SERVICE AGREEMENT

("Agreement")

(MAY ALSO BE REFERRED TO AS "TERMS AND CONDITIONS" IN C SPIRE DOCUMENTS)

 

DEFINITIONS:  "Agreement" means this Service Agreement, these Terms and Conditions, and all provisions maintained at www.cspire.com that set forth the manner in which we provide Wireless Devices and Service to Customer, such as rate plans, access charges, fees, taxes, and surcharges, and the Wireless Device(s) Customers have selected. "Customer" means such individual customer or entity who agrees to the terms of this Agreement (Customer may also be referred to herein as "you" or "your"). "Service" shall mean any and all types of services purchased from or furnished by or through C Spire or its affiliates including, but not limited to, voice, data, video, broadband services and transmission services, whether provided via wireless, VoIP, time division multiplexing, broadband connection, or other transmission medium. "Wireless Device" shall mean the cellular/wireless telephone, smartphone, personal digital assistant, laptop computer, tablet, and/or other device or equipment, including, but not limited to, accessories, that Customer has purchased or which have been furnished to Customer through lease by C Spire, a third party, or otherwise.

CUSTOMER ACKNOWLEDGES AND AGREES THAT THEIR WIRELESS DEVICE MAY INCLUDE ONE OR MORE FEATURES WHICH PREVENT CUSTOMER'S USE OF THE WIRELESS DEVICE AS A HOME CUSTOMER OF ANY OTHER CARRIER AND THAT C SPIRE HAS NO OBLIGATION TO DEACTIVATE THIS FEATURE OR TO MAKE ANY CHANGE TO THE WIRELESS DEVICE TO ALLOW CUSTOMER TO USE IT AS A HOME CUSTOMER OF ANOTHER CARRIER IN THE EVENT CUSTOMER DEACTIVATES SERVICE WITH C SPIRE. CUSTOMER HEREBY RELEASES C SPIRE AND AGREES TO INDEMNIFY AND HOLD C SPIRE AND C SPIRE'S SUPPLIERS HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, DAMAGES, COSTS, AND EXPENSES, INCLUDING ATTORNEYS' FEES, ARISING OR RESULTING FROM THE PRESENCE, USE OR ACTIVATION OF SUCH FEATURES ON CUSTOMER'S WIRELESS DEVICE.

 

GENERAL: Customer understands and agrees that Service is rendered to Customer and any user of Customer's Wireless Device under this Agreement and under the terms and conditions and in accordance with C Spire's or its affiliate's applicable state and federal tariffs relating to Services provided under this Agreement ("Tariff") current at the time Service is provided, and the terms of this Agreement are controlled by and subject to said Tariff and lawful changes in said Tariff. A copy of the Tariff is available for review upon written request and is incorporated herein by reference. This Agreement shall become effective on the date that C Spire accepts this Agreement and shall continue in effect until terminated as herein provided. C Spire may accept this Agreement by providing Service to Customer.

Customer agrees and acknowledges that C Spire may refuse to accept this Agreement if C Spire believes that Customer may be unable to perform in whole or in part, the obligations hereunder. Customer waives notice of acceptance. Except as otherwise expressly provided herein, this Agreement shall automatically renew from month to month absent notice to the contrary delivered by one party to the other party. In any event, Customer remains responsible for all outstanding charges for the period that Service was rendered.

Amendments to this Agreement must be in writing and signed by both parties, except that amendments may be tendered with thirty (30) days' notice to Customer (included with a bill or otherwise) and use by Customer of Service after such notice period shall be construed as and be acceptance of such amendment. C Spire may cancel a Service plan upon thirty (30) days' notice at any time.

 

CUSTOMER PROPRIETARY NETWORK INFORMATION ("CPNI"): Services purchased by Customer under this Agreement may be provided by C Spire or any of C Spire's affiliates. If Customer is purchasing multiple categories of Services under this Agreement or another agreement, i.e. wireless Service and VoIP Service, then Customer's CPNI (as defined in 47 U.S.C. § 222(h)(1)) will be shared between C Spire and its affiliates as necessary to provide all the categories of Services ordered by Customer as permitted by 47 C.F.R. § 64.2005(a)(1).

 

SERVICE CHARGES: Upon activation of postpaid Service with C Spire, Customer's first bill for Service will reflect a pro-rated Service fee for the current month plus the monthly Service fee for the following calendar month. Thereafter, Customer is billed each month for the next month's Service fee in advance. The prepaid monthly Service fee is not refundable. The pro-rated Service fee for the month in which Service was activated is calculated as follows: the monthly Service fee for the Customer's plan multiplied by a fraction the numerator of which is the number of calendar days from the date of Service activation until the end of the calendar month, and the denominator of which is the number of days in the particular month Service was activated.

Unless terminated by C Spire for Customer's default or another reason specified in this Agreement, C Spire will continue to provide Service to Customer through the end of the calendar month for which Customer has paid its monthly Service fee. Subject to Customer's obligation to pay any applicable Liquidated Damage Termination Charges, Customer may terminate Service at any time, but C Spire shall have no obligation to refund any unused portion of the prepaid monthly Service fee if Customer elects to terminate Service prior to the end of period for which Service has been paid for by Customer.

