Network Service Agreement
This Network Service Agreement (“Agreement”) is entered into by and between PREMIER WIRELESS SOLUTIONS, LLC, a Delaware limited liability company (“PWS”), and [Customer name, address] (“Customer”), as of / /2023 (the “Effective Date”). This Agreement is not effective until signed by duly authorized representatives of both parties. This Agreement incorporates the attached General Terms and Conditions (Section A) and the Specific Order Terms (Section B).
By signing below, Customer: (a) authorizes PWS to obtain information about Customer’s credit history and consents to the exchange of credit information with credit agencies, including the provision of information about Customer’s payment history with PWS; and (b) acknowledges that it has read and understands this Agreement, and that this Agreement includes warranty disclaimers, limitations of liability and use restrictions. Customer and PWS agree to be bound by the terms and conditions in this Agreement.
- GENERAL TERMS AND CONDITIONS
PWS agrees to provide wireless data, information and/or messaging services in PWS available coverage areas (“Data Services”) and access to PWS’s cloud-based online monitoring and management portal (the “Platform”) (the Data Services and the Platform, together with the provision of any Rental Devices (as defined below) provided hereunder, are collectively referred to herein as the “Services”). Only the Customer Representatives set forth on the signature page of this Agreement or as listed in a written notice from Customer to PWS are authorized to give instructions to PWS regarding the Services or use of the Services by Customer’s end user customers (“Users”), including changes to rate plans, term commitments, Rental Devices and optional features. This Agreement sets out the terms and conditions applicable solely to the Services, including the provision of Rental Devices; this Agreement does not apply to the sale of any Customer Device (as defined below). The sale of Customer Devices or any other hardware or equipment used with the Services (other than Rental Devices provided for herein) is subject to a separate agreement between Customer or Customer’s Users and PWS.
- Agreement Term and Line Terms
This Agreement shall commence on the Effective Date and shall continue for a period of two years thereafter (the “Agreement Term”), unless otherwise terminated in accordance with the terms set forth herein. A “Customer Device” is a customer-owned radio terminal device or a subscriber identity module (SIM) that is authorized by the applicable “Wireless Carrier” (Verizon, AT&T, Telus, Sierra Wireless, T-Mobile and/or T-Mobile via Kore, PWS eSIM and Vodafone) specified in Section B, below, for use with the Services. A “Rental Device” is any product or device rented to Customer hereunder, as specified in the Specific Order Terms (Section B). This Agreement applies to all Customer Devices or Rental Devices (collectively, “Devices”) activated on the PWS network prior to the Effective Date and during the Agreement Term. The rates and charges in this Agreement shall take effect within 30 days of the end of the bill cycle that is current on the Effective Date. At the end of the Agreement Term, if Customer has not signed a new Agreement with PWS for wireless or network services, PWS shall continue to provide the Services, in accordance with Section 2(c), below.
- Line Terms - Existing Devices. The “Line Term” applicable to any Customer Device that is activated on the PWS network prior to the Effective Date (an “Existing Customer Device”) is hereby renewed as of the Effective Date for the period equal to the Agreement Term.
- Line Terms - New Devices. The Line Term applicable to any new Customer Device or Rental Device that is activated on the PWS network during the Agreement Term (a “New Customer Device”), is equal to the number of months of the Agreement Term, commencing at the activation date of the New Customer Device, which Line Term may extend beyond the Agreement Term.
- Continuation Period. At the end of the Agreement Term, if Customer has not signed a new Agreement with PWS for wireless or network services, and if the Line Term applicable to any New Customer Device extends beyond the Agreement Term, PWS will continue to provide the Services (i) on a month-to-month basis for each Existing Customer Device; (ii) until the end of the Line Term applicable to each New Customer Device; and (iii) on a month to month basis for each New Customer Device following the end of the applicable Line Term (each month-to-month period is referred to as a “Continuation Period”). All Continuation Periods shall continue until the Services are terminated by either PWS or Customer with 30 days’ notice of termination to the other party. The terms and conditions in this Agreement shall continue to apply to the provision of the Services for all Devices during any applicable Continuation Period[, except that: (a) the terms of this Agreement relating to the activation of Customer Devices, the purchase or upgrade of any [Customer] Devices, and any rates, charges and prices for the Services, do not apply to applicable [Existing] Customer Devices during any Continuation Period].
