TERMS AND CONDITIONS FOR CELLULAR SERVICE AND EQUIPMENT
This Terms and Conditions for Cellular Service and Equipment Agreement (Master Customer Agreement) is between THUMB CELLULAR, LLC (the Company) and the person or entity who has executed this Agreement on the reverse side (Customer). This Master Customer Agreement consists of this page and the reverse side. Its term is identified on the reverse side. The parties mutually agree as follows:
1. Services. By this Master Customer Agreement, the Company agrees to furnish cellular telephone airtime and related services (the Service) and Cellular Radio Equipment as identified on the reverse side (the Equipment) to the person, firm, or entity executing this agreement (the Customer) within the area served by the Company. The Customer accepts the responsibility for all charges incurred by Customer and any person Customer allows to use the Service or Equipment (the Authorized User).
2. Related Policies & Terms. This Master Customer AGREEMENT includes the terms set out in Thumb Cellular's Acceptable Data Use Policy, which is incorporated by reference into this Agreement and is reviewable online at /storage/pdf/TC-AUP-Revised-4-26-11.pdf/. You may receive a copy of the Company’s Acceptable Data Use Policy by writing to PO Box 650, Pigeon, MI 48755, attention: Administrative Manager. It is also reviewable at https://static1.squarespace.com/static/56a3f5b576d99c6326831ef1/t/56b2df21f04e939e6191e4bb/1303910729074/TC-AUP-Revised-4-26-11.pdf. As part of agreeing to this Master Customer 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.
This Master Customer Agreement also governs and applies to Customer’s receipt of any other services from the Company, including services Customer subscribes to after signing this Master Customer Agreement, such as data services and international long distance telecommunications services.
3. Availability of the Service
Service may be temporarily refused or limited for various reasons, including but not limited to system capacity limits; transmission limits caused by atmospheric and other natural or artificial conditions adversely affecting transmissions; and equipment modifications, upgrades, relocations, repairs and similar activities.
4. Limitations of the Company's Liability
BY SIGNING THE REVERSE SIDE AND ENTERING INTO THIS AGREEMENT, YOU ARE WAIVING CERTAIN LEGAL RIGHTS TO SUE THE COMPANY AND TO RECOVER CERTAIN DAMAGES. Because of the inevitability of errors incident to the provision and use of such Service and Equipment, the Service and Equipment the Company furnishes is subject to these terms:
(a) The Company's sole liability to its Customers and Authorized Users and others for interruptions in the Service 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 rated adjustment of the fixed monthly charges the Company billed Customer for the period of time Service is rendered inoperative by the interruption. If Customer or Authorized User is affected by such interruption for less than 24 hours, no such adjustment will 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 caused by failure of equipment or service not provided by the Company; or caused by Company-provided equipment that has been modified, mishandled, or abused.
(b) 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 with a third party (“non-Company service”). If the Company’s authority to provide a non-Company service is modified or terminated, the Company may modify or terminate
the non-Company service to Customer without any liability to Customer.
(c) The Company is not liable for interruptions or delays in transmission or errors or defects in transmission that are caused by acts outside of Company’s reasonable control, including but not limited to acts of God; fire; war; riots; or Government Authorities.
(d) The Company’s liability 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, may not exceed an amount equivalent to the proportionate charge to the Customer for Service for the month in which the event occurred. In no event is the Company 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 or Equipment. (e) The Customer or Authorized User agrees to indemnify, defend, and hold the Company harmless against all claims a third party files against the Company that arise out of (i) the Customer’s or Authorized User’s violation of this Master Customer Agreement; (ii) the Customer’s alleged libel or slander; and (iii) the Customer’s alleged infringement of the third party’s intellectual property rights, including a copyright from the material transmitted through the use of the Service or Equipment. (f) The Company is not liable for damages for any accident or injury occasioned by the presence of, or use of, the Service or Equipment or the Customer's own equipment.
(g) The Company is not liable for any defacement or damage to Customer's or Authorized User's motor vehicle or to any other personal or real property resulting from the existence of the Equipment or use of the Service.
(h) The limit of Company liability arising from errors or omissions in a Customer's directory listing, when the listing is ordered by the Company at the request of the Customer, will be no more than the initial nonrecurring directory listing charge.
5. Use of Service
(a) The Customer or Authorized User may use the Service for lawful purposes only. A Cellular Telephone Access Number (Number) may be associated with only one Cellular Radio Equipment Unit.
(b) The Service may not be used 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.
(c) 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.