 

APPLICABLE LAW: Customer agrees that this Agreement shall be governed by the laws of the State of Mississippi without reference to its conflicts of laws provisions. To the extent permitted by law, the terms of this Agreement may vary applicable law. If any provision of applicable law may not be varied by agreement, any term of this Agreement that does not comply with that law shall not be effective. If any provision of this Agreement cannot be lawfully enforced, such provision shall be deemed severed from this Agreement and shall not affect the enforceability of the remainder of the Agreement.

ARBITRATION: THE PARTIES AGREE THAT ANY CONTROVERSIES, CLAIMS OR DISPUTES ARISING BETWEEN CUSTOMER AND C SPIRE, WHETHER IN TORT OR IN CONTRACT, INCLUDING BUT NOT LIMITED TO THOSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, OR THE SERVICES PROVIDED, WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THIS AGREEMENT, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICE OR ADVERTISING PROVIDED BY C SPIRE. SUCH ARBITRATION SHALL BE BEFORE A PANEL CONSISTING OF THREE ARBITRATORS AT A LOCATION IN THE GREATER JACKSON, MISSISSIPPI METROPOLITAN AREA. SUCH ARBITRATION SHALL BE BINDING UPON BOTH CUSTOMER AND C SPIRE AND SHALL BE CONDUCTED BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA") UNDER ITS RULES, INCLUDING THE SELECTION OF THE ARBITRATORS, WHICH SHALL BE ACCOMPLISHED IN ACCORDANCE WITH THE RULES OF THE AAA. THE AWARD RENDERED BY THE ARBITRATORS SHALL BE FINAL, AND JUDGMENT MAY BE ENTERED UPON IT IN ACCORDANCE WITH APPLICABLE LAW IN ANY COURT HAVING JURISDICTION THEREOF. THE PARTIES FURTHER AGREE THAT THE PREVAILING PARTY IN SUCH ARBITRATION SHALL BE ENTITLED TO RECOVER THE COSTS OF SUCH ARBITRATION FROM THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES. THIS AGREEMENT TO ARBITRATE SHALL BE SPECIFICALLY ENFORCEABLE UNDER APPLICABLE LAW IN ANY COURT HAVING JURISDICTION THEREOF. PROVIDED, HOWEVER, COLLECTION MATTERS OF $1,500 OR LESS IN ALLEGED VALUE (BEFORE COSTS, INTEREST AND ALLOWABLE ATTORNEYS' FEES, IF ANY) FOR SERVICE MAY BE FILED IN ANY COURT WITH JURISDICTION THEREOVER AND THERE TRIED BY ANY PARTY, UNLESS COUNTER-CLAIMS OR OTHER CLAIMS IN AN AMOUNT IN EXCESS OF $1,500 (SUBJECT TO THE SAME EXCLUSIONS) ARE ASSERTED BY ANY PARTY. IN THE LATTER CASE, THE ENTIRE MATTER AND ALL CLAIMS BEFORE THE COURT SHALL BECOME SUBJECT TO BINDING ARBITRATION HEREUNDER UPON WRITTEN REQUEST OF ANY PARTY FILED WITH THE COURT WITHIN THIRTY (30) CALENDAR DAYS OF ACTUAL NOTICE OF THE FILING OF SUCH COUNTER-CLAIMS OR OTHER CLAIMS.

 

DEFAULT: Customer shall be in default of this Agreement if any one or more of the following occurs: (a) Customer fails to make payments on time or in the amount due; (b) Customer dies, is declared incompetent, or becomes insolvent (either because Customer's liabilities exceed assets or because Customer is unable to pay Customer's debts as they become due); (c) Customer fails to keep any promise contained in this Agreement, credit application, or any other agreement with C Spire; (d) Customer makes any statement or provides any information that is untrue or inaccurate at the time it was made or provided; (e) Customer fails to provide any additional deposit C Spire may require; (f) any legal entity (such as a partnership or corporation) that has agreed to pay for the Service rendered merges, dissolves, reorganizes, terminates its business or existence, or a partner or majority stockholder dies or is declared incompetent; (g) any fact appears or event occurs that causes C Spire to consider itself insecure, or the prospect of payment, performance, or realization or performance of this Agreement is impaired; or (h) Customer exceeds Customer's credit limit.

 

REMEDIES & COLLECTION COSTS: If Customer is in default under this Agreement, C Spire has the following remedies: (a) C Spire may, without prior demand or notice, set-off any outstanding balances against any deposit or monies held by C Spire for Customer's account, or any right Customer has to receive money from C Spire, and Customer agrees to indemnify and hold C Spire harmless from and against any and all claims arising out of or related to C Spire's exercise of its right to set-off; (b) C Spire may require an additional deposit or require that other parties be obligated to pay for the Service rendered under this Agreement (or both) as a condition of waiving, for any period of time, any other remedy C Spire may have; (c) C Spire may suspend Service under this Agreement until such time as Customer cures Customer's default as defined above; (d) C Spire may use any remedy given to C Spire under this Agreement; and (e) C Spire may use any remedy available to it under applicable law. C Spire does not waive its right to later use any other remedy that C Spire may have under state or federal law by choosing any one or more of these remedies.

C Spire does not waive a default if it chooses not to use any remedy, and by electing not to use any remedy, C Spire does not waive its right to later consider the event a default and to immediately use any remedies if a default continues or occurs again. In the event C Spire attempts to collect an account in default, then C Spire may recover any reasonable attorneys' fees incurred and/or collection agencies' fees and all costs of collection incurred.

