Description of service
DATAPRO2GO provides a wireless Internet failover Solution for its “Wireless Internet Service” that is used in conjunction with Customer’s existing failover systems and/or Primary Network Connections (collectively “Eligible Services”) to better ensure Service availability and/or redundancy for the Customer in the event of Primary Outages at locations where Customer uses DATAPRO2GO Wireless Internet Services. The Service provides Customer with a 4G-LTE wireless link utilizing cellular network service furnished by one or more participating wireless carriers (“Participating Carriers”) via a wireless modem the Customer either purchases or rents and installs and configures for either automatic failover or manual plug-in, based on the elements and configuration of its particular network and routers. Where the customer's network routers do not support failover functionality, the Customer must manually plug in the DATAPRO2GO modem into their WAN port on the router for each Customer location. DATAPRO2GO pre-configures the modem for each Customer location based on the foregoing.
DATAPRO2GO Control of Resources
DATAPRO2GO holds the sole exclusive right to manage all resources used in the provision of this failover Service to the Customer including the right to change underlying wireless carriers; substitute modems, access devices or access equipment; and/or to change modem configurations or procedures provided that such changes do not materially interfere with the provision of Wireless Internet Service used by DATAPRO2GO hereunder. The quality of Service provided by DATAPRO2GO to the Customer in the provision of this Service shall be comparable with regional Underlying Data Carriers of wireless data Services. The quality and terms of services of DATAPRO2GO are subject to agreements it holds with underlying data carriers (inclusive of their wireless roaming agreements and service footprint limitations in select or remote areas), and as such the DATAPRO2GO any Service purchased by Customer herein, inclusive of quality of Service or coverage areas, shall not exceed those of the applicable Underlying Data Carriers with whom DATAPRO2GO. The DATAPRO2GO modem or access device is exclusively intended for use with DATAPRO2GO Wireless Internet Services and no other service provider or failover service.
Subject to the foregoing, the Customer by virtue of purchase; installation; and/or use of the DATAPRO2GO failover solution agrees to the following terms and conditions of service and of modems and units purchased from DATAPRO2GO:
Definition of Terms. For purposes of these terms and conditions, all technical terms shall have and find their meaning in Newton’s Telecom Dictionary 28nd Edition or higher, author Harry Newton, Published by CMP Books (2014) in the event of any ambiguity.
Service and Intended Customer Use. DATAPRO2GO Wireless Internet Services are intended for use by Customer as a failover solution for Eligible Services of DATAPRO2GO only. Customer acknowledges that wireless Internet modems are portable, and must always be active in order to carry traffic. Customer will be responsible for all charges associated with modem usage by its employees and/or End Users.
- Pricing and Charges. Customer acknowledges that all applicable pricing, charges, costs, regulatory fees, and taxes shall be detailed in their Service Order Agreement and that DATAPRO2GO may amend such pricing, charges, costs, regulatory fees, and taxes from time-to-time as it deems necessary or as required by law.
- No Service Level Agreements (SLA’s). DATAPRO2GO Wireless Internet Service is provided to Customer strictly on an “AS IS” basis and there are no implied or expressed representations as to customized, specialized, dedicated or private-line carriage of service by DATAPRO2GO and underlying Data Carriers in transporting Service, or any uplink or downlink of Service.
- No Class of Service (Cos). Class of Service is not available for traffic carried over DATAPRO2GO Wireless Internet Services.