6. Disconnection and Termination of Service by the Company for Cause
(a) The Company may terminate this Agreement if Customer violates this Agreement; if Customer fails to pay amounts due (under either this Agreement or another agreement between Company and Customer); if Customer has provided materially misleading or materially false information to the Company; or if a change in the law materially affects the Company’s ability to provide the Service. Before the Company terminates this Agreement, it will make commercially reasonable efforts to notify Customer before termination. Upon termination, Company will only be liable as provided in this Agreement. Company is not liable to any Authorized User for any damages resulting from interruption of Service due to disconnection or termination of Service to a Customer.
(b) If Customer's Equipment is used in violation of this Agreement, the Company may without notice take such actions as is necessary to protect the Service of its other customers including disconnecting the Service to the Customer, without any credit allowance as provided in Paragraph 4 hereof, and thereafter the Company may refuse, discontinue, or terminate the Service in its sole discretion. The Company may advise the Customer of the violation, in which case the Customer or Authorized User must discontinue such violation immediately confirming in writing to the company that such use has ceased or that the violation has been corrected.
(c) For all services other than international long distance services, 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). If the conditions of the usage as described above are violated, Thumb Cellular also may, only upon advance notice, move subscribers to another rate plan.
7. Termination of Service
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 13 below), the Customer who has agreed in and received the Special Price Offer on
the reverse side is also responsible for payment of the full Minimum Contract Period amount, together with all costs, liquidated damages and reasonable attorney fees. 8. Ownership of Telephone Numbers
Neither Customer nor 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 discretion, and judgment, 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.
The Company makes no warranties or representations whatsoever with respect to the operation of the equipment of its services. NO WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESSED, OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, APPLY TO THE EQUIPMENT OR THE COMPANY'S SERVICES.
10. 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. If the Company revises rates, charges, call timing policies, or rate plans for Customer's use of Service, those revisions will be effective no sooner than 30 to 45 days after the revisions are made. If the Company revises rates, charges, call timing policies, or rate plans for Customer's use of Service, the Company must notify the Customer of the revisions via either letter, bill message, or another commercially reasonable method of notice.
(c) The Company may 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 Activation Fee is not 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 forward. 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) If the Customer's equipment is lost or stolen, the Customer is liable for all usage from Customer's Number until such time as the loss or 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 giving the report to the Company.
(g) Customer agrees to pay all applicable taxes, fees or exactions that the Company charges in connection with the Service 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.
11. 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 charges for Usage.
12. Certificate of Authority
If Customer is a person, firm, or organization other than the signer hereof, the individual executing this Agreement on behalf of such Customer certifies having authority to sign on behalf of Customer. If the signer lacks that authority, the signer personally guarantees performance of all Customer's obligations hereunder, including all courts and reasonable attorney’s fees incurred. This is a continuing guarantee, and is not affected by any renewal, amendment, or supplement to this Agreement.
13. 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 is 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 attorney’s fees incurred. Early termination means any act or failure to act of Customer which causes a termination of this Agreement.
14. Terms of Agreement
This Agreement becomes effective on the date stated on the reverse side and continues for the Minimum Contract Period (Service) unless sooner terminated as herein provided. After Minimum Contract Period (Service) expires, this Agreement is deemed automatically renewed from month to month. If service is temporarily suspended for delinquency of payment, this Agreement’s terms are extended for the number of days service was suspended to fulfill the terms of the Agreement.
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, upon 5 days written notice to Customer, assign all of its rights, duties and obligations hereunder.
No failure (or delay) on the part of either party hereto to exercise any right hereunder operates as a waiver thereof, nor will any single or partial exercise of any right by any party preclude exercise of any other right. No express waiver or assent by any party hereunto to any breach of or default in this Agreement constitutes consent to any succeeding breach of or default in that term.
17. Entire Agreement
This Agreement supersedes all prior discussions and agreements between the parties as to the subject matter hereof. This Agreement contains the sole and entire agreement between the parties as to the matters covered hereby. In the event of any conflict between the this Agreement and the terms of any other contract, service order or other document used by the Company as to providing Customer with services, this Agreement controls. t.
18. Governing Law
This Agreement is made in and governed by the laws of the state of Michigan. Customer or authorized user acknowledges that it is a violation of law to intentionally defraud Company by producing, using or having control of a cellular telephone which has been altered.
19. Purchase of Equipment
(a) Customer Agrees to pay Company for the stated term and at the price shown on the reverse side, as well as all applicable accessory costs, installation, administrative fees, late charges, and sales tax. Customer agrees to sign a service commitment for Company to service for any 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.
The Company and Customer agree that this Agreement is at all times subject to changes or nullification by any authorized regulatory authority of the State of Michigan, the Federal Communication Commissions, and any other authorized governmental body. Further, this Agreement is at all times subject to all applicable tariffs and other regulatory statements. Should the Company lose its license to operate, this Agreement will be cancelled as of the date the license is lost.
21. Demo/Loaner Equipment
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.