TERMS AND CONDITIONS FOR CELLULAR SERVICE AND EQUIPMENT

 

THUMB CELLULAR LIMITED PARTNERSHIP(herein after referred to as the Company) hereby agrees to furnish cellular telephone airtime and related services (herein referred to as Service) and/or Cellular Radio Equipment (here- in after referred to as Equipment) to the person, firm, or entity executing this agreement (herein after referred to as the Customer, Subscriber or Authorized User) within the designated geographic area effectively served and licensed by the Company. The Customer accepts the responsibility for the person allowed to use the Service and/or Equipment (herein referred to as the Authorized User).

THIS TERMS AND CONDITIONS AGREEMENT includes the terms set out in Thumb Cellular's Acceptable Data Use Policy, which is incorporated by reference into this Agreement and is available online at www.thumbcellular.com. You may also receive a copy of that Policy by writing to PO Box 650, Pigeon, MI 48755, attention: Administrative Manager. As part of agreeing to this Terms and Conditions Agreement, you agree to comply with Thumb Cellular's Acceptable Data Use Policy. If there is a conflict between Thumb Cellular's Acceptable Data Use Policy and this Agreement, this Agreement controls. Data Service sessions may be conducted only for the following purposes: (i) Internet browsing; (ii) email; (iii) Sending and receiving pictures; and (iv) browsing the BREW platform.

    Availability of the Service

  1. Service may be temporarily refused or limited for reasons including, but not limited to, system capacity limitations, transmission limitations caused by atmospheric and other natural or artificial conditions adversely affect- ing transmissions, and equipment modifications, upgrades, relocations, repairs and similar activities.

  2. Limitations of the Company's Liability

      Because of the inevitability of errors incident to the provision and use of such Service and/or Equipment, the Service and/or Equipment furnished by the Company is subject to the terms, conditions and limitations herein specified to wit:

    1. The Company's sole liability to its Customers and Authorized Users and others for interruptions in the Service and/or malfunctioning of the Equipment furnished by the company is as follows:
      1. As the Company's full and complete liability, at the Customer's request, a credit allowance will be made in the form of a pro rate adjustment of the fixed monthly charges billed by the Company for the period of time service is rendered inoperative by the interruption. In the event the Customer or Authorized User is affected by such interruption for a period of less than 24 hours, no such adjustment shall be made.
      2. Any such interruption will be measured from the time it is reported to or detected by the Company, whichever occurs first.
      3. When an interruption exceeds 24 hours, the length of the interruption will be measured in 24 hour days. A fraction of a day consisting of less than 12 hours will not be credited, and a period of 12 hours or more will be considered an additional day. The credit allowance will be computed by dividing the length of the Service interruption by a standard 30 day month, and then multiplying the result by the Company's monthly access charges for each interrupted Number. In no case will the credit exceed the monthly charges. No other liability will attach to the Company for such interruption to Service.
      4. A credit allowance will not be given for interruptions caused by the negligence or willful act of the Customer or Authorized User or interruptions caused by failure of equipment or service not provided by the Company, or by Company provided equipment that has been modified, mishandled, or abused.
    2. The Company is not liable for any act of omission in the operation of non-Company facilities used in connection with the Service. Customer acknowledges that some or part of the Service may be offered by the Company through a contract or agreement with a third party ("non-Compnay service"). If the Company's authority to provide a non-Company service is modified or terminated, the Company shall modify or terminate the non-Company service to Customer without any liability whatsover to Customer.
    3. The Company shall in no event be liable for interruptions or delays in transmission or errors or defects in transmission, or failure to transmit when caused by acts of God, fire, war, riots, Government Authorities or other causes beyond its control, including type and condition of Customer's Equipment.
    4. The liability of the Company for loss or damage arising out of mistakes, omissions, interruptions, delays, errors or defects in the Service, its transmission, or failures or defects in equipment and facilitates over which the Service is furnished, occurring in the course of furnishing Service and not caused by the negligence of the Customer or Authorized User, shall in no event exceed an amount equivalent to the proportionate charge to the Customer for Service for the month in which the event occurred. In no event shall the Company be liable for any indirect incidental, consequential or special damages including without limitation any loss by the Customer or Authorized User of business revenue, goodwill or other claim arising in connection with the use of the Service and/or Equipment.
    5. The Customer or Authorized User agrees to indemnify and saves the Company harmless against claims for libel, slander, or infringement of copyright from the material transmitted through the use of the Service and/or Equipment against claims for infringement of patents arising from combining with, or using in connection with the Service and/or Equipment, any apparatus, or system of the Customer or Authorized User; and against all other claims arising out of any act or omission of the Customer or Authorized User in the connection with the Service and/or Equipment.
    6. The Company is not liable for damages for any accident or injury occasioned by the presence of, or use of, the Service and/or Equipment or the Customer's Equipment.
    7. The Company is not liable for any defacement or damage to any Customer's or Authorized User's motor vehicle or to any other personal or real property resulting from the existence of the Equipment.
    8. The limit of Company liability arising from errors or omissions in a Customer's directory listing, when the list- ing is ordered by the Company at the result of the Customer, will be no more than the initial nonrecurring directory listing charge.