 

PAYMENT BY CHECK:  If Customer tenders a check or any equivalent thereof in payment of any obligation under this Agreement, which is returned due to insufficient funds in the account for payment upon presentation, and C Spire is charged a fee or service charge as a result of such return, Customer agrees that C Spire is authorized to add the actual amount of the fee or service charge (up to the maximum amount allowed by law) to the amount due under this Agreement. In event of a returned check or equivalent thereof, Customer also agrees to pay a $30.00 returned check charge. Customer agrees that C Spire is not responsible for any unauthorized payments on Customer's account with C Spire, whether by check or otherwise.

 

CREDIT INFORMATION: Customer agrees to provide to C Spire, upon request, any credit information C Spire may deem necessary. Customer warrants that all credit information Customer provides to C Spire is accurate, correct, and complete, and becomes a part of this Agreement. Customer authorizes C Spire to conduct an investigation into Customer's creditworthiness, including obtaining credit histories and making inquiries of other businesses, banks and lending institutions concerning Customer's creditworthiness from time to time as C Spire deems necessary or justified. Customer understands and agrees that from time to time C Spire may receive credit information concerning Customer from others and furnish credit and experience information regarding this Agreement to others seeking such information. Customer agrees that C Spire may terminate this Agreement in the event C Spire determines in its sole discretion that Customer's creditworthiness is not acceptable and that Customer cannot provide sufficient adequate assurance of payment to C Spire. Customer agrees that C Spire shall not be liable for any claim arising from the use of information provided to C Spire by others or for providing such information to others.

 

LIMITATION OF C SPIRE'S LIABILITY: Customer understands that alternative and competing telecommunications carriers are available to Customer; interruptions or irregularities in the Service may occur; any potential harm from interruptions or irregularities in the Service is speculative in nature; C Spire cannot offer the Service at rates which reflect its value to each Customer; and C Spire assumes no responsibility other than that contained in this Agreement. Accordingly, Customer agrees that, except as limited by law, C Spire's sole liability for loss or damage arising out of mistakes, omissions, interruptions, delays, errors, or defects in the Service, or transmission of Service provided by C Spire or any other carrier or provider of third party software or applications, or for losses or damages arising out of the failure of C Spire or any carrier or any provider of third party software or applications to maintain proper standards of maintenance and operation shall be as set out in the Tariff and this Agreement, and in the case of third party applications or software, such other terms and conditions as may be posted from time to time at www.cspire.com.

Without limiting the scope of the Tariff, it is noted that the Tariff provides, in part, and Customer agrees that the Service furnished by C Spire, in addition to the limitations set forth proceeding, is also subject to the following limitations: (a) the liability of C Spire for damages and/or losses arising out of mistakes, omissions, interruptions, delays, errors and defects in transmissions, or failures or defects in facilities furnished by C Spire occurring in the course of furnishing Service and not caused by the negligence of the Customer shall in no event exceed the proportionate charge to the Customer, for the period of Service during which such mistake, omission, interruption, delay, and error or defect in transmission, or failure or defect in facilities occurs or exists; and (b) no Customer shall have any right to, and C Spire shall not be liable for, consequential or incidental damages irrespective of whether C Spire has been notified of the possibility of such damages because of such mistakes, omissions, interruption, delay, error, failure, or defects in transmission.

 

DISCLAIMER OF WARRANTIES AND LIMITATION OF REMEDIES: Customer acknowledges and agrees that C Spire is not the manufacturer of the Wireless Device and C Spire, except as limited by law, hereby disclaims all representations and warranties, direct or indirect, express or implied, written or oral, in connection with the Wireless Device and Service (whether purchased or leased by Customer from C Spire or another party), including but not limited to any and all express and implied warranties of suitability, durability, merchantability, and fitness for a particular purpose. C Spire, to the extent permitted by law, assigns to Customer any and all manufacturers' warranties relating to the Wireless Device furnished to the Customer, and Customer acknowledges receipt of any and all such manufacturers' warranties. Customer acknowledges and agrees that its sole and exclusive remedy in connection with any defects in the Wireless Device, including manufacture or design, shall be against the manufacturer of the Wireless Device under the manufacturers' warranties and that C Spire shall have no liability to Customer in any event for any loss, damage, injury, or expense of any kind or nature related directly or indirectly to the Wireless Device or Service provided hereunder. Without limiting the above, C Spire shall have no liability or obligation to Customer, in either contract or tort, for special, incidental, or consequential damages of any kind incurred by Customer, such as, but not limited to, claims for damages for personal injury, wrongful death, loss of use, loss of anticipated profits, or other incidental or consequential damages or economic losses of any kind incurred by Customer directly or indirectly resulting from or related to any Wireless Device or Service, irrespective of whether C Spire has been notified of the possibility of such damages, whether or not caused by C Spire's negligence, to the full extent same may be disclaimed by law. Some states do not allow the exclusion or limitation of incidental or consequential damages so the above exclusion may not apply. C Spire may also have other legal rights which vary from state to state.

