SPECIAL TERMS AND CONDITIONS VERIZON WIRELESS M2M

Transcription

1 SPECIAL TERMS AND CONDITIONS VERIZON WIRELESS M2M These Special Terms and Conditions may be incorporated by reference into and form part of a master agreement under which Application Provider is authorized to resell or otherwise furnish Verizon Services to its Subscribers (the Master Agreement ). All capitalized terms not otherwise defined herein have the meanings assigned to them in the Master Agreement. These Special Terms and Conditions apply only with respect to Service provided by or through Verizon Wireless (VAW) LLC ( Verizon ) that are resold by Application Provider to its Subscribers in connection with its Service Application(s) under the Master Agreement ( Verizon Services ). The Verizon Services are offered to Application Provider by ORBCOMM and Application Provider acknowledges that it has no contractual relationship with Verizon or any of its subsidiaries or affiliates as a result of entering into or performing under the Master Agreement. The Master Agreement, including without limitation these Special Terms and Conditions, sets forth the legal rights and obligations governing ORBCOMM's offer, provisioning and delivery of Verizon Services and Application Provider s receipt and resale thereof to its Subscribers in connection with its Service Application(s). Section 1 - Definitions 1. Authorized Use: The use of the M2M Lines of Wireless Service that is permitted under this Agreement. 2. Provider Product or Service: Any product or service that Application Provider sells, leases or otherwise provides to its End Users and in which Provider has Embedded M2M Lines purchased under this Agreement. 3. Embedded: An M2M Line is Embedded if it: (i) is used exclusively for Machine-to- Machine data transmissions, and (ii) is used only within the functionality of the Application Provider Product or Service. 4. Equipment: Wireless data modems and similar devices and ancillary accessories used in conjunction with Wireless Service. 5. Machine-to-Machine or M2M: The transmission of data using the Wireless Service between wireless devices and computer servers or other machines, or between wireless devices, with limited or no manual intervention or supervision. 6. MTN: Mobile Telephone Number. 7. M2M Line: An individual line of Wireless Service used for Machine-to-Machine transmission. 8. Wireless Service: Each and every radio service provided directly or indirectly by Verizon Wireless. 1

2 Section 2 - Purchase and Sale ORBCOMM agrees to purchase and resell to Application Provider, and Application Provider agrees to purchase for resale to its Subscribers in connection with its Service Application(s), Wireless Service for Embedded M2M Lines within the Territory. Section 3 - Obligations of Application Provider 1. M2M Services. Wireless Service purchased under this Agreement is to be used by the Application Provider only for M2M Lines Embedded in Application Provider s Application. Application Provider shall not provide Wireless Service to End Users independent of the Application Provider Product or Service. Except upon written agreement between the Parties, third parties (including agents, contractors or contract employees, and franchisees of Application Provider or of Application Provider s parents and affiliates) may not purchase Wireless Service under this Agreement. 2. Use of Wireless Service for Remote Medical Monitoring Prohibited: Application Provider shall not use the Wireless Service for remote medical monitoring which, if agreed to by ORBCOMM and Verizon, would require additional terms and conditions. 3. Fraud. Fraudulent or Unauthorized Use. It is Application Provider s obligation to prevent (i) use of the Wireless Service by End Users and other third parties in violation of subsections 1 or 2 above, and (ii) fraudulent or other unauthorized use of the Wireless Service or an MTN. Application Provider shall promptly notify ORBCOMM in writing if there is actual or suspected use of the Wireless Service in violation of this Section Acknowledgement. Application Provider acknowledges and agrees: a. that ORBCOMM and Verizon may at any time be engaged directly or indirectly, including through or in connection with products and services of their other customers, in soliciting actual or prospective customers for Wireless Service or other services, products or Equipment that could be the same as or similar to and compete with an Application Provider Product or Service; and b. that Application Provider has had the opportunity to independently investigate the Wireless Service for use in connection with the Application Provider s Application and the Authorized Use and is not relying on any representation, guarantee, or statement of ORBCOMM or Verizon. 5. Equipment. a. Neither ORBCOMM nor Verizon shall have any obligation to provide or sell Equipment to Application Provider hereunder and Application Provider shall provide its own Equipment. b. Application Provider shall ensure that all Equipment and applications utilized by its End Users in connection with the Wireless Service and each End User's use thereof shall at all times comply with the requirements outlined in Attachment B. Application Provider s failure to do so may cause Application Provider s transmissions to fail, be blocked or misrouted, use Wireless Service not intended by Application Provider and/or be subject to additional charges beyond those set 2

