Terms and Conditions
TERMS AND CONDITIONS OF SERVICE
The following terms and conditions form an integral part of the agreement between the customer ("Customer") identified on the Service Agreement dated even date herewith ("Service Agreement"), the terms and provisions of which are incorporated herein by this reference, and Simmetry Communications ("Simmetry"). These Terms and Conditions of Service and the terms and provisions of the Service Agreement shall collectively be known as the "Agreements".
1. DESCRIPTION OF SERVICE.
a. The Agreements govern the relationship between Simmetry and
Customer as well as with any other person that Customer allows to use
("Authorized User"), or that uses, any of the wireless services
provided by Simmetry ("Service" or "Services") or any phone sold by
Simmetry to Customer or otherwise supplied by Simmetry to Customer.
b. Each time Customer pays for Service from Simmetry, Customer confirms its acceptance of the Agreements. Notwithstanding the foregoing, Customer shall remain bound by the Agreements during the term hereof, even if Customer fails to pay for any Service.
2. SCOPE OF SERVICE AND TEMPORARY INTERRUPTION OF SERVICE.
a.
Simmetry reserves the right to manage its wireless systems and the use
of its Services. As such, Simmetry may deny a request for Service from
Customer for any lawful reason. In addition, Simmetry may block access
to certain categories of numbers (for example, 976 and 900 numbers) or
certain websites if, in Simmetry's sole discretion, Simmetry is
experiencing billing, collection or fraud problems or other misuse or
abuse of its wireless system.
b. Services are generally available within the operating range of Simmetry's wireless system in Customer's service area. However, certain temporary interruptions in Service may occur from time to time. Many factors can affect Customer's ability to make and receive calls on Customer's wireless phone as well as the quality of those calls. These factors include Customer's location, the conditions of the atmosphere, the terrain, nearby buildings and other structures. In addition, there may be times when Customer cannot make calls, Customer has difficulty making calls on Simmetry's system, or Customer's calls are interrupted. This may occur in response to suspected fraud, abuse, misuse of the network, hacking or viruses, or because (i) the number of calls being made/received exceeds the capacity of any part of Simmetry's wireless system, (ii) Simmetry's system or a part thereof, breaks or fails to operate as expected, (iii) problems occur with service Simmetry purchases from another person or entity, (iv) Simmetry is making improvements to its system or performing maintenance work on the system, (v) an accident occurs, or (vi) events occur that are outside of Simmetry's control. At such times, the Service, including calls or attempted calls to emergency services like 911 may be interrupted or fail, and/or the quality of calls may be poor. In some severe cases, Service to a geographic area may be eliminated altogether.
3. RETURNS, EXCHANGES AND REFUNDS.
Under certain circumstances, Customer shall be allowed to return any
phone and all accessories purchased from Simmetry, pursuant to
Simmetry's exchange policy. Such exchange policy shall be as follows:
a. If Prepaid Customer returns any and all phones and accessories purchased from Simmetry within 72 hours after purchase, Simmetry shall refund to Customer all amounts paid by Customer to Simmetry for such phones and accessories, as well as any other amounts paid by Customer for any Services, except that Customer shall be responsible for any Services used by Customer prior to the return of all phones and accessories. Simmetry shall be allowed to deduct from any refund otherwise due to Customer any and all amounts which Customer owes to Simmetry as a result of Customer's use of any Services prior to the return of all phones and accessories.
b. If Post Paid Customer returns all phones and accessories within ten (10) days after the execution of the Agreements, then Customer shall be entitled to a refund of all amounts paid by Customer to Simmetry for such phones and accessories as well as for any Services, except that the Customer shall not be entitled to a refund of any amount paid by Customer for any Services to the extent that the Services are used by Customer prior to the return of the phones and accessories.
c. After the expiration of ten (10) days after the date of execution of the Agreements, Customer shall not be entitled to a refund of any amounts previously paid to Simmetry, whether for phones, accessories or Services.
