TERMS OF SALE AND SERVICE
Effective as of April 1, 2023
WELCOME TO SIMNET WIRELESS (“SIMNET”, “WE”, OR “US”). THE FOLLOWING TERMS OF SALE AND SERVICE (THE "AGREEMENT") CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN SIMNET AND THE PARTY PURCHASING OR UTILIZING ANY SIMNET PRODUCT OR SERVICE (“YOU”). THIS AGREEMENT GOVERNS YOUR RELATIONSHIP WITH SIMNET, YOUR UTILIZATION OF THIS WEBSITE (THE “SITE”), AND PURCHASE AND UTILIZATION OF ANY AND ALL SIMNET PRODUCTS AND SERVICES. BY UTILIZING THIS SITE OR ANY PRODUCT OR SERVICE IN ANY MANNER, YOU THEREBY AGREE TO AND ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT UTILIZE THE SITE OR ANY PRODUCT OR SERVICES IN ANY MANNER. (Either you or we may also be referred to herein as a “Party” and collectively as the “Parties”)
I. Scope. This Agreement governs your relationship with us and is the master agreement setting forth the terms of sale and service under which we agree to sell and provide SimNet Products and Services to you, and you agree to receive the Products and Services (the “Purpose”). You must abide by this Agreement as it is a binding legal contract and our sale of any and all Products and provision of any and all Services to you is conditioned on your agreement to this Agreement. This Agreement may have one or more Addendum, which shall be fully incorporated into, governed exclusively by this Agreement, and considered part of this Agreement, whether or not this Agreement is specifically mentioned therein, and may supplement this Agreement, but shall only supersede this Agreement when specifically stated therein. This Agreement is subject to the construction rules provided in Section XXIX.
II. Term. This Agreement shall take effect between the Parties upon your Use of the Site or Utilization of any of the Services and shall continue until such time as this Agreement is terminated in accordance with this Agreement.
III. Trial Period. Within fourteen (14) days of your receipt of any Product, including any SIM Card, and activation of the Services, you may cancel the Services or switch to a different Service Plan and/or return the Products by contacting us via the Site or our telephone support line. If you decide to return any Product or cancel the Services during this period, you will receive a full refund for such Products and Services minus the then promulgated activation fee set forth on the Site, provided that you contact us via the Site or our telephone support line within fourteen (14) days of your receipt of the Product and activation of the Services and return the Product to us within seven (7) days of contacting us via the Site or our telephone support line in “like new” condition in the Product’s original packaging via the prepaid shipping label that we will supply to you. Upon inspection of a Product, we will notify you if we have any objection to the refund; Products that in our reasonable discretion have been improperly manipulated, tampered with, damaged, or abused will not qualify for a full refund. If your refund is approved, your original payment method (i.e. credit card or bank debit) will be automatically credited. Please allow fourteen (14) days from the date of your return of a Product for your credit to be applied. If you decide to switch Service Plans, you will be responsible for an additional activation fee as set forth on the Site. Any and all refunds are provided solely in our discretion.
IV. SimNet Products.
a. Orders. All Product orders are offers to us by you to purchase or lease the Products. We may accept your offer by issuing confirmation or shipping the Product specified in your order to the address indicated by you in such order.
b. Acceptance of Products. Upon receipt of any Products, you agree that you are responsible for inspecting the Products. All Products will be deemed to be accepted fourteen (14) days after your receipt of such Products.
c. Product Warranties. ALL PRODUCT WARRANTIES ARE MANUFACTURER WARRANTIES. WE PROVIDE NO ADDITIONAL WARRANTIES ON ANY PRODUCTS AND ARE NOT RESPONSIBLE FOR ANY MANUFACTURER’S DEFECT. If you contact us via the Site or our telephone support line within thirty (30) days of delivery of a Product to you by us, and we determine in our reasonable discretion that you received a defective or damaged Product from the manufacturer or via delivery, we will replace the product in accordance with the manufacturer’s warranty. The foregoing shall be inapplicable to damage caused to Products.
V. SimNet Services. SimNet is a Texas based nationwide provider of data communications services (“Services”), specifically including high speed internet access via underlying wireless carrier networks.
a. Website. We Distribute certain SimNet IP about SimNet, SimNet Wireless Products and Services, and various information regarding communications services through the Site. The Site has been made publicly available by us to allow individuals to Use the Site (collectively “Visitors”). AS A VISITOR, YOU REPRESENT, WARRANT, AND COVENANT THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN. We maintain the Site and the SimNet IP thereon to allow you to Use the Site to learn about SimNet and SimNet Wireless Products and Services, communicate with us, order Products and Services from us, and Use Links available on the Site.
b. Service Plans. Current Service Plans can be found on the Site here. Different Service Plans may have different underlying wireless carriers. The Service Plans that we make available may change from time-to-time and certain Service Plans may not be available for offer in the future.
c. Your Account. As part of our Services, you may create an account (“Your Account”) on the Site here or when you checkout your cart. Your Account allows you to manage your Products and Services, check on your orders, download certain digital Products, store your payment methods (i.e. credit card or bank debit information), review Products and Services, receive and transmit information to us, and adjust Your Account options. Your Account is for your personal use only. You are solely and personally responsible for maintaining the confidentiality and security of Your Account and the password associated with it. You may only authorize others to use Your Account for your personal use and bear all responsibility for such use. You may not rent, sell, lease, sublicense, lend, distribute, or otherwise transfer or assign Your Account to any other person. You agree to immediately notify us of any actual or suspected breach of security or unauthorized use of Your Account.
d. Accessibility. The Services use radio technologies. As such, they are subject to transmission and service area limitations, interruptions and drops of service (i.e. disconnections) caused by atmospheric, topographical, or environmental conditions, area service availability, equipment, Regulations, system limitations, maintenance, or other conditions or activities affecting Service operation. Services are only available within each applicable plan coverage area, within the operating range of the wireless systems, approved Products, and related equipment. YOU UNDERSTAND AND AGREE THAT YOUR UTILIZATION OF THE SERVICES IS ON AN “AS-IS,” “AS AVAILABLE” BASIS. YOU UNDERSTAND THAT ACCESSIBILITY IS HIGHLY COMPLEX, SUBJECTIVE AND CHANGEABLE, AND AS SUCH, ACHIEVING ABSOLUTE OR TOTAL ACESSABILITY IN EVERY CIRCUMSTANCE IS NOT POSSIBLE. WE TAKE ACCESIBILITY ISSUES SERIOUSLY AND SEEK TO MAKE OUR SERVICES ACCESSIBLE TO EVERYONE. YOU HERBY AGREE THAT IF YOU ENCOUNTER SOME SORT OF ACESSIBILITY ISSUE TO PROVIDE US REASONABLE NOTICE TO TRY TO REMEDY SUCH INACCESSIBILITY BEFORE FILING ANY ACTION REGARDING SUCH INACCESSIBILITY.
e. Underlying Wireless Carriers. BY USING THE PRODUCTS OR SERVICES IN ANY MANNER, YOU THEREBY AGREE THAT YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOU HAVE NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING WIRELESS CARRIERS OR THE AFFILIATES OR CONTRACTORS OF THE UNDERLYING WIRELESS CARRIERS AND THAT YOU ARE NOT A THIRD-PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN US AND THE UNDERLYING WIRELESS CARRIERS AND THAT YOU HEREBY WAIVE ANY AND ALL CLAIMS OR DEMANDS THEREFOR; YOU UNDERSTAND AND AGREE THAT THE UNDERLYING CARRIERS HAVE MADE NO WARRANTIES OR REPRESENTATIONS, OR OTHER STATEMENTS TO YOU REGARDING THE PRODUCTS AND SERVICES AND SUCH CARRIERS ARE IN NO WAY RESPONSIBLE TO YOU FOR THE PRODUCTS AND SERVICES OR THIS AGREEMENT.