3 forth in this Agreement. Application Provider hereby agrees to pay such additional charges. Neither ORBCOMM nor Verizon Wireless shall have any liability for Application Provider s Equipment or Application Provider s failure to maintain or meet requirements applicable to Application Provider s Equipment. Under no circumstances shall ORBCOMM or Verizon Wireless be responsible for or obligated to make any changes to its equipment, operations, network or systems to accommodate Application Provider or any End User. 6. Account Implementation. In order for ORBCOMM to implement the benefits of this Agreement (including the creation of any custom pricing, options, features or applications), Application Provider must provide certain information, such as name, mobile telephone number and account information of any M2M Lines Application Provider wants to activate under this Agreement. Following receipt of all necessary information, ORBCOMM will complete Application Provider s account implementation within 90 days. 7. Mobile Telephone Numbers a. Forecasts. (a) (b) (c) No later than the last business day of each calendar quarter, Application Provider shall submit to ORBCOMM forecasts of Application Provider s expected monthly net MTN activations needed for the twelve month period measured starting from the first day of the second following calendar quarter. Forecasts should shall take into account previous six months trending and sales projections or and any seasonal fluctuations and shall be in a format as may be required by ORBCOMM. Application Provider shall use its best available information at the time of submission to provide an accurate forecast to ORBCOMM. If between quarterly forecast submissions Application Provider becomes aware of any business changes that will have a material effect on its forecast, Application Provider shall provide 90 days notice of any material change in Application Provider s quarterly forecasts. No later than November 30 of each year, Application Provider shall submit to ORBCOMM its forecast of expected net yearly activations for the following five years in a format as may be required by ORBCOMM. Application Provider s failure to provide accurate forecasts under this Section 7.1 may cause delays in providing MTNs to Application Provider. ORBCOMM may provide quarterly reports to Application Provider of Application Provider s net activations per month, to assist each Application Provider with reasonable forecasting. b. Activation Process. (a) Application Provider shall make all requests for assignment of geographic MTNs by providing one or all of the following values: area code and three digit exchange, ZIP code, or City and State. Application Provider MTN activation and change requests will be assigned the next available 3

4 number from the Verizon Wireless number inventory system at the time of activation. (b) Verizon Wireless shall use commercially reasonable efforts to make MTNs available for use by Application Provider at the time of activation within the areas served by the Verizon Wireless owned and operated network, based on Application Provider s forecasts and twelve month trending history. Verizon Wireless will fulfill orders for MTNs in a commercially reasonable expedient manner assigning one MTN to each M2M Line. Verizon Wireless obligation to provide MTNs is subject to: (i) the availability of MTNs and the capacity of the Verizon Wireless network and systems; and (ii) reasonable delays if additional time is needed by Verizon Wireless to comply with State or Federal MTN management requirements. Verizon Wireless shall have no liability for capacity limitations of the Verizon Wireless network or systems or MTN shortages and has no obligation to construct additional capacity in its network or systems. c. MTN Inventory, Activation Process Modifications, Rights in MTNs. (a) (b) (c) ORBCOMM may, at any time upon written notice, modify the requirements of subsections 7.a. and 7.b., above, including the introduction of additional or replacement program(s), terms and conditions in connection with MTN resources. If Application Provider is using geographic MTNs, but Application Provider s needs can be satisfied with a non-geographic number solution (e.g. 5XX numbers where the NPA begins with a 5 and there is no rate center associated with the MTN), Application Provider shall migrate to a non-geographic number solution for all new activations when Verizon Wireless offers such a solution. The Application Provider s existing lines using geographic numbers shall be eliminated through attrition only. Application Provider may port its geographic MTNs from Verizon Wireless to another carrier, however Application Provider does not have any property right in the MTN. Application Provider may not port its nongeographic MTNs from Verizon Wireless to another carrier because nongeographic MTNs are not portable. Verizon Wireless may change, reassign or eliminate an MTN upon reasonable notice to Application Provider under certain circumstances, including fraud prevention, area code changes, and regulatory or statutory law enforcement requirements. Application Provider shall bear the cost of reprogramming End User and Application Provider Equipment, systems, Products and Services in connection therewith. Application Provider s failure to perform such reprogramming may adversely affect Application Provider s ability to provide its Products or Services, but Application Provider shall still be obligated to pay for the M2M Lines and Wireless Service as provided in this Agreement. d. Equipment Location. All Equipment activated on M2M Lines at a fixed location must be located by Application Provider and End Users within the areas served 4

