribers or deny activation to new Corporate Subscribers due to Customer's failure to make payment or dispute charges in accordance with the foregoing provisions regardless of any deposit provided by Customer. Vendor may also charge Customer for any collection agency fees that Vendor is charged by a collection agency used to collect from Customer, if it is permitted by the law of the state where Customer's billing address is located where Vendor sends Customer's account to a collection agency. Customer agrees to reimburse Vendor for any and all reasonable attorneys’ fees and any other costs associated with collecting delinquent payments or disputed charges settled in Vendor’s favor.
9.5 Credits for Interrupted Service. If, due to the fault of Carrier, a Line is unable to receive Data Service while in the Carrier coverage area for more than 24 continuous hours, Customer may request a pro rata daily credit for the period without Data Service. Credits will not exceed the amount of the monthly charge for the affected Corporate Subscriber. To receive any credits under this section, Customer or Corporate Subscriber must notify Vendor within 60 days after the Data Service was unavailable by contacting Company customer service at firstname.lastname@example.org along with details of the issue.
9.6 Currency . Customer will pay all amounts due to Vendor in currency of the United States of America (“ U.S. Dollars ”), unless otherwise agreed. Vendor and Customer will arrange for such payment to be made in a mutually convenient manner as agreed between them from time to time.
9.7 Security Interest . Vendor will have a purchase money security interest in the Products and any Equipment provided by Customer in connection therewith, and in any proceeds thereof, including insurance proceeds, to secure payment of any amounts due until they are paid in full. Vendor will retain the rights and remedies of a secured creditor until payment in full is received for the purchased Products and Services. Customer agrees to execute and deliver all documents reasonably requested by Vendor to protect and maintain Vendor’s security interest in all Products and Services in connection with this Agreement.
10. Attainment Tier and Discounts
10.1 Attainment Tier. The range of Customer’s total Corporate data lines active under this Agreement at a given time, which determines the applicable monthly access fee discount and other benefits of this Agreement. The box checked below indicates Customer’s initial Attainment Tier applicable to Terms with Fixed Option Periods only.
10.2 Eligible Express M2M Service Plan . Any Express M2M Service Plan with a monthly access fee of $34.99 or higher that does not prohibit discounts.
10.3 Activation Fees . Waived for Corporate Subscribers.
TO BE COMPLETED BY VENDOR ONLY
Attainment Tier and Monthly Access Fee Discount on Eligible Express M2M Service Plans
Discounts Only Available to Line Terms with Fixed Option Periods and monthly access fee of $34.99 or higher that does not prohibit discounts.