Wireless Services Agreement
THIS WIRELESS SERVICES AGREEMENT (this “Agreement”) is made and effective as of the date Customer (“Customer”) purchases the Wireless Services provided pursuant to this Agreement. (the “Effective Date”)
WHEREAS, AVAYO Inc. (AVAYO) has developed, and Customer or other third party has purchased from AVAYO pursuant to a separate transaction, certain hardware for various business and commercial uses (the “Hardware”);
WHEREAS, use of the Hardware requires that it be wirelessly connected to a cellular network so that the Hardware can send and receive data transmitted to and from the Hardware;
WHEREAS, AVAYO, is willing to arrange for Customer such wireless connectivity through a third-party provider (the “Wireless Services”), and Customer desires to receive such Wireless Services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements set forth below, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. Engagement. Customer hereby engages AVAYO, Inc. to arrange for the Wireless Services to be provided to Customer for the sole purpose of providing connectivity to the hardware identified above, and AVAYO hereby accepts such engagement.
2. Third Party Wireless Services. The Wireless Services, although arranged for by AVAYO will be provided by a third-party provider selected by AVAYO in its sole discretion (the “Provider”). Customer acknowledges and agrees that the availability of the Wireless Services is subject to operational constraints, restrictions, interruptions, and requirements of the Provider that are now in effect or that may be in effect in the future, and further subject to any scheduled or unscheduled maintenance, downtime or other unavailability, each of which is controlled by Provider or other third parties and/or which is beyond AVAYO’s control.
3. Monthly Fee; Term. Customer agrees to pay to AVAYO a recurring fee for the Wireless Services per line for each device (the “Fee”) in accordance with the payment option selected on AVAYO’s payment portal. The term of this Agreement shall commence on the Effective Date and automatically renew each billing period until terminated with written notice of non-renewal not less than thirty (30) days in advance of the expiration date of the then-expiring term.
4. Fee Increases. Customer agrees that AVAYO shall be entitled to increase the Fee effective immediately upon documented increases in the costs of arranging for or providing the Wireless Services, including, but not limited to, increases in costs of hardware, equipment and other systems required to provide or deliver the Wireless Services; increases in fees, taxes, charges or other costs imposed by or associated with services provided by Provider or other third party providers; and changes in law or other legal requirements.
5. Payment Terms. Customer shall sign-up to make automated and recurring payments of the Fee through an electronic payment processing system on AVAYO’s website (https://www.avayo.com/subscriptions-1). Customer acknowledges and agrees that it must agree to be bound by any terms and conditions imposed by the third-party payment processor utilized to process Customer’s payments.
The Fee shall be paid in advance with each payment to be automatically charged to Customer on each successive billing cycle date following the date of initial payment. The Fee is not refundable under any circumstances. All amounts due under this Agreement shall be paid in U.S. Dollars. Any payment due from Customer which is not received by AVAYO when due will be subject to interest at the rate of the lesser of 1.5% per month (prorated on a daily basis beginning on the date past due) or the highest rate allowed by applicable law. Customer agrees to reimburse AVAYO on demand for all costs of collection, including reasonable attorneys’ fees and other legal expenses, incurred by AVAYO in connection with the enforcement of this Agreement.
6. Termination; Early Termination Fee; Suspension of Wireless Services.
a. This Agreement may be terminated as follows:
i. by mutual written agreement of the parties;
ii. by AVAYO immediately if its agreement with Provider expires or terminates for any reason;
iii. by AVAYO upon 5 days’ prior written notice if Customer fails to pay any Fees or other amount as and when due;
iv. by either party upon 30 days’ prior written notice of a material breach of this Agreement (except in the case of non-payment by Customer, which is addressed in Section 6(a)(iii) above), unless the breaching party cures the breach within such 30 day period; or
v. by one party if the other party (A) makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or any petition or answer seeking, consenting to, or acquiescing in reorganization, arrangement, adjustment, composition, liquidation, dissolution or similar relief; (B) is the subject of an involuntary petition in bankruptcy or other insolvency protection that is not dismissed within 60 days after filing thereof; (C) is the subject of the appointment of a receiver for all or any portion of its assets or business, or (D) is unable to pay its debts as they become due.
b. Termination or Suspension of Wireless Services. If at any time customer is in breach or default of any provision or term of this Agreement or in violation of applicable law, rule or regulation, AVAYO shall be entitled, without limiting its other rights under this Agreement or otherwise, to immediately terminate or suspend the Wireless Services until such time as Customer cures such breach or default or complies with applicable law, rule or regulation. Any termination or suspension of the Wireless Services shall not relieve Customer of its obligation to pay Fees or other amounts due for the period of such termination or suspension.