d. Any refunds of more than $25.00 shall be sent by check from Simmetry to Customer and shall be mailed to the Customer's home address within forty-five (45) business days of the date of return of all phones and accessories. Refunds of $25.00 and less can, at Customer's option, be applied to the purchase of any other Simmetry Services or any other Simmetry phones, accessories or other merchandise, but in no event shall Simmetry be obligated to provide a cash refund of less than $25.00 to Customer. If Customer originally paid for any phone(s), accessories, or Services by credit card, no cash refund will be made, regardless of amount, and instead a credit adjustment will be made to the Customer's credit card.
e. In order for Customer to be entitled to any refund pursuant to this paragraph, all phones and accessories must be returned to Simmetry with the original packaging, with all original components intact and in undamaged condition. If Customer elects to return any phone(s) or accessories in exchange for other Simmetry phones, accessories or other merchandise, the Customer shall be responsible for any costs in the upgrade of such phones, accessories or other merchandise, but the Agreements shall remain in full force and effect and shall not be terminated. Except as otherwise provided herein, if Customer returns all phones, accessories or other merchandise to Simmetry within ten (10) days after execution of the Agreements, Customer may terminate the Agreements without penalty; provided, however, that Customer shall nevertheless be responsible for any of the Services used by Customer prior to such termination.
4. SECURITY DEPOSITS.
a. Simmetry reserves the right to require Customer to pay a security
deposit as part of the Agreements. If Customer is required to pay a
security deposit, the security deposit will be held by Simmetry to
secure the payment by Customer of all amounts owed to Simmetry by
Customer pursuant to the terms of the Agreements. The security deposit
shall be refunded or credited to Customer, as provided herein, after
twelve (12) consecutive months of Customer's timely payment, in full,
of all amounts due and owing to Simmetry pursuant to the terms of the
Agreements. If Simmetry suspends Customer's account prior to refunding
or crediting Customer for the amount of the security deposit, then the
required twelve (12 )consecutive monthly payments must be made after
such suspension before Customer shall be entitled to a refund or
credit for the security deposit, unless the Agreements are sooner
terminated.
b. If a refund of all or part of the security deposit is due to Customer, then (i) a credit to Customer's account will be given within forty-five (45) business days of the successful completion of Customer's twelve (12) consecutive monthly payment requirement, or (ii) notwithstanding the foregoing, if the Agreements are terminated and the security deposit has not yet been refunded to Customer, then the security deposit will be returned to Customer by check from Simmetry and will be mailed to Customer's home address within forty-five (45) business days of the termination of the Agreements. Any outstanding balances due from Customer to Simmetry on the date on which the security deposit is to be refunded or credited to Customer, including but not limited to past due balances, early termination penalties or fees or any other charges, will be withheld and set off against the security deposit by Simmetry prior to such refund or credit being made by Simmetry to Customer.
5. LOST OR STOLEN EQUIPMENT.
Title to all phones, accessories, and any other merchandise shall pass
to Customer upon the execution of the Agreements. If Customer's phone,
accessories or any other merchandise is lost or stolen, Customer will
be responsible for all usage of and any charges incurred for Services
on their phone number and phone until the loss or theft has been
reported to Simmetry and Simmetry has a reasonable opportunity to
terminate the Services for such phone, accessories or other
merchandise.
6. OWNERSHIP OF TELEPHONE NUMBER.
Neither the Customer nor any person or entity which uses or is
authorized to use any phone, accessories or other merchandise, has
propriety rights in the telephone number(s) provided by Simmetry.
Simmetry reserves the right to assign, designate or change such
telephone numbers when, in its sole discretion, such assignment,
designation or change is necessary. Customer may not assign its phone
number to any wireless phone or other equipment except as approved by
Simmetry or otherwise required by law. Customer may not assign its
phone number to any other party.
7. TERM OF AGREEMENTS.
The term of the Agreements shall be either one (1) year, two (2) years
or any other time period chosen by Customer pursuant to the Service
Agreement (including the applicable time period for any prepaid Rate
Plan), and such term shall begin on the date of execution of the
Service Agreement. At the end of the term of the Agreements, except as
otherwise provided herein, if Customer does not terminate the
Agreements by providing Simmetry with written notice of termination at
least thirty (30) days prior to the end of the term of the Agreements,
the Agreements shall continue on a month-to-month basis; provided,
however, the rates to be charged to Customer during such month-to-month
periods shall be modified to the then-prevailing rates for the same or
similar plans as that for which the Customer has subscribed. The rates
to be charged to Customer shall be modified to the then-prevailing
rates as often as each month during such month-to-month period, which
shall continue until the Agreements are terminated.