- Customer Charges
During the Agreement Term, and during the Line Term applicable to each New Customer Device, PWS will not change the monthly plan rate, or the number megabytes (as applicable) included in the monthly rate plan(s) set forth in Section B or monthly rate for features. “Other Charges and Credits” may consist of county, state, and federal fees, and Wireless Carrier and administration fees that will be passed through to Customer without additional markup from PWS. Other Charges are subject to change at any time.
Charges and prices set forth herein, do not apply to any new activations of Devices after the end of the Agreement Term (each, a “Post-Term Device”). For the avoidance of doubt, PWS may change the charges for the Services, the charge for Rental Devices, and any other terms and conditions applicable to the Services for any Device during the applicable Continuation Period and for Post-Term Devices with 30 days’ notice to Customer. During any Continuation Period, PWS may pass through to Customer any price increases that PWS receives from the applicable Wireless Carrier(s) for the Services.
- Billing and Payments:
- Monthly Bills: Monthly billing cycles vary and may not correspond to calendar months.
- Payment Terms: All Customer invoices are “Due on Receipt.” Undisputed payments not received by PWS within thirty (30) days of the date of the applicable invoice shall be considered “Past Due.” All Past Due amounts shall be subject to a late payment fee equal to the lesser of: (a) greater of (i) 1.5% per month (18% annually) or (ii) $5/ month; or (b) the highest amount permitted by the applicable law. If payment by check or similar negotiable instrument is returned by a bank for any reason, PWS will charge Customer a returned check fee.
- Disputed Charges: In the event of disputed charges, Customer must, as soon as practicable following its receipt of the invoice containing the disputed charge, but in any event not more than 90 days from the date of the applicable invoice, provide written notice to PWS, which shall include the date of the bill, disputed amounts, the reason for the dispute, and any supporting documentation. The parties will use good faith efforts to informally reconcile any disputed charges within 45 days of the date of notification.
- Failure to pay: PWS may, upon prior written notice to Customer, suspend or terminate the Service to some or all Devices or deny new activations due to Customer’s failure to make payment or dispute charges in accordance with the foregoing provisions. Following the time periods set forth in Section 4.c), above, PWS may also collect from Customer all costs and charges that PWS incurs related to the collection of Customer’s account, including, without limitation the costs of engaging a collection agency and PWS’s reasonable attorneys’ fees and expenses, as permitted by the law of the state where Customer’s billing address is located.
- Limitations and Use of the Services; Rental Devices
The Services are provided on an “as is” and “as available” basis. The use of the Services by Customer’s Users is at their respective sole risk. Customer is responsible for maintaining the confidentiality of all login credentials (usernames and passwords) used to access Customer’s account through the Platform and for all uses of the Platform, by anyone using those login credentials where applicable. PWS may, in its sole discretion, alter, limit or modify any part of the Platform at any time.
PWS does not guarantee timely, secure, error-free or uninterrupted Services or receipt of material or messages transmitted over or through PWS’s network or the networks of other companies or through the Internet, and Customer acknowledges that access to the Platform may not be available on some Wireless Carriers’ public networks. The Services may fail or be interrupted for reasons including, but not limited to, environmental conditions, technical limitations, defects or failures, limitations of the systems of other telecommunications companies, emergency or public safety requirements, or causes beyond PWS’s reasonable control. PWS disclaims all representations, warranties and conditions (express, implied or statutory) relating to the Services and any Device, and all warranties, representations and conditions, other than as expressly set forth herein, are excluded to the extent permitted by applicable law.
Customer will not use the Services to transmit or send any annoying, inappropriate, improper, excessive, threatening or obscene material or to otherwise harass, offend, threaten, embarrass, distress or invade the privacy of any person; engage in any activity that could compromise the security of or disrupt or interfere with the Services or any network or computers on the Internet or disrupt or interfere with the services of any Internet access provider; use unauthorized equipment with the Services; reproduce, alter, adjust, repair or tamper with any signaling, identification number (including, but not limited to, the MIN, ESN, IMEI, or IMSI numbers) or transmission function or component of any device used with the Services, and will not permit anyone other than a PWS-authorized representative to do so.