 

RELEASE: Customer agrees to and hereby does release C Spire, its shareholders, and each of their officers, directors, agents, and employees ("C Spire's Releasees"), to the full extent permitted by law from and against any and all claims, damages, liabilities and expenses, including legal and attorneys' fees, of any nature arising directly or indirectly out of this Agreement, including, without limitation, claims for personal injury or wrongful death to Customer or users of the Wireless Device or Service or used in conjunction with such Wireless Device or Service and arising out of the manufacture, purchase, operation, condition, maintenance, installation, return or use of the Wireless Device or Service, or arising by operation of law, including without limitation, claims based upon strict products liability doctrine, to the extent such claims are not based on the grossly negligent acts or omissions of C Spire, its agents or employees. This release shall apply to the extent stated above even where C Spire is found to have been substantially at fault or to have actively engaged in conduct which substantially contributed to the injury suffered by Customer, and C Spire's assertion of this release as a whole or partial defense to any claim by Customer shall not be barred by fault or active negligence on the part of C Spire.

 

INTELLECTUAL PROPERTY: Customer agrees not to infringe, misappropriate or injure the intellectual property rights of C Spire or any third party. Except for a limited license to use the Service or Wireless Device, Customer's purchase of a Wireless Device or Service does not grant Customer any license to copy, modify, reverse engineer, download, redistribute, or resell the intellectual property of C Spire or any third party related to the Wireless Device or Service. Customer agrees that a violation of this section harms C Spire, which cannot be fully redressed by money damages, and that C Spire shall be entitled to immediate injunctive relief in addition to all other remedies available.

 

PRIVACY: C Spire is not liable for any lack of privacy Customer experiences using the Service. Customer hereby consents to the monitoring and/or recording of calls from Customer to C Spire and the use of automatic equipment to contact Customer regarding Customer's account. Customer hereby consents to C Spire's disclosure of information about Customer's account to: (a) any person claiming to be the Customer who is able to provide the following correct Customer information: Customer's name, address, social security number and the assigned number for Service, and such person may make changes to the account; and (b) any person(s) or entity as required by any request made pursuant to a subpoena or court order appearing proper on its face.

 

LOCATION BASED SERVICES: C Spire generally knows the location of Customer's Wireless Device when it is outdoors and turned on. By using various technologies to locate Customer's Wireless Device, C Spire may provide enhanced emergency 911 services where local government entities have installed the equipment necessary to provide such services, and optional location-sensitive services provided by us or a third party. Environmental factors (such as structures, buildings, weather, geography, landscape, and topography) can significantly impact the ability to access Customer's location information and use of location-sensitive services. The terms and conditions of any location-sensitive service that Customer purchases from C Spire may provide more information about how location information is used and disclosed. Use of some location-sensitive services may require network coverage. If any Wireless Device on Customer's account uses a location-sensitive service, Customer (the account holder) authorizes the end user to download, access and use location-sensitive services and agrees to clearly and regularly notify the end user of Customer's Wireless Device that his or her location may be tracked or discovered. C Spire may also use location information to create aggregate data from which Customer's personally identifiable information has been removed or obscured. Such aggregate data may be used for services like traffic-monitoring.

 

411 INFORMATION: In some cases, C Spire's directory assistance service (411) will use the location of a Wireless Device to deliver relevant customized 411 information based upon Customer's request for a listing or other 411 service. By using this directory assistance service, Customer is consenting to C Spire's use of Customer's location information for such purpose. This location information may be disclosed to a third party to perform the directory assistance service and for no other purpose. Such location information will be retained only as long as is necessary to provide the relevant customized 411 information and will be discarded after such use.

 

911 OR OTHER EMERGENCY CALLS: When making 911 or other emergency calls, Customer should be prepared to provide location information. 911 operators may not know Customer's phone number or have information about Customer's location. In certain circumstances, an emergency call may be routed to a state patrol dispatcher or alternative location set by local emergency service providers. Enhanced 911 service, where enabled by local emergency authorities, uses GPS technology to provide location information. If Customer is porting a phone number to or from C Spire, C Spire may not be able to provide Customer with some Services, such as 911 location services, while the port is being implemented. If Customer's device is indoors or for some other reason cannot acquire satellite signal, Customer may not be located. C Spire is not responsible for failures to connect or complete 911 calls or if inaccurate location information is provided.

 

PROMOTIONAL OFFER CONTRACT: C Spire, in its sole discretion, may from time to time make Wireless Devices or Services available for purchase at a special price or free of charge, subject to Customer's agreement to the terms of a Promotional Offer Contract ("POC"). Customer acknowledges and agrees that if Customer has deactivated Service within the last thirty (30) days, Customer is ineligible for a POC. If Customer is eligible for a POC and activates any Wireless Device or Service which is subject to a POC (referred to below as a "Promotional Wireless Device or Service") or executes any POC (including but not limited to by electronic signature or by use of an electronic signature pad) then in addition to the terms and conditions above, Customer acknowledges and agrees as follows:

(a) Customer has purchased the Promotional Wireless Device or Service at a special price or has received it free of charge, as applicable;

(b) Customer shall activate Service for the Promotional Wireless Device or Service (if not already activated);

(c) Customer shall not deactivate Service for the Promotional Wireless Device or Service for a period of not less than twenty-four (24) months. If Customer does not need to activate new Service to use the Promotional Wireless Device or Service, but instead uses the Promotional Wireless Device or Service in addition to or with Customer's existing Service (i.e., as an upgrade or replacement) then Customer agrees that any prior Service Agreement for such existing Service is hereby amended and replaced in its entirety by this Agreement and the POC;

