Please read this Agreement carefully before using your Wireless Service. By using the Service you agree to be bound by these terms and conditions.
The words “we”, “us”, or “our” refers to Convergia Inc., a corporation incorporated under the laws of the State of Delaware, US, having a principal office at 1000 Brickell Ave. Suite #910, Miami, FL 33131, and the words “you”, “your”, or “yours” refers to [____________] d/b/a [___________],a corporation incorporated under the laws of the State of [___________], US, having a principal office at [__________________________________________]. The word Parties refers to both you and us together, and the word Party refers to either you or us indistinctively.
IF YOU DO NOT WANT TO ACCEPT THESE TERMS AND CONDITIONS, DO NOT USE YOUR WIRELESS DEVICE.
You may cancel your Service if you inform us in writing or by calling us at 1(888)880-0118 or emailing to [email protected] and returning to us any non-activated SIM card you received from us within ten (10) days of delivery. Please see below Section 11(d), Returns.
This is an agreement (“Agreement”) for wireless telecommunications services and related services and/or features (the “Service”) between you and us. You represent that you have the legal capacity to accept this Agreement on behalf of your business entity. This Agreement explains the terms and conditions upon which we agree to provide you the Service or products and you agree to accept any Service or products provided by us. More specific information about your Service is provided in your individual executed service order(s) or proposal (“Service Order(s)”) in Schedule A: Service Order Format, and in Schedule B: Service Details. It is your responsibility to fully review and understand all relevant information the prior to using the Service.
· MNO. Mobile Network Operator, the owner and/or operator of a Wireless Network, specified in Schedule B.
· Mobile Device. A specialized hardware that will accept a SIM and will connect itself and may allow other devices, including but not limited to PCs, laptops, smartphones, tablets, etc., to connect to the MNO Wireless network to make and receive voice calls, and/or send and receive text messages (SMS, MMS) and/or transmit and receive data to and from the Internet.
· Form Factor. Industry standard for the different sizes of a SIM.
· ICCID. Integrated Circuit Card Identifier is a number that is unique worldwide and allows to identify a singular Mobile Device.
· SIM. A physical Subscriber Identification Module, provided by us in the Form Factor requested by you, that contains a ICCID that will allow a wireless device to access the MNO Wireless network once it has been properly activated by us.
· SMS. Short Message Service that allows sending and receiving short text messages wirelessly.
· MMS. Multimedia Messaging System that allows sending and receiving messages like SMS, but with longer text and multimedia content.
· Activation. The process of allowing a SIM to connect to the MNO Wireless network.
· MRC. Monthly Recurrent Charges for the Service.
· Voice Plan. Denomination of the commercial product that includes the ability to use the SIM to make and receive calls to and from predetermined locations, up to a maximum predetermined minutes per month, that is associated with a predetermined monthly cost.
· Data Plan. Denomination of the commercial product that includes the ability to use the SIM to transfer data at a maximum predetermined bandwidth. The plan is associated with a predetermined monthly cost.
· Text Plan. Denomination of the commercial product that includes the ability to use the SIM to send and received text messages, both SMS and MMS up to a predetermined maximum per month. The plan is associated with a predetermined monthly cost.
· Wireless Plan. Denomination of the commercial product that includes any possible combination of a Voice Plan, Data Plan and Text Plan, at predetermined monthly cost.
· QoS: Quality of Service, a priority-based queueing system that allows the operator of a packet switched network to prioritize some traffic over other. A better QoS usually results in faster data transfer.
· Business Unlimited Data Plan. A special commercial product that allows unlimited, uncapped data transmission to the Internet at a maximum predetermined bandwidth.
· ISP. Internet Service Provider, company dedicated to providing Internet access to paying customers, as allowed by the applicable laws and regulations.
· Unlimited. The term Unlimited, wherever is used, should be interpreted as a marketing denomination of an specific characteristic of a Wireless Plan; whatever it refers to Data, Voice, SMS/MMS, is not intended to represent a no-limit service usage, but rather to convey the idea that the plan will allow more use of the Wireless Service within all the applicable constraints set forth in this Agreement for each specific Wireless Service. For avoidance of the doubt, in no case should the term unlimited, regardless of where it is used and/or the context where it is found, should be construed as and offering or an obligation from us to offer a service that has no boundaries, constraint or limits.
1. Changes to the Agreement. We may make changes to this Agreement, its Schedules, Service Order(s), Wireless Plan or Service at any time upon one hundred and twenty (120) calendar days written prior notice to you. If you use the Service after the effective date of the changes as stated in the notice, then you have accepted all the new terms, rates and conditions of the Service. If you do not accept the changes, then do not use the Service after the effective date and inform us in writing or by calling us at 1(888)880-0118 or emailing to [email protected] to cancel your Service. Any cancellation of your service may result in fees, charges, and penalties as outlined in this Agreement and any applicable, Schedules and Service Orders.
2. Trial Period. For the purposes of testing the Service, including the SIMs, the Mobile Devices, the Data Plan, etc. both you and us, will have up to ten (10) days since the date of signing to cancel this Agreement for any reason without expression of cause, and without any further requirements, obligations or repercussions of any kind, other than you being obligated to pay us any outstanding balance for Service already rendered (including prorated usage) within five (05) days of the cancellation date. For avoidance of the doubt, if the cancellation is invoked pursuant to this Section, and provided that any outstanding balance is settled, the entire Agreement will be deemed void without any prejudice for either party.
To invoke this option, the canceling party needs only to communicate its intention in writing to the other party, within thirty (30) days of the signing of this Agreement. After the initial ten (10) days, the Trial Period will be over, and all the terms and conditions of this Agreement will be fully enforceable for both parties, and the cancellation can only proceed as per the pertinent sections of this Agreement, not including this section.
a. The Service only includes what is explicitly detailed in Schedule B.
b. Depending on what is indicated in Schedule B, the Service may one or any combination of following wireless services: Voice, SMS, MMS, Data.
c. The Service is provided by us, as a resell of the service provided by the MNO listed in Schedule B.
4. Initial Activation of your Service. Prior to activating your Service, we may check your credit and verify your identity. The Service is subject to credit approval and the reception of the Security Deposit pursuant to Section 8(b), Security Deposit, prior to activating your Service. We may continue to perform credit verification and approval while you are using the Service. You agree to provide us with accurate and updated information, including your business name, business address, telephone number(s), emails, bank/s information, DUNS number, and all the reasonable information request by us to be able to properly contact, bill, and collect any amounts due for the Service. You must report any changes to this information to us within thirty (30) days of any change. You may be required to make a prepayment on your account if your credit has not been established to our satisfaction or if your credit or payment history becomes unsatisfactory to us. If you fail to provide the requested prepayment within two (02) business days of our request, you will be deemed in breach of your obligations under this Agreement, which shall entitle us to suspend or terminate your Service immediately and without notice pursuant to Section 14, Termination of Service.