8. RATE PLAN.
a. Simmetry may offer different types of Service and different rate
plans or service packages (collectively, the "Rate Plans"), as may be
determined from time-to-time by Simmetry at its sole discretion. The
Services and Rate Plan selected by Customer pursuant to the Service
Agreement determine the charges Customer will pay for the Services.
The Rate Plan selected by the Customer shall be that Customer's Rate
Plan until that Rate Plan is modified, Customer switches to a different
Rate Plan (if offered to Customer) or Customer's Service is
terminated. Customer may be required to make security deposits or
advance payments, pay certain fees, or agree to maintain Service for a
certain period of time before Simmetry is obligated to begin Service to
Customer. Customer may change to another Rate Plan with a higher
monthly charge by giving Simmetry reasonable advance notice, in which
case Customer shall be required to continue on such new Rate Plan
through the remainder of the term of the Agreements and shall pay such
additional charges when due from and after the effective date of such
change in Rate Plan. Customer may be required to pay Simmetry a fee
associated with such change in Rate Plan.
b. The Simmetry Rate Plan selected by Customer may include a certain number of U.S. long distance minutes for free. Those minutes may be depleted at an accelerated rate if the phone is used to make long distance calls outside of the United States. In addition, different Rate Plans may restrict or prohibit calls to or from certain states or geographic regions. Simmetry may, at any time, limit or remove Customer's access to directory assistance, international long distance, or certain states or geographic regions as part of the free U.S. long distance minutes available under any Simmetry Rate Plan. If Customer uses all the long distance minutes available for free under the applicable Rate Plan, Simmetry may either: (i) prevent Customer from making any additional long distance and/or directory assistance calls unless Customer purchases additional long distance minutes from Simmetry; or (ii) allow Customer to make additional long distance and/or directory assistance calls but charge Customer at the then-prevailing rate for all such calls.
c. Simmetry may offer certain features such as caller identification, three-way calling, call forwarding, voice mail, text messaging, long distance, and other similar services and features. Simmetry, at its sole option and discretion, may offer such features individually for a separate fee or may require that certain features be purchased collectively in a package or bundle of services. Simmetry may modify, change or terminate any such features, services or feature bundles offered by Simmetry, at any time.
9. CHANGES TO AGREEMENTS OR RATE PLAN.
a. Simmetry reserves the right to change or modify the terms of the
Agreements, the Customer's Rate Plan, and any applicable tariff at any
time during the term of the Agreements, except that Simmetry agrees
that it will not increase the recurring monthly access charges for
Customer's Service for one (1) year from the date of execution of the
Service Agreement. Any such changes to the Agreements are effective on
the date Simmetry provides Customer with written notice of any such
changes or modifications. Increases or decreases in state and federal
taxes, universal service fees and other governmental assessments, fees
and surcharges that Simmetry includes on Customer's bill are not
considered a rate change by Simmetry.
b. Notwithstanding anything in the Agreements to the contrary, if Customer has chosen any prepaid Rate Plan offered by Simmetry, Simmetry reserves the right to, at any time, revise the Customer's rates, charges, number of minutes in the Customer's prepaid Rate Plan, as well as any other terms of the Customer's plan, and any such changes may be made by Simmetry without notice of any kind to Customer; provided, however, that Customer's prepaid minutes pursuant to such prepaid Rate Plan will be effective until Customer's prepaid Rate Plan is terminated as provided in the Agreements. All prepaid minutes remaining at the termination of such prepaid Rate Plan will be lost and no refund or credit shall be due to Customer for such prepaid minutes.
10. CHARGES.
a. Customer is responsible to pay all charges for Services provided by
Simmetry, including but not limited to the following:
i.