Term. DATAPRO2GO Wireless Internet Services ordered will have a term dictated by the Service Order Agreement and shall toll from the Start of Service Date therein for the number of years or months agreed to by DATAPRO2GO. The Service Order Agreement will have one of two options:
- Up-Front Hardware purchase of the Modems and Devices. Under this plan, Customer purchases fail-over Devices up-front, and DATAPRO2GO Wireless Internet Service is provided on a reoccurring month-to-month basis with payment due and payable to DATAPRO2GO at the beginning of each and every month of Service - Service may be cancelled under this Plan upon thirty (30) days prior notice to DATAPRO2GO; OR
- A Service and Hardware Included Agreement. Under this plan, Customer purchases fail-over Devices bundled with DATAPRO2GO Wireless Internet Service over a thirty-six (36) month term that tolls from the Start of Service Date of the Service Order Agreement. Under this plan, Service will automatically renew at the end of the thirty-six (36) month term unless Customer notices DATAPRO2GO in writing not less than thirty (30) days prior to the expiration of the original, or renewal, Term that it intends not to renew the Service, otherwise the Service will automatically renew for the same service Term and at the same pricing, terms, and conditions as set forth herein. Customer need not return DATAPRO2GO fail-over Devices at the end of any contractual Term under this plan as the original cost and value of the Devices shall have been embodied in the monthly recurring charges that were previously paid by the Customer over the completed Term. However, in the event of Customer’s Termination and/or Early Cancellation of Service by the Customer under this Plan, DATAPRO2GO shall incorporate the original value of the Devices within the balance of monthly recurring charges for the remaining Service Term that will be due and payable to DATAPRO2GO as liquidated damages as a result of such Termination, pursuant to Section 4 of this Agreement
Termination, Early Cancellation and Cancellation Charges. Upon the expiration or termination of Service, Customer must, within ten (10) days of such expiration or termination, return, at Customer's expense, any equipment owned by DATAPRO2GO or its underlying service provider(s) in the same condition as when initially installed or delivered (less reasonable wear and tear), as well as any software and other materials provided by DATAPRO2GO. If Service is cancelled after the Service has been ordered but prior to the Start of Service Date, Customer will pay two (2) month's monthly recurring charges, plus any applicable service ordering and installation charges. If Service is canceled or terminated after it has been activated but prior to the expiration of the current Service Term, including termination by DATAPRO2GO for cause, Customer will pay all charges and when applicable Device costs, which Customer herein agrees are reasonable, associated with the service ordering and installation, as well as one hundred percent (100%) of the monthly recurring charges for the remaining Service Term. It is agreed that DATAPRO2GO's damages in the event Customer cancels or terminates before the end of its Services Term will be difficult, or impossible, to ascertain and that the value of the charges on Customer’s remaining Service Term are reasonable liquidated damages for DATAPRO2GO’s loss, and that, such liquidated damages are not intended as a penalty.
Hardware Returns. All returned hardware will incur a 20% restocking fee based on the MSRP value of the hardware. Returns after the 14 day period will not be accepted.
Security between Customer Network and Service.
- Personal Data Protection. During the Term of the Service Order Agreement, and in connection with the processing and management of personal data received hereunder, each party (Customer and DATAPRO2GO) shall comply with all applicable laws, rules, regulations, regulatory requirements and codes of practice related to such handling and management of personal data (“Data Protection Laws”) and (ii) implement commercially reasonable technical and organizational security procedures and measures to preserve the security and confidentiality of the personal data received under this Agreement. Neither party shall do any act that puts the other party in breach of its obligations under the Data Protection Laws. Each party agrees to obtain all necessary consents under the Data Protection Laws and will not pass personal data to third parties without prior notification to the data subject
- Unauthorized Access or Interception of Wireless Data. Customer acknowledges and agrees that neither DATAPRO2GO nor its underlying providers will have responsibility for the selection and use of any codes or passwords as may be permitted or required for the use of the DATAPRO2GO Wireless Internet Services by Customer and/or End Users. Customer further agrees that neither DATAPRO2GO nor the underlying provider nor any Participating Carrier can guarantee the privacy or security of any transmission and Customer acknowledges that DATAPRO2GO Wireless Internet Services are capable of being intercepted by third parties without the knowledge or permission of DATAPRO2GO, the underlying provider, Customer or any End User. Accordingly, DATAPRO2GO, underlying providers, and/or Participating Carriers shall not be liable to Customer or any third party (including without limitation any End User) for interception or use of any DATAPRO2GO Wireless Internet Service by unauthorized third parties.
- Network Security and Data Loss. The Customer shall be solely liable for the ongoing protection and security of the Customer’s internal network and servers used in connection with the DATAPRO2GO Wireless Internet Service and failover Solution. Under no circumstances shall DATAPRO2GO assume responsibility for the loss of information on the Customer’s internal servers or network. The Customer is solely liable for its own secure backup of all data on its internal server and is responsible for rebuilding their environment in the event of loss of this information caused by failure of that server, or by any act, by any party, whether accidental or intentional.