5. SIM Activation. Activation of individual SIM cards or batch of SIMs is subjected to all the following policies and restrictions:
a. You can request Activation of a SIM cards at any time during regular business hours EST.
b. All Activation requests need to use the format specified in Schedule A (“Service Order”) to be considered valid. If any information is missing and/or incorrect we, will inform you within one (01) business day, and will not process it.
c. Each SIM has a one-time-charge (“OTC”) plus the cost of shipping and handling (“S&H”), as indicated in Schedule B. Depending on the current and/or expected total volume of SIMs, we, at our sole discretion, may decide to waive either the OTC, the S&M, or both. Even if at some point we decided to waive any cost associated with the SIM, we reserve the right to reinstate the charges, with only a thirty (30) prior notice.
d. The OTC is based on the manufacturer cost at the time of signing the Agreement. Should that cost increase significantly, we at our sole discretion, will increase the value of the OTC to compensate. You will receive a thirty (30) day notice before we start charging the updated OTC.
e. It is your responsibility to order the correct Form Factor for each SIM. If you order an incorrect Form Factor, we will bill you the OTC and S&H for the new SIM, regardless if we have decided to waive such costs for correctly ordered SIMs.
f. All Service Orders need to be submitted via email to [email protected]. Upon reception, we will acknowledge the reception via email reply within one (01) business day.
g. It is your responsibility to clearly identify which persons and which source emails within your organization are allowed to submit Service Orders. All communications for adding or removing persons or emails from the authorized list, need to be submitted in writing by the signer of this Agreement to [email protected].
h. We will silently ignore any request originating from a person or email that is not explicitly authorized by you in advance.
i. All Service Orders originating from an authorized person or authorized email will be automatically deemed authorized by you, and therefore, will be subject to all the terms and conditions of this Agreement.
j. The lead time for Activation will be one (01) business day, since the reception of the correct Service Order, for a batch of twenty (20) or less SIMs. For more than that, the lead time will be two (02) business days. Activation requests received after 12 PM EST, will be considered as received the next business day.
k. Once the Activation is completed, we will confirm it via email reply to the originating email.
l. The billing for newly activated SIMs will start immediately upon Activation, and without requiring any additional notification from us, you acknowledge that any Activation in between billing cycles, will automatically generate a prorated charge for the days that the SIM was active during the partial month.
m. We offer you a grace period of sixty (60) calendar days from the time of shipment of any SIM to proceed with the Activation. After that period, we will automatically perform an unrequested Activation and the billing for those SIMs will commence immediately, without any additional notice. If you want to prevent the unrequested Activation, you must return, at your expense, the non-activated SIMs to us, at least (05) business days prior to the expiration of the grace period. We reserve the right at our sole discretion to increase, decrease of eliminate the grace period; you will be notified thirty days (30) in advance of any change.
n. To order a new batch of non-activated SIMs, you need to have at lesser of twenty percent (20%) or of all the SIMs in your possession or no more than two hundred (200) non-activated at the moment of the new order. We reserve the right at our sole discretion to increase, decrease of eliminate these limits; you will be notified thirty days (30) in advance of any change
o. Before any Activation request, we will calculate if the amount of the Deposit pursuant to Section 8(b), Security Deposit is enough to cover the additional MRC. If the Deposit is insufficient, we will notify you via email within one (01) business day of reception of the request, and we will hold the Activation until such a time that the Deposit is enough to cover the additional MRC. For avoidance of the doubt, the calculation is done by multiplying the number of SIMs on the request by the MRC for a single SIM.
6. Charges and Rates for Service. This Section contains information that may be applicable or not depending on the selected Plan indicated in Schedule B. If your selected Wireless Plan does not include a specific service (e.g., Voice, MMS, SMS, etc.) then the all the conditions regarding that service do not apply to you.
a. Wireless Plan charges. You agree to pay the monthly access charges, airtime charges, long distance charges, roaming fees, data charges, SMS charges, MMS charges, taxes, surcharges and any other applicable fees for Services you used. Your rates and charges are based on the Wireless Plan that you choose and are detailed in Schedule B. Read your Wireless Plan and Service Order carefully. Your Wireless Plan describes your monthly access charge, the number of minutes included in your airtime monthly allowance, the number of megabytes included for data, the number of messages included for SMS, and the rate per minute for additional minutes, the rate per megabyte for additional data usage, the rate per message for additional SMS and MMS usage, long distance and roaming fees. You are considered to be roaming and subject to a roaming charge whenever a call you make or receive, a SMS or MMS message you send or receive, or data service you use, is carried by another carrier. Your Wireless Plan may have different rates for weekdays and nights. Any calls made between the hours of 9:00 p.m. and 6:00 a.m. on any Monday through Thursday are considered night or off-peak minutes. Any calls made between the hours of 9:00 p.m. Friday through 6:00 a.m. Monday are considered weekend minutes or off-peak minutes. These times are based on time of day at the cell site or switch providing your service. All other calls are considered to be using peak minutes. We charge airtime for most calls, including toll free and operator assisted calls. International calls are not included in any Wireless Plan. All international calls will incur airtime charges and international per minute fees. For international calling rates, contact us at 1(888)880-0118 or email us at [email protected]. You agree to pay for all additional airtime charges, roaming fees, long distance fees, international calling fees, SMS charges, MMS charges, Data charges and other fees that are not included in your Wireless Plan. All rates are subject to periodic changes at the discretion of both us and the MNO. Any such changes will be reflected in your Service Order(s).
b. Voice and Data Plans. A voice plan is required on all voice-capable Devices, unless specifically noted otherwise in the Schedule B. An eligible tiered pricing data plan is required for certain Devices, including iPhones and other designated Smartphones. Eligible voice and tiered pricing data plans cover voice and data usage in the U.S. and do not cover international voice and date usage and charges. If it is determined that you are using a voice-capable Device without a voice plan, or that you are using an iPhone or designated Smartphone without an eligible voice and tiered pricing data plan, we reserve the right to switch you to the required plan or plans and bill you the appropriate monthly fees. In the case of the tiered data plan, you will be placed on the data plan which provides you with the greatest monthly data usage allowance. If you do determine that you do not require that much data usage in a month, you may request a lower data tier at a lower monthly recurring fee.
c. Voicemail. Unless you subscribe to an Unlimited Voice Plan or are an upstate New York customer subscribing to Enhanced Voicemail, airtime charges apply to calls to your voicemail service, including calls where the caller does not leave a message, because the call has been completed, calls to listen to, send, reply to, or forward messages or to perform other activities with your voicemail service, including calls forwarding from other phones to your voicemail service. You are solely responsible for establishing and maintaining security passwords to protect against unauthorized use of your voicemail service. For information as to the number of voicemail messages you can store, when voicemail messages will be deleted, and other voicemail features. We and/or the MNO reserve the right to change the number of voicemails you can store, the length you can store voicemail messages, when we delete voicemail messages, and other voicemail features without notice. We may deactivate your voicemail service if you do not initialize it within a reasonable period after activation. We will reactive the service upon your request. For information about accessing and using your voicemail internationally, please see the above website.
d. Voicemail-To-Text (VMTT). We are not responsible, nor liable for: 1) errors in the conversion of or its inability to transcribe voicemail messages to text/email; 2) lost or misdirected messages; or 3) content that is unlawful, harmful, threatening, abusive, obscene, tortious, or otherwise objectionable. We do not filter, edit or control voice, text, or email messages, or guarantee the security of messages. We and/or the MNO can interrupt, restrict or terminate VMTT without notice, if your use of VMTT adversely impacts our network, for example that could occur from abnormal calling patterns or unusually large number of repeated calls and messages; or if your use is otherwise abusive, fraudulent, or does not comply with the law. You are solely responsible for and will comply with all applicable laws as to the content of any text messages or emails you receive from VMTT that you forward or include in a reply to any other person. You the MNO or a third party working on their behalf to listen to, and transcribe all or part of a voicemail message and to convert such voicemail message into text/email, and to use voicemail messages and transcriptions to enhance, train, and improve our speech recognition and transcription services, software, and equipment. Charges for VMTT include the conversion of the voicemail message and the text message sent to your wireless device. Additional charges, however, may apply to receiving email on your wireless device from VMTT, as well as, replying to or forwarding VMTT messages via SMS (text) or email, depending on your plan. SMS (text messaging) blocking in incompatible with VMTT. If you do not have a texting plan, we add a texting pay per use feature when you add VMTT with text delivery. If you are traveling outside the U.S. coverage area, you will incur international data charges for emails received from VMTT, as well as, charges for emails you respond to or forward from VMTT, unless you have an international calling data plan and the usage falls within the plan’s usage limits. Transcription times cannot be guaranteed. Customers purchasing email delivery are responsible for providing a correct email address and updating the email address when changes to the email account are made. If you choose SMS (text) delivery, VMTT only converts the first 480 characters of a voicemail message into text and you will receive up to three text messages of transcribed text. The transcription, therefore, may not include the entire voicemail message with SMS delivery. Adding VMTT will create a new voicemail box and all messaged and greetings will be deleted from your current voicemail box.