f. Equipment Requirements. Use of SimNet Services requires the use of SimNet approved equipment. SimNet provided SIM Cards may only be used in conjunction with such equipment and may not be used in tablets, phones, or other types of devices.
g. Acceptable Use Policy.
i. Your Responsibilities. You represent, warrant, and covenant that: (A) you shall comply with all the terms and conditions of this Agreement; (B) you shall use reasonable efforts to prevent unauthorized Use of the Services, and notify us promptly of any such unauthorized Use that comes to your attention; (C) you shall use the Services, only in accordance with all Regulations, this Agreement, and the terms and conditions, acceptable use policy, and other policies of the underlying wireless carrier network; (D) you bear all responsibility and liability for the actions of the Use of the Services in relation to your SIM Card; and (E) the information that you provide to us is to the extent of your knowledge current, true, accurate, supportable, and complete, and you will use reasonable efforts to continue to keep such information current and correct.
ii. Prohibited Activities. You hereby expressly represent and warrant that you shall not: (A) breach this Agreement willfully or through gross negligence; (B) Use any SimNet IP or any SimNet Wireless Products or Services: (1) to circumvent or breach or attempt to circumvent or breach any Regulation or give rise to a civil liability; (2) to fund any organization which has been listed as a terrorist organization by any Regulatory Authority; (3) to interfere unreasonably with the Use of the Services by other users of the underlying wireless carrier network; (4) to encourage conduct that would constitute a circumvention or breach of any Regulation or give rise to a civil liability; or (5) in such a manner that is dangerous or could cause damage to any part of the underlying wireless carrier network or any other communications system; (C) submit any information to us that is not true, complete, or accurate; (D) take any action that imposes an unreasonable or disproportionately large load on the underlying wireless carrier networks; (E) create Derivatives or Utilize any SimNet IP for any purposes other than those specifically permitted by this Agreement; (F) Use any bot, spider, scraper, data miner, or automated agent to gain Use of any IP via the Services or any other SimNet IP in an unauthorized manner; (G) facilitate any viruses, bugs, trojan horses, worms, or other software, automated agents, or programming routines that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any IP via the Services or any other SimNet IP; (H) perform or attempt to perform any actions that would interfere with the normal operation of the underlying wireless carrier network, the Services, or any other SimNet IP; (I) attempt to or assist another party to attempt to access, alter or interfere with the communications or information of a Customer by rearranging, tampering or making an unauthorized connection with any Services or SimNet IP or to use any scheme, false representation, or false credit device, with the intent to avoid payment for, in whole or in part, the Services; (J) manipulate or tamper with the Services; or (K) improperly manipulate or tamper with the Products, including but not limited to, changing the electronic serial number or equipment identifier of the Products. Any abuse of the Services, any other SimNet IP, or any other SimNet service caused by the improper manipulation of or tampering with the Products will result in a penalty from the operator, in addition to any overages occurred due to such manipulation or tampering.
h. SimNet Responsibilities. We shall maintain and manage the Services in accordance with industry standards. We shall use commercially reasonable efforts to make the Services available twenty-four hours a day (24 hrs/day), seven days a week (7 days/week), except for: (1) our planned downtime, of which we shall give you reasonable prior notice; (2) underlying carrier downtime, of which we will make commercially reasonable efforts to give you reasonable prior notice; or (3) any unavailability caused by circumstances beyond our reasonable control, including Force Majeure Events.
i. Reservations. We reserve the right to audit, track or monitor your use of the Services to the extent permitted by Regulation to: (i) enforce the provisions of this Agreement; (ii) conform with Regulation, Regulatory Authority, a Law Enforcement Request, or Lawful Authority; (iii) protect and defend our property rights or those of our Affiliates, Customers, and underlying wireless carriers; (iv) respond to a request for identification in connection with the protection of IP Rights, or unlawful activity; (v) act to protect the interests of our Affiliates, Customers, and the underlying wireless carriers; (vi) conform with our contractual obligations; or (vii) provide the Services. You agree that this Section V(i) is sufficient notice to you of such monitoring to the extent any notice is required under Regulation.
j. Service Limitations. You acknowledge and understand that: (A) our ability to provide you Services is contingent on our underlying carriers and our underlying carriers’ ability to obtain and retain the various approvals required by Regulation and Regulatory Authorities necessary for the provision of the Services, and maintain, without unreasonable expense, the underlying telecommunications equipment used to render commercial mobile radio services in accordance with Regulation (“Telco Infrastructure”) and ability to obtain and retain the approvals necessary under Regulation for the provision of the Services, and maintain, without unreasonable expense the Telco Infrastructure; (B) Services are only made available to Products and equipment equipped for Services within operating range of the Telco Infrastructure of the underlying carriers and applicable third-party carriers; (C) Services may temporarily be refused, interrupted or limited because of: (1) limitations of the Telco Infrastructure, lack of access to Telco Infrastructure, or lack of access to third-party carrier services or Telco Infrastructure; (2) atmospheric, terrain, other natural or artificial conditions adversely affecting transmission, and other causes reasonably outside our underlying carriers’ control; or (3) Product or equipment modifications, upgrades, relocations, repairs, or other similar activities necessary for the proper or improved operation of Services; (D) individual connections may be involuntarily disconnected (i.e. “dropped”) for a variety of reasons, including atmospheric conditions, topography, weak batteries, system overcapacity, movement outside the range of Telco Infrastructure, and gaps in coverage of our underlying carriers; (E) during a given month nationwide Service Plans provide 4G speed for the designated amount of data for such Service Plan (e.g. 300GB or 600GB) and are throttled down to 650KBps thereafter; and (F) during a given month unlimited Service Plans provide 4G speed for the first 800GB downloaded and 3MBps thereafter. Without limiting the foregoing, we do not control the actions of our underlying carriers, third-party carriers, or any Telco Infrastructure or third-party Service Infrastructure and bear no responsibility or liability for your inability to access any Services due to the action or inaction of any underlying carrier or third-party carrier or inability by you to connect to any Telco Infrastructure.
VI. Switching Service Plans. You may choose to switch Service Plans at any time by contacting us via the Site or our telephone support line. In such instances, we will send you a temporary SIM Card, which will arrive activated. You must test this activated temporary SIM Card and contact us via the Site or our telephone support line if you wish to replace your prior SIM Card with the temporary SIM Card. If you do not confirm that you wish to replace your existing SIM Card with the temporary SIM Card within twenty-four (24) hours of receipt as tracked by the third-party shipping provider, the temporary SIM Card will automatically be suspended. If you do not confirm that you wish to replace your existing SIM Card with the temporary SIM Card within forty-eight (48) hours of receipt as tracked by the third-party shipping provider, the temporary SIM Card will automatically be deactivated. Upon activation of a temporary SIM card, your previous SIM card will be deactivated. If you request a temporary SIM card outside the Trial Period, you will be charged TEN AND NO/00 U.S. Dollars per SIM Card requested.