Abuse or Fraudulent Use. General. Customer shall not assist or participate in any fraudulent use or abuse of any DATAPRO2GO Wireless Internet Service. Customer agrees to promptly report to DATAPRO2GO any abuse or fraudulent use of which Customer becomes aware, and agrees to fully cooperate in any investigation or prosecution initiated by DATAPRO2GO or a Participating or Underlying Carrier. Customer acknowledges that DATAPRO2GO Service to a wireless modem may be restricted or cancelled if there is a reasonable suspicion of abuse or fraudulent use. Customer further acknowledges that a Participating Carrier may temporarily block automatic roaming due to fraudulent usage. Customer shall have sole liability for charges, costs or damages resulting from any abuse or fraud by Customer, Customer’s employees, Customer’s agents or End Users. Abuse and fraudulent use of the DATAPRO2GO Wireless Internet Services include, but are not limited to: (i) attempting or assisting an unauthorized person to access, alter, or interfere with the communications of and/or information about another wireless customer; (ii) tampering with or making an unauthorized connection to the DATAPRO2GO or underlying provider network, or the network of a Participating Carrier; (iii) using the DATAPRO2GO Wireless Internet Service in an unauthorized manner so as to interfere unreasonably with the use of the service by other customers of DATAPRO2GO or the underlying provider, or End Users, or to interfere unreasonably with DATAPRO2GO’s ability to provide the DATAPRO2GO Wireless Internet Services; (iv) intentionally using DATAPRO2GO Wireless Internet Service to convey obscene, salacious, or unlawful information; (v) any unauthorized use of DATAPRO2GO Wireless Internet Service through the unauthorized modification of an authentication method associated with a wireless modem provided hereunder; or (vi) any other violation of the DATAPRO2GO Acceptable Use Policy (AUP) or Service Order Agreement.
Limited Manufacturer Warranty on Modem. DATAPRO2GO holds a One (1) Year Warranty on some of the DATAPRO2GO Modem and Operating Software Components. In the event of defect, DATAPRO2GO will repair or replace this product with new or reconditioned parts. Replacement parts and products assume the remaining original warranty. This Limited warranty covers manufacturing defects in materials and workmanship encountered in normal use of this product, unless and except to the extent otherwise expressly provided in this statement. This Limited Warranty shall not apply to the following, including by way of example and not limited to damage which occurs in or related to: shipping; delivery and installation; applications and uses for which this product was not intended; altered products or serial numbers; cosmetic damage or exterior finish; accidents, abuse, neglect, fire, water, lightning or other acts of nature; use of products, equipment, systems, utilities, services, parts, supplies, accessories, applications, installations, repairs, external wiring or connectors not supplied and authorized by DATAPRO2GO; incorrect electrical line voltage, fluctuations and surges; customer adjustments and failure to follow operating instructions, cleaning, maintenance and environmental instructions that are covered and prescribed in any instructions provided with the product. DATAPRO2GOdoes not warrant against totally uninterrupted or error-free operation of the product.
Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THE PROVISION OR USE OF THE SERVICES OR ANY OTHER OBLIGATION OF SUCH PARTY UNDER THIS AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS (EXCEPT WITH RESPECT TO THE FEES AND OTHER CHARGES AND AMOUNTS PAYABLE UNDER THIS AGREEMENT), ANY DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, DATA, OR USE, OR FOR INTERRUPTED COMMUNICATIONS, OR FROM ANY DEFECT, ERROR, OR MALFUNCTION OF ANY SERVICE; PROVIDED, OR ANY OTHER ACTION REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, INDEMNITY, NEGLIGENCE, OR WARRANTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Limitation of Warranty on Modems and Devices. THERE ARE NO EXPRESS WARRANTIES OTHER THAN THOSE LISTED AND DESCRIBED ABOVE, AND NO WARRANTIES WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SHALL APPLY AFTER THE EXPRESS WARRANTY PERIOD STATED ABOVE, AND NO OTHER EXPRESS WARRANTY OR GUARANTEE GIVEN BY ANY PERSON, FIRM OR CORPORATION WITH RESPECT TO THIS PRODUCT SHALL BE BINDING ON DATAPRO2GO. DATAPRO2GO SHALL NOT BE LIABLE FOR LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, OR ANY OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES CAUSED BY THE USE, MISUSE OR INABILITY TO USE THIS