e. Unlimited Voice Services. Unlimited Voice Services are provided primarily for live dialog between two individuals. If your use of Unlimited Voice Services for conference calling or call forwarding exceeds 750 minutes per month, we and/or the MNO may, at our sole discretion, terminate your Service or change your plan to one with no unlimited usage components. Unlimited Voice Services may not be used for monitoring services, data transmissions, transmission or broadcasts, transmission of recorded material(s), or other connection which don’t consist of uninterrupted live dialog between two individuals. If we find that you’re using an Unlimited Voice Service offering for other than live dialog between two individuals, we and/or the MNO may, at our sole discretion, terminate your Service or change your plan to one with no unlimited usage components. We will provide notice that we intend to take any of the above actions, and you may terminate Unlimited Voice Services.
f. Rollover® Minutes. If applicable to your plan, Rollover Minutes accumulate and expire through 12 rolling billing periods. Bill Period 1 (activation) unused Anytime Minutes will not carry over. Bill Period 2 unused Anytime Minutes will begin to carry over. Rollover Minutes accumulated starting with Bill Period 2 will expire each bill period as they reach a 12-bill-period age. Rollover Minutes will also expire immediately upon default or if customer changes to a non-Rollover plan. If you change plans any accumulated Rollover Minutes in excess of your new plan included Anytime Minutes will expire. Rollover Minutes are not redeemable for cash or credit and are not transferrable.
g. Mobile To Mobile Minutes. If applicable to your plan, Mobile to Mobile Minutes may be used when directly dialing or receiving calls from any other applicable wireless phone number from connected to the MNO wireless network within your calling area. Mobile to Mobile Minutes may not be used for interconnection to other networks. Calls to your voicemail and return calls from voicemail are not included.
h. Voice Dial Services. Regular airtime charges apply. Mobile to Mobile Minutes do not apply. Calls to 911, 411, 611, 711 and international dialing cannot be completed with VoiceDial Services. Caller ID cannot be blocked. Caller ID will be delivered on calls, even if you have permanently blocked your name and number. For complete terms and conditions, see the corresponding MNO conditions online.
i. Messaging and Data. Data overage charges are automatically applied. Standard messaging and data rates apply for all devices. 4G Device owners understand that they will incur data charges. 3G phone service is required in some areas where access to 4G network is unavailable. Messages are limited to 160 characters per message. Premium text and picture/video messages are charged at their standard rate as provided by the applicable Service Order(s). Standard rates apply to all incoming messages when in the U.S. Different, non-standard per message charges apply to international messages sent from the U.S. Text, Instant, Picture, and Video messages are charged when sent or received, whether read or unread, solicited or unsolicited. You are charged for each part of messages that are delivered to you in multiple parts. Neither we nor the MNO guarantee the delivery of messages. Text, Instant, Picture, and Video messages, including downloaded content, not delivered within seven (7) days will be deleted. The MNO reserves the right to change this delivery period as needed without notification.
j. Data Plans. Some features, including streaming video and music, require a data plan, as do all 4G devices. You agree to pay for any data used for these services. Data usage occurs whenever your device is connected to the AT&T Network and is engaged in any data transmission, including but not limited to: (i) sending or receiving emails, documents or other content; (ii) accessing websites; (iii) or downloading and using applications. We may provide wireless data and messaging Services, including but not limited to, features that may be used with Data Services and wireless content and applications (“Data Services”). The absolute capacity of the wireless data network is limited, consequently Data Services may only be used for permitted activities. Pricing and data allowances for Data Services are device dependent and based on the capabilities and capacity of each Device. For Data Services with a monthly megabyte (MB) or gigabyte (GB) allowance, once you exceed your monthly data allowance you will be automatically charged for overage as specified in the applicable rate plan. All data allowances, including overages, must be used in the billing period in which the allowance is provided. Unused data allowances will not roll over to subsequent billing periods. These data plans are designed for use with only one of the following distinct Device types: (1) Smartphones, (2) basic and Quick Messaging phones, (3) tablets, (4) LaptopConnect cards, and (5) stand-alone Mobile Hotspot devices. A data plan designated for one type of device may not be used with another type of device. For example, a data plan designated for use with a basic phone or a Smartphone may not be used with a LaptopConnect card, tablet, or standalone Mobile Hotspot device, by tethering devices together, by SIM card transfer, or any other means. A data tethering plan, however, may be purchased for an additional fee to enable tethering on a compatible device. An Activation Fee will apply for each data line.
k. Unlimited Business Data Plans. In addition to all the other applicable conditions, restrictions and constraints set forth in this Agreement, all the following conditions apply:
i. The Data Plan has a maximum theoretical bandwidth limit specified in Schedule B. However, the ability to use such bandwidth depends on the prevalent conditions at the location of each SIM, and the technical specification of the Mobile Device being used. Therefore, neither us nor the MNO can make any guarantee as of the real available bandwidth at any given location. For more detail see Section 10, Coverage and Speed.
ii. The Data Plan is subject to the coverage of the wireless network of the MNO, which is subject to change without prior notice. the MNO may decide to increase or decrease their coverage at their sole discretion; therefore, we will in no way be responsible for any deficiency, unsuitability or lack of coverage at any given location. For more detail see Section 10, Coverage and Speed.
iii. As set forth in Section 7(b), Equipment, you are solely responsible for using equipment (router/modem) that is authorized by the MNO. At the time of activation of SIM, the ICCID will be permanently associated with the IMEI given by you. If the IMEI is invalid for the Unlimited Business Data Plan, then the activation will fail. Once the activation succeeds, you are responsible for maintaining the correct ICCID, IMEI association. In other words, you are not allowed to physically install an activated SIM that is already associated with an IMEI into a different equipment (router/modem). If you do so, the SIM could be terminated unilaterally by the MNO, without any prior notice.
iv. The MNO imposes restrictions on the type and amount of traffic that can be used with the Data Plan. Such restrictions include but are not limited to audio and video streaming. It is your sole responsibility to be informed of such restrictions that can be found on Schedule B. The MNO has the right to update the restrictions at their sole discretion and without any prior notice. The Unlimited Business Data Plans do not have a monthly data cap and are not by default throttled down. However, the MNO at its sole discretion may determine that any SIM is doing abusive use, which will result in the offending SIM being put on a lower QoS tier, which in turn, could potentially reduce the bandwidth for that SIM card. If the abusive use continues despite of the notification sent by the MNO, the MNO could unilaterally terminated or reassigned to a different data plan with a different cost; see this section(vii) for more details.
v. Although, the Data Plan is named “Unlimited”, as all data plans in the market there are restrictions imposed by the MNO, not by us. Those restrictions are completely out of our control and the MNO has the right to enforce them as they see fit. It is your sole responsibility to carefully read and understand all these restrictions, outlined in Schedule B.
vi. If you are a reseller, it is your sole responsibility to promptly and accurately inform your end-users of all the restrictions associated with the Unlimited Data Plan.
vii. Should any active SIM associated with your account fall outside the allowed type of device (router/modem), amount of data per month, type of traffic, or any other restrictions imposed by the MNO, we cannot guarantee the continuity of the service of said SIM. The MNO at its sole discretion, and without prior notice can terminate the SIM, or even forcibly and unilaterally reassign the SIM to a different data plan, which will have different conditions, limitations and even higher costs. In such event, you will responsible for paying any additional cost product of the data plan change. We will do our outmost effort to passthrough any alarms, and warning given by the MNO, if any. We will do a best effort to protect you from additional charges by automatically terminating SIMs that receive recurrent alarms from the MNO, after sending you a simple email notification. For avoidance of the doubt, that does not relieve you of the responsibility of paying any additional charges presented to us by the MNO.
viii. The Unlimited Business Data Plan is intended mostly for regular business use; which means that it should not be used for the consumer (home) market, and neither should be used as a total replacement of other means of Internet connectivity including but not limited to fiber connection, Broadband ADSL, Satellite, or Fixed Wireless Access. Furthermore, neither we, nor the MNO, promote the use of the Unlimited Business Data Plan as the sole mean of Internet connectivity for any use case.