Recurring monthly access charges for each monthly billing period in
which Customer had access to the Service for all or any portion of that
billing period;
ii. Optional Service features or feature bundles
selected by Customer for which separate charges apply, including, but
not limited to, long distance, directory assistance (4-1-1) calls and
roaming charges;
iii. Charges for adding multiple phones to the same account, if such
charges apply;
iv. Any Service activation, reinstatement, reconnection,
administrative, termination or other charges that may apply;
v. All third party charges that Customer has authorized;
vi. All applicable state and federal taxes, including but not limited
to federal excise taxes, state sales taxes and universal SF taxes for
interstate calls; and
vii. Regulatory charges, including regulatory charges imposed in
connection with Simmetry's provision of the Services.
Except as otherwise required for a prepaid Rate Plan, Customer will be billed monthly in accordance with the Rate Plan chosen by Customer, and Customer agrees to make payments to Simmetry at the address indicated on the monthly statement and within twenty (20) days of the date of the monthly statement. All bills will be mailed to Customer's last known address. Customer must promptly notify Simmetry of any change in Customer's billing address. If Simmetry bills and collects amounts for any third party service provider, Simmetry will allocate payments we receive from you first to amounts due to Simmetry. Simmetry will then allocate any remaining payment to amounts due to such third party service providers.
b. If Customer fails to pay a monthly statement within such twenty (20) day period, then Customer shall also be responsible for paying late charges of $3 on the amount outstanding from time to time. In addition, Customer shall pay a service fee to Simmetry of Twenty-five Dollars ($25.00) for each check from Customer which is returned and not honored for any reason.
c. All airtime used by Customer is billed in whole minutes with fractions of minutes being rounded up to the next full minute. Any such airtime usage by Customer which is charged to Customer on a per minute basis shall be calculated to the nearest cent, with any partial cents being rounded down to the whole cent. Airtime used by Customer shall begin when the Customer presses the SEND key and will end when either party ends the call.
11. DISPUTES AND ERRORS.
All disputes concerning any billing issue must be addressed to Simmetry
in writing within sixty (60) days of the billing date. If Customer
fails to raise any such dispute within such sixty (60) day period, then
Customer shall be deemed to have waived any such dispute and shall be
obligated to pay all charges reflected on the applicable Simmetry
billing statement(s). Even if Customer has a dispute with Simmetry,
Customer shall be obligated to pay all charges on time until the
dispute is resolved.
12. PROHIBITED USES.
Customer must comply with all laws and regulations while using the
Simmetry Services. The Services may not be used for any of the
following purposes:
a. For telemarketing, commercial research, commercial data collection or transmission, sale or resale of any of the Services (including but not limited to selling, bartering or trading to others the use of local, long distance service, or text messaging on Customer's Simmetry phone) or the operation of any telephone-based business (including but not limited to chat lines or fortune telling services);
b. Any fraudulent, illegal or abusive purpose or in a manner that interferes or causes problems with the operation of Simmetry's wireless systems;
c. Continuously, with or without breaks, so as to create the functional equivalent of a telephone line dedicated to Customer's use;
d. Any use other than for voice communications (other than any text messaging services) including but not limited to any use with automatic number dialers or to transmit or knowingly receive data not authorized by Simmetry;
e. Attempting to decipher, decompile, or reverse engineer any of the software comprising or in any way making up a part of the Service;
f. Allowing anyone to steal or tamper with Customer's wireless phone number; or
g. Using the Services for monitoring activities, to transmit data or
for any other one-way transmission application other than text
messaging services expressly offered to Customer by Simmetry.
Simmetry reserves the right to disconnect calls that are not in accordance with this paragraph or any other provision of the Agreements. Customer agrees to indemnify, defend and hold harmless Simmetry from any violation by Customer of any applicable statutes, ordinances, laws or regulations of any local, state or federal authority.
13. SUSPENSION, TERMINATION AND REINSTATEMENT.
a. If Customer does not pay any bill on or before the date due as
provided herein, Simmetry may immediately suspend or terminate
Customer's Service. Simmetry is not required to provide Customer with
any notification before suspending or terminating Customer's Service.