VII. Remuneration. In consideration of and as payment for the Products or Services purchased, you shall provide us such consideration as set forth by the Site or otherwise in writing between the Parties.
a. Product Prices. All Product prices posted on the Site are subject to change without notice. Posted Product prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your invoice as applicable and payable during the ordering process. Total product pricing will be presented to you when you checkout your cart, which you must accept in order to initiate shipment of the Products to you by us.
b. Service Fees. Payment for all Service Plans is billed monthly via your chosen payment method (i.e. credit card or bank debit) prior to the service month with the initial month’s Service fee due when you checkout your cart which you must accept in order to initiate shipment of the SIM Card(s) for you Service Plan(s) to you by us. Service fees are subject to change upon Notice from us to you. We reserve the right to change the applicable Service fees at any time upon Notice to you.
c. Product Leases. You may opt to lease rather than purchase certain Products, if applicable under your Service Plan, in accordance with the pricing terms listed on the Site (the “Rental Fee”). If you opt to lease such Products, you will be charged the Rental Fee monthly for the lease of the Products with your initial Rental Fee due upon ordering the Products. We will maintain all ownership of any leased Products and agree to lease to you the Products in accordance with the terms of this Section VII(c). You agree to use the Products in a careful and proper manner in compliance with Regulations and any manufacturer instructions and specifications regarding proper use, maintenance, and storage of the Products. You further agree to keep the Products in good repair, condition, and working order. Upon the termination of Services, you agree to promptly return to us all Products in good repair, condition, and working order, ordinary wear and tear from proper use excepted, by delivering the Products to us at such location as we reasonably specify to you in writing, at your expense. If you return the Products to us in less than good repair, condition, and working order, ordinary wear and tear from proper use excepted, you agree that we may charge you for the cost of repair or replacement of the Products as determined in our reasonable discretion. If you fail to return the Products to us in accordance with our written instructions within seven (7) days of transmission of such instructions, you agree that we may charge you for the replacement cost of the Products if you fail to return the Products within seven (7) days of our transmission of instructions to you.
d. Shipping and Handling. We will arrange for shipment of any Products, including SIM cards, that you order to you. Shipping is provided by third-party carriers, and title and risk of loss and damage pass to you upon our transfer of the Products to such carriers. Payment of all shipping and handling charges specified during the ordering process are due when you checkout your cart. All shipping schedules are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
e. Payment Processing. All payments are processed by a third-party payment processor and may be subject to such third-party payment processor’s additional terms of service as well as the terms of service of your bank services or payment system provider. For Service Plans and Rental Fees, all monthly payments are due prior to the month due and will be automatically charged via the payment method (i.e. credit card or bank debit) associated with Your Account. An active payment method is required to be on file or your Service may be suspended.
f. Chargebacks. Chargebacks will result in immediate suspension of your Services and the total amount due to us plus late fees and all fees charged by banks and third-party payment processors will be due immediately.
g. Event of Default. If you fail to pay any Rental Fee or Service fees required under your Service Plan after such amounts are due and payable, or you otherwise materially breach this Agreement, we may deem you to be in default of this Agreement and may: (i) terminate all Services; (ii) charge you for the replacement cost of any Products then leased or not fully paid for; (ii) recover from you all other payments, accrued at the time or accruing afterwards, including applicable attorney fees, collection fees, and interest fees; and (iv) pursue any other remedy at law or in equity.
h. Payment Disputes. In the event that you believe there is an error in any fees charged by SimNet, you must provide Notice to us within thirty (30) days of the date of the charge.
i. Changes or Cancellations. Any item additions, quantity changes, or specification changes made to accepted orders will generate a new acknowledgment for the entire order and a new scheduled shipment date. All sales are final. We may without liability cancel any accepted order before shipment if there are problems with your payment or at our discretion.
VIII. Termination. As a Visitor this Agreement terminates when you cease Using the Site. As a Customer, you may terminate Service under your Service Plan(s) at any time by providing notice to us in accordance with this Agreement and settling your account with us. Upon termination of Service, your billing for the Services will cease. However, all billing is monthly and you will not be refunded for the remainder of the month. This Agreement may be terminated by us at our discretion by providing you Notice. Each Party’s termination rights as stated herein shall be without prejudice to the rights or claims such Party may have under this Agreement against the other Party for performance, nonperformance, or breach of obligations under this Agreement.
IX. Intellectual Property.
a. SimNet Intellectual Property.
i. Licenses from Us to You. We hereby grant to you a limited, non-exclusive, freely and fully revocable license to Use such SimNet IP and Materials provided by us to you for the purposes of providing you Use of the Services, including a limited, non-exclusive, freely and fully revocable license to Use the Site and Your Account to receive information about SimNet and our Products and Services, order Products and Services, manage your Products, Services, orders, payment methods, contact information, and other Services available via Your Account, contact us, and Share your IP via the Services. You acknowledge and agree that, with exception to this limited license, you have no right to modify, edit, copy, reproduce, create derivative works, or reverse engineer, alter, enhance, or in any way Utilize the Services, any SimNet IP or any SimNet Materials in any manner unless otherwise noted in writing by us. This license terminates automatically at the end of the Term or, without notice to you, if you breach the Agreement.
ii. IP Rights. Each Party hereby represents, warrants, and covenants that: (1) this Agreement is not intended to assign to you any IP Rights in any SimNet Property other than as expressly stated herein; (2) other than the limited licenses in Section IX(a)(i), you shall not acquire any right in any SimNet Property unless otherwise noted by written agreement between us and you; (3) SimNet is the owner of, or has the right to authorize you and other third parties to Use such SimNet IP and SimNet Materials provided by us to you and such other third parties indicated herein as contemplated by this Agreement, and the use of such SimNet IP and SimNet Materials as authorized does not and will not infringe or invalidate any existing Intellectual Property Right of any third party; (4) you do not and shall not claim any IP Rights in any SimNet IP other than the limited licenses herein as are solely necessary for the Purpose, unless otherwise noted by written agreement between us and you; and (5) nothing in this Agreement shall be construed to transfer the ownership of any SimNet Property from SimNet to you or any third party.
b. Licenses from You to Us. By Sharing your IP via the Services, you thereby grant us a paid-in-full, royalty-free, freely and fully transferable, freely and fully assignable, freely and fully sub-licensable, irrevocable, perpetual, worldwide right and license to Share your IP via the Services for the Purpose, with the right to sublicense each and every such right through multiple tiers of sublicensees subject to the terms and conditions herein and you represent and warrant that you are solely responsible for your IP and the ramifications and results of your choice to Share your IP via the Services. You hereby represent, warrant, and covenant that unless otherwise stated between the Parties in a written agreement executed by both Parties that you are the owner of or have the right to authorize SimNet to Share your IP as Shared by you via the Services and the Sharing of your IP as authorized does not and will not infringe any existing Intellectual Property Right, violate the right of privacy, violate any contractual right, infringe or violate any right of publicity, or violate any general or personal property right of any third party. Additionally, by Sharing any of your IP to us via the Site, you thereby grant us a paid-in-full, royalty-free, freely and fully transferable, freely and fully assignable, freely and fully sub-licensable, irrevocable, perpetual, worldwide right and license to Share such IP via the Site to SimNet as well as a paid-in-full, royalty-free, freely and fully transferable, freely and fully assignable, freely and fully sub-licensable, irrevocable, perpetual, worldwide right and license to Utilize such IP in any and every way as we see fit for any and every purpose in our sole discretion, without restriction or limitation of any kind, with the right to sublicense each and every such right through multiple tiers of sublicensees subject to the terms and conditions herein and you represent and warrant that you are solely responsible for your IP and the ramifications and results of your choice to Share your IP.