5 by the Verizon Wireless owned and operated network. Equipment activated on M2M Lines which are mobile may roam on the networks of Verizon Wireless roaming partners but shall not be permanently located in the roaming area. e. Equipment on Terminated Lines. When an Application Provider M2M Line is terminated, Application Provider shall make a reasonable effort to ensure that the Equipment that was activated on that Line ( Terminated Equipment ) does not register or attempt to register on the Verizon Wireless network. Application Provider shall immediately inform Verizon Wireless of all M2M Lines and Equipment that are terminated.. If Terminated Equipment continues to attempt to register on the Verizon Wireless network, (i) Application Provider will incur and shall pay additional charges and fees, and (ii) if Application Provider fails to prevent Terminated Equipment from attempting to register within 30 days after notice from Verizon Wireless, Verizon Wireless shall have the right to charge Application Provider and Application Provider shall pay a monthly twenty-five dollar ($25) fee for each unit of Terminated Equipment until the failure is corrected. 8. Application Provider s End User Support. Application Provider shall be solely responsible at its own cost for providing End User customer and technical support, including, but not limited to, handling all issues with respect to the Application Provider Product or Service and wireless connectivity, End User credit verification, deposits, billing, collection, consolidation, rebilling, complaints, equipment procurement and related issues, customer service, toll/long distance charges and bad debts. ORBCOMM will not support End Users in any manner. Section 4 - End User Service Agreement Prior to authorizing any End User to access or use the Wireless Service or Application Provider Product or Service, Application Provider shall cause such End User to enter into a service agreement which contains the following provision, and which is otherwise reasonably satisfactory to Verizon Wireless: [insert End User name] EXPRESSLY UNDERSTANDS AND AGREES THAT IT HAS NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING WIRELESS SERVICE PROVIDER OR ITS AFFILIATES OR CONTRACTORS AND THAT [insert End User name] IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN [insert Application Provider Name] AND THE UNDERLYING CARRIER. IN ADDITION, [insert End User name] ACKNOWLEDGES AND AGREES THAT THE UNDERLYING CARRIER AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO [insert End User name] AND [insert End User name] HEREBY WAIVES ANY AND ALL CLAIMS OR DEMANDS THEREFOR. Section 5 - Compliance with Laws. 1. Application Provider shall comply with all federal, state and local laws, treaties, rules, regulations and ordinances applicable to the Application Provider Product or Service, including (i) all Federal Communications Commission rules and regulations, (ii) all privacy and security requirements, including those, if applicable, pertaining to medical 5

6 devices or location-based services, and (iii) all consumer protection rules and regulations. Without limiting the scope of the foregoing, Application Provider agrees as follows: (a) (b) (c) (d) it shall comply with Department of Treasury s Office of Foreign Assets Control (OFAC) regulations to not provide the Wireless Service to any individual or entity appearing on the OFAC Specially Designated Nationals (SDN) list or that is the subject of an embargo or sanction; all functionality provided by Application Provider does and will comply in all respects with the Communications Assistance for Law Enforcement Act ( CALEA ). Application Provider shall certify in writing on each anniversary of the Effective Date or on Verizon Wireless reasonable request, that it is in compliance with its obligations under this Section; Application Provider shall comply with any federal, state and local laws, rules, regulations or legal requirements that apply to the manufacturing, marketing, sale or distribution of medical applications or medical devices in the United States, including the following and any related amendments, if applicable: (i) the Health Insurance Portability and Accountability Act ( HIPAA ); (ii) the Health Information Technology for Economic and Clinical Health Act ( HITECH Act ); (iii) the Federal Food, Drug and Cosmetic Act ( FDC Act ); (iv) orders, rulings, guidance documents, policies, regulations and requirements of the U.S. Department of Health and Human Services and the U.S. Food and Drug Administration adopted under HIPAA, the HITECH Act or the FDC Act; (v) the Federal Trade Commission Act; (vi) orders, rulings, guidance documents, policies, regulations and requirements of the U.S. Federal Trade Commission; (vii) state laws and regulations regarding the adoption of policies and procedures to protect the privacy and security of personal information; (viii) state laws and regulations regarding the encryption of personal information; and (ix) state laws and regulations governing the unauthorized disclosure or breach of personal information, including breach notification laws. Application Provider shall also comply with any applicable laws, rules, regulations and policies related to software applications in any other countries where they are available. Application Provider agrees that it shall not seek any regulatory determination or decision relating to the medical applications and medical devices that may impose any legal obligations or restrictions on Verizon Wireless; Application Provider acknowledges that the export, import, and use of certain hardware, software, and technological data provided under this Agreement is regulated by the United States and other governments and agrees to comply with all applicable laws and regulations, including the U.S. Export Administration Act, the regulations promulgated thereunder by the U.S. Department of Commerce, and any other applicable laws or regulations such as those that prohibit Equipment or Wireless Service from being used in or accessed by a national of Cuba, Iran, North Korea, Sudan, Syria or any other sanctioned or embargoed country. If Application Provider chooses to access or use the Equipment or Wireless Service or any website or portal maintained by Verizon Wireless from locations outside the United States, Application Provider does so on its own initiative and will be solely responsible for compliance with all applicable local use controls, laws and regulations, including those relating to the transmission of 6