PRODUCT, REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BASED, AND EVEN IF DATAPRO2GO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOR SHALL RECOVERY OF ANY KIND AGAINST DATAPRO2GO BE GREATER IN AMOUNT THAN THE PURCHASE PRICE OF THE SERVICES OR PRODUCT SOLD BY DATAPRO2GO AND CAUSING THE ALLEGED DAMAGE. WITHOUT LIMITING THE FOREGOING, PURCHASER ASSUMES ALL RISK AND LIABILITY FOR LOSS, DAMAGE OR INJURY TO PURCHASER AND THE PURCHASERS PROPERTY AND TO OTHERS AND THEIR PROPERTY ARISING OUT OF THE USE, MISUSE OR INABILITY TO USE THE PRODUCT SOLD BY DATAPRO2GO NOT CAUSED DIRECTLY BY THE NEGLIGENCE OF DATAPRO2GO. THIS LIMITED WARRANTY SHALL NOT EXTEND TO ANYONE OTHER THAN THE ORIGINAL PURCHASER OF THIS PRODUCT, IS NONTRANSFERABLE AND STATES YOUR EXCLUSIVE REMEDY
Indemnification. CUSTOMER shall indemnify/hold harmless, and defend, at its sole cost and expense, DATAPRO2GO (including its officers, employees and agents) against and from any and all claims, actions, suits, proceedings, damages, liabilities, losses, fines, penalties, expenses, attorney fees and all other associated costs arising out of, or related in any manner whatsoever to CUSTOMER’s (or alternatively its employee’s or end-user’s) real or alleged wrongful, acts or omissions (whether tortuous or contractual) in connection with the use of DATAPRO2GO services and or the DATAPRO2GO failover solution.
- Trademarks. All corporate names, service marks, logos, trade names, trademarks, websites and domain names of DATAPRO2GO (collectively "Marks") are and shall remain the exclusive property of DATAPRO2GO and nothing in this agreement shall grant Customer or any Third party the license to use such Marks. All service marks and trademarks of third party manufacturers are and shall remain exclusively their own, and their appearance in the Application or on the website shall not be construed in any way to grant or vest the Customer or any visitor, a license or right to copy or use such marks from this website. Such marks are used only to offer and sell the Products of the manufactures. Any violation of this Section shall have exclusive legal recourse under Section 14 of these Terms and Conditions.
- Copyright. All Content and Materials found at this Website are protected under United States Copyright, or, by and through other intellectual property laws. Any commercial use of the Services Software, and Materials found on the Website is strictly prohibited, without the express, prior, written consent of DATAPRO2GO. Any reproduction or redistribution of the Services and/or Materials not in accordance with the terms set forth herein is expressly prohibited by law, and may result in severe civil and criminal penalties. Any violation of this Section shall have exclusive legal recourse under Section 14 of these Terms and Conditions.
Dispute Resolution. This Section governs any dispute, disagreement, claim or controversy between CUSTOMER and DATAPRO2GO arising from or related to this the DATAPRO2GO wireless Internet failover Solution or Wireless Internet Service used in connection with the solution (a “Disputed Matter”). All Disputed Matters that have cause purely based upon the CUSTOMER’s non-payment of Services rendered by DATAPRO2GO or any Liquidated Damages for Customer’s early cancellation of Services under Section 4 shall be governed by Section 14 of these Terms and Conditions. All other Disputed Matters shall be referred jointly to senior executives of DATAPRO2GO and the Customer for informal resolution. If such executives do not agree upon a resolution within thirty (30) days after referral of the matter to them, the parties shall proceed with arbitration as follows:
- This Agreement and its parts or performance shall be governed exclusively pursuant to Florida Law without regard to any conflict of law principle, theory or case law.
- The Parties agree to attempt to resolve any and all disputes, controversies or claims arising out of or in connection with this Agreement or the breach, termination, validity thereof, or the work performed hereunder via arbitration in accordance with the American Arbitration Association ("AAA") commercial rules as presently in force. The appointing authority for arbitrators shall be the AAA.
- The arbitration shall be heard and determined by three arbitrators. Each party shall name one arbitrator. The third arbitrator shall be named by the appointing authority. If one of the arbitrators is unable to serve, the party appointing said arbitrator shall appoint a replacement arbitrator.
- Any and all injunctive relief shall be sought in the federal or state courts of Broward County, Florida and referred to the AAA only for any monetary damages that may be applicable.