ix. At their sole discretion the MNO has the right change or discontinue the Data Plan selected by you. In that case we will do our utmost effort to preserve all the existing activated SIMs under the original Data Plan. However, new activation under the original Data Plan will not be possible. If possible, at all, you will receive a one hundred and ninety (90) days prior notice, if the MNO decides to change or discontinue the selected Data Plan. We will not be responsible for any unannounced or unscheduled changes perform by the MNO.
x. The price of the Unlimited Business Data Plan does not include any voice service (minutes of talk), or messages (SMS/MMS). Should any of the SIMs under your account use any voice or SMS/MMS service, all the applicable charges will be added to your account balance and the funds will be withdrawn immediately from your bank account to cover those charges.
xi. The Unlimited Business Data Plan is intended to be used only within the 48 contiguous continental States of the US. The price does not include any roaming for any service. Shall be SIM be in use outside the 48 contiguous continental States, you will automatically incur in roaming charges, and all the applicable charges will be added to your account balance and the funds will be withdrawn immediately from your bank account to cover those charges.
xii. The Unlimited Business Data Plan is not designed, nor intended to be the sole means of Internet connectivity for any of your, or your end-users, locations. It is intended to augment an existing primary Internet connectivity (i.e., Fiber, Broadband ADSL, Satellite, Microwave, etc.) to provide additional bandwidth. If you, or your end-users, use it as the sole means of Internet connectivity you risk being flagged as excessive use, which could trigger an immediate termination of the offending SIM, and/or the automatic migration of the offending SIM to a different data plan with higher cost that you will have to cover. All of this is done unilaterally by the MNO at its sole discretion and we have no control over it.
xiii. If you are a reseller you have to obligation to implement or use a User Control System to proactively and in real-time control the type and traffic of every SIM card under your account. It is your sole responsibility to do so to avoid triggering the excessive use alarms from the MNO. Failure to do so will result in immediate termination of the offending SIMs without prior notice. We reserve the right to review and confirm that you have the technological means to comply with this requirement. In case that you do not have the means to do so, you can elect to use our platform to do it. The use of the platform carriers a prorated monthly cost per SIM, plus all applicable taxes, fees and surcharges, and it is not subject to any volume discount. The cost is specified in Section 1(d), User Control of the Schedule B, Service Details.
l. Messaging Unlimited with Mobile to Any Mobile Calling Feature. Available only with select Nation and BusinessTalk plans and can be discontinued at any time. Messaging Unlimited Plan required. Mobile to Any Mobile minutes only apply when you directly dial another U.S. mobile number or directly receive a call from another U.S. mobile phone number from within your calling area in the U.S., Puerto Rico, or U.S.V.I. Calls made through Voice Connect, calls to directory assistance, and calls to voicemail and return calls from voicemail are not included. Only
numbers included in the wireless number database that we use will be treated as a call to a mobile number or a call received from a mobile number. So for example, Type 1 numbers belonging to other carriers and not included in the industry wireless LNP database, and numbers for which ports to wireless service have not yet been completed, will not be treated as a call to a mobile number or a call received from a mobile number. Also calls made to and calls received from mobile toll-free numbers, mobile chat lines, mobile directly assistance, calling applications, numbers for call routing and call forwarding services, and machine to machine numbers are not included.
m. Mobile email. Requires e-mail account with compatible Internet service provider and a downloaded or preloaded e- mail application for the wireless device. Access and use of Mobile Email is billed by total volume of data sent and received (in kilobytes) in accordance with your Data Plan. Email attachments may not be sent, downloaded read, or forwarded on the mobile device. It is possible that only a paper clip icon will appear indicating an attachment. You must view attachments from your PC. Upgrades to the application may be required in order to continue to use the Service. Wireless data usage charges will apply for downloading the application and any upgrades.
n. Mobile Video. Compatible Device and eligible data plan required. Service is not available outside the MNO 4G coverage area. Premium content is charged at stated monthly subscription rates or at stated pay-per-view rates. Content rotates and is subject to withdraw. Mobile Video is for individual use, not for resale, commercial purposes or public broadcast. Content can only be displayed on the Mobile Device screen. No content may be captured, downloaded, forwarded, duplicated, stored, or transmitted. The content owner reserves and owns all content rights. All trademarks, service marks, logos, and copyrights not owned by either the MNO or us are the property of their owners. Some Mobile Video content is intended for mature audiences and may be inappropriate for younger viewers. Parental guidance suggested. Use Parental Controls to restrict access to mature content. Content may be provided by independent providers, and we and/or the MNO are not responsible for their content. Providers may collect certain information from your use for tracking and managing content usage.
o. Additional features and Service charges. Additional features or Services such as time, weather, operator or directory assistance, call dialing, calling card use, call forwarding, data calls, automatic call delivery, voice mail, and text messaging, including premium SMS messaging, may have additional charges. Messaging, Text, picture, video, and instant messages must be sent to and/or received from within the coverage area. Mobile to mobile calling applies to direct calls to and from U.S. mobile numbers only. International and roaming calls not included. You agree to pay any such additional charges at our then current rates. Unless required by your device, features may be cancelled at any time and are subject to change.
p. Business Applications. Additional charges and device restrictions may apply for access to corporate email/intranet sites and business applications. We cannot guarantee the information security if you access your company email or any other information from your device. It is your responsibility to ensure that your use complies with your company’s internal IT and security procedures, and any other applicable regulations and/or compliance requirements.
q. International Services. International rates apply for calls made and messages sent from the U.S., Puerto Rico, and
U.S.V.I. to another country. Calling or messaging to some countries may not be available. Calls to wireless numbers and numbers for special services may cost more than calls to wireline numbers. If you call an overseas wireline number and the call is forwarded to a wireless number, you will be charged for a call terminated to a wireless number. International Long Distance calling rates are charged per minute and apply throughout the same footprint in which your airtime package minutes apply. Additional charges apply for premium messages, including picture and video messaging. International Roaming: A compatible device is required for international roaming. Some plans allow for the ability to make and receive calls while roaming internationally. International roaming rates vary by country and apply for all calls placed or received while outside the U.S., Puerto Rico, and U.S.V.I. Please call us at 1(888)880-0118 for a list of currently available countries and carriers. All countries may not be available for roaming. All carriers within available countries may not be available on certain plans or packages. Availability, quality of coverage, and services while roaming are not guaranteed. Charges for international roaming may be applied if the device is taken out of the US even if no services are intentionally used. Billing for international roaming usage may be delayed up to three billing cycles due to reporting between carriers. Taxes are additional. You may request that features and calling ability is blocked while traveling internationally by calling us at 1(888)880-0118. International Data: International data rates apply to all data usage outside the U.S., Puerto Rico, and U.S.V.I., including accessing cloud-based services to upload/download/stream content. Many devices transmit and receive data messages, including Visual Voicemail, without user intervention and can generate unexpected charges when powered “on” outside the U.S., Puerto Rico, and U.S.V.I. You are responsible for all such charges. Cruise Ship Roaming: Additional charges and rates apply for all calls placed, messages sent, or data used while on the ship.
r. Taxes and Surcharges. You agree to pay all charges for federal, state, and, where applicable, local taxes we bill you. These may change from time to time without notice to you. You also agree to pay any surcharges, access fees, governmental fees and similar fees such as fees for Universal Service and other Regulatory and Administrative fees that we bill you. We set these charges and they are not taxes. We may change these charges at any time or add additional types of these charges.
s. Reseller. If you are a reseller subject to tax exemptions, then it is your sole responsibility to provide us with the current necessary certifications; otherwise, we will apply all the applicable taxes. If any tax exemptions expire, and you fail to send a current one, we will automatically, and without any notice to you, apply all the applicable taxes.
a. The Service does not include any Mobile Device, or any other kind of physical devices other than the SIM. It is your sole responsibility to procure, maintain, install, troubleshoot, connect, disconnect, install and remove the SIM card on such devices.
b. It is your sole responsibility to make sure that any Mobile Device is FCC approved, PTRCB certified, and more specific, that is approved by the MNO to be used for the selected Data Plan. The MNO can include or retire Mobile Devices from the authorized list at their sole discretion without any prior notice.