If Simmetry accepts a late or partial payment, even if the payment is
marked "Paid in Full", Simmetry does not waive any of its rights under
the Agreements. Simmetry may also suspend or terminate Customer's
Service without any liability to Simmetry and without prior notice, if
Customer breaches any portion of the Agreements or if Simmetry
suspects, in good faith, that Customer is using the Services for
fraudulent, abusive or improper purposes.
b. If Customer promptly pays all amounts that are overdue or cures any other breach of the Agreements, Simmetry may, at its option, reinstate or reconnect Customer's Service after Customer has paid any reinstatement, reconnection, or other fees established by Simmetry including those charges enumerated herein, but Simmetry is not obligated to reinstate or reconnect Customer's Service. For all Rate Plans other than any prepaid Rate Plan, if Simmetry elects to suspend Customer's Services, and if Customer fails to bring its account current or cure any other breach of the Agreements within thirty (30) days of Customer's Service being suspended, then Customer's Services and the Agreements shall be terminated.
c. In addition to the termination of the Agreements pursuant to Sections 13(a) and (b), Simmetry may terminate Customer's Service at any time, for any or no reason, in Simmetry's sole discretion, after reasonable and advance notice to Customer; provided, however, that Customer shall not be obligated to Simmetry for any termination fees, penalties, or for any Services which would otherwise have been provided after the date of termination.
d. Customer may terminate the Agreements after the expiration of the term of the Agreements by providing Simmetry with written notice of such termination at least thirty (30) days prior to the effective date of such termination.
e. With respect to prepaid Rate Plans, Customer's Service may be terminated as provided in Section 14 herein.
f. If the Agreements are terminated for any reason other than as provided in Sections 13(c), 13(d) or 13(e), Customer shall be responsible for paying a termination penalty equal to the lesser of (i) One Hundred Fifty Dollars ($150.00) or (ii) the monthly Rate Plan charges for each month remaining in the term of the Agreements between Customer and Simmetry. In addition, notwithstanding any termination of the Agreements, Customer shall remain responsible for the payment of any and all charges for Services incurred on Customer's account prior to the date of termination.
g. If the Agreements terminate for any reason, Customer will no longer be entitled to access any of Simmetry's Services and Customer will not be entitled to receive any refund of any payments made by Customer to Simmetry for monthly Service, fees, for any other prepaid Service, or for any other reason.
h. If Customer's Service is temporarily suspended and not fully terminated, and if Simmetry agrees to reinstate Customer's Service after Customer's curing of any breach of the Agreements, Customer shall pay Simmetry a re-activation fee prior to Customer's Service being reinstated.
14. NON-USE OF PREPAID RATE PLAN SERVICE.
a. If Customer prepays for minutes under Simmetry's Simple Pay Rate
Plan, such minutes are effective for sixty (60) days from the date of
payment, and any prepaid minutes remaining at the end of such sixty
(60) day period shall be terminated automatically unless Customer
purchases additional minutes prior to the expiration of such sixty (60)
day period, in which case a new sixty (60) day effective period shall
begin running from the end of the previous sixty (60) day period. If
there is no account activity (usage of the Simple Pay Rate Plan minutes
or purchase of additional minutes) for sixty (60) consecutive days
under Customer's Simple Pay Rate Plan, then Customer's Simple Pay Rate
Plan Service shall automatically terminate and the Customer's phone
number shall be surrendered back to Simmetry.
b. If Customer prepays for Service under Simmetry's Simple Pay Unlimited or Unlimited Plus Rate Plan, such Service shall be effective for thirty (30) days from the date of payment. Unless Customer purchases additional Service under such Rate Plan prior to the expiration of such thirty (30) day period, Customer's Service shall be terminated automatically. If Customer fails to purchase additional Service under the Simple Pay Unlimited or Unlimited Plus Rate Plan prior to the expiration of such initial thirty (30) day period, Customer may reactivate its Service under such Rate Plan without incurring a reactivation fee by paying for such Service within sixty (60) days after the expiration of the initial thirty (30) day period. If Customer fails to purchase additional Service within such second sixty (60) day period, then Customer's phone number shall be surrendered back to Simmetry.
c. Purchases of prepaid Services under any prepaid Rate Plan are non-refundable and may not be redeemed for cash or applied to Customer's account with Simmetry. If Customer's prepaid Rate Plan Service is suspended or terminated as permitted by the Agreements, Customer shall not be entitled to either (i) any refund of amounts paid for such service period, or (ii) a discount or pro-rata reduction of amounts owed for such service period.
d. Except as otherwise provided herein, if any prepaid Rate Plan is terminated and Customer chooses to restore his or her Simmetry account, Customer may be required to purchase a new SIM card, and Customer shall pay a reactivation fee.