c. Derivatives. To the extent that you create any Derivatives from any SimNet IP, you represent, warrant, and agree that: (i) any such Derivative shall be deemed to be wrongfully created and as such, such Derivative shall be owned by SimNet; (ii) all right, title, and interest in and to any such Derivative shall automatically vest in SimNet and be deemed paid-in-full and royalty free; (iii) SimNet has no obligation to grant to you any right in any such Derivative; (iv) you thereby irrevocably assign to SimNet any and all joint or individual ownership, rights, titles, and interests in and to such Derivative, including any and all Intellectual Property Rights; (v) in the event that the assignments in this Section IX(c) do not provide SimNet with full ownership, rights, titles, and interests in and to the Derivative, you hereby grant to SimNet an unlimited, exclusive, freely and fully transferable, freely and fully assignable, irrevocable, paid-in-full, royalty-free, perpetual, worldwide license to Utilize in any and every way the Derivative as SimNet sees fit for any and every purpose, without restriction or limitation of any kind, with the right to sublicense each and every such right through multiple tiers of sublicensees; (vi) you hereby assign and transfer any and all Intellectual Property Rights in any Derivative to SimNet; (vii) you agree, where any IP Rights may not be assigned as a matter of law, to cooperate fully with SimNet during the lifetime of such IP Rights, not to take any interest or action with regard to such rights that is contrary to the will and goals of SimNet, and not to exercise any such IP Rights without the explicit prior written consent of SimNet; and (viii) where any IP Rights may not be assigned as a matter of law, but may pass on to your heirs at law, you hereby disclaim any and all such IP Rights.
d. DMCA Policy for Third-Party Copyright Protection. We take IP Rights very seriously and demand the same from Customers and follow the required procedures by the DMCA on alleged copyright infringement. The following are the procedures that SimNet has adopted to comply with the DMCA:
i. Notice of Infringement. If a party believes that their copyright is being infringed by any IP shared via the Services, the party (the “Notifying Party”) should send SimNet Notice (a “Notice of Infringement”). When we receive a valid Notice of Infringement, we shall respond by removing the allegedly infringing IP (the “Disputed IP”) and take reasonable steps to contact the party who originated such Disputed IP (the “Originating Party”), so that a counter-notification (“Counter Notice”) may be filed if applicable. On receiving a valid Counter Notice, we will provide Notice to the Notifying Party of the Counter Notice and typically restore the Disputed IP, unless we receive Notice from the Notifying Party that a legal action has been filed seeking a court order to restrain the Originating Party from further engaging in the allegedly infringing activity within ten (10) business days of notifying the Notifying Party of the Counter Notice. Under the DMCA, a valid Notice of Infringement must: (A) be in writing; (B) clearly identify either: (1) the Disputed IP or (2) a reference or link to where the Disputed IP is being referred to or linked to; (C) include: (1) the Notifying Party’s current contact information; (2) identification of the copyrighted work that is allegedly being infringed; (3) a statement that the Notifying Party has a good faith belief that the Disputed IP is being used improperly (i.e. without authorization from the valid copyright holder or the copyright holder’s agent, or in some other manner that constitutes copyright infringement); (4) a statement, under penalty of perjury, that the information in the Notice of Infringement is accurate and that the Notifying Party is authorized to act on behalf of the copyright holder; and (D) a physical or electronic signature. This Notice of Infringement must be sent to SimNet’s designated copyright agent as indicated in Section IX(d)(iii). A Notifying Party that knowingly misrepresents that Disputed IP is infringing a copyright may be held liable for damages, including costs and attorneys' fees, under the DMCA.
ii. Counter Notice. If the Originating Party believes that the Disputed IP has been improperly removed as the result of a Notice of Infringement, the Originating Party may send SimNet a Counter Notice. In accordance with the DMCA, when SimNet receives a valid Counter-Notice, SimNet shall promptly notify the Notifying Party of the Counter Notice so that the Notifying Party may file a court order to restrain the Originating Party from further engaging in the allegedly infringing activity. In accordance with the DMCA, SimNet may restore the Disputed IP if the Notifying Party does not file such a court order within ten (10) business days of receiving the Counter Notice. Under the DMCA, a valid Counter Notice must: (A) be in writing; (B) clearly identify either: (1) the Disputed IP or (2) a reference or link to the where the Disputed IP was prior to the removal; (C) include: (1) the Originating Party’s current contact information; (2) a statement under penalty of perjury that the Originating Party has a good faith belief that the Disputed IP was removed or disabled as a result of a mistake or misidentification of the Disputed IP to be removed or disabled; (3) a statement that the Originating Party will consent to the jurisdiction of: (01) the federal district court for the judicial district in which the Originating Party is located or (02) any U.S. judicial district in which the Disputed IP may be found, if the Originating Party is not a U.S. resident; and (4) a statement that the Originating Party will accept service from the Notifying Party. This Counter Notice must be sent to SimNet’s designated copyright agent as indicated in Section IX(d)(iii). An Originating Party that knowingly misrepresents that Disputed IP was removed or disabled by mistake or misidentification may be held liable for damages, including costs and attorneys' fees, under the DMCA.
iii. Designated Copyright Agent. Notices of Infringement and Counter Notices must be sent to:
Subject Line: Designated Copyright Agent
e. Trademark Infringement Policy. In the event that we receive Notice alleging that any IP infringes upon, dilutes, tarnishes, or otherwise violates a third party’s trademark rights, we may in our sole discretion, remove or disable access to such IP until we receive either: (i) written confirmation from the third party sending such demand that the demand is withdrawn or has been resolved or (ii) the party originating the disputed IP submits sufficient evidence to satisfactorily rebut the allegations contained in such demand, the adequacy of such evidence to be determined by us in our sole discretion and which we may reject for any reason without penalty or liability.
f. Unsolicited Feedback. We welcome any and all Feedback. By submitting any such Feedback to us, you agree that we may, but shall have no obligation to, Utilize in any and every way such Feedback, as we see fit for any and every purpose, without restriction or limitation of any kind, and you thereby grant to us an unlimited freely and fully transferable, freely and fully assignable, irrevocable, paid-in-full, royalty-free, perpetual, worldwide license to the Feedback, with the right to sublicense each and every such right through multiple tiers of sublicensees. You further agree not to permit or prosecute any Action on the ground that our Utilization or alleged Utilization of such Feedback infringes or violates any of your rights.
X. Security. We shall maintain the Services and all SimNet IP in accordance with commercially reasonable industry standards to preserve the integrity and security of all related IP from accidental loss and from unauthorized Use or disclosure. We cannot, however, ensure or warrant that third parties will never be able to defeat those measures or gain access to such information. We reserve the right to exercise whatever lawful means we deem necessary in our sole discretion to prevent unauthorized use of any SimNet IP, including any and all technological barriers. The Services utilize third-party underlying wireless carrier networks. We and our Personnel, Affiliates, and underlying wireless carriers shall not be liable for any lack of security which may be experienced by you, Customers, other users of the underlying wireless carrier network, or third parties with regard to the Services not resulting from our gross negligence, malfeasance, or nonfeasance.
a. No Guarantee of Privacy. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE PRODUCTS AND SERVICES USE RADIO CHANNELS TO TRANSMIT DATA COMMUNICATIONS OVER A COMPLEX COMMERCIAL MOBILE RADIO NETWORK. PRIVACY CANNOT BE GUARANTEED. YOU AGREE THAT WE AND OUR UNDERLYING CARRIERS AND AFFILIATES SHALL NOT BE LIABLE TO YOU FOR ANY LACK OF PRIVACY EXPERIENCED.
b. The Information That Our Services Collect.