  3. Use of Service

    1. The Service is furnished for the use by the Customer and Authorized Users for lawful purposes only. A Cellular Telephone Access Number may be associated with only one Cellular Radio Equipment Unit.

       

    2. The Service shall not be used to make foul or profane expressions, to impersonate another person with fraudulent or malicious intent, to call another person so frequently or at such times of day or in any other manner so as to annoy, abuse, threaten, or harass such other person, or for any purpose in violation of the law, or in such manner as to interfere unreasonably with the use of the Service by any of the Company's other Customers or Authorized Users.

       

    3. NUMBER PORTABILITY. If you request that we port a telephone number from another carrier to use as the Mobile Directory Number (MDN), you specifically authorize us to communicate and exchange information with your current carrier to validate and complete the port, and to port your telephone number (MDN). We will make every effort to honor your request to port a telephone number from another carrier into our Service. You acknowledge that our ability to do so may be restricted by a number of factors, including but not limited to the policies or actions of the other carrier, the rate center in which the telephone number is assigned, or other technical, regulatory, or contractual limitations. You acknowledge that E-911 service will be impaired during the processing of the port, which may take several hours or up to several days. We will make every effort to port with other carriers, but may refuse to honor a port request to another carrier if the other carrier is not able to provide adequate validation information on your account.

  4. Disconnection and Termination of Service by the Company for Cause

    1. Upon nonpayment of any sum due the Company, whether that sum is due under this contract or another contract between the customer and the company or any other sum which the Customer may owe the Company for any reason, or upon a violation of any of the conditions governing the use of the Service as provided herein, the Company may without other formality and without incurring any liability to the Customer or Authorized Users, either temporarily discontinue or permanently terminate the furnishings of Service to the Customer, at the Company's sole discretion, either in part or in whole. The Company shall not be liable to any Authorized User for any damages of any kind whatsoever resulting from interruption of Service as a result of disconnection or termination of Service to a Customer.
    2. (b) In the event Customer's Equipment is used in violation of any of the provisions herein the Company may with- out notice take such actions as is necessary for the protection of the Service of its Customer's including, but not limited to, disconnection of the Service to the Customer, without any credit allowance as provided in Paragraph 2 hereof, and thereafter Service may be refused, discontinued, or terminated in the sole discretion of the Company. The Company may, in its discretion advise the Customer of the violation in which event the Customer or Authorized User shall discontinue such use of the equipment or correct the violation immediately confirming in writing to the company that such use has ceased or that the violation has been corrected.
    3. Thumb Cellular reserves the right to terminate your service if less than 50% of your usage over three consecutive billing cycles is on Thumb Cellular towers, and your mailing address and residence is not in the Home Area (Huron, Tuscola, or Sanilac Counties). In the event that the conditions of the usage as described above are violated, Thumb Cellular also reserves the right to move subscribers to another rate plan.