7 technical data exported from or imported to the United States or the country in which Application Provider is accessing or using the Equipment or Wireless Service or such website or portal. Application Provider acknowledges that Verizon Wireless has made no representations concerning the appropriateness or availability of the content on any website or portal maintained by Verizon Wireless when accessed in locations outside the United States, and accessing same from locations where their contents are illegal is prohibited; and (e) if Application Provider elects to receive government funds, (1) Application Provider shall comply in all respects with any and all federal and state laws, rules, regulations and orders that apply to carriers receiving such funds, including, but not limited to, any exempting any certain class of End Users from assessment of any tax, fee, duty, surcharge or other tax-like charge (including, but not limited to, any restriction on the assessment of universal service fund surcharges or number portability fees against qualified, low-income subscribers), (2) Verizon Wireless shall have no obligation to Application Provider to make modifications or changes to any of its processes or procedures, the Wireless Service or the Verizon Wireless network used by Application Provider, in satisfaction of any federal or state requirements related to receipt of government funds, and (3) Verizon Wireless shall have no obligation to Application Provider to furnish, maintain or retain information in satisfaction of any federal or state requirements related to Application Provider s receipt of government funds in the form of reports, records, maps, certifications, documentation or other forms of data. 2. Verizon Wireless shall comply with all federal, state and local laws, rules, regulations and ordinances to the extent applicable to the provision of Wireless Service under this Agreement. Section 6 - Verizon Marks. a. Application Provider hereby acknowledges that the Verizon Wireless owned and/or licensed name(s), trademarks, and service marks ( Verizon Wireless Marks ) are the sole property of Verizon Wireless and/or its parents or affiliates, are good, valid, and enforceable in law and equity. Application Provider shall not challenge or assist in challenging the validity of registrations thereof, or engage in any activities or commit any acts, directly or indirectly, which may contest, dispute or otherwise impair the right, title and interest of Verizon Wireless or its parents or affiliates in the Verizon Wireless Marks. Application Provider neither has nor shall acquire, any right, title or interest in or to the Verizon Wireless Marks. b. Application Provider shall not use any of the Verizon Wireless Marks or any language from which the Verizon Wireless Marks may be inferred or implied, for any reason unless Verizon Wireless has expressly approved such usage in writing in advance. Any unauthorized direct or implied use of the Verizon Wireless Marks by Application Provider shall be a material breach of this Agreement and shall constitute an infringement of the Verizon Wireless Marks. Section 7 - Wireless Service Availability 7

8 Wireless Service uses radio technologies and is subject to transmission and service area limitations, interruptions and dropped calls caused by atmospheric, topographical or environmental conditions, cell site availability, Equipment or its installation, governmental regulations, system limitations, maintenance or other conditions or activities affecting Wireless Service operation. Wireless Service and/or features may not be available in all areas. Wireless Service is only available within each applicable calling plan coverage area, within the operating range of the wireless systems, and with Equipment that is authorized to operate on Verizon Wireless s network. Section 8 - Enhancement of Wireless Service Due to regulatory requirements regarding Verizon Wireless s network licenses, Application Provider shall obtain Verizon Wireless s prior approval and written agreement before it may install, deploy or use any regeneration equipment or similar mechanism (for example, a repeater) to originate, amplify, enhance, retransmit or regenerate Wireless Service. Verizon Wireless may terminate lines and, upon Legal Notice, may terminate this Agreement and pursue any other available remedies if Application Provider violates this section. Section 9 - Use of Wireless Service and Equipment In order to protect the ORBCOMM network, operations and other customers, ORBCOMM or Verizon Wireless may suspend or terminate service to affected lines if Application Provider uses the Wireless Service or Equipment: (a) in an illegal or unauthorized manner (including spamming or other abusive messaging); (b) in a manner prohibited by the applicable plan, option, feature or application; or (c) in a manner that has an adverse impact on Verizon Wireless s network, operations or customers. If Application Provider continues using the Wireless Service in such a manner, ORBCOMM or Verizon Wireless may deny activation to new M2M Lines or, upon written notice, may terminate these Special Terms and Conditions and the associated Carrier Exhibit and Schedules [End of Special Terms and Conditions Verizon] 8