The area in which PWS provides the Services (the “Carrier Coverage Area”) may be enlarged or reduced in scope from time to time by the Wireless Carrier(s). If the applicable Wireless Carrier permanently suspends, restricts, or modifies the Carrier Coverage Area provided to PWS, this will be passed through to Customer with notice. PWS may terminate the Services upon 30 days’ advance notice to Customer if PWS ceases to operate the network facilities used for the Services, provided that, in the event of such termination, PWS shall issue to Customer a pro rata refund of any fees paid hereunder but not earned by PWS at the time of such termination.
Customer agrees and acknowledges that the Rental Devices it rents from PWS may be new or refurbished Devices, as determined in the sole discretion of PWS. Customer also agrees and acknowledges that the Rental Devices are only compatible and authorized to be used in connection with Services provided by PWS.
If any Rental Device fails to perform within the Agreement Term (other than end-of-life issues as set forth below), PWS shall replace the non-performing Rental Device, at no charge to Customer, as long as Customer is current in paying all of Customer’s per unit monthly Service charges. The foregoing replacement obligation does not apply to any Device that ceases to be supported by a wireless network carrier, and PWS does not warrant that the Devices will be supported by any specific wireless network carrier for any specific length of time. Upon notification from Customer and upon PWS's diagnosis of the problem with such non-performing Device, PWS shall ship to Customer, by standard overnight for Rental Devices, and at no cost to Customer, new or refurbished replacement Rental Devices. Customer must return the non-performing Rental Device to PWS using the prepaid shipping label provided by PWS. For a Rented Device, if Customer fails to ship the non-performing Rental Device to PWS within 20 days of Customer’s receipt of the replacement Rental Device, the replacement Rental Device will be added to the Specific Order Terms under which Customer ordered the non-returned, nonperforming Rental Device and Customer shall be responsible for paying the per unit monthly charges for its rental of the replacement Rental Device and the original Rental Device in the amounts set forth in the Specific Order Terms. Customer agrees to pay per unit monthly rental charges for its Rented Devices in the amounts set forth in the Specific Order Terms.
- Phone Numbers
Subject to any rights Customer may have under applicable laws and regulations, including any right to port a phone number to another carrier, Customer acknowledges that it does not own or have any property rights in any phone number, IP address, domain name or e---mail address assigned to Customer by PWS for use with the Services.
If Customer Devices roam outside of the Wireless Carrier Coverage Area, Customer is responsible for all applicable charges, and is subject to the terms and conditions of service (including limitations of liability) imposed by the wireless service provider providing such roaming services. Charges for roaming may be billed in the months after the roaming charges were incurred, but Customer is not responsible for roaming charges that are not billed within 365 days from the date the roaming charges were incurred.
- Monitoring and Network Management
Customer acknowledges and agrees that PWS may, but is not obligated to, monitor or log any use of the Services that is reasonable or necessary to satisfy any legal requirement, or to assess and/or improve operating efficiencies, service levels, customer satisfaction, to protect PWS or its customers from malicious or unauthorized use of certain services or applications and/or for the purpose of offering the Services or products to Customer.