(d) If Customer is activating new Service for the Promotional Wireless Device or Service and Customer has existing C Spire Service for other Wireless Devices, Customer shall not deactivate any existing Service for other Wireless Device(s) before the expiration of the remainder of the term of the existing Service Agreement applicable to such Wireless Device(s) (including any applicable prior POC) or for a minimum of three (3) consecutive months from the effective date of this Agreement, whichever is longer; and

(e) Failure to maintain Service with C Spire for the period or periods set forth above shall result in a Liquidated Damage Termination Charge ("LDTC") to Customer in addition to any other contract damage caused by such termination. The LDTC shall be prorated based on the period of time you continue to use and pay for the Service. The LDTC shall be one or more of the following, as applicable: (i) One Hundred and Eighty Dollars ($180) for the Promotional Wireless Device (other than smartphones, netbooks, data cards, or laptop computers) or Service, and/or (ii) Three Hundred and Sixty Dollars ($360) for Promotional Wireless Devices that are smartphones, netbooks, data cards, or laptop computers, as applicable.

 

THIRD PARTY APPLICATIONS: In addition to this Agreement, third party applications and software available in connection with the Service and/or a Wireless Device may be subject to other terms and conditions, which are posted from time to time on C Spire's Web site at www.cspire.com. Customer's use of BREW and BREW Applications, including but not limited to MobiTV, is subject to the BREW End User License Agreement, which is contained in Appendix A to this Agreement and is incorporated herein. Unless expressly granted herein, neither C Spire nor any provider of any third party application grants any license in any software technology or other intellectual property to Customer.

 

INFORMATION/CONTENT: Certain information or content may be provided through the Service by independently owned and operated content providers or service providers who are subject to change at any time without notice. C Spire is not a publisher of third-party content and will not be responsible for any information or services provided by such third parties. These third parties may impose additional charges (on top of regular Service charges levied by C Spire) for certain content. As the user of such services Customer is bound by the third parties' policies when Customer visits their respective sites or uses their services. It is Customer's responsibility to read the rules or service agreements of each content or service provider as well as to understand any and all billing practices which are stated by the content or service provider. Any information Customer involuntarily or voluntarily provides third parties is governed by their policies. The accuracy, appropriateness, content, completeness, timeliness, usefulness, security, safety, merchantability, fitness for a particular purpose, transmission or correct sequencing of any information or downloaded data is not guaranteed or warranted by C Spire or any content providers or other third party. Delays or omissions may occur. Neither C Spire nor its content providers, service providers or other third parties shall be liable to Customer for any loss or injury arising out of or caused, in whole or in part, by any information acquired through the Service.

 

CONTENT BLOCKING/FILTERING APPLICATIONS: Certain third party applications and/or features may be made available to you which allows you to block and/or filter certain types of content from being sent to your Wireless Device. Your use of such application is pursuant to the terms and conditions of this Agreement and any applicable license and/or agreement of the third party application provider. C Spire makes no warranty or representation regarding the operation of the application and/or feature or its ability to successfully filter the types of content you have chosen for filtering. You assume the risks of using such application and/or feature and agree to hold C Spire harmless from any alleged damage caused by your use of such application and/or feature. Neither C Spire nor the third party application/feature provider shall be liable to Customer for any loss or injury arising out of or caused, in whole or in part, by your use of the content blocking/filtering application/feature.

 

CAMERA/PICTURE MESSAGING: Camera/Picture messaging devices are prohibited in some places. Customer is solely responsible for complying with all applicable laws, rules, regulations and policies regarding Camera/Picture Messaging and BREW-enabled Wireless Device use. Whenever Customer uses Picture Messaging, or downloads, installs and/or uses any of the BREW Applications, Customer agrees not to: (a) violate any applicable law, rule or regulation; (b) harass, offend, threaten, embarrass, distress or invade the privacy of any individual or entity; (c) provide false information or impersonate another person; and/or (d) take any action that infringes upon any third party's copyright, trademark, patent or other intellectual property right(s). C Spire may, without prior notice, take any action it deems necessary, including, without limitation, removing or deleting Applications or Pictures and restricting or limiting use of the Service, for proper administration of Service. C Spire is under no obligation to monitor use of Picture Messaging or BREW Applications, but it may do so to: (y) comply with applicable laws, rules and regulations or orders of courts or governmental agencies with proper jurisdiction; and/or (z) operate the Service properly or protect Customer or other customers. In the event Customer provides C Spire, or its affiliates, contractors or agents, with feedback, data, answers, questions, comments, suggestions, plans, ideas or other information, such information shall be deemed to be non-confidential and C Spire shall be free to reproduce, disclose, distribute or use such information without restriction.

 

EXPORT REGULATION: Customer acknowledges that software, information and technology downloaded (collectively, "technology") may be subject to certain United States export regulations and import regulations in other countries and that Customer is responsible for complying with such relevant regulations. Customer agrees to comply with all export or import regulations and laws both foreign and domestic, including but not limited to, the Export Administration Act (50 U.S.C. Appx. §§ 2401 et seq.) and the Export Administration Regulations ("EAR, " 50 C.F.R. Parts 730-774). Customer further specifically agrees, unless expressly authorized by law, not to export or re-export the technology to any country, person, entity or end user subject to United States export controls or under United States embargo. Customer further represents that no United States federal agency has suspended, revoked or denied its export privileges.

