Airtime and Data Services Agreement - Terms and Conditions

Upon the acceptance of this Notification Service Agreement (this "Agreement"), you (the "Subscriber") and M2M Communications ("M2M"), agree to be legally bound as follows:

  1. "M2M Devices" are devices capable of transmitting data or information ("Data Messages") by means of participating carriers of cellular or telephone service ("Participating Carriers") to data routing service providers ("Data Routers"), which forward such Data Messages to a service facility (the "M2M Service Facility").
  2. M2M and Subscriber agree that M2M's only responsibility under this Agreement is to provide Monitoring Services. For purposes of this Agreement, "Monitoring Services" shall mean the receiving of Data Messages sent by the M2M Devices to the M2M Service Facility and the sending of notification messages ("Message Delivery") in response to the Data Messages received from M2M Devices as configured by Subscriber.
  3. Prior to commencement of the Message Delivery, the Subscriber will, at its own cost, install or have installed the M2M Devices on the Subscriber's monitored equipment in accordance with installation and operating instructions provided with the M2M Device and the monitored equipment, if applicable.
  4. After Subscriber's acceptance of this Agreement, M2M shall provide Monitoring Services at the agreed fees. Full month service charges will be assessed on the first day of the month for that month's service. Partial month's service charges will be assessed on the first day of the following month. The account will be considered in arrears if payment does not clear on this date.
  5. Other than for a Subscriber who has fully prepaid all fees, Subscriber agrees that M2M shall have the right to increase fees and charges at any time upon 30 day notice. Prepaid fees will not be subject to price increases until the end of the prepaid term. The prices set forth in any price list posted in the Select Airtime Plan section of M2M website do not include and are net of any federal, state, local sales, use, excise, service, telecommunications, utility or similar tax and all government fees, customs, duty, tariff and similar fees levied upon the Message Delivery services. Subscriber shall be solely responsible for payment or reimbursement to M2M of all such taxes or fees imposed by any level of government, whether due at the time of sale or service or if asserted later.
  6. M2M Devices covered under this Agreement shall become activated only upon completion of all required activation information as indicated on the M2M website.
  7. The Subscriber is responsible to verify the initial M2M Device configuration. After this configuration, the Subscriber may from time to time change the Message Delivery or Message Delivery address (i.e., phone numbers, fax numbers, pager numbers or e-mail address) for any M2M Device or the Subscriber may authorize other third parties to make such changes. The Subscriber shall be responsible for M2M Device configuration and for any changes to the Message Delivery made by itself or any such third parties.
  8. The Subscriber is responsible for maintaining the M2M Devices and monitored equipment at the premises in good working condition.
  9. M2M, upon receipt of a Data Message from an activated M2M Device, shall make reasonable efforts to complete a Message Delivery. If in M2M's sole judgment it believes that a condition that requires the transmission of a Data Message does not exist, M2M shall not be responsible to transmit such Data Message and shall have no liability for not transmitting such Data Message.
  10. For any M2M Device which, in the sole judgment of M2M, Participating Carriers or Data routers, send excessive Data Messages, M2M shall have the right to immediately cease transmitting Data Messages and to de-activate any such M2M Device and shall have no liability for not transmitting such Data Message and/or de-activating any such M2M Device. In such event, M2M shall make reasonable efforts to notify Subscriber.
  11. M2M shall not be responsible and shall have no direct or indirect liability for any false, incomplete or incorrect messages.
  12. Upon the termination or cancellation of the Agreement for any reason, M2M shall have the right to immediately stop receiving messages from all M2M and transmitting Message Delivery of Subscribers.
  13. This Agreement may be terminated without prior notice, at any time and for any reason, at the option of M2M. M2M shall have no liability whatsoever to Subscriber for Terminating this Agreement in accordance with above.
  14. Data Messages from M2M Devices are received by M2M by a combination of telephone and cellular communication. Therefore, M2M shall not be obligated to perform Monitoring Services or to rebate any fees or charges during any time when cellular service, telephone service or any related equipment is not operational. Cellular reception in designated coverage areas depend upon radio devices, the installation of such devices, antenna, topography and environmental conditions and therefore is subject to change at any time.
  15. Any fees paid by Subscriber under this Agreement shall not be refundable.
  16. Subscriber and M2M agree that M2M is not an insurer and no insurance coverage is offered herein. Payments to M2M are solely for performing Monitoring Services and M2M makes no representation that such Monitoring Services will reduce any risk of loss to equipment or other property or prolong the life of any equipment or other property.
  17. Subscriber acknowledges that the services provided by M2M hereunder are based upon Data Messages furnished to M2M by Data Routers and utilizes, cellular telephone service that is furnished to Data Routers by one or more Participating Carriers pursuant to agreements between Data Routers and such Participating Carriers and the services provided under this Agreement are subject to the terms, conditions and limitations therein set forth in such agreements.
  18. UNDER NO CIRCUMSTANCES SHALL THE PARTICIPATING CARRIERS, DATA ROUTERS, M2M, ITS AUTHORIZED REPRESENTATIVES, AFFILIATED OR SUBSIDIARY COMPANIES BE LIABLE FOR SPECIAL, CONSEQUENTIAL, PUNITIVE, INDIRECT OR INCIDENTAL DAMAGES ARISING OUT OF THIS AGREEMENT OR ANY OBLIGATIONS UNDER THIS AGREEMENT. M2M COMMUNICATIONS SHALL NOT BE LIABLE FOR PARTICIPATING CARRIERS, DATA ROUTERS AND M2M FAILURE TO PERFORM OR FOR DELAY IN PERFORMANCE OF THEIR RESPECTIVE OBLIGATIONS UNDER THIS AGREEMENT IF SUCH PERFORMANCE IS PREVENTED, HINDERED OR DELAYED BY REASON OF ANY CAUSE BEYOND THE CONTROL OF PARTICIPAITNG CARRIERS, DATA ROUTERS AND M2M.
  19. SUBSCRIBER FURTHER ACKNOWLEDGES THAT PARTICIPATING CARRIERS, DATA ROUTERS AND M2M DO HERBY DISCLAIM ANY AND ALL LAIBLITY AND DAMAGES OF ANY NATURE WHATSOEVER TO SUBSCRIBER, WHETHER DIRECT OR INDIRECT ARISING OUT OF SUBSCRIBER'S USE OF DATA MESSAGES, OR ARISING, RELATED TO OR CONCERNING ANY SERVICES RELATED TO THIS AGREEMENT, AND SUBSCRIBER AGREES THAT SUBSCRIBER SHALL HAVE NO CLAIMS AGAINST PARTICIPATING CARRIERES, DATA ROUTERS AND M2M OF ANY KIND WITH RESPECT THERETO. M2M AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE FEES RECEIVED BY M2M FOR THE SERVICES PROVIDED FOR THE IMMEDIATE TWELEVE (12) MONTH PERIOD TO THE AFFECTED M2M DEVICE. M2M entire liability under this Agreement shall be as set out in this Section. The parties have agreed that the limitations specified in this Section will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
  20. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND M2M DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. M2M MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES ARE FREE OF RIGHTFUL CLAIMS OF ANY THIRD PARTY FOR INFRINGEMENT OF PROPRIETARY RIGHTS. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE SERVICES SHALL BE BORNE SOLELY BY SUBSCRIBER.
  21. M2M MAKES NO WARRANTY THAT THE SERVICES WILL MEET SUBSCRIBER'S REQUIREMENTS.
  22. Subscriber agrees to indemnify and hold M2M, Data Routers and Participating Carriers harmless from and against all claims, damages, lawsuits, and losses related to, concerning or arising out of the (i) negligent acts or omissions of Subscriber; (ii) breach by Subscriber of any of its obligations under this Agreement or (iii) the infringement of any patent or copyright by any services, systems, products or parts deployed by or on the behalf of the Subscriber in combination and/or connection with the Data Messages underlying the Monitoring Services provide by M2M, where the Data Messages would not be infringing without such combination and /or connection, including, but not limited to, reasonable attorney fees in defending any such claim or lawsuit.
  23. All data generated pursuant to the Monitoring Services shall be solely owned by M2M and M2M shall have all rights and title to such data. M2M may use such data for any purpose or transfer to sell such data; provided, however, M2M will not transfer or sell job specific data unless specifically agreed to by Subscriber.
  24. This Agreement is not assignable by Subscriber without the prior written consent of M2M. Any such assignment shall be null and void and this Agreement shall immediately terminate.
  25. In the event of a conflict between the terms and conditions of this Agreement and a purchase order or other agreement relating to the subject matter hereof, it is agreed that this Agreement shall govern and control.
  26. This Agreement shall be governed by and construed in accordance with the laws of the State of Idaho without regard to conflicts of law provisions thereof. Both parties agree to the exclusive jurisdiction of the state and federal courts of Idaho.
  27. The failure of either part to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either part or a breach of any provision hereof be taken or held to be a waiver or the provision itself, nor any other right or remedy available to either party.
  28. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability of invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objective of such unenforceable or invalid provision within the limits of applicable law or applicable court decision.
  29. This Agreement and the document referred to herein, if any, constitute the final, complete and exclusive agreement between the parties with respect to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, all prior agreements, whether written or oral, with respect to the subject matter contained herein. Notwithstanding anything contrary in this Agreement, M2M may change any terms and conditions in this Agreement at any time by posting such changes on M2M's website. Such changes shall take effect at the time of posting.