  5. Termination of Service

    6. A Customer may terminate Service only by directly notifying the Company either orally or in writing. The Customer is responsible for payment of outstanding charges for the period the Service was rendered. If Company initiated disconnection or Customer initiated termination occurs within the Minimum Contract Period (as defined in Paragraph 11 below), the Customer who has agreed in and received the Special Price Offer on the reverse side shall also be responsible for payment of the full Minimum Contract Period amount, together with all costs, liquidated damages and reasonable attorney fees.

6. Ownership of Telephone Numbers

Neither Customer or any Authorized User has a proprietary right in the Telephone Numbers provided by the Company. The Customer reserves the right to assign, designate or change such Numbers when, in its sole dis- cretion, and judgement, designation or change is reasonable or necessary in the conduct of its business. The Customer shall not retain the Numbers provided by the company for use with services provided by any other company.

7. Warranties

The Company makes no warranties or representations whatsoever with respect to the operation of the equip- ment of its services. NO WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESSED, OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PUR- POSE. SHALL APPLY TO THE EQUIPMENT OR THE COMPANY'S SERVICES.

8. Payment of Rates and Charges

(a) The Customer is responsible for one month's payment of rates and charges in advance, specified in the Company's rate schedule currently in effect, for all Service furnished to the Customer or an Authorized User. (b) The Company reserves the right to revise, at its sole discretion and at any time, rates and charges and call timing policies and rate plans for use of Service by the Customer. Rates, charges and call timing policies are defined in full in the Company's rate schedule.

(c) The Company reserves the right to require Customer to make a security deposit for the establishment or continuation of Service. Such deposit and any calculated interest if applicable will be returned to the Customer, less any amounts due the Company, within 45 days after termination of Service. The Service Establishment Fee shall not be deemed a deposit. If Customer does not receive a past due notice from Company in a 12 month period, at Customer's request, security deposit will be refunded in the form of a credit on Customer's bill. (d) The minimum usage charge on each call is one minute. Fractions of a minute are rounded up to the next full minute.

(e) Subject to the maximum limitations imposed by applicable state law, a late payment charge applies to each Customer bill when the previous month's bill has not been paid in full, leaving an unpaid balance carried for- ward. The late payment charge is applied to the total unpaid amount carried forward and is included in the total amount due on the current bill.

(f) In the event the Customer's equipment is lost or stolen, the Customer is liable for all usage from such Customer's Number until such time as the theft is reported to the Company either orally or in writing. In the case of theft, the Customer is responsible for obtaining a police report on the stolen unit and rendering the police report to the Company.

(g) Customer agrees to pay all applicable taxes, fees or exactions that the Company charges in connection with the Service and/or Equipment rendered to the Customer. (h) The Customer is responsible to pay the Company for charges resulting from service received as a Roamer. The rates and charges for such service are determined by the carrier from which the Customer or Authorized User received service as a Roamer.

9. Other Carrier Charges

The Customer is responsible for paying any applicable landline long distance charges, for calls to Directory Assistance and for other charges or calls billed to the Customer's Cellular Number. These charges are in addition to the charge for Usage.

10. Certificate of Authority

If the Customer is a person, firm, or organization other than the signer hereof, the individual executing this Agreement on behalf of such Customer hereby certifies having authority to sign on behalf of Customer. In the event and to the extent that the signer shall not have been so empowered, the signer hereby personally guarantees performance of all Customer's obligations hereunder, including all courts and reasonable attorneys fees incurred. This shall be a continuing guarantee, and shall not be affected by any renewal, amendment or supplement to this Agreement.

11. Minimum Contract Period (Service)

The minimum contract period for each Cellular Telephone Access Number is one month, or such longer period of time as stated on the reverse side. Customer acknowledges that early Customer termination or early Company disconnection of the Service will result in financial damage to Company which is difficult to calculate. Therefore, in the event of early termination or disconnection for any reason, Customer shall be liable to Company for liquidated damages at the rate stated on the reverse side in addition to any other damages company may be entitled to by law including but not limited to all costs, expenses, and reasonable attorneys fees incurred. Early termination shall be any act or failure to act of Customer which effectively causes a termination, or right to terminate, this Agreement, including but not limited to, termination or disconnection of service or a violation of the use of the Service.