 

INDEMNIFICATION: Customer agrees to indemnify and save C Spire harmless from liability for libel, slander, or infringement of copyright resulting from Customer's transmissions over C Spire's facilities; from claims for infringement of patents arising from use of Customer-owned Wireless Device, apparatus and systems in combination with facilities of C Spire; and from all other claims arising out of any act or omission of Customer in connection with the use of facilities provided by C Spire.

 

SERVICE AVAILABILITY AND ACCESS/COVERAGE: C Spire does not guarantee network availability. EVDO and 1X data coverage areas may vary from voice coverage areas. EVDO network only available in select markets. Coverage map(s) are available at a C Spire store or online at www.cspire.com. EVDO download and upload speeds are only available on the C Spire EVDO network. Actual download and upload speeds can depend on Wireless Device characteristics, network, network availability and coverage levels, tasks, file characteristics, applications and other factors. Performance may also be impacted by transmission limitations, terrain, in-building/in-vehicle use and capacity constraints.

 

PROHIBITED AND PERMISSIBLE USES: Data Service sessions may be conducted only for the following purposes: (a) Internet browsing; (b) e-mail; and (c) corporate intranet access (including access to corporate e-mail, customer relationship management, sales force automation, and field service automation applications). UNLESS OTHERWISE STATED OR AGREED UPON, PROHIBITED USES INCLUDE, BUT ARE NOT LIMITED TO, USING SERVICES: (1) WITH SERVER DEVICES OR WITH HOST COMPUTER APPLICATIONS, INCLUDING, WITHOUT LIMITATION, WEB CAMERA POSTS OR BROADCASTS, CONTINUOUS JPEG FILE TRANSFERS, AUTOMATIC DATA FEEDS, TELEMETRY APPLICATIONS, AUTOMATED FUNCTIONS OR ANY OTHER MACHINE-TO-MACHINE APPLICATIONS; (2) AS SUBSTITUTE OR BACKUP FOR PRIVATE LINES OR DEDICATED DATA CONNECTIONS; (3) FOR VOICE OVER IP (VoIP); (4) IN CONJUNCTION WITH WWAN OR OTHER APPLICATIONS OR DEVICES WHICH AGGREGATE USAGE FROM MULTIPLE SOURCES PRIOR TO TRANSMISSION; (5) USING THE SERVICES FOR ANY ACTIVITY THAT ADVERSELY AFFECTS THE ABILITY OF OTHER PEOPLE OR SYSTEMS TO USE EITHER THE SERVICES OR OTHER PARTIES' INTERNET BASED RESOURCES INCLUDING, BUT NOT LIMITED TO EXCESSIVE CONSUMPTION OF NETWORK OR SYSTEM RESOURCES (WHETHER INTENTIONAL OR UNINTENTIONAL) AND "DENIAL OF SERVICE" (DOS) ATTACKS AGAINST ANOTHER NETWORK HOST OR INDIVIDUAL USER; OR (6) INTERFERENCE WITH OR DISRUPTION (OR POSSIBILITY OF DISRUPTION) OF OTHER NETWORK USERS, NETWORK SERVICES OR NETWORK EQUIPMENT. EXCEPT FOR CONTENT FORMATTED IN ACCORDANCE WITH C SPIRE'S CONTENT STANDARDS, UNLIMITED PLANS CANNOT BE USED FOR UPLOADING, DOWNLOADING OR STREAMING OF VIDEO CONTENT (E.G. MOVIES, TV), MUSIC OR GAMES (ONLINE OR OTHERWISE.), UNLIMITED PLANS AND FEATURES (UNLESS NOTED AS SPECIFICALLY FOR USE WITH A LAPTOP OR OTHER COMPUTING DEVICE NOT SUPPLIED BY C SPIRE) CANNOT BE USED FOR ANY APPLICATIONS THAT TETHER THE DEVICE (THROUGH USE OF, INCLUDING WITHOUT LIMITATION, CONNECTION KITS, OTHER PHONE/PDA-TO-COMPUTER ACCESSORIES, BLUETOOTH® OR ANY OTHER WIRELESS TECHNOLOGY) TO LAPTOPS, PCS, OR OTHER EQUIPMENT FOR ANY PURPOSE. Certain C Spire Service plans may allow Customer to tether the Wireless Device to Laptops, PCs, or other equipment. Service is not intended to provide full-time connections and the Service may be discontinued after a significant period of inactivity or after sessions of excessive usage. C Spire reserves the right to (i) limit throughput or amount of data transferred, deny Service and/or terminate Service, without notice, to anyone it believes is using the Service in any manner prohibited above or whose usage adversely impacts its network or service levels, and (ii) protect its network from harm, which may impact legitimate data flows. Customer may not send solicitations to C Spire subscribers without their consent. Customer may not use the Services other than as intended by C Spire and applicable law. Plans are for individual, noncommercial use only and are not for resale.

 

SECURITY: C Spire does not guarantee data security. Data encryption may be available with some, but not all, Service furnished by C Spire. C Spire assumes no responsibility for confidentiality of e-mail or other confidential or proprietary information accessed through the Service and/or with Wireless Device. It is solely Customer's responsibility to ensure use of the Service and Wireless Device complies with applicable IT or security procedures established by Customer or Customer's employer.