i. Automatically Collected Information. When you Use our Services, we automatically collect certain analytical information. This automatically collected information may include your IP Address, unique device or Customer identification, version of software installed on your accessing device(s), system type, the content that you Use on our Services, and the dates and times that you Use our Services.
ii. Personally Identifiable Information. We only collect personally identifiable information that you voluntarily provide to us.
c. Use of Information.
i. Automatically Collected Information. We use automatically collected information to identify prior users of our Services, to track usage of our systems, and for analytical purposes to help us improve the Services and our business in general. We may on occasion provide this information to an Affiliate to assist us in providing these functions as permitted by Regulation.
ii. Personally Identifiable Information. The personally identifiable information that you voluntarily provide to us may be used by us and our Affiliates for administrative purposes; for authentication purposes; to properly operate, maintain, and provide you with the features and functionality of the Services; to customize and personalize features for you and otherwise enrich your experience when using the Services; to present you with promotions, advertisement, and opportunities SimNet believes may be of interest to you as permitted by Regulation; to enable our Affiliates to assist us in operating, maintaining, and providing the Services to you; to enable us to carry out our obligations arising from any contracts/subscriptions entered into with you; to notify you about changes to this Agreement, other agreements you have with us, the Services, other SimNet IP, and other SimNet services; to investigate and help prevent potentially unlawful activity or activities that threaten the integrity of our Services, or any other SimNet IP or SimNet services; to investigate allegations of fraud or violations of this Agreement or other agreements you have with SimNet; and to enforce or apply our rights under this Agreement, any other agreement you have with us, or Regulation and to protect the rights, property, or safety of any of our Customers, Personnel, other users of the underlying wireless carrier network, Affiliates, or others; to improve the quality and design the Services or SimNet IP.
d. Security. We maintain our systems in accordance with commercially reasonable industry standards to preserve the integrity and security thereof. We have implemented technical and organizational measures designed to secure such information from accidental loss and from unauthorized Use, alteration, or disclosure. We cannot, however, ensure or warrant that third parties will never be able to defeat those measures or gain access to the IP thereon. Perfect information security does not exist and you Use the Services at your own risk.
e. Children. SIMNET WIRELESS PRODUCTS AND SIMNET WIRELESS SERVICES ARE NOT INTENDED FOR CHILDREN. PROTECTING THE PRIVACY OF YOUNG CHILDREN IS ESPECIALLY IMPORTANT. SIMNET WIRELESS PRODUCTS AND SIMNET WIRELESS SERVICES ARE NOT DIRECTED TO CHILDREN UNDER THIRTEEN (13) YEARS OF AGE AND SIMNET DOES NOT KNOWINGLY COLLECT OR MAINTAIN PERSONALLY IDENTIFIABLE INFORMATION FROM PERSONS UNDER THIRTEEN (13) YEARS OF AGE. IF SIMNET LEARNS THAT PERSONALLY IDENTIFIABLE INFORMATION OF PERSONS LESS THAN THIRTEEN (13) YEARS OF AGE HAS BEEN COLLECTED ON OR THROUGH THE SERVICES UNDER OUR CONTROL, THEN SIMNET WILL TAKE THE APPROPRIATE STEPS TO ATTEMPT TO DELETE THIS INFORMATION. IF YOU ARE THE PARENT OR LEGAL GUARDIAN OF A CHILD UNDER THIRTEEN (13) YEARS OF AGE WHO HAS PROVIDED SIMNET WITH PERSONALLY IDENTIFIABLE INFORMATION, THEN PLEASE PROVIDE SIMNET NOTICE TO HAVE THAT INFORMATION DELETED IMMEDIATELY.
f. Linked Sites. Our Site and this Agreement may include links to third-party sites. Such links are provided for your convenience and information only. SimNet does not control the availability, content, or security, of such linked sites. Use of such linked sites, including the IP, Materials, products, and services on or available through such sites is solely at your own risk. Any concerns regarding such linked sites, or any information, resources, or services therein, should be directed to the operator of the particular linked site.
g. CPNI. We have a duty to protect the confidentiality of CPNI. In accordance with Regulations, each Customer has the legal right to limit, restrict, or prohibit the use of, disclosure of, or access to the Customer’s individual CPNI. We have a legal duty to abide by each Customer’s decision regarding the use, disclosure, or access to the Customer’s CPNI, and to maintain records of such decisions as well as a legal duty to utilize reasonable measures to protect CPNI from unauthorized access or disclosure. Except as authorized by Regulation, SimNet cannot use, disclose, or permit access to a Customer’s CPNI without approval from the Customer. You hereby consent to the use and Sharing of your CPNI with our underlying carriers, Affiliates, and certain third parties in accordance with Regulation.
h. GDPR. FOR VISTORS OF THE SITE FROM THE EUROPEAN ECONOMIC AREA OR OTHER NON-U.S. TERRITORIES, PLEASE NOTE THAT ANY IP THAT YOU VOLUNTARILY PROVIDE US WILL BE TRANSFERRED OUTSIDE THE EUROPEAN ECONOMIC AREA OR SUCH OTHER NON-U.S. TERRITORY FOR USE BY SIMNET AS DESCRIBED HEREIN.
i. Information Disclosure. SimNet takes law enforcement and security matters very seriously and endeavors to fully assist law enforcement personnel in accordance with the Communications Assistance for Law Enforcement Act, 47 USC §§1001-1010 , USA PATRIOT Act, Pub. L. No. 107–56, (2001) , Cybersecurity Information Sharing Act, Pub. L. No. 113–114, (2015) and other related Regulations. However, SimNet must also balance such requests with regards to the requirements of applicable CPNI and privacy related Regulations (the “Privacy Regulations”). In order to effectively assist law enforcement without violation of the relevant privacy focused Regulations, SimNet has developed its own compliance and a Systems Security and Integrity (“SSI”) plan in compliance with 47 C.F.R. § 1.20005. If you are a Regulatory Authority or a law enforcement agency deriving jurisdiction from a Regulatory Authority (“Lawful Authority”) seeking information via a subpoena, summons, court order, civil investigative demand, agency order, search warrant, or production order (“Law Enforcement Request”) the following guidelines are necessary for SimNet to facilitate the effective processing of your Law Enforcement Request and observance of these guidelines will avoid delayed processing and receipt by you of the requested information. Absent a valid Law Enforcement Request, in compliance with the Privacy Regulations, SimNet will not release Customer Information upon a third-party request without express permission from our Customer or as otherwise permitted by law.
i. Law Enforcement Requests. Our response to a valid Law Enforcement Request will typically be limited to the provisioning of information in our records related to a particular SIM Card. Further information about a particular Customer would then need to be pursued with the relevant underlying wireless carrier network. Given the fluctuating volume of Law Enforcement Requests, the resources allocated by us to these Law Enforcement Requests, Law Enforcement Requests that are consistent with our submission guidelines hereinbelow will typically be answered in five (5) business days (“the “Compliance Time”).
A. Submission. All Law Enforcement Requests should be directed to:
Subject Line: Law Enforcement Request
B. Expediting. If compliance is required in a period shorter than the typical Compliance Time, the submission email should include the following subject line: Law Enforcement Request – Urgent.
ii. Civil Information Requests. If you seek any Customer Information in connection with a civil legal matter, you must serve us with a valid subpoena for such information in connection with a civil matter as follows and agree in writing to compensate us for our subpoena response services as stated herein (a “Civil Information Request”). SimNet does not consent to service by any civil litigation party by any means other than pursuant to a valid Civil Information Request.
