These terms and conditions for Wireless Service ("Services"), Cellular Telephone Equipment, and/or Wireless Devices ("Equipment") is between Nsighttel Wireless, LLC., a Wisconsin corporation with its principal place of business at 450 Security Boulevard, Green Bay, Wisconsin 54313 (d/b/a and hereinafter referred to as "Cellcom"), and the party whose name(s) appear on the agreement (the "Customer").
These terms and conditions shall become effective on the date the agreement is signed.
EQUIPMENT AND SERVICES.
- Equipment. Delivery of the Equipment ordered hereunder shall be made in a reasonable length of time. Cellcom is not responsible for loss or expense arising from delays in delivery thereof attributable to matters outside its direct control. If Customer is dissatisfied with the quality or quantity of the goods received, Customer shall make Customer's objections thereto in writing and mail by certified or registered, return receipt requested mail, addressed to Cellcom at its address as set forth above, within fifteen (15) days of delivery of such Equipment. Absent provision of such notice of dissatisfaction by Customer, Customer hereby agrees and acknowledges that the quantity and quality of the goods provided by Cellcom conform to terms of this Agreement and are satisfactory.
- Services. Services hereunder shall only be available to Equipment properly equipped and installed to accept such Services. Such Services are also subject to transmission limitations caused by atmospheric or geographic conditions. The Services may be temporarily refused or limited because of the cellular system's capacity limitations. Services to any or all customers may be temporarily interrupted or curtailed, without notice, due to Equipment modifications, upgrades, relocations, repairs or similar activities necessary for the proper or improved operations of the system.
- Common Provisions. Each financially responsible individual, business, or entity identified on the agreement hereof shall be jointly and severally responsible for payment of all Equipment purchase charges, all service charges and all toll charges recorded to Customer's access number. A service charge is made for each use of the cellular system, whether the call is incoming or outgoing and whether made in or out of Cellcom's service area. Neither the Equipment nor the Services shall be used by Customer for any purpose that is in violation of federal, state or local law, nor shall the same be used in such manner as to unreasonably interfere with the use of the Services by one or more other customers.
LIABILITY DISCLAIMER AND INDEMNIFICATION.
- EQUIPMENT. CUSTOMER ACKNOWLEDGES THAT CELLCOM IS NEITHER THE MANUFACTURER NOR THE AGENT OF THE MANUFACTURER OF THE EQUIPMENT PROVIDED HEREUNDER. CUSTOMER ACKNOWLEDGES AND AGREES THAT CELLCOM MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND REGARDING THE EQUIPMENT AND THAT CELLCOM DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES SHALL CELLCOM BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES CAUSED IN WHOLE OR IN PART BY AN EQUIPMENT MALFUNCTION OR FAILURE, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PROPERTY DAMAGE, DAMAGE TO OR LOSS OF EQUIPMENT, LOST PROFITS OR REVENUE, COST OF RENTING REPLACEMENTS, AND OTHER ADDITIONAL EXPENSES, EVEN IF CELLCOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- EQUIPMENT REPAIRS. CUSTOMER ACKNOWLEDGES THAT CELLCOM IS UNDER NO DUTY OR OBLIGATION TO PERFORM ANY SERVICE, MAINTENANCE, OR REPAIR (COLLECTIVELY, “REPAIRS”) OF THE EQUIPMENT PROVIDED HEREUNDER, NOR DOES THIS AGREEMENT CREATE