15. SMS - TEXT MESSAGING.
a. Simmetry offers a short messaging Service ("text messaging" or
"SMS") for an additional fee, which allows Customer to send messages to
some other subscribers, both on and off the Simmetry network. The
content of all messages sent or received through the SMS service
("Content") is the sole responsibility of the person sending the
message. Since Simmetry does not control the Content of messages sent
to you by others, you may be exposed to messages that are offensive,
indecent, or objectionable. You agree that you will not hold Simmetry
liable in any way for any message Content created or sent by others,
including any messages that contain errors or omissions. You further
consent to receiving advertising, alerts and other broadcast messages
from us or our authorized agents.
b. If Customer is a subscriber to Simmetry's SMS Service or send SMS messages to Simmetry customers via the internet or other means, Customer agrees that it will not transmit or knowingly accept any communication or data that would violate any laws, court order or regulation, or would be offensive to the recipient. Customer further agrees that it will not use Simmetry's SMS Service to (1) transmit or accept any material that contains a software virus or any other computer program designed to interfere with any other computer software or hardware or telecommunications equipment or any data transmission not authorized by Simmetry, (2) impersonate any other person, including but not limited to, a Simmetry employee, or otherwise act in a manner that negatively affects other participants, (3) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted via SMS, (4) collect or store personal data about other users; (5) spam, post or transmit any solicited or unsolicited advertising, promotional materials, or any other forms of solicitation; or (6) spam, post or transmit unsolicited messages or materials which contain offensive, sexually explicit or profane content or language to recipients, including large numbers of recipients you do not personally know. In addition, you agree to bear all risks associated with the use of SMS and any Content, including any risks relating to your reliance on the accuracy, completeness, timeliness or usefulness of such Content.
c. Customer agrees that Simmetry may remove or block any Content that Simmetry believes violates this Agreement or is otherwise objectionable.
d. Customer agrees that Simmetry may terminate Customer's Service, may preserve Content, and may disclose Content if required to do so by law or in the good faith belief that such termination, preservation or disclosure is reasonably necessary to (1) comply with legal process; (2) enforce this Agreement; (3) respond to claims that any Content violates the rights of third-parties; (4) protect the rights, property, or personal safety of Simmetry, its employees, users and the public, or (5) further any other lawful purpose. You also agree that you will cooperate with Simmetry in (i) investigating any complaints lodged by third parties for Content sent by you and (ii) ensuring compliance with this Agreement.
e. The technical processing and transmission of the SMS Service, including Customer's Content, may involve transmissions over various networks not operated or controlled by Simmetry. Simmetry may change the Content to meet the technical requirements of connecting networks or devices. Simmetry cannot guarantee that your intended recipient is the only party that will receive the Content or that you will receive timely confirmations of the Content you send. In addition, Simmetry cannot guarantee that messages you send or that are sent to you will be received in a timely manner, or that your messages will be received at all.
16. NUMBER PORTABILITY.
Customer may be able to "port" or keep Customer's telephone number when
Customer changes telephone service providers. Porting may be available
when Customer changes from one wireless carrier to another wireless
carrier or between wireless and wireline service. Customer's ability to
port its number to or from Simmetry will depend on a number of factors,
including without limitation: (i) whether Simmetry offers service in
the area in which Customer seeks service; (ii) what other carriers
offer service in the area in which Customer seeks service; (iii)
Simmetry's ability to enter into porting agreements and technical
porting arrangements with other carriers; and (iv) the status of
Customer's service account with the carrier from which Customer seeks
to port Customer's number. Even if Customer is able to port its number,
Customer may be required to purchase a new wireless phone or other
equipment in order to change service to or from Simmetry service.