12. Terms of Agreement

This Agreement shall become effective on the date that the Company accepts this Agreement and the Customer's initial service order and shall continue in affect for the Minimum Contract Period (Service) unless sooner terminated as herein provided. After Minimum Contract Period (Service) expires, this Agreement shall be automatically renewed from month to month.

In the event that service is temporarily suspended for delinquency of payment, the contract terms shall be extended for the number of days service was suspended in order to fulfill the terms of the agreement.

13. Assignment

The parties agree that this Agreement may not be assigned or transferred by the Customer, in whole or in part, without the prior written consent of the Company. The Company, may however, upon 5 days written notice to Customer, assign all of its rights, duties and obligations hereunder.

14. Waiver

No Failure on the part of either party hereto to exercise and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or rem- edy by any such party preclude any other right, power or remedy. No express waiver or assent by any party hereunto to any branch of or default in any term or condition of this Agreement shall constitute a waiver or assent to any succeeding breach of or default in same or any other term or condition hereof.

15. Entire Agreement

This Agreement supersedes all prior discussions and agreements between the parties with respect to the subject matter hereof and this Agreement contains the sole and entire agreement between the parties with respect to the matters covered hereby. In the event of any conflict between the provisions contained in any contract, service order or other document used by the Company, the provisions of this Agreement shall control. The Company does not provide marketing, billing, collection or other such services under this Agreement.

16. Governing Law

This Agreement is made and delivered in and shall be governed by, construed and enforced in accordance with the laws of the state in which Service and/or Equipment is furnished to the Customer hereunder. Customer or authorized user acknowledges that it is a violation of law to intentionally defraud Company by producing, using or having custody or control of a cellular telephone which has been altered.

17. Purchase of Equipment

(a) Customer Agrees to pay Company for the stated term and at the price(s) shown on the reverse side including all applicable accessory costs, installation, administrative fees, late charges, and sale tax. Customer agrees to sign a service commitment for Company service for each piece of equipment. Company will bill Customer for all payments due under this agreement.

(b) Title to the Equipment passes to Customer upon execution of this Agreement. (c) Company reserves a security interest in the Equipment in the amount of the total purchase price. A copy of this executed Agreement may be filed on Company's behalf at any time as a financing statement to perfect Company's security interest. Customer agrees to execute standard form financing statement if requested by Company. (d) Customer assumes the risk of loss, damage and destruction to the equipment from the date of its delivery to the Customer. Risk of loss does not affect title to the equipment nor does it affect payment due under this Agreement.

18. Regulation

The Company and Customer hereby agree that this Agreement shall at all times be subject to changes, modifications or nullification by any authorized regulatory authority of the State in which the service is provided, the Federal Communication Commissions or any other authorized governmental body, and further that this Agreement notwithstanding its provisions, shall at all times be specifically subject to all applicable tariffs and other regulatory statements and should the Company lose its license to operate, this Contract is thereby can- celled and becomes null and void.

19. Demo/Loaner Equipment

The Customer is responsible for any long distance or roaming charges incurred while the demo/loaner equipment is in the Customer's possession. The Customer must return the demo/loaner equipment on or before the date indicated on the front page of this Agreement. Failure to do so will result in the Customer being setup on the lowest price plan in effect and billed for all airtime, access, roaming, and any other miscellaneous charges.

20. Adjustment For Taxes, Fees, Etc.

The rate schedules of the Company do not include any amounts resulting from taxes, fees or exactions imposed by or for any municipal operation or other political sub division or agency of government.

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Thumb Cellular © 2011 | PO Box 650 Pigeon MI, 48755 | BAD AXE | CARO | PIGEON | SANDUSKY

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