A. Submission. All Civil Information Requests should be directed to:
Subject Line: Civil Information Request
B. Customer Notice. If you submit a valid Civil Information Request, we may be required by Regulation to provide or attempt to provide notice of the same to the Customer whose Customer Information is sought. In order to abide by the processes required by Regulation, the production of the requested Customer Information typically takes twenty (20) business days from the receipt of a valid Civil Information Request.
C. Customer Objection. Customers who object to the production of their Customer Information by SimNet in response to a valid Civil Information Request should consult with an attorney. Unless we receive documentation from a Customer showing that such Customer is seeking a protective order or similar protection filed with an appropriate Regulatory Authority prior to the date that our response to a Civil Information Request is produced, we will disclose the Customer Information requested in compliance with the Civil Information Request.
D. Fees. In order to offset the costs of our cooperation in civil matters, we charge the following fees in association with civil matters:
1. Civil Information Request Compliance Fee. We charge a flat fee of TWO HUNDRED AND FIFTY AND NO/00 U.S. DOLLARS ($250.00) for producing records in order to comply with a valid Civil Information Request, which must be submitted prior to the initiation of the production. This fee includes research, courier, copying, and related costs. However, we reserve the right to increase the preceding flat fee at our discretion if we determine in our sole discretion that the Civil Information Request is seeking atypically voluminous records or in the event where retrieval of the necessary records requires atypical effort. In such event, we will notify you of any such increase prior to the production of the requested information.
2. Testimony Fees. If any of our Personnel are subpoenaed to appear in court to provide testimony, and the witness fee is not set by Regulation in the respective jurisdiction, we charge TWO HUNDRED AND FIFTY AND NO/00 U.S. DOLLARS per hour ($250.00/hr) billed by the quarter of the hour for such witness testimony, including travel time to and from court, plus the reasonable cost of travel, including mileage at the then current Internal Revenue Service rate, tolls, parking, airfare, rental car, train fare, taxi fare, or rideshare fare, food at a per diem rate of SEVENTY-FIVE AND NO/00 U.S. DOLLARS ($75.00) and lodging in accordance with our travel and expenses policies. We reserve the right to request pre-payment of an amount that is one half (50%) of the reasonably estimated witness testimony fee.
3. Payment. Payment of the aforementioned fees should be submitted to:
Attn: Civil Information Request
8000 Centre Park Dr. Ste. 220
Austin, TX 78754
XII. Relationship of the Parties. The Parties hereby represent, warrant, and covenant that: (a) both Parties to this Agreement are and at all times shall remain independent contractors for all purposes; (b) this Agreement creates no agency, partnership, joint venture, trusteeship, franchisor-franchisee, or employee-employer relationship between the Parties; and (c) neither Party has the authority to bind the other Party or incur any obligation on the other Party’s behalf or represent, cause, or allow to be represented, encourage, aid, or abet any other third party in the making of representations that such third party possesses any such authority in any capacity, other than as specified in this Agreement.
XIII. Cooperation. Each Party agrees to reasonably cooperate with the other Party in exercising their rights and performing their obligations under this Agreement.
XIV. Duties Upon Termination. Upon termination of the Term, regardless of how termination is effected, all licenses granted hereinunder shall terminate immediately and each Party shall cease any and all Utilization of any and all IP and Materials licensed to such Party by the other Party.
XV. Reservation of Rights. Each Party reserves all rights not expressly granted in this Agreement unless otherwise noted in writing.
XVI. Warranties. Each Party represents and warrants that: (a) the Party has the right to enter into and fully perform the mutual covenants contemplated herein, consistent with this Agreement; (b) there is no outstanding contract, commitment, or agreement to which the Party is a party that conflicts with this Agreement; (c) the Party is not subject to any injunctions or settlement agreement with private or public parties that may limit the Party’s ability to comply with the terms of this Agreement; (d) the Party shall comply with all Regulations; and (e) the individual signing on behalf of the Party has the authority to bind the Party to the terms and conditions of this Agreement. EXCEPT FOR THE WARRANTIES SPECIFICALLY AND EXPRESSLY MADE IN THIS AGREEMENT, SIMNET MAKES NO WARRANTIES WHATSOEVER, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, SUITABILITY, DURABILITY, FITNESS FOR USE, CONDITION, QUALITY, PERFORMANCE, OR NON-INFRINGEMENT, AND ALL SUCH EXPRESS OR IMPLIED WARRANTIES ARE DISCLAIMED. UNLESS OTHERWISE PROHIBITED BY LAW, ANY AND ALL SIMNET PRODUCTS, ANY AND ALL SERVICES, AND ANY AND ALL SIMNET PROPERTY OR IP IS PROVIDED TO YOU BY SIMNET ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS, IMPLIED, OR STATUTORY.
XVII. Limit of Liability. UNLESS OTHERWISE PROHIBITED BY LAW, YOU EXPRESSLY AGREE THAT YOU ASSUME ALL RESPONSIBILITY FOR YOUR UTILIZATION OF THE PRODUCTS AND SERVICES AND ANY OTHER SIMNET PROPERTY AND YOU UTILIZE THEM AT YOUR OWN RISK. UNDER NO CIRCUMSTANCES SHALL SIMNET OR ANY OF SIMNET’S PERSONNEL, VENDORS, OR AFFILIATES (THE “DISCLAIMING PARTIES”) TO THE EXTENT PROHIBITED BY LAW BE LIABLE TO YOU FOR DAMAGES IN AN AGGREGATE AMOUNT IN EXCESS OF THE FEES PAID TO SIMNET BY YOU UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE DATE THE FIRST CLAIM AROSE. UNDER NO CIRCUMSTANCES SHALL THE DISCLAIMING PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM ANY SUCCESFUL OR UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOSS OF BUSINESS, PROFITS, REVENUES, MONEY, DATA, GOODWILL, OR REPUTATION, LOSS OF ANTICIPATED BUSINESS, PROFITS, REVENUES, OR GOODWILL, OR OTHER INTANGIBLE LOSSESS, OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS, DAMAGE, OR INJURY OF ANY NATURE WHATSOEVER, ARISING OUT OF, IN CONNECTION WITH, RELATING TO, OR RESULTING FROM THIS AGREEMENT, THE PRODUCTS OR SERVICES, THE ACTIONS OR OMISSIONS BY OUR UNDERLYING CARRIERS OR THIRD-PART CARRIERS, DEFECTS OR MALFUNCTIONS OF TELCO INFRASTRUCTURE OR EQUIPMENT, ANY AND ALL SIMNET PROPERTY, INCLUDING, YOUR UTILIZATION, YOUR INABILITY TO UTILIZE, OR THE UNAVAILABILITY OF THE SERVICES, HOWEVER ARISING, EVEN IF SIMNET OR AN AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES, WILL THE DISCLAIMING PARTIES TO THE EXTENT PROHIBITED BY LAW, BE LIABLE FOR FAILURE TO PERFORM THE TERMS OF THIS AGREEMENT IF SUCH FAILURE IS DUE TO ANY CAUSE OR CONDITION BEYOND SIMNET’S REASONABLE CONTROL, INCLUDING ANY FORCE MAJEURE EVENTS, FAILURE OF YOU TO REASONABLY COOPERATE WITH SIMNET, OR OTHER SIMILAR CAUSES BEYOND SIMNET’S CONTROL. FURTHERMORE, NONE OF THE DISCLAIMING PARTIES SHALL BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER LAW, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Furthermore, the Disclaiming Parties shall incur no liability for the inability to provide adequate Services or refusing to provide Services hereunder if, in either case, such failure to provide Service is due to lack of network capacity or evolution, our underlying carriers’ inability to maintain agreements with any third-party carrier which may affect Services, or due to transmission limitations caused by atmospheric, geographic or topographic factors.