a. Term. The billing term will be prepaid, meaning, that you will be billed in full for the total estimated monthly cost of the Service and must pay in advance before using the Service, including all applicable taxes, fees and surcharges. All the following applies, for more details and an example of how we make the calculations, see Schedule C, Payments and Billing Simulation.
i. To facilitate SIM activation in the middle of a billing cycle, you are allowed to activate at any time of the month during regular business hours.
ii. The SIM will be considered activate and therefore will immediately incur in charges, as soon as our team completes the activation, irrespective if you have the SIM in your possession or not, and/or if you start using the SIM or not.
b. Security Deposit. On or before the Initial Activation of the Service you shall provide us with a security deposit (“Deposit”), which shall be based on amounts equal to thirty percent (30%) of one (01) MRC, calculated as the monthly cost per SIM times the number of projected active SIMs at the time of the calculation. At our sole discretion, we may draw upon the Deposit at any time to recover any amounts due and unpaid, in which case you shall immediately replenish the Deposit to its prior value. We shall not waive any of our rights or remedies by drawing upon the Deposit to recover overdue or unpaid amounts. If we draw upon the Deposit, all Activation of new SIMs will be stopped until you replenish the Deposit to its original value. At our sole discretion we may increase, decrease or completely waive the Deposit. In case of an increase you shall have three (03) business days from the receipt of the written request to comply, and if you fail to do so, we may immediately suspend the Services. Further failure to remedy this situation for ten (10) calendar days may result in the termination of this Agreement without further notice or demand.
The Deposit must be one of the following: i) cash deposited in our designated account; ii) Standby Letter of Credit, issue by a major US Bank; iii) Bond Insurance issues by a major US insurance company.
c. First Bill. Your first bill, which will be due immediately upon issue, will calculated based using the cost of the next full month of Service based on the estimated number of Activated SIMs, plus all applicable, taxes, fees, and surcharges. It will also include the prorated portion of the current month.
d. Billing Cycle. Subsequent billing will be done monthly in advance within the first five (05) days of the month. Billing cycles may change from time to time without notice. MRC, fees and taxes are invoiced one billing cycle in advance. Other charges such as any airtime charges or any other chargeable time are generally invoiced soon after they are incurred. In some instances, they may be applied against your airtime allowance in a subsequent billing cycle. Unused airtime minutes cannot be carried forward or credited on the next monthly bill.
e. Payment Surplus. If at any given time, your advanced payment exceeds the real amount due based on the number of active SIMs (including prorated charges), we will proceed in one of the following ways; i) pursuant to Section 8(b), Security Deposit, if your Deposit needs to be increased, we will added the payment surplus to the Deposit; ii) if there is no need to increase the Deposit, and the payment surplus, we will retain the surplus and apply it to the next bill, so that will need to pay only the difference. In either case you will be notified of the action taken within three (03) business days.
f. Payment. You agree to pay all access, usage, and similar charges and surcharges we bill you, even if you were not the user of your wireless phone and did not authorize its use. Payment is due in full in U.S. dollars immediately upon issuing of your bill. If you agree to pay your bill by an automatic withdrawal from a banking institution or credit account, we may request payment from the account for the full invoice amount without additional authorization from you. An additional fee may be imposed for certain methods of payment, including but not limited to credit cards. All payments must be net of any retention or third-party fees, including but not limited to ACH or wire transfer fees.
g. Automatic Withdraws. To facilitate the collection of any amount due, you authorize us to automatically withdraw the necessary funds from your bank account to cover all valid charges, including but not limited to monthly charges, applicable taxes, fees, surcharges, late fees, penalties, etc. We will inform you of the any withdraw made within two (02) business days, and we will send you an invoice reflecting of the charges and an statement of your account including all the payments received, during the first five (05) business days of each month. To unequivocally signal your consent to the automatic withdraws, you need to complete Schedule D, Automatic Withdraw Authorization Form. It is your sole responsibility to inform your bank and follow the necessary procedures to allow the automatic funds withdraw to proceed. The withdraws will occur any day of the month, and will be triggered by any of the following: i) a request for SIM activation, ii) the end of a billing cycle, iii) any pending payments for any concept, iv) any valid penalties or retroactive charges as stated in this Agreement, v) lack of sufficient funds in the Deposit. Before the start of any billing cycle, you authorize us to withdraw the necessary funds to cover all the charges for the upcoming billing cycle, up to three (03) business days in advance. This is done, to give up to three (03) days to curate any case of Not Sufficient Funds (NSF) and avoid terminations of all active SIMs at the beginning of the billing cycle for lack of pre-paid payment. You explicitly authorize to automatically withdraw retroactive charges pursuant to an unmet quota as set forth in Schedule B, Section 4, Volume Advanced Discount.
h. Nonpayment and suspension and reactivation charges. If at any given time you have and outstanding balance that cannot be covered by the Deposit, we may immediately and without any additional notice suspend or terminate your Service pursuant to Section 14, Termination of Service. If your Service is suspended and later reactivated, we may charge a reactivation fee. The suspension and termination of the Service, for no payment will be your sole responsibility, and you will be automatically considered to be in material breach this Agreement. We will not be liable for any issues arising from the termination of the Service, as stated in Section 13, Limitation of Liability; Disclaimer of Warranties. The termination of the Service shall in no way be construed as a waiver of any of our rights to use all available means to recover any outstanding balance owed by you, plus any applicable collection and legal fees.
i. Disputed charges. Please contact us at 1(888)880-0118 if you believe that you have been charged incorrectly. You shall submit all disputes to us within thirty (30) days of the date of the invoice in question. If you do not submit your dispute before the end of the thirty (30) day period, then you shall be deemed to have waived the right to dispute the invoice. You will submit all disputes via a written statement containing reasonably enough detail together with supporting documentation. During the review period of the dispute, you still need to pay all the undisputed balance on or before the due date. Both parties will use good faith efforts to resolve the dispute within sixty (60) days from the reception of the written statement. Convergia will be the last instance of resolution of the dispute, and if the dispute is resolved as unfounded, you will have to pay all the disputed balance within the next two (02) business days.
j. Adjustments. We may make billing adjustments for the Service up to one hundred and eighty (180) days after the date of the invoice, or for the lessor of one hundred and eighty (180) days or any period allowed by law, government rule or regulation.
a. No abuse. You agree not to use our Service, and any applicable hardware or software, in an abusive, unlawful or fraudulent manner. Provided, that you have all the necessary permits and licenses, and that you are in full compliance with all the applicable laws and regulations, you may resell or lease the Services to your end-users. However, you must keep your end-users informed of the relevant parts of this Agreement, so that they will be in full compliance with it. Should any of your end-uses violate any laws, regulation, or any term of this Agreement, you will be the sole responsible before us. You are the sole responsible for all the use of our Services and charges incurred by your wireless device including but not limited to the use by end-users, including children, minors, and any unauthorized party. If we suspect that you are using the Service in an abusive, unlawful or fraudulent manner, or in a manner that has an adverse impact on the MNO network, operations or our customers, we may immediately and without notice suspend or terminate your Service pursuant to Section 14, Termination of Service. Abusive use shall also include if your use of unlimited airtime minutes in any one month is unreasonably excessive. Such abuse will allow us to either to move your account to another plan, charge you an additional monthly recurring charge or terminate your service without notice.
b. Lost or stolen devices. If any of your Mobile Devices is lost or stolen, call us immediately at 1(888)880-0118. You are responsible for all charges incurred before you notify us of the loss or theft, and we confirm the termination of the associated SIM. You agree to cooperate with any and all investigations regarding the loss or theft, and/or any fraudulent use of the Service.
c. Intellectual Property: All trademarks, service marks, and trade names used on or in connection with the Service are the property of their respective owners.
d. Caller ID Blocking: Caller ID blocking is not available when using Data Services, and your wireless number is transmitted to all the Internet sites you visit. You may receive unsolicited messages from third parties as a result of visiting Internet sites, and a per-message charge may apply whether the message is read or unread, solicited or unsolicited.