- Limitations of Liability
PWS IS NOT RESPONSIBLE FOR AND SHALL NOT HAVE ANY LIABILITY TO CUSTOMER FOR (A) LIBEL, SLANDER, DEFAMATION OR THE INFRINGEMENT OF COPYRIGHT ARISING FROM MATERIAL OR MESSAGES TRANSMITTED OVER THE TELECOMMUNICATIONS NETWORK OF PWS OR RECORDED ON THE EQUIPMENT OF PWS; (B) DAMAGES ARISING OUT OF CUSTOMER’S UNAUTHORIZED ACT, DEFAULT, NEGLECT OR OMISSION IN THE USE OR OPERATION OF EQUIPMENT ACTIVATED ON THE TELECOMMUNICATIONS NETWORKS OF PWS; (C) DAMAGES ARISING OUT OF THE TRANSMISSION OF MATERIAL OR MESSAGES OVER THE TELECOMMUNICATIONS NETWORKS UNDER PWS ON CUSTOMER’S BEHALF, WHICH IS IN ANY WAY UNLAWFUL; OR (D) ANY ACT, OMISSION OR NEGLIGENCE OF OTHER COMPANIES OR TELECOMMUNICATIONS SYSTEMS IN RELATION TO THE PROVISION OF THE SERVICES, WHEN THE FACILITIES OF SUCH OTHER COMPANIES OR TELECOMMUNICATIONS SYSTEMS ARE USED IN ESTABLISHING CONNECTIONS TO OR FROM FACILITIES AND EQUIPMENT CONTROLLED BY CUSTOMER.
PWS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY LOSS OF PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF DATA OR INFORMATION, OR FOR ANY PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PROVISION, USE OR FAILURE OF THE SERVICES, OR ANY CUSTOMER DEVICE OR OTHER DEVICES USED WITH THE SERVICES, WHETHER CLAIMED IN CONTRACT, TORT OR OTHERWISE, AND EVEN IF PWS COULD REASONABLY FORESEE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. [PWS’S SOLE RESPONSIBIITY FOR, AND CUSTOMER’S SOLE AND EXLCUSIVE REMEDY WITH RESPECT TO, NON-PERORMING DEVICES OR OTHERWISE IN CONNECITON WITH THE SERVICES SHALL BE REPLACEMENT WITH THE SAME TYPE OF DEVICES OR SERVICES ORDERED.] [[DELETE IF POSSIBLE:] HOWEVER, THE FORGOING LIMITATION SHALL NOT APPLY TO THOSE CLAIMS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF PWS.]
- Mutual Indemnification: Each Party (the “Indemnifying Party”) shall defend, indemnify, and hold harmless the other Party (the “Indemnified Party”) from any and all losses and damages claimed by a third party in any action or proceeding, against the Indemnified Party alleging bodily injury (including death) or damage to property, caused by [or alleged to have been caused by] the negligence of other wrongful acts or omissions of the Indemnifying Party, its employees and authorized agents while on the Indemnified Party’s premises, including any final monetary judgments, settlements, reasonable costs and reasonable attorneys’ fees awarded therein.
- Notice and Defense: The Indemnified Party shall: (a) provide the Indemnifying Party with prompt written notice of the claim; (b) allow the Indemnifying Party to control the defense and settlement of the claim, provided, however, that the Indemnifying Party shall not agree to any injunctive relief or settlement that obligates the Indemnified Party to perform any obligation, make an admission of guilt, fault or culpability, or incur any expense, without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned; (c) have the right to obtain its own counsel at its own expense and (d) provide reasonable cooperation to the Indemnifying Party.
- Termination and Deactivation
If either PWS or Customer breaches any material provision of this Agreement and does not remedy such breach within ten (10) days following written notice of the breach from the non---breaching Party, the non-breaching party may terminate this Agreement and deactivate all Devices from the PWS network, effective immediately upon written notice to the breaching party. Customer may deactivate any Device from the PWS network, without penalty, upon the expiration of the applicable Line Term.
Upon termination of this Agreement before the end of the Agreement Term, or deactivation of any Device before the end of the applicable Line Term, for any reason other than a termination by Customer resulting from PWS’s uncured breach of this Agreement, whether requested by Customer or resulting from Customer’s uncured breach of this Agreement: (a) Customer shall pay PWS all outstanding charges for the Services, (b) for each deactivated Customer Device, a deactivation charge equal or lesser of: (i) the lowest monthly rate specified multiplied by the number of months remaining on the applicable Line Term at the time of deactivation; or (ii) $100 and (c) for each deactivated Rental Device, Customer agrees to promptly pay PWS, as applicable: (i) in full for the remaining monthly fees due under the remaining term of the Specific Order Terms for the Rental Devices and related Services and (ii) an “unreturned product fee” of $ for each Rental Device that is not returned to PWS within 20 days of the termination date in good working order. The foregoing payment obligations of Customer shall survive the termination of this Agreement, and Customer agrees and acknowledges that PWS retains all right, title and interest in and to any Rental Devices provided to Customer hereunder. Upon termination, there will be no right to a refund of any prepaid Services, including Rental Device payments.