7. Use Restrictions; HIPAA Compliance.
a. Customer shall not use the Wireless Services for medical monitoring or in any other manner in which the Wireless Services will be used to monitor life, health or safety of persons or property without the prior written approval of AVAYO. Customer acknowledges and agrees that any such approval may be conditioned upon Customer’s agreement to additional terms and conditions.
b. In the event Customer uses the Wireless Services to transmit, receive, store or process Protected Health Information (“PHI”), as defined by the Health Insurance Portability and Accountability Act of 1996, as amended from time to time, and the regulations promulgated pursuant thereto and guidance issued by the U.S. Department of Health and Human Services (collectively, “HIPAA”), Customer agrees to comply with HIPAA in all respects, including, but not limited to, by encrypting all PHI.
8. LIMITATIONS ON LIABILITY; DISCLAIMER OF WARRANTIES.
CUSTOMER ACKNOWLEDGES AND AGREES THAT BECAUSE (A) AVAYO, INC. IS NOT PROVIDING THE WIRELESS SERVICES AND (B) ACCESS AND USE OF THE WIRELESS SERVICES ARE PROVIDED USING VARIOUS FACILITIES, EQUIPMENT, COMMUNICATIONS LINES AND THE INTERNET, AND THAT INFORMATION WILL BE TRANSMITTED OVER LOCAL EXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES, AND OTHER DEVICES OWNED, MAINTAINED AND SERVICED BY PROVIDER AND OTHER THIRD-PARTY CARRIERS, UTILITIES, AND INTERNET SERVICE PROVIDERS, ALL OF WHICH ARE BEYOND AVAYO, INC.’S CONTROL, TO THE MAXIMUM EXTENT PERMITTED BY LAW, AVAYO SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR THE FOLLOWING (OR ANY CLAIMS OR DAMAGES BASED ON THE FOLLOWING): (Y) THE INTEGRITY, PRIVACY, SECURITY, CONFIDENTIALITY, AVAILABILITY OR USE OF THE WIRELESS SERVICES (AND ANY MONITORING OR OTHER SERVICES WHICH ARE DEPENDENT UPON THE WIRELESS SERVICES) OR ANY DATA OR INFORMATION WHILE IT IS TRANSMITTED ON THE CARRIER LINES; DELAYS, ERRORS, FAILURES OR INTERRUPTIONS OF THE WIRELESS SERVICES; OR FOR ANY INTERCEPTION, LOSS, TRANSMISSION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION ATTRIBUTABLE TO TRANSMISSION ON THE CARRIER LINES OR USE OF THE WIRELESS SERVICES, OR (Z) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT, LOSS OF GOODWILL OR OPPORTUNITY, LOSS OF INVENTORY, LOSS OF DATA, USE, CONTENT, OR OTHERWISE, ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT, THE WIRELESS SERVICES OR THEIR USE OR UNAVAILABILITY, OR THE UNAVAILABILITY OF ANY SYSTEM, POWER, CONNECTION LINES, OR THE INTERNET, EVEN IF AVAYO, INC.WAS AWARE OF THE POTENTIAL FOR SUCH DAMAGES AND REGARDLESS OF WHETHER ANY SUCH CLAIM IS BASED ON PERSONAL OR BODILY INJURY OR DEATH, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, STRICT LIABILITY, OR ANY OTHER TYPE OR THEORY OF LIABILITY. THE WIRELESS SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AVAYO DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, BY OPERATION OF LAW, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, QUALITY, PERFORMANCE, AVAILABILITY OR SECURITY. THE PROVISIONS OF THIS AGREEMENT REFLECT AND ALLOCATE THE RISKS BETWEEN THE PARTIES AND IF FOR ANY REASON THE FOREGOING IS NOT ENFORCED, THE MAXIMUM LIABILITY OF AVAYO, INC.FOR ANY CAUSE OF ACTION SHALL BE THE AMOUNT OF THE FEES PAID BY CUSTOMER AND ACTUALLY RECEIVED BY AVAYO FOR THE WIRELESS SERVICES FOR THE 6 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
9. Cooperation. Customer agrees to fully cooperate with AVAYO and Provider, including taking all actions reasonably necessary and executing all documents and instruments reasonably necessary, in order for Customer to receive the Wireless Services and for AVAYO and Provider to comply with any applicable legal obligations relating thereto.