e. Privacy: We, in connection with the MNO, may collect information about the approximate location of your Mobile Device in relation to the MNO cell towers and the Global Positioning System (GPS). The MNO uses that information, as well as other usage and performance information also obtained from their network and your Mobile Device to provide you with wireless voice and data services, and to maintain and improve the network and quality of your wireless experience. We may also use location information to create aggregated data from which your personally identifiable information has been removed or obscured. Such aggregated data may be used for a variety of purposes such as scientific and marketing research and services such as vehicle traffic volume monitoring. It is your responsibility to notify your end-users on your account that we may collect and use location information from Mobile Devices. Third parties, including downloaded applications may also use location data. For additional information see the specific terms and conditions of the MNO.
f. Intended Use of Wireless Data Service. The MNO wireless data network is a shared resource, which the MNO manages for the benefit of all its customers so that they can enjoy a consistent, high-quality mobile broadband experience and a broad range of mobile Internet services, applications, and content. However, certain activities and uses of the network by an individual customer or small group of customers can negatively impact the use and enjoyment of the network by others. Therefore, certain activities and uses of our wireless data service are permitted and others are prohibited, unless explicitly indicated otherwise in Schedule B. Permitted Activities. Our wireless data services are intended to be used for the following permitted activities: (i) web browsing; (ii) emails, and (iii) intranet access if permitted by your rate plan (for example, access to corporate intranets, email, and individual productivity applications like customer relationship management, sales force, and field service automation); (iv) uploading and downloading applications and content to and from the Internet or third-party application stores; and (v) using application and content without excessively contributing to network congestion. You agree to use our wireless data services only for these permitted activities. Prohibited Activities. Our wireless data services are NOT intended to be used in any manner which has any of the following effects and such use is prohibited if it: (i) conflicts with applicable law; (ii) hinders other customers’ access to the wireless network; (iii) compromises network security or capacity; (iv) excessively and disproportionately contributes to network congestions; (v) adversely impacts network service levels or legitimate data flows; (vi) degrades network performance; (vii) causes harm to the network or other customers; (viii) is resold contrary to the conditions aforementioned in Section 9(a), either alone or as part of any other good or service; (ix) tethers a wireless device to a computing device (including but not limited to a computer, Smartphone, eBook or eReader, media player, laptop, or other devices with similar functions) through use of connection kits, applications, devices or accessories (using wired or wireless technology) and you have not subscribed to a specific Data Plan designated for this purpose, as indicated in Schedule B; or (x) there is a specific Data Plan required for a particular use and you have not subscribed to that plan.
g. Specifically Prohibited Uses of Wireless Service. Wireless data service may NOT be used in any manner that defeats, obstructs, or penetrates, or attempts to defeat, obstruct or penetrate the security measures of the MNO wireless network or systems, or another entity’s network or systems; that accesses, or attempts to access without authority, the accounts of others; or that adversely affects the ability of other people or systems to use either our wireless services or other parties’ Internet-based resources. For example, this includes, but is not limited to, malicious software or “malware” that is designed, intentionally or unintentionally, to infiltrate a network or computer system such as spyware, worms, Trojan horses, rootkits, and/or crimeware; “denial of service” attacks against a network host or individual user; and “spam” or unsolicited commercial or bulk email (or activities that have the effect of facilitating unsolicited commercial email or unsolicited bulk email). Wireless data services may NOT be used in any manner that has the effect of excessively contributing to network congestion, hindering other customers’ access to the network, or degrading network performance by maintaining a sustained and continuous wireless data service connection or active wireless Internet connection. Unless you have selected an Unlimited Data Plan, The Service should not be used to provide Internet connectivity to server devices or host computer applications such a continuous Web camera posts or broadcasts, automatic data feeds, or automated machine-to-machine connections; “auto-responders,” “cancel–bots” or similar automated or manual routines that generate excessive amounts of traffic or that disrupt user groups or email use by others, use of the service as a substitute or backup for private lines or full-time or dedicated data connections; peer-to-peer file sharing services; and software or other devices that maintain continuous active Internet connections when a connection would otherwise be idle or any “keep alive” functions, unless they adhere to the MNO data retry requirements, as may be modified from time to time. Finally, unless you have selected an Unlimited Data Plan, our wireless data services may NOT be used with high bandwidth applications, services, and content that is not optimized to work with the MNO wireless data services and, therefore, disproportionately and excessively contribute to network congestion. This includes, but is not limited to, video and audio streaming, video conferencing, redirecting television signals for viewing on computing devices, web broadcasting, and/or the operation of servers, telemetry devices, or supervisory control and data acquisition devices, unless they meet MNO wireless data services optimization requirements. You agree not to use our wireless data services for any of these prohibited activities, unless otherwise specified in Schedule B. You agree that we and/or the MNO have the right to take any and all actions necessary to enforce Section 9, Use of Service, of this Agreement if you use our wireless data services in any manner that is prohibited, including, but not limited to: (a) modifying, without advance notice, the permitted and prohibited activities, and the optimization requirements for your wireless data services; (b) engaging in any reasonable network management practice to enhance customer services, to reduce network congestion, to adapt to advances and changes in technology, and/or to respond to the availability of wireless bandwidth and spectrum; (c) reducing your data throughput speeds at any time or place if your data usage exceeds an applicable, identified usage threshold during any billing cycle. We will provide you with advance notice of the usage threshold applicable to your data plan, or any changes to the applicable usage threshold either by bill insert, email, text message or other appropriate means; (d) using reasonable methods to monitor and collect customer usage information to better optimize the operation of the network. Details concerning the information that we collect about customers, and how it uses and protects that information are addressed in the Section 9(e); (e) interrupting, suspending, cancelling or terminating your wireless data services without advance notice.
10. Coverage and Speed. Mobile broadband coverage is not available everywhere, nor us or the MNO can guarantee you will receive coverage at all times, or without interruptions or delays. 4G speeds delivered by LTE or HSPA+ with enhanced backhaul is not available everywhere and requires a compatible Mobile Device and Data Plan. Actual network speeds depend upon the Mobile Device characteristics, network, network availability, coverage levels, and other factors. Actual coverage and quality of Service may be affected by conditions beyond our control including but not limited to network problems, software, signal strength, your equipment, structures (including buildings in which you may be located), terrain, foliage, and atmospheric and geographic conditions. Continuation of the Service is contingent upon the availability of the provision of Wireless Service by third parties.
a. Shipping. Equipment and SIMs will be shipped to the address designated at the time of the order. Title and risk of loss pass to Customer and acceptance occurs upon receipt of the SIM at the address designated by you. We reserve the right to charge for shipping at any time.
b. Package Shipping Damage or Evidence of Tampering. If you find damage or tampering to your package after accepting delivery and the damage or tampering was not obvious at the time of delivery, you must report this to us by calling us at 1(888)880-0118 within forty-eight (48) hours of accepting delivery in order to return the package.
c. Returns. Upon cancellation of the Service for any reason, you must return all the non-activated SIMs provided to you, within five (05) business days in operational condition. Failure to do so, will result in us billing the cost of each unreturned or damaged SIM immediately and drawing from the Deposit to cover such bill. You remain obligated to any outstanding balance, including the pro-rated monthly access and usage charges, all fees, taxes and surcharges that were incurred prior to the termination date. In order to cancel your service and return your wireless device for a refund you must cancel within thirty (30) days of delivery of your wireless device by calling us at 1(888)880-0118 for return authorization and return instructions.
d. Defective SIM. SIMs devices that become defective during the manufacturer’s warranty period after delivered to you may be returned to us for replacement at the current cost. SIMs subjected to neglect, misuse, or water damage may not be returned. It is our sole discretion whether or not to replace a SIM or to waive the cost of the replacement. For information regarding return of your product or more specific information about returned products, call us at 1(888)880-0118.
e. Modifications and Integrations. You are prohibited of tampering, modifying, cloning, or in any other possible way altering the contents of any SIM card provided to you. The integration of the SIMs card provided to you with any Mobile Device is your sole responsibility. Neither we or the MNO provides any warranty explicitly or implied as to the suitability of the SIM for any Mobile Device and/or any specific use case.