XVIII. Indemnification. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD THE DISCLAIMING PARTIES HARMLESS FROM AND AGAINST ANY AND ALL ACTIONS AND DAMAGES, WHICH MAY HEREAFTER ARISE, WHICH THE DISCLAIMING PARTIES MAY SUSTAIN DUE TO OR ARISING OUT OF ANY BREACH OF ANY REPRESENTATION OR WARRANTY MADE HEREIN, YOUR BREACH OF THE AGREEMENT, YOUR NEGLIGENT ACT OR OMISSION, YOUR ACTS IN VIOLATION OF THE AGREEMENT OR ANY APPLICABLE LAW, STATUTE, OR REGULATION OF THE UNITED STATES OR THE JURISDICTION IN WHICH YOU RESIDE, OR YOUR CONTENT, OR CAUSED OR ALLEGED TO BE CAUSED, DIRECTLY OR INDIRECTLY, BY YOUR UTILIZATION OF OR INABILITY TO UTILIZE THE SITE, THE PRODUCTS OR SERVICES, ANY OTHER SIMNET IP, OR IP SHARED BY THIRD PARTY.
XIX. Disclaimers. Network speeds (including, but not limited to, data delivery and latency rates) are estimates based on averages; actual performance may vary, and no minimum speed is guaranteed. The Services may not be available when roaming and are not available in certain portions of select market areas within wireless carrier networks. You acknowledge that use of the Services may result in the disclosure to third parties of your information in connection with your internet usage. As a result, you may receive advertising, warnings, alerts and other messages, including broadcast messages. SimNet reserves the right to limit, suspend, or constrain any heavy, continuous data usage that is adversely impacting performance of or hindering access to the carrier’s networks. Unless otherwise stated, SimNet reserves the right to limit throughput speeds or the amount of data transferred, and deny, terminate, disconnect or suspend the Services. SimNet reserves the right to deny, terminate, disconnect, modify, or suspend the Services if you engage in any prohibited actions. You hereby recognize that irregularities in telecommunications are common. From time to time, SimNet’s Vendors may add or remove numbers, services, or areas to a specific Product, Service, or area. Speeds and pricing are subject to change at any time as determined by the wireless carriers.
a. Law and Venue. The Parties agree that it is their intention and covenant that this Agreement, performance under this Agreement, any action at law or in equity arising out of or relating to this Agreement, SimNet, SimNet Property, Products, or the Services and all suits and special proceedings relating to such, shall be construed in accordance with, under, and pursuant to the laws of the State of Texas, without giving effect to any principles of conflicts of law. The Parties agree and covenant that any action at law or in equity arising out of or relating to this Agreement, SimNet, SimNet Property, Products, or the Services will be filed only in the state or federal courts in and for the Austin Division of the Western District of Texas or the state courts in and for Austin, Travis County, Texas, and each Party hereby consents and submits to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action and expressly submits to extraterritorial service of process.
b. Legal Costs. In the event that either Party institutes or brings an action at law or in equity to enforce or interpret the provisions of this Agreement, the prevailing Party shall be entitled to recover such Party’s costs incurred for the action, including reasonable attorneys’ fees, at trial and on every appeal, writ, petition, and motion.
XXI. Notice. All notices, requests, demands, consents, permissions, and other communications hereunder shall be in writing and shall be deemed received when transmitted: (a) to the email address hereinunder, and confirmation of delivery or receipt is received, provided that if the date of receipt is not a business day, the notice, request, or communication shall be deemed not to have been received until the next succeeding business day; or (b) by overnight courier service or registered or certified mail or personal delivery, when sent to the respective Party’s address as listed hereinunder and received by such Party, provided that if the date of receipt is not a business day at the respective Party’s address, the notice, request or communication shall be deemed not to have been received until the next succeeding business day.
a. If to SimNet:
Attn: Legal Notice
8000 Centre Park Dr. Ste. 220
Austin, TC 78754
Subject Line: Legal Notice
b. Changes to Services. We may enhance, replace, modify, alter, change, or otherwise update the features of the Services, but it will not materially reduce the core features, functions, or security of the Services during the Term without your consent.
XXIII. Assignment. You may not assign or transfer, whether by operation of law or otherwise, any rights or delegate any duties under this Agreement to any third parties unless we give you explicit prior written consent. Any such attempted assignment by you, will be null and void ab initio absent our explicit prior written consent. Notwithstanding the foregoing, you may assign this Agreement to an Affiliate Controlled by you provided that such Affiliate expressly assumes all of your rights and obligations under this Agreement and you are not released from the obligations created under this Agreement as a result of such assignment. We may assign or transfer our rights and duties under this Agreement without restriction.
XXIV. Benefit of Parties. This Agreement and the representations, warranties, covenants, indemnifications, and benefits herein shall be binding on and inure to the benefit of each Party and each Party’s Affiliates and their respective: (a) predecessors, successors, and assigns, and (b) past and present attorneys, directors, members, managers, officers, representatives, shareholders, agents, employees, partners, and their respective executors, administrators, heirs, and legal and personal representatives.
XXV. Severability. To the extent permitted by Regulation, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from this Agreement to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
XXVI. Maximum Restrictions Intended. The Parties hereby acknowledge and agree that the time, scope, and geographic area and other provisions of this Agreement have been specifically negotiated by the Parties and are reasonable under these circumstances, and that if, despite the express agreement of the Parties, a court should hold any portion of this Agreement unenforceable for any reason, the maximum restrictions of time, scope, and geographic area reasonable under the circumstances, as determined by the court, will be substituted for the restrictions held unenforceable.
XXVII. Entire Agreement. This Agreement and any Addenda hereto contain the sole and entire agreement between the Parties regarding the subject matter herein and supersedes any and all other agreements between the Parties regarding the subject matter herein, unless otherwise agreed by the Parties in writing. The Parties acknowledge and agree that neither of them has made any representation with respect to the subject matter of this Agreement or any representations inducing the execution and delivery of this Agreement, except such representations as are specifically set forth in this Agreement, and each of the Parties acknowledges that such Party has relied on such Party’s own judgment in entering into this Agreement. The Parties further acknowledge that any statements or representations that may have previously been made by either of them to the other are void and of no effect and that neither of them has relied thereon in connection with such Party’s dealings with the other.
XXVIII. Survival. Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening. Such obligations specifically include your obligations under Sections IX, XI, XVI, XVII, XVIII, XX, XXI, XXIII, and XIV regardless of how this Agreement is terminated.