Simmetry may charge a fee to reimburse Simmetry for the costs Simmetry
incurs to meet the equipment, technology and infrastructure
requirements necessary to enable number porting. Simmetry may also
charge a fee to reimburse Simmetry for the cost Simmetry incurs to
perform a port. Such fees may be included as part of the charges for
Simmetry service or may be charged on an individual basis to customers
seeking to port their number. In order to port Customer's number from
Simmetry, Customer must have an active Simmetry Service account. If
Customer's account has been disconnected, suspended or interrupted for
any reason, including failure to pay Customer's Simmetry Service bill,
Customer may not be able to port its number. Other service providers
may have similar requirements. Customer may be required to provide
information necessary to verify Customer's identity, active service and
other information before Customer is able to port its number to or from
Simmetry. Customer may be without wireless service during the time that
it takes to port Customer's number to or from Simmetry, which may be
several days in certain circumstances.
17. LIMITATION OF LIABILITY.
Simmetry is not liable for interruptions or delays in transmission, or
failure to transmit when caused by an act of God, fire, war, riots,
terrorist attack, Government authorities, or other causes beyond its
control, including the type and condition of Customer's Equipment; any
indirect, incidental, consequential or special damages, including but
without limitation: any loss by Customer of business revenue, goodwill
or other claims arising in connection with the use of the Service
and/or Equipment; any defacement or damage to any motor vehicle or any
other personal or real property resulting from the use of the
Equipment; or any personal injuries or death to Customer, any
authorized user, or any other third party as a result of the use of any
phones, accessories or other equipment purchased from Simmetry.
Simmetry shall not be liable to any person for civil damages resulting
from, or caused by, any act or omission in the development, design,
installation, operation, maintenance, performance, or provision of
digital/wireless 9-1-1 or E9-1-1 service, except for willful or wanton
misconduct. The liability of Simmetry for loss or damage arising out
of mistakes, omissions, interruptions, delays, errors or defects in the
Service or its transmission, occurring in the course of furnishing
Service and not caused by the negligence of the Customer, shall in no
event exceed an amount equivalent to the proportionate charge to the
Customer for Service for the month in which the event occurred,
provided however, that no such adjustment shall be made unless Service
has been interrupted for at least twenty-four (24) continuous hours,
and provided further, that the total amount of adjustment for any given
thirty (30) day period shall not exceed the amount for which the
Customer was liable to Simmetry for Customer's invoice for services
during the month in which such interruption occurred. The Customer
agrees to indemnify and save Simmetry harmless against claims for
libel, slander, or infringement of copyright from the materials
transmitted through use of the Service and/or Equipment, against claims
for infringement of patents arising from, combining with, or using in
connection with the Service and/or Equipment, and against all other
claims arising out of any act or omission of the Customer in connection
with the Service and/or Equipment, including but not limited to any
personal injuries or death incurred by Customer or any of its
authorized users or any other third party. SIMMETRY MAKES NO
WARRANTIES OR REPRESENTATIONS WHATSOEVER WITH RESPECT TO THE OPERATION
OF THE EQUIPMENT OR ITS SERVICES, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
18. ASSIGNMENT.
The parties agree that the Service and the Agreements may not be
transferred by the Customer, in whole or in part, without the prior
written consent of Simmetry. Simmetry may, however, upon 5 days written
notice to the Customer, assign all of its rights, duties, and
obligations under the Agreements.
19. ENTIRE AGREEMENT.
The Agreements supersede all prior discussions and agreements between
the parties with respect to the subject matter hereof and the
Agreements contain the sole and entire agreement between the parties
with respect to the matters covered hereby.
20. GOVERNING LAW.
The Agreements are made and delivered in and shall be governed by,
construed and enforced in accordance with the laws of the State of
Illinois.
21. COSTS OF LEGAL ACTION.
Notwithstanding any other provision of this or any other section,
should it become necessary for Simmetry to institute any procedure to
collect past amounts due or enforce or protect its rights under the
Agreements, Customer agrees to be responsible to Simmetry for all
costs, including professional fees for attorneys, collectors and
accountants.