 

SUSPENSION/TERMINATION OF SERVICE: C Spire may, without notice, suspend or terminate Service at any time for any reason including, but not limited to: (a) failure to maintain an appropriate account balance for applicable charges; (b) harassing or threatening C Spire employees or agents; (c) providing false information; (d) interfering with C Spire operations; (e) using Services in violation of this Agreement or applicable law; (f) breach of this Agreement; (g) modifying Wireless Devices; or (h) as necessary to protect C Spire's network or customers.

 

ASSIGNMENT: This Agreement and any contractual rights or remedies available to C Spire hereunder shall be freely assignable, in whole or in part, by C Spire. Customer shall not assign this Agreement or its rights hereunder without the prior written consent of C Spire. Any such transfer without the consent of C Spire is void.

 

PERCS UPGRADES FEATURE: C Spire in its sole discretion, may offer Customers the ability to add the PERCS Upgrades feature to their account. PERCS Upgrades provides eligible Customers the ability to upgrade their Wireless Device with no device replacement fee after making twelve (12) consecutive monthly installment payments of Twenty Dollars ($20) per month.

To be eligible to participate in PERCS Upgrades, you must: (a) have a C Spire Customer Service Agreement with postpaid voice and data service that is in good standing; (b) be a member of C Spire's PERCS Rewards Program; and (c) must activate PERCS Upgrades within thirty (30) days of your purchase of a Wireless Device from C Spire. An account is deemed to be in good standing if it is current in the balance owed and is otherwise not in any violation of any other terms, conditions, policies or agreements you may have with C Spire, as determined by C Spire in its sole discretion. PERCS Upgrades is not currently available for prepaid Customers, or for the purchase of tablets. Some Wireless Devices may not be eligible for purchase under PERCS Upgrades.

You agree that by enrolling in PERCS Upgrades, you will pay Twenty Dollars ($20) per month for twelve (12) consecutive months. After you have completed twelve (12) consecutive months of payments, you will be eligible to purchase a new Wireless Device at a discounted price, subject to your PERCS Rewards Status. See cspire.com/percsterms for more details. Sales tax applies to the purchase of all Wireless Devices at the time of sale.

You acknowledge the PERCS Upgrades feature does not modify your obligations under the POC or this Agreement. If you disconnect Service, voluntarily withdraw from PERCS Upgrades, are removed from the program due to suspended or terminated Service, or by failing to remain in good standing, all fees due under your POC, including LDTCs, remain applicable, and all installments paid for the PERCS Upgrades feature are non-refundable.

If you choose to upgrade before completing twelve (12) consecutive monthly payment installments, all received PERCS Upgrades installment payments may be applied to your upgrade, however, you will not receive a discounted price on a new Wireless Device. You may not accelerate payments to receive a discounted upgrade under the PERCS Upgrade feature prior to twelve (12) months from your enrollment.

You acknowledge that: (i) PERCS Upgrades feature is not a lease; (ii) you own your Wireless Device under this Agreement; and (iii) you are responsible for any loss, theft or damage to your Wireless Device. Insurance and other programs are available for purchase from C Spire.

 

ADDITIONAL TERMS FOR PREPAID CUSTOMERS:

MONTHLY SERVICE PLANS: To use C Spire's prepaid Service you must prepay for a monthly Service plan and have sufficient funds in your account to cover the charges for any additional Services you use (i.e. roaming, directory assistance, download fees, etc.). Monthly Service plans provide you with thirty (30) days of Service from the date of Service activation. You agree to pay for the Service by deductions from your prepaid account. If you fail to pay the monthly prepaid Service plan fee or at any time the balance in your account reaches zero, your account will be deactivated and you will not receive further Service until you pay the monthly prepaid Service plan fee and any other charges for additional Services.

If you do not pay for the monthly Service plan or your account maintains a zero or negative balance for a period of sixty (60) consecutive days, your prepaid account may be closed. If your prepaid account is closed, you may reinstate your prepaid Service by activating a new account. You will be assigned a new number at this time and a reactivation fee may apply.

If you authorized payment for Services or Wireless Devices by credit card or by debiting a bank account, no additional notice or consent is required before C Spire invoices the credit card or debits the bank account for all amounts due C Spire. You are responsible for paying all charges applicable to your prepaid account and the Service.

All charges for prepaid Service are final and non-refundable. C Spire is not responsible for, nor will C Spire refund lost, stolen, misused, or damaged personal identification numbers ("PINs"), regardless of distribution method.

C Spire assigns telephone numbers, PINs, and other personal identifiers in connection with the prepaid Service. You have no proprietary right to any such identifiers and C Spire reserves the right to change them upon notice to you.

If you purchase a Wireless Device that is sold for use on the C Spire network, you agree that you intend it to be activated on C Spire's Service and do not intend to, and will not, resell, modify, and/or export the Wireless Device or assist someone in such activities.

The charges for the Service and the expiration period for your prepaid account balance may vary, see www.cspire.com for more information. You must use your prepaid account balance before the expiration date. Prepaid Service and/or charges for prepaid Service are not refundable, and no refunds or other compensation will be given for unused prepaid balances, lost or stolen prepaid cards, or coupons.

Information on how you can establish and maintain a prepaid account balance are provided at the time of activation of your account and are also available at www.cspire.com. There are multiple methods to replenish your prepaid account. Fees may apply to some replenishment methods. Replenishment through automatic billing to a credit or debit card or a checking account may be subject to certain limitations.