XXIX. Construction. This Agreement has been negotiated by the Parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either Party. Each Party acknowledges that it has had the opportunity to discuss this matter with and obtain advice from its private attorney, has had sufficient time to, and has carefully read and fully understands all the provisions of this Agreement, and is knowingly and voluntarily entering into this Agreement. The headings referenced herein are for convenience purposes only, do not constitute a part of this Agreement, and will not be deemed to limit or affect any of the provisions hereof. Any capitalized term in this Agreement shall have the meaning herein defined. Any capitalized term not defined herein shall be given the definition common to such term in the common parlance of the telecommunications technology community. Any term in this Agreement written wholly in small capitalized letter shall be deemed a legal citation to relevant statutory law, reference to another executed document, or a name of a third party. The terms “herein”, “hereof”, “hereunder”, “hereunder”, and “hereby” and other terms of similar import refer to this Agreement as a whole and not to any particular provision. The term “include,” “includes”, and “including” are deemed to be followed by the phrase “, but not limited to,”. Additionally, throughout this Agreement when context requires, capitalized terms, singular nouns, and pronouns include the plural and possessive. The following terms shall have the following definitions for the purposes of this Agreement:
a. “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity;
b. “Affiliate” means, with respect to a Party, either: (i) any third party that directly or indirectly Controls, is Controlled by, or is under common Control with such Party; (ii) any third party that owns or Controls ten percent (10%) or more of the outstanding voting interests of such Party; (iii) any officer, director, general partner, manager, managing member, or trustee of, or other similar third party serving in a similar capacity with respect to such Party; or (iv) any third party who is an officer, director, general partner, manager, member, trustee, or holder of ten percent (10%) or more of the voting interests of any third party described in Sections XXIX(b)(i), XXIX (b)(ii), or XXIX b)(iii);
c. “Addendum” means any supplemental agreement modifying or supplementing the terms of this Agreement no matter what such supplemental agreement is called therein (e.g. addendum, exhibit, appendix, statement of work, sow, fee schedule, etc.);
d. “Cause” means a Party: (i) becomes insolvent or bankrupt; (ii) makes a general assignment for the benefit of or enters into any arrangement with creditors; (iii) files a voluntary petition under any bankruptcy, insolvency, or similar law; or (iv) has proceedings under any bankruptcy, insolvency, or similar law or seeking appointment of a receiver, trustee, or liquidator instituted against it;
e. “Control”, “Controlling”, or “under common Control with” means either the direct or indirect possession of the power to direct or cause the direction of the management and policies of a Party, whether through ownership of voting securities or the voting power to elect the directors or managers of such Party, by contract, or otherwise;
f. “CPNI” means such Customer Information that relates to the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service to which a Customer subscribes and that the Customer makes available to a carrier solely by virtue of the carrier-customer relationship in accordance with the definition of Customer Proprietary Network Information as that term is defined by the FCC and the Telecommunications Act of 1996;
g. “Customer” means a party who purchases Products or receives Services from SimNet, excluding such Visitors who solely Use the Website;
h. “Customer Information” means all Customer information, including Customer names, addresses, passwords, telephone numbers, fax numbers, email addresses, URLs, IP address numbers, device identifiers and serial numbers, ages, birthdates, social security numbers, biometric identifiers including finger and voice prints, genetic information, full face photographic images and any comparable images, account numbers, demographic information, financial information, transactional information, and any other unique identifying number, characteristic, or code all information relating to medical records, including all medical record numbers, health plan beneficiary numbers, dates of admission, account numbers, and certificate/license numbers, all Customer and prospective Customer lists, all CPNI, all nonpublic personally identifiable information, and all nonpublic personal information of consumers as defined by the Gramm-Leach-Bliley Act, Pub. L. 106-102, Section 628 of the Fair Credit Reporting Act, Section 216 of the Fair and Accurate Credit Transactions Act, the Health Insurance Portability and Accountability Act (HIPAA), and the Children's Online Privacy Protection Act;
i. “Damages” means any and all claims, liabilities, losses, expenses, or damages, including reasonable attorneys’ fees and expenses, and court costs;
j. “Derivatives” means any and all IP or Materials that is wrongfully Developed you based on any SimNet IP or SimNet Materials;
k. “Develop” means adapt, translate, modify, revise, condense, expand, compile, edit, reverse engineer, alter, enhance, abridge, create derivative works from, and further develop;
l. “DMCA” means the Digital Millennium Copyright Act, 17 U.S.C. §512’
m. “Distribute” means to Share, reproduce, collect, copy, make copies of, have copies made of, import, export, license, sub-license, sell, lease, rent, otherwise dispose of, and make available to Use;
n. “Feedback” means any and all suggestions, recommendations, comments, complaints, or other unsolicited feedback regarding SimNet, SimNet Property, and the Services;
o. “Force Majeure Event” means any cause or condition beyond a Party’s reasonable control, including any acts of god or the public enemy, acts of the government in either its sovereign or contractual capacity, fire, casualty, flood, hurricane, earthquake, epidemic, quarantine restrictions, natural or environmental disaster, war, civil unrest, terrorism, strike, shortages of labor or materials, freight embargoes, unusually severe weather, breakdowns, operational failures, electrical power failures, communication failures, lockout, riot, change of Regulation, insurrection, unavoidable delays, internet service provider failures or delays, denial of service attacks, the errors or failures of third parties or third-party systems, or other similar causes beyond such Party’s control;
q. “IP Rights” means any and all joint or individual ownership, rights, titles, and interests in and to such certain IP as identified, including any and all related: (i) copyrights, patents, trademarks, trade secrets, neighboring and related rights (droits voisins), database rights, design rights and rights in mask works, domain names, rights to know-how, moral rights (droit moral), publicity rights, rights against unfair competition, and any other intellectual property rights of a similar nature arising under U.S. law, international convention, or any other Regulation anywhere in the known universe implied by law or equity or accruing under common law whether registered or unregistered, including any and all registrations, applications for registration, renewals, continuations, continuations-in-part, divisionals, reissues, recapture rights, and extensions thereof; (ii) all goodwill related to or arising out of the foregoing; and (iii) all benefits, privileges, Actions, and remedies relating to any of the foregoing under U.S. law, international convention, or any other Regulation anywhere in the known universe implied by law or equity, whether before or hereafter accrued, including the exclusive rights to apply for any and all related registrations, renewals, continuations, continuations-in-part, divisionals, reissues and/or extensions, to bring any Action for all past infringements or violations of any the foregoing, and to settle and retain proceeds from any such Actions;
r. “Market” means to market, demonstrate, publicly display, publicly perform, offer for Distribution, and use for marketing;
s. “Materials” means any and all equipment, chattel, or tangible materials;
u. “Personnel” means the managers, officers, directors, employees, agents, and third-party contractors of a Party;
v. “Products” means such Materials sold by SimNet for use in association with the Services;
w. “Property” means collectively IP, Materials, and real property;
x. “Regulation” means any applicable law, statute, regulation, ordinance, rule, order, decree, or ruling as set forth by any Regulatory Authority;
y. “Regulatory Authority” means any applicable federal, state, provincial, territorial, canton, parish, local, or other legal, governmental, judicial, administrative, or regulatory authority exercising proper jurisdiction over a Party or its Personnel;
z. “Section” means the respective section of this Agreement as enumerated herein unless otherwise specified herein;
aa. “Service Plan” means a specific set of Services provided by SimNet in relation to a specific SIM Card;
bb. “Share” means to distribute, transmit, or make available to third parties;
cc. “SIM Card” means a subscriber identity module; an integrated circuit intended to securely store the international mobile subscriber identity number and its related key, which are used to identify and authenticate subscribers on mobile telephony devices;
dd. “SimNet IP” means any and all IP owned, licensed, or in the legal possession of SimNet;
ee. “SimNet Materials” means any and all Materials owned, licensed, or in the legal possession of SimNet;
ff. “SimNet Property” means any and all Property owned, licensed, or in the legal possession of SimNet;
gg. “Tax” means any tax, levy, duty, or similar governmental assessment of any nature, including value-added, sales, or use, assessable by any Regulatory Authority;
hh. “Use” means to access, use or not use, reuse, install, and copy for use, reuse, and installation;
ii. “Utilize” means to Develop, Distribute, Market, and Use; and
jj. “Vendor” means a third-party licensor, supplier, vendor, provider, or subcontractor.