10. Force Majeure. Except for the payment of Fees or other amounts due under this Agreement, the failure to perform or delay in performing any obligation under this Agreement shall be excused if such failure or delay is caused or brought about in any manner beyond the control of such party, including but not limited to an act of God, natural disaster, war, terrorist attack (or threat thereof), federal, state, or local government action or inaction, the breakdown or failure of apparatus, equipment, or systems and any temporary stoppage for the repair or improvement thereof, unavailability of the internet or any connection lines, disruption or loss of power or electricity or other systems, issues or disturbances with Provider or with online or internet service providers, computer viruses or hackers, or any other act or condition beyond its reasonable control. Upon any such event, the affected party’s obligations hereunder shall be suspended and the other party shall have no right to terminate this Agreement or to seek damages, provided the affected party acts diligently to effect timely performance of its obligations.
11. Remedies Cumulative. All remedies available at law or in equity to AVAYO for a breach or default of this Agreement by Customer are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of any other remedies.
12. Relationship of Parties. The relationship of AVAYO and Customer as created by this Agreement is that of independent contractors, and nothing in this Agreement shall be construed to create or imply the creation of a relationship between the parties as principal and agent, employer and employee, partners and/or joint ventures. Neither party shall have, or hold itself out as having, the power or authority to bind or create liability for the other party by its negligent or intentional acts or omissions.
13. Amendment. No amendment or modification to this Agreement shall be effective unless approved by both parties in a writing that specifically identifies, and expressly states that it is intended to serve as an amendment to, this Agreement.
14. Non-Assignment. Customer may not assign this Agreement or any of its rights hereunder or delegate any of its obligations hereunder in any manner, including, but not limited to, pursuant to a change in control transaction, merger or otherwise. Any purported assignment or delegation in violation of the preceding sentence shall be null and void.
15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior and contemporaneous agreements, proposals, negotiations, representations, or communications relating to the subject matter of this Agreement.
16. Waiver. The waiver by one party of any breach of any provision or term under this Agreement shall not be construed to constitute a waiver of any succeeding breach. All waivers must be in writing to be effective and signed by the party waiving its rights.
17. Governing Law; Jurisdiction; Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of California, without regard to principles of conflicts of law. Jurisdiction of any litigation with respect to this Agreement shall be in California, with venue in a state or federal court of competent jurisdiction located within the geographic boundaries of Orange County, California.
18. Notices. Any notice or other communication required or permitted under this Agreement shall be in writing and shall be given by personal delivery, electronic mail, or overnight delivery service or by registered or certified mail, return receipt requested, to the Customer address inputted by the Customer on the AVAYO Portal. Notices shall be effective (a) if personally or overnight service delivered, upon delivery, (b) if sent by electronic mail, upon being sent, or (c) if mailed, 3 days after mailing.
19. No Third-Party Beneficiaries. Nothing in this Agreement is intended or shall be construed to give any person other than the parties hereto, their successors and permitted assignees, any legal or equitable right, remedy or claim under or with respect to this Agreement.
20. No Presumption. It is acknowledged and agreed by the parties that no presumption shall arise favoring either party by virtue of the authorship of any of its provisions or ambiguities that may be associated therewith.
21. Headings. The headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
22. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the remaining provisions of this Agreement shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular provision held to be invalid, unless to do so would contravene the present valid and legal intent of the parties.
23. Statute of Limitations. All claims arising under this Agreement must be commenced within one year of termination or expiration of this Agreement or when the claim arose, whichever is shorter.
24. WAIVER OF JURY TRIAL. CUSTOMER HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT.
25. Authority to Execute Agreement. The individual accessing the AVAYO Payment Portal on behalf of Customer has been duly authorized by Customer to do so.