f. Export Restrictions: Certain international destinations are subject to trade sanctions, embargos and restrictions under U.S. law and import licensing under foreign laws. As of May 1, 2009, the U.S. had embargoes or export restrictions with five countries, including Syria and Sudan, which may require an export license for your wireless device. See http://www.treas.gov/offices/enforcement/ofac/programs/ and http://www.bis.doc.gov for specific information. You are solely responsible for complying with U.S. Export Control laws and regulations, and the import laws and regulations of foreign countries when traveling internationally with your device.
g. Software: Any software that you received or for which you have been granted access as part of the Service, including, but not limited to SIM management portals, CRM, Trouble Ticketing systems, etc. is provided “AS-IS” can only be used as intended and for the purposes of the Service alone. Neither we or the MNO provides any guarantee, either explicit or implied regarding the usability, suitability of the Software for any given use case.
a. SIM. We are not responsible for any defects or for the acts or omissions of the manufacturer of the SIM. We will pass all manufacturer’s warranties directly to you.
b. Local Number Porting. You may elect to port an existing Telephone Number (“TN”) to the MNO for use with the Wireless Service. We will support all valid requests and will cooperate with you to port any TNs in accordance with our and the MNO standard operating procedures. You hereby represent and warrant to us that you have all necessary rights and authority necessary to port any TNs and you hereby agree to indemnify, defend, and hold harmless the MNO, us, our Affiliates, and our officers, directors, employees and agents from and against any third party claim related to or arising out of any porting.
13. Limitation of Liability; Disclaimer of Warranties. IN THE EVENT OF ANY BREACH OF THIS AGREEMENT OR ANY FAILURE OF THE SERVICES OR THE SIM WHATSOEVER, NEITHER CONVERGIA NOR THE MNO, OR ANY OF CONVERGIA’S SUPPLIERS SHALL BE LIABLE TO YOU OR TO ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, ACTUAL, INCIDENTAL, PUNITIVE OR ANY OTHER DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, CAUSED DIRECTLY OR INDIRECTLY BY THE SERVICE, USE OF THE SERVICE BY YOU, THE MANUFACTURER OF THE SIM, ANY REPAIR OF SIM BY YOU OR A THIRD-PARTY, ANY MODIFICATIONS OR BY ANY INTERRUPTION OF THE SERVICE OR LOSS OF USE OF THE SERVICE, EVEN IF CONVERGIA, THE MNO OR THE SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CONVERGIA OR ITS VENDORS BE LIABLE FOR LOSSES, DAMAGES, CLAIMS OR EXPENSES OF ANY KIND ARISING OUT OF THE USE, ATTEMPTED USE, OR INABILITY TO ACCESS LIFE SUPPORT OR MONITORING SYSTEMS OR DEVICES, 911 OR E911, OR OTHER EMERGENCY CALL OR SERVICE. CONVERGIA MAKES NO WARRANTY WITH RESPECT TO THE SERVICE, SIM OR THE SERVICE OR SIM PERFORMANCE UNDER THIS AGREEMENT. CONVERGIA DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE CONCERNING YOUR SERVICES OR WIRELESS DEVICE. WE DO NOT PROMISE ERROR-FREE OR UNINTERRUPTED SERVICES AND YOU AGREE TO HOLD US HARMLESS FOR ALL SUCH PROBLEMS. WE DO NOT AUTHORIZE YOU TO MAKE ANY WARRANTIES ON OUR BEHALF. NO WARRANTY IS MADE OR PASSED ON WITH RESPECT TO ANY THIRD-PARTY SERVICE OR SIM. WITH RESPECT TO THE SIM, CUSTOMER ACCEPTS THE SIM “AS IS.” THE SIM SHALL BE SUBJECT TO ANY WARRANTIES PROVIDED TO YOU BY THE SIM MANUFACTURER. MODIFCATIONS MAY VOID OR OTHERWISE LIMIT ANY WARRANTY APPLICABLE TO THE SIM.
a. Limitations. Neither we nor the MNO are liable for any damages arising out of or in connection with any
i. Act or omission by you, another person or company;
ii. Failing to provide Services or problems with your Services, the SIM, or any Mobile Device;
iii. Accidents or any health-related claims allegedly arising from the use of the Service, the SIM or any Mobile Devices; or
iv. Failure or interruption in attempting to access emergency services from your Mobile Device.
b. Force Majeure. Neither we nor the MNO shall be liable, nor shall any credit allowance or other remedy be extended, for any failure of performance or equipment due to causes beyond our or the MNO reasonable control.
c. Damages. If either us or the MNO are found to be liable to you for damages, you agree that any such damages shall not exceed the pro-rated monthly recurring charge for your Services during the affected period.
14. Termination of Service. We may terminate your Service as described in Sections 9(f) and 9(g) in this Agreement immediately and without notice to you (i.e., if we suspect fraud, abuse or unlawful activity or nonpayment of charges when due). We may terminate your Service and/or suspend your Service for any other breach of this Agreement or for any other business or governmental reason with notice to you. You may terminate your Service at any time with a thirty (30) day prior notice to us. To notify us of your termination, please call us at 1(888)880-0118. If any Service is terminated before the end of your current billing cycle, for any reason, we will prorate the monthly access and usage charges to the date of termination.
15. Enhancement of Wireless Service. In case that you may need to install, deploy or use any regeneration equipment or similar mechanism to originate, amplify, enhance, retransmit or regenerate the wireless service, it is your sole responsibility to find out and ensure full compliance with all the applicable laws, regulations, and restrictions from any Federal, State, and local government agency, and the MNO. In no will we be responsible for any actions that you take to enhance the wireless service.
16. Third Party Applications. Neither we nor the MNO are not responsible for content or applications provided by independently owned and operated content providers. Third-party content providers may impose additional charges. You are responsible for all charges incurred for use of third–party applications or content.
17. Indemnification. You will defend, indemnify and hold harmless us and our respective officers, directors, employees, suppliers, contractors and agents against and from any loss, debt, liability, damage, obligation, claim, demand, judgment or settlement including without limitation, attorneys’ fees and all reasonable costs and expenses of litigation arising out of, resulting from or based upon any complaint, claim, action, proceeding or suit to the extent that such claim is from or in any way connected with any claims from your end-users use of the Service or the SIM including any unauthorized or illegal provision or use by you or your end-users or someone else using the Service irrespective if they were authorized or not by you, or any violation of this Agreement by you or your end-users.
18. Notices. All notices to be sent to you pursuant to this Agreement shall be in writing and sent by electronic mail (“email”) to the email address associated with your account (if available), and/or US mail or private courier. Any email notice shall be deemed delivered when sent. Notices sent via U.S. mail or courier shall be deemed delivered two (02) days after the date sent.
19. Performance Metrics. We may, from time to time, collect information and data from you regarding your satisfaction with our Customer Service and the Service. You are required to respond to all such requests for data and information within fifteen (15) days.
20. Your Proprietary Network Information. We may disclose your Proprietary Network Information to any third-party to initiate or provide Services and bill or collect for the Services.
21. Waiver and Amendment. The failure of Convergia to enforce any provision hereof on one or more occasions shall not constitute the permanent waiver of such provision.
22. Choice of Law. This Agreement shall, in all respects, be governed by and construed and enforced in accordance with the laws of the State of Florida, without respect to the state’s conflict of laws provisions. You acknowledge and agree that any action to enforce or interpret the terms of this Agreement or relating to the Services to be provided by us shall be instituted and maintained only in Miami-Dade County, Florida. You hereby consent to the jurisdiction and venue of such court and waive any objection to such jurisdiction and venue. If we send your account to an outside collection agency or we institute any collection proceedings against you, we have the right to charge you for any collection fees.
23. Waiver of Trail by Jury. The Parties hereto hereby knowingly, irrevocably, voluntarily and intentionally waive any rights to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement or arising out of, under, or in connection with this Agreement or any document or instrument executed in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or action of any Party hereto. This provision is a material inducement for both Parties entering into this Agreement.