22. NOTICES.
All notices may be delivered personally or mailed as follows. If to
Simmetry: to the attention of the Director of Wireless Operations at
529 Hampshire Street, Suite 200, Quincy, IL 62301; if to Customer, to
Customer’s address as disclosed in Customer’s Simmetry file. Notices
delivered personally shall be deemed given upon delivery; notices
mailed shall be deemed given on the third day following the mailing
date of such notice, excluding Saturdays and Sundays.
23. REGULATION.
Simmetry and Customer hereby agree that the Agreements shall, at all
times, be subject to change, modification or nullification by any
authorized regulatory authority of any State in which the Service is
provided, the Federal Communications Commission, or any other
authorized governmental body; and further agree that the Agreements,
notwithstanding their provisions, shall at all times be specifically
subject to all applicable tariffs and other regulatory statements, and
should Simmetry lose its license to operate, the Agreements shall
automatically terminate, except that Customer shall remain responsible
to Simmetry for any Services provided by Simmetry to Customer prior to
the date of such termination.
24. ARBITRATION.
a. Selection of Arbitrators.
(i) In the event of any disagreement between Customer and Simmetry with
respect to the Agreements that cannot be resolved by negotiation, then
Customer or Simmetry shall initiate proceedings to submit such
disagreement to arbitration by serving written notice of arbitration on
the other party, which notice shall include appointment of an
arbitrator, naming such arbitrator. Within 30 days after the date that
such notice is deemed to be given, pursuant to the provisions of
Section 22 of these Terms and Conditions of Service, the party to whom
such notice is given shall similarly appoint an arbitrator by giving
like written notice to the initiating party; or, failing to make such
appointment, the arbitrator initially appointed shall be empowered to
act as the sole arbitrator and to render a binding decision. In such
event, such sole arbitrator shall set a date for the hearing of the
dispute not later than 90 days after the date of his appointment, and
shall render a decision in writing to the disputing parties not later
than 60 days after the last hearing date. Any arbitrator appointed in
accordance with this Section 24(a) shall be an individual unaffiliated
with either of the disputing parties with expertise in the subject
matter of the dispute.
(ii) In the event that the disputing parties duly appoint arbitrators pursuant to subparagraph (i) above, the two arbitrators so appointed shall, within 30 days after the appointment of the later of them to be appointed, select a third arbitrator who shall act as Chairman of the arbitration panel. Such arbitration panel shall set a time for the hearing of the dispute which shall not be later than 60 days after the date of appointment of the third arbitrator, and the final decision of the arbitrators shall be rendered in writing to the disputing parties not later than 60 days after the last hearing date.
(iii) In the event that the arbitrators appointed by the disputing parties are not able within 30 days after the appointment of the later of them to agree on the selection of a third arbitrator, either one of them may request the American Arbitration Association to select a third arbitrator, and the selection of such arbitrator by such Association shall be binding.
(iv) The place of any arbitration shall be in Adams County, Illinois or at such other place as agreed to by the disputing parties.
(v)
The arbitration shall be conducted in accordance with the Illinois
Uniform Arbitration Act (710 ILCS 5/1 et seq.) and the rules of the
American Arbitration Association then prevailing. If any conflict
exists between the Illinois Uniform Arbitration Act and the rules of
the American Arbitration Association, the Illinois Uniform Arbitration
Act shall apply. Illinois law will apply to all procedural and
substantive issues.
b. Cost of Arbitration. Except as
provided in Section 21, each party hereto shall pay its own expenses in
connection with any arbitration undertaken pursuant to this Section.
However, if a party fails to timely proceed with the arbitration or
obey a ruling of the arbitrator, that party will be responsible for the
opposing party's costs incurred in connection with the failure to
proceed or failure to obey a ruling, including reasonable attorneys'
fees.
c. Effect of Arbitration. The decision of the arbitrators shall be final, conclusive and binding on the disputing parties. Such decision will be enforceable in a court of competent jurisdiction.