- Taxes, Surcharges and Exemptions
If any federal, state, local or foreign tax, fee, assessment or other charge is required by law to be collected by PWS (each, a “Tax”), or a serving Wireless Carrier charges Tax on a roaming call, then PWS may bill such Tax to Customer, and Customer shall pay such Tax. If PWS incurs a Tax (other than a net income tax) or other expense to comply with legal or governmental requirements, to its customers, and PWS bills a surcharge to recover or offset the cost of such expense Taxes (a “Surcharge”), then Customer shall pay such Surcharge. The amount of Taxes and Surcharges may change from time to time. With respect to any Tax other than a Tax charged by a serving Wireless Carrier on a roaming call, if Customer provides PWS with an exemption certificate in the form provided by law, or with other evidence of exemption acceptable to PWS, then that specific Tax will not be collected from Customer. If an exemption applied by PWS at Customer’s request is found not to apply, then Customer shall upon demand pay PWS the uncollected Tax and all related interest, penalties and additions to the Tax. PWS shall not issue credits for a Tax that is billed prior to PWS receipt of acceptable evidence of exemption. These charges and credits (“Carrier Pass-through Charges”) may consist of county, state, and federal fee’s and Wireless Carrier administration fee’s that will be passed through to Customer without additional markup from PWS. The percentage calculation for the Carrier Pass-through Charges is based on the type of service plan used by Customer and described in the contracted service plan.
Either party may terminate this agreement upon written notice to the other party if:(a) the other party makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts as they mature; (b) a trustee or receiver of any substantial part of the other party’s assets is appointed by any court; or (c) proceeding is instituted under any provision of the Federal Bankruptcy Laws by or against the other party, and such proceeding is acquiesced in or is not dismissed within 60 days or results in a adjudication in bankruptcy. Notwithstanding the above, Customer’s right to terminate pursuant to this section may only be invoked if PWS is unable to provide Customer with Wireless Service under this Agreement as a result of the foregoing. If Customer terminates the Agreement pursuant to this section, it shall not be relieved of its obligation to pay for any Service used. At any time during the Agreement Term, PWS may require Customer to provide a deposit sufficient to secure payment based upon Customer’s creditworthiness or payment history with PWS. Any such deposit shall not relieve Customer of its obligation to pay any PWS bills. PWS shall pay any interest as required by law on such deposit. A deposit request will not be required if Customer is in good standing and is current with all payment obligations to PWS.
- Customer Information
PWS will comply with all applicable data protection laws with respect to Customer information. If PWS processes Personal Data (“Personal Data” shall mean information relating to an identified or identifiable natural person where such information is protected under applicable data protection laws) of Customer, PWS shall comply with its Privacy Polity as set forth on PWS’s website.
- Confidentiality of PWS Information
This Agreement, all information provided by PWS to Customer in connection with the Services or this Agreement, including rates and charges, and all communications between Customer and PWS in connection with the negotiation of this Agreement, are confidential information of PWS. Customer shall not disclose any such confidential information to any other person without the prior written consent of PWS, and Customer shall only use such confidential information to exercise its rights or perform its obligations under this Agreement.
The confidentiality obligations set forth in this Section 16 do not apply to any information: (a) previously known to the receiving party free of any obligation to keep such information confidential; (b) generally available to the public other than by unauthorized disclosure; (c) developed by or on behalf of the receiving party independent of any confidential information provided by the disclosing party; (d) required to be disclosed by law or by any governmental agency having jurisdiction, provided that the receiving party promptly notifies the disclosing party of the requirements to disclosure and cooperates with the disclosing party to limit or avoid such disclosure by any lawful means.
The obligations in this section shall survive the expiration or termination of this Agreement for a period of three years.