24. Survival. No termination of this Agreement shall affect the rights or obligations of either party with respect to payment or with respect to other provisions of this Agreement that, by their sense and context, are intended to survive termination of this Agreement, including without limitation, indemnification, limitation of liability, governing law and forum selection.
25. Severability. If any term or provision of this Agreement shall, to any extent, be determined to be invalid or unenforceable by a court or body of competent jurisdiction, then the provision shall be deemed modified to the minimum extent necessary to be valid.
26. Assignment. We may assign our rights and duties at any time to any party without notice to you. You may not assign this Agreement without the prior our written consent.
27. Successors. This Agreement shall bind and inure to the benefit of any successors or permitted assigns of either Party
28. Entire Agreement. This Agreement, together with the Schedules and Service Orders (as may be amended from time to time upon mutual consent of the Parties) constitutes the entire agreement between the Parties relating to the subject matter hereunder, and supersedes any and all oral and/or written statements, discussions, representations and agreements made by either Party to the other. No modification of this Agreement shall be binding on either Party unless it is in writing and signed by a duly authorized representative of both Parties. Failure on the part of either Party to enforce any provision of this Agreement shall not be construed as a general waiver or relinquishment of the right to enforce such provision.
29. Counterparts. This Agreement may be executed in any number of counterparts, any one and all of which shall constitute the Agreement of the Parties and each of which shall be deemed an original.
30. Relationship of the Parties. The relationship between the Parties shall not be that of partners, and nothing herein contained shall be deemed to constitute a partnership between them, a joint venture, or a merger of their assets or their fiscal or other liabilities or undertakings. Neither Party shall have the right to bind the other Party, except as expressly provided for herein. This Agreement is non-exclusive. Nothing in this Agreement shall be deemed to prevent either Party from entering into an agreement or negotiation of any kind or nature with third parties. All persons employed by either Party in connection with the Services provided under this Agreement shall be considered employees or agents of such party only, and shall in no way, either directly or indirectly, be considered employees or agents of the other Party.
31. Headings for Convenience. All headings preceding paragraphs and subparagraphs have been inserted for convenience of reference only and shall not be relied upon in determining the meaning of the rights and obligations of either Party.
32. Proprietary and Confidential Information. The Parties acknowledge that this Agreement creates a relationship of trust and confidence between you and us. The Parties acknowledge that proprietary data and proprietary and confidential information are embodied in the products, services, data, information and material supplied by each Party to the other in the course of performance of this Agreement. The Parties acknowledge that all such proprietary data and proprietary and confidential information which is designated, marked or described as proprietary or confidential constitute the sole and exclusive property of the providing party.
33. Costs and Attorneys’ Fees. If a proceeding is brought for the enforcement of this Agreement or because of any alleged or actual dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement or the Services, the prevailing party shall be entitled to recover reasonable attorney’s fees and other reasonable costs and expenses incurred in such action or proceeding in addition to any other relief to which such party may be entitled.
In Witness Whereof, the Parties have executed this Agreement in duplicate, or caused this Agreement to be executed in duplicate by a duly authorized officer, as of the [________________].
By: _________________________________ By: _________________________________
Title:________________________________ Title: ________________________________
SCHEDULE A: SERVICE ORDER FORMAT
SCHEDULE B: SERVICE DETAILS
Name: Unlimited Business Data Plan
MNO: (select all that
Voice: Not included. If the Equipment you use allows making and/or
receiving voice calls, you will be responsible for any additional charges.
SMS/MMS: Not included. If the Equipment you use allows sending and/or
receiving SMS/MMS, you will be responsible for any additional charges.
Roaming: Not included. If the SIMs is activated or used at any time outside
the US, you will be responsible for any roaming charges.
bandwidth: 8 Mbps upload, 8 Mbps download
Data cap per month per SIM: No Monthly Cap
Data Throttling Threshold: None preestablished. However, the MNO may at its sole discretion
apply throttling if the classify a SIM as doing excessive use.
Intended Use: Connect allowed cellular modem/router to provide business with Internet
for multiple devices. The service allows for any activity and use that is
standard to any ISP, expect those explicitly restricted in this Agreement. As
set forth in Section 6(i.xii) it is not intended as the only or primary means
of Internet connectivity for any given location.
IP Address: Dynamic (Static IP Address may be available at our sole
discretion, for an extra cost of $13 plus all applicable taxes, fees and
surcharges, per IP per month. The cost is not prorated).
APN: Public or Private at our sole discretion
User Control: As set forth in Section 6(i.xiii), you must have the proper means to
control the type and traffic of every SIM card under your account. If you elect
to use our platform, you accept and additional carriers prorated cost of $5 per
month per SIM, plus all applicable taxes, fees and surcharges, that it is not
subject to any volume discount. Check the box below to indicate your acceptance
of the additional charge.
[__] I elect to use your User Control
System platform for an additional prorated charge of $5 per month per SIM, plus
all applicable taxes, fees and surcharges; and I understand that this charge is
not subject to any volume discount.
Pricing: Unless otherwise explicitly specified he following pricing does
not include any taxes, extra fees or surcharges.
SIM card: $2.00 each.
Waived pursuant to Section 5(c)
SIM card shipping and handling:
$25 plus applicable taxes for each package of up to 250 SIMs within the
contiguous continental US. Waived pursuant to Section 5(c)
Monthly Recurrent Charges:
Voice: Not Applicable
SMS/MMS: Not Applicable
Data: See Volume Advanced
Discount in (4) below
Concept \ Plan
Retail Flat Fee (MRC)
Volume Advanced Discount Flat Fee
Cost per Gigabit
A $4 per month per active
SIM. This charge is a passthrough from the MNO, and it is subject to change
by the MNO at their sole discretion and without prior notice. If the MNO
increases the surcharge, we will change it accordingly. This is not prorated. When
you activate a SIMs any day of the billing cycle, you will be charged the $4
per SIM. For avoidance of the doubt, if you activate a SIMs on the first day of
the billing cycle, you will be charge $4 surcharge per SIM; if you activate
SIMs on the last day of the billing cycle, you will still be charge $4
surcharge per SIM.
Term: 36-months, renewable
Volume Advanced Discount: You agree that in exchange for committing to a mutually agreed
volume of active SIMs after the initial 12 months of the Service, we will give
you a special discounted price per SIM in advance (“Advanced Discount”), under
the following conditions:
The Retail Flat Fee (MRC) is established
in the first row of the table in Section 2(c) of this Schedule.
The Advanced Discount will be
applied immediately after the start of the Service
You must have 10,000 SIMs
active and billing (“Quota”) by the end of the 12th month of the
Service. The SIMs could be of any of the Data Plans specified in Section 2(c)
of this Schedule.
If at the end of the 12 months,
you do not meet the Quota, then the Advanced Discount will be automatically waived,
and you will be immediately billed retroactively at the regular price for each
SIM, since the beginning of the Service. For example, if you only reach 9,000,
we will recalculate the cost of those 9,000 SIM since the activation of each
one, and we will apply the corresponding difference (Retail Flat Fee minus
Volume Advanced Discount Flat Fee) per month per SIM. This bill will be due
immediately, and we will withdraw the funds from your bank account pursuant to
Section 8(g), Automatic Withdraws. You explicitly agree that the waiving
of the Advanced Discount due to an unmet quota will not be construed as a
penalty or early termination fee, but rather just as retroactive charges to collect
the amount due to us by using the retail price instead of the discounted price.
By: _________________________________ By: _________________________________
Title:________________________________ Title: ________________________________
SCHEDULE C: PAYMENTS AND BILLING EXAMPLE
All the numbers, prices, MRC, surcharges, etc. presented in this Schedule are provided as a reference and only for convenience, to help clarify the calculation methods employed and should never be construed as the real or valid prices, amounts, etc. for this Agreement. In addition to the numbers shown here, you are responsible for maintaining the Deposit pursuant to Section 8(b), Security Deposit.
SCHEDULE D: AUTOMATIC WITHDRAW AUTHORIZATION FORM