If you register for Auto Refill you are agreeing to have the Auto Refill amount you have selected deducted from your credit card or debit card once per month on the date you specified. The minimum Auto Refill amount must be equal to or greater than the monthly charge for the selected rate plan. If your credit or debit card company declines the Auto Refill amount, then your Service may be suspended.

Your monthly prepaid Service fee includes applicable federal, state, and local taxes and other assessments that C Spire is required by law to collect and remit to the applicable government authority.

Coverage specific to C Spire's prepaid Service as well as prepaid Service plan details may be found at cspire.com, which terms are incorporated by reference herein. Network coverage for prepaid Service may differ from network coverage for postpaid Service.

 

MISCELLANEOUS: Not all plans or Services are available for purchase or use in all sales channels, in all areas or with all Wireless Devices. If Customer's usage of the wireless Services (including voice and data and regardless of Service plan) on other carrier's networks (roaming or off-network usage) exceeds Customer's off-network usage allowance, C Spire may at its option terminate Customer's Service or access Service, deny Customer's continued use of other carriers' coverage, change Customer's plan to one imposing usage charges for roaming usage, or change Customer's plan as necessary in the discretion of C Spire. Customer's roaming usage allowance is equal to that specified by Customer's plan and/or documentation. C Spire will provide notice that it intends to take any of the above actions and Customer may terminate Customer's agreement. C Spire is not responsible for loss or disclosure of any sensitive information Customer transmits. The wireless Service is not equivalent to landline Internet.

This Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Any provision of this Agreement that is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Time is of the essence with respect to this Agreement. Customer shall promptly execute and deliver to C Spire such further documents and take such further action as C Spire may request in order to give effect to the intent and purpose of this Agreement. All indemnifications, releases, limitations of liability, disclaimers of warranties, limitations of remedies, the agreement to arbitrate, the restrictions upon use of the Services, Wireless Devices, and the rights of C Spire to take action necessary to remain in compliance with any applicable Tariff or license, including its right to retake possession of or disable the Wireless Device, all as more particularly set for herein, shall survive the termination of this Agreement and discontinuation of the Service.

Rev 10-2-2013. 00644957-15

© C Spire a service of Cellular South, Inc., October 2013.

 

APPENDIX A TO SERVICE AGREEMENT

BREW END USER LICENSE AGREEMENT

FOR PURPOSES OF THIS AGREEMENT CUSTOMER IS THE “END USER” AND IS REFERRED TO AS "YOU" IN THIS APPENDIX.

BY INSTALLING OR USING THIS BREW APPLICATION ("APPLICATION") YOU AGREE TO ALL OF THE TERMS SET FORTH BELOW. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE APPLICATION.

Limited License. The developer of the Application ("Developer") hereby grants to Customer a non-exclusive limited license to install the object code version of the Application on one wireless communication device and to use the Application on such device. All rights not expressly granted are reserved by the Developer. The term Application includes any software that is provided to you at the same time the Application is provided to you, or that is used in connection with the Application.

Restrictions. You agree not to reproduce, modify or distribute the Application or other software included in your wireless device ("Other Software"). Subject to applicable law, you agree not to decompile or reverse engineer the Application or the Other Software. You agree not to (i) remove any copyright or other proprietary notice from the Application or the Other Software, or (ii) sublicense or transfer the Application or the Other Software to a third party.

Ownership. You agree that the Developer and its licensors retain all right, title and interest in and to the Application and all copies of the Application, including all copyrights therein. You agree to erase an Application from your wireless device upon receipt of notice.

Termination. This Agreement shall terminate immediately, without notice, if you fail to comply with any material term of this Agreement. Upon termination you agree to immediately erase the Application from your wireless device.

Disclaimer of Warranty. THE APPLICATION IS LICENSED TO YOU "AS IS." DEVELOPER AND ITS LICENSORS DISCLAIM ANY AND ALL WARRANTIES REGARDING THE APPLICATION, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DEVELOPER DOES NOT WARRANT THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY OR MAY BE LIMITED.

Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE DEVELOPER OR ITS LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE USE OF THE APPLICATION (INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS), EVEN IF THE DEVELOPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE DEVELOPER'S LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY, EXCEED THE FEE PAID BY YOU. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY OR MAY BE LIMITED.

Export. The Application is subject to the export control laws and regulations of the United States and other jurisdictions. You agree to comply with all such laws and regulations.

U.S. Government End Users. This section only applies to the U.S. Government or if you are or are acting on behalf of an agency or instrumentality of the U.S. Government. The Application is "commercial computer software" developed exclusively at private expense. Pursuant to FAR 12.2 12 or DFARS 227 7202 and their successors, as applicable, use, reproduction and disclosure of the Application is governed by the terms of this Agreement.

Miscellaneous. This Agreement is governed by the laws of the State of California, USA. without regard to California's conflict of law principles. The United Nations Convention on Contracts for the Sale of International Goods does not apply to this Agreement. If any provision hereof is held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of all other provisions of this Agreement shall not be affected thereby. This Agreement constitutes the entire agreement between you and the Developer regarding its subject matter and supersedes any prior agreement, whether written or oral, relating to the subject matter of this Agreement. No modification or alteration of this Agreement will be valid except in writing signed by you and the Developer.

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