Customer shall not: (a) market, promote, or use the Services in connection with any products or services other than the Customer Solution (the “Customer Solution” is the connectivity provided by Customer to transfer data between endpoints); (b) market or promote the Customer Solution as a service provided by PWS or a Wireless Carrier; (c) brand or associate the Customer Solution with any Wireless Carrier or with any PWS trade name, or those of any of PWS related person or affiliate, without PWS’s prior written consent; (d) represent or state in any way, in any advertising or promotional materials or otherwise, that the Customer Solution, or any other product or services provided by Customer, is provided by way of agreement or arrangement with, or with the facilities or equipment of, PWS without the prior written consent of PWS; or (e) make any false, unfair or misleading representation about the Services or PWS, either verbally or in writing.
Except for an action by PWS to collect any amount owing from Customer, any claim or dispute arising out of or relating to: (a) this Agreement; (b) a Device or the Service; (c) oral or written statements, advertisements or promotions relating to this Agreement; or (d) the relationships with other persons including Customer’s Users related to this Agreement or the Services, whether claimed in contract, tort or otherwise (each, a “Dispute”), will be referred to and determined by private and confidential mediation before a single mediator chosen by the parties and at their joint cost. If the parties in fail good faith to settle the Claim through mediation, the Claim shall be determined by private, confidential and binding arbitration before a single arbitrator chosen by the parties. If Customer has a Dispute, Customer may give notice to mediate and arbitrate to PWS at [452 Oakmead Parkway Sunnyvale CA 94085]. If PWS has a Dispute, PWS may give Customer notice to mediate and arbitrate at Customer’s last known address of record. Mediation and arbitration of Disputes will be conducted in pursuant to the Commercial Arbitration Rules of the American Arbitration Association, and any mediation or arbitration of a Dispute shall be conducted within the county of Santa Clara, California. Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
- Carrier Certification Requirements
Customer will not use any Customer Device or product with the Services unless such Customer Device or product has been certified by the applicable Wireless Carrier or the applicable governmental agency for use with the Service.
- Governing Law and Attorney’s Fees
This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any choice-of-law rules that may otherwise require the application of the laws of another jurisdiction. In the event that any Dispute between PWS and Customer should result in litigation or arbitration, the prevailing party in such Dispute shall be entitled to recover from the other party all reasonable fees, costs and expenses of enforcing any right of the prevailing party, including without limitation, reasonable attorneys’ fees and expenses.
- Force Majeure
In the event that either party’s performance is delayed, prevented, obstructed, or inhibited because of any Act of God, fire, casualty, flood, war, strike, lockout, embargo, epidemic, pandemic, destruction or non-elective shut-down of facilities, riot, insurrection, governmental acts or directives, acts or omissions of carriers or suppliers, or any cause beyond the party’s reasonable control (a “Force Majeure Event”), the affected party shall give immediate written notice to the other party of such Force Majeure Event and shall use commercially reasonable efforts to promptly resume performance. Upon delivery of such written notice of a Force Majeure Event, the affected party’s performance will be excused and the time for the performance will be extended for the period of delay or inability to perform resulting from such Force Majeure Event. The occurrence of a Force Majeure Event that last less than twenty-one (21) days will not constitute grounds for a declaration of default by either party.
- Compliance with Laws
In conducting its business, in carrying out its obligations pursuant to this Agreement, and in marketing, promoting or providing the Services, Customer will comply with all laws, statutes, rules, orders, ordinances, decisions and regulations of all applicable governmental authorities and courts. Customer will not engage in any illegal, unfair or unethical trade or business practices. Without restricting the generality of the foregoing, Customer shall comply with all commercially reasonable policies and procedures published by PWS from time to time to ensure regulatory compliance with rules enacted pursuant to the Radio Communication Act and the Telecommunications Act.
- Remedies Cumulative
The remedies under this Agreement are cumulative and shall not exclude any other remedies to which any person may be lawfully entitled.
If any provision of this Agreement or the application of such provision to any person or circumstance shall be held invalid, the remainder of this Agreement or the application of such provision to persons or circumstances other than those to which it is held invalid shall not be affected thereby.
This Agreement sets forth the complete Agreement between the parties. Any amendment to this Agreement shall be in writing and signed by PWS and Customer.