These Ignite Terms and Conditions ("Terms") contain the terms and conditions for Customer's subscription for the Ignite Business Connectivity Solution ("Solution") from Novatel Wireless, Inc. and/or its subsidiaries ("Company"). These Terms, together with the terms of the Quotation or similar instrument accepted by Customer which incorporate these Terms (the "Order"), comprise the agreement (the "Agreement") between Customer and Company related to Customer's purchase and use of the subscription reflected in the Order (the "Subscription"). Additional subscriptions or services purchased by Customer in connection with the Subscription shall be governed by these Terms together with the accompanying Order.
1. Definitions. The following terms are defined for purpose of this Agreement:
"Devices" means any computer, mobile device, embedded computer system, or other device provided to Customer by the Company pursuant to the Order (but cables. antennas and accessories are not "Devices").
"Permitted Use" means the authorized use of the Solution as stated in the Order; provided that such use is (i) consistent with the advertised use in Company-produced brochures and usage requirements of the wireless carrier that provides the wireless services used with the Solution (the "Wireless Partner"), and (ii) shall not include any video streaming, high resolution or high definition (HD) photography, or any data intensive applications. Services may be restricted or terminated if Customer's usage is inconsistent with the Permitted Use. It shall also be a violation of Permitted Use if Customer uses the Solution for internet access outside of the stated Permitted Use. Customer may be required to certify that its use will be limited to a particular use. For example, if Customer subscribes for wireless WAN backup services ("Backup Connectivity"), Customer may be required to certify that its use of the Solution is limited to backup connectivity only and not primary connectivity. "Primary Connectivity" means usage other than Backup Connectivity, where the connectivity is being used for primary service. If you subscribe for Primary Connectivity use of the Solution, you may be required to certify as to the type of Primary Connectivity used with your subscription.
2. Subscription; Fees.
2.1 Customer subscribes for, and Company shall provide, the Solution as stated in the Order for the Subscription Term as described herein. Monthly fees for the Subscription ("Monthly Service Fees") are payable for the entire Subscription Term stated in the Order (the "Initial Term"), and for the duration of each renewal Subscription Term. Billing date may be adjusted to consolidate payments for multiple Devices.
2.2 Monthly Service Fees will be processed and charged to Customer's credit card or by ACH debit to
Customer's bank account on or near the same day of each month. Monthly Service Fees for any additional Devices subscribed by Customer will be consolidated, billed, and payment will also be processed via credit card or ACH on or near the same day of each month. However, Company reserves the right to pro-rate Monthly Service Fees for such consolidation purposes. In the event that ACH payment is returned unpaid to Company or credit card is rejected, Customer shall immediately pay Company a fee of $35.00 per returned or rejected item.
2.3 If any services are terminated during the initial Subscription Term, Customer shall be required to pay an early termination fee ("ETF"), calculated as follows: If any part of the Subscription is terminated before the twenty-fifth (25th) month of the Subscription Term, the ETF shall be equal to the total of (i) the Monthly Service Fees for all terminated Devices multiplied by the number of full months remaining before the 25th month of the Subscription Term, plus (ii) return of the equipment to us in working condition or pay $150 per terminated Device in lieu of return. (For example, if Customer terminates the Subscription during the tenth month, the ETF shall be equal to the Monthly Service Fee for the terminated Devices for months 11 through 24, plus the return of the equipment or total per-Device fee.) The ETF shall be due and payable in addition to all fees that have accrued and are unpaid as of the time of the termination. The ETF shall be paid (and Devices returned in good working condition) within thirty (30) days of the effective date of the termination. If the Devices are not returned within thirty (30) days of the effective date of the termination, then Customer shall immediately pay Company a fee of $150.00 per Device in lieu of return.
2.4 The "Contract Date" for an Order is the date of Customer acceptance. A new Order may be cancelled at any time within the first 30 days following the Contract Date for a full refund of Monthly Service Fees paid by Customer during that time provided that all Devices are undamaged and have been returned to Company postmarked before the end of the 30 day period. Damaged or unreturned Devices will be charged as described in Section 2.5. Except Monthly Service Fees refunded for cancellation during this initial 30-day period, all fees paid by Customer are non-refundable.
2.5 The initial "Subscription Term" begins on the 7th day after the Contract Date and continues for the number of months subscribed in the Order. Upon the expiration of the initial Subscription Term and each renewal term for a Device, the Subscription Term shall renew automatically for a one (1) year term unless written notice of non-renewal is served by a party to the other party not less than 30 days before the expiration of the Subscription Term. At the completion of a Subscription for a Device Customer must return to Company the Device undamaged, working condition or pay a $150 per terminated Device in lieu of return as stated above.
2.6 Monthly Service Fees are due in advance (due at the beginning of each month). Activation and other fees are due upon Order acceptance. A monthly service charge equal to the lesser of (i) one and a half percent (1.5%) or (ii) the maximum rate that may be charged under applicable law, shall be due and payable on all balances that are not paid when due. Fees are exclusive of any applicable sales tax, use tax, customs, duties or VAT, and Customer is responsible for such taxes, customs and duties, including as may be reflected on the Order or invoice. Company shall be entitled to recover from Customer any costs of collecting past due amounts under this Agreement, including reasonable attorneys' fees. In addition, and without limiting Company's right to collect fees and service charges owed, Company shall be entitled to suspend the Solution for any period of non-payment of applicable fees.
2.7 Fees are subject to change upon term renewal by Company notifying Customer of the new rates at least thirty (30) days before their effective date. Company reserves the right to modify other terms hereunder at any time during the term of this Agreement upon 30 days advance notice to Customer.
3. Wireless Services. Company will make available and provide to Customer cellular data services (the "Wireless Services") for use with Devices for the Solution. Any devices obtained by Customer from third parties shall not be used with the Wireless Services unless otherwise expressly agreed in writing by Company. Customer may not switch between different service plans at any point during a billing cycle. Wireless Services are operated by a Wireless Partner. The provisions related to the Wireless Services are set forth in Annex A to these terms and conditions, and are incorporated herein by reference.
4. Software Services.
4.2 Customer is solely responsible for all content on Customer's Devices and Customer's use and disclosure of all information regarding log-in account, log-in details and passwords, and any transmissions made when using the Software Services. The Software Services require an internet connection and network availability to be available at all times or the Software Services may cease to function.
5. Technical Support. Company will provide Technical Support to Customer for the Software Services, which may include online support ticketing, incident reporting, and resolution using automated internet support, telephone support or email and live chat with customer service representatives. Any real-time, live technical support would be limited to weekdays (excluding holidays) between the hours of 6:00 a.m. and 5:00 p.m. Pacific time.
6. Limited Warranties; Disclaimer.
6.1 Devices listed in the Order are provided to Customer on a rental basis. Subject to the limitations contained herein, Company warrants that during the Subscription Term, each Device will be free from defects in materials and workmanship and will substantially conform to the specifications for such Device.
6.2 If during the Subscription Term any Device is found to be defective, Customer shall return the defective Device at its cost, in accordance with Company's return material authorization (RMA) policies. Company will at its option repair or replace the defective Device within a reasonable time using components or replacements that are new or used. The foregoing remedy is the sole and exclusive remedy of Customer regarding defective equipment and is in lieu of any other remedy available to the Customer at law or in equity. This warranty for a Device shall be void and of no effect if failure of the Device or any part thereof is due to accident, modification or misuse by the Customer or any third party, use inconsistent with Device specifications, or failure to install any firmware updates provided by Company. Customer shall be responsible for repair and maintenance of all Devices not covered by this warranty.
6.3 EXCEPT FOR EXPRESS WARRANTIES MADE IN THIS AGREEMENT, THE DEVICES AND SOLUTION ARE PROVIDED WITHOUT ANY OTHER WARRANTY. COMPANY HEREBY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, AND DUTIES OF ANY KIND (IF ANY), EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE. COMPANY MAKES NO WARRANTY THAT THE SOLUTION OR RELATED PRODUCTS, SOFTWARE OR SERVICES WILL SATISFY THE REQUIREMENTS OF CUSTOMER, WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR CORRESPOND TO ANY CONDITION.
7. Limitation of Liability.
7.1 UNDER NO CIRCUMSTANCES SHALL COMPANY OR ANY WIRELESS PARTNER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSSES FROM BUSINESS INTERRUPTION, LOST PRIVACY, LOSS OF BUSINESS INFORMATION OR DATA, OR THE COST OF SUBSTITUTE EQUIPMENT OR PROGRAMS SUSTAINED BY CUSTOMER OR CLAIMS BY ANY PARTY OTHER THAN CUSTOMER, OR ANY OTHER PECUNIARY LOSS), REGARDLESS OF WHETHER COMPANY OR WIRELESS PARTNER HAVE BEEN WARNED OF SUCH DAMAGES OR CLAIMS. COMPANY SHALL NOT BE RESPONSIBLE FOR ANY ERRORS OCCURRING IN THE COMMUNICATION OR OPERATION OF ANY DEVICES IN CONNECTION WITH THE SOLUTION.
7.2 COMPANY'S TOTAL FINANCIAL LIABILITY RELATED TO THE SOLUTION AND THIS AGREEMENT, WHETHER BASED ON A BREACH OF CONTRACT, BREACH OF WARRANTY, OR CLAIM OF EQUITABLE THEORY, OR ANY OTHER TYPE OF CLAIM OR THEORY, SHALL BE STRICTLY LIMITED TO THE LESSER OF (i) $10,000 OR (ii) THE ACTUAL AMOUNT OF FEES CUSTOMER PAID FOR THE SOLUTION WITHIN THE THREE (3)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THAT CUSTOMER FILES SUIT OR OTHERWISE NOTIFIES COMPANY IN WRITING OF AN EXISTING OR POTENTIAL CLAIM AGAINST COMPANY, WHICHEVER OCCURS FIRST. This limitation applies even if the damages provided hereunder do not fully compensate Customer for any losses or Company knew or should have known about the possibility of damages.
7.3 Company shall not be liable for any delay in, failure to perform, or impairment of performance of the Solution resulting in whole or in part from Acts of God, labor disruptions, disruptions in wireless telephone or internet service, shortages, inability to produce product, supplies or raw materials, severe weather conditions, power failure, flood, earthquake, fire, war, embargo, strike, riot, quarantine restrictions, governmental action, or any other circumstances or cause beyond the control of Company in the conduct of its business.
8. Consent to Use Data. Customer agrees that Company and its agents may collect and use usage data, technical and related information, including but not limited to technical information about the user's computer systems and peripherals, system and application software, and Devices that is gathered periodically to facilitate the provision of the Solution, software updates, product support, billing, and other services to Customer (if any) related to the Solution, and to verify compliance with the terms of this Agreement. Company may share this information with the Wireless Partner and other service providers as necessary for their assistance in providing the products and services that comprise the Solution. Customer agrees that Company may use this information to provide and support the Solution, product development and to provide services or technologies to Customer. In addition, Company may review, analyze, modify, manipulate and copy data gathered in connection with Customer's use of the Solution and it may distribute reports, analyses and data based on such data, provided, however that Company shall not disclose to any third party that the information it distributes specifically identifies Customer or any of its business or devices. Company will not otherwise use or disclose Customer's data except as (i) compelled by law or regulatory agency, (ii) made in connection with
subpoena or other similar demand, or (iii) made under terms of confidentiality with the party receiving such data.
9. Third Party Applications. Depending on how Customer deploys the Solution, the use of the Solution may be dependent upon interaction or integration with third parties' systems, databases and applications, including through the use of licensed applications or applications developed, managed or supported by third-parties. As a result, Customer's data may reside on or pass through servers and networks not controlled by Company. Company assumes no liability or responsibility for data that is residing on or passing through any third-party's system. Customer shall not be entitled to any refund, credit, or other adjustment associated with any claims associated with third party networks, services or systems.
10. Compliance with Laws; Export Control. Customer shall abide by all applicable local, state, national and foreign laws, rules, treaties, and regulations in connection with Customer's use of the Solution, including those related to employee privacy, data privacy, international communications, and the transmission of technical or personal data. Customer shall not use or otherwise export or re-export the Solution or any related product, documentation, components, or software, except as authorized by United States law and the laws of the jurisdiction in which the Solution is provided to Customer.
11. Intellectual Property Ownership. The software, services and Documentation related to the Solution and any authorized copies of related materials that Customer may make are the intellectual property of, and are owned by, Company and its licensors. The structure, organization, and code of the Software and Solution are the valuable trade secrets and confidential information of Company and such third parties. The Software and Solution are protected by law, including without limitation, the copyright laws of the United States and other countries and by international treaty provisions. Customer is not granted any intellectual property ownership rights in the Software or Solution. Company reserves all rights not expressly granted to Customer by this Agreement.
12. Termination. Company may terminate this Agreement upon notice to Customer if Customer violates any intellectual property rights of Company, fails to pay fees when due, exceeds or violates Permitted Use; or otherwise breaches any material term of this Agreement. On termination of this Agreement Customer must immediately cease all use of the Solution and
immediately return or destroy all copies of Documentation in Customer's possession or control.
13. General. This Agreement constitutes the entire agreement between the parties with respect to the Solution and supersede all prior or contemporaneous agreements, understandings, or representations with respect to the Solution. All waivers must be in writing. No waiver of any violation or nonperformance of this Agreement in one instance will be deemed to be a waiver of any subsequent violation or nonperformance. If any term or provision of this Agreement is to any extent held to be invalid, illegal, or unenforceable by any court of competent jurisdiction, the remainder of this Agreement will not be affected thereby, and each term and provision of this Agreement will be valid and enforced to the fullest extent permitted by law. Customer may not assign this Agreement or any obligations hereunder without Company's express written consent. Customer acknowledges that this Agreement is assignable Company. Any notice granted pursuant to this Agreement shall be deemed to have been given 24 hours after mailing or posting (if sent by first class mail, pre-paid post, or courier) or upon sending (if sent by email). Customer shall give notice to Company (such notice shall be deemed given when received by Company) confirmed mail delivery to Company at the company's principal business address set forth on the Company website. This Agreement will be governed by and construed in accordance with the laws of the state of California, without regard to California's conflict-of-laws principles, and the parties agree to exclusive jurisdiction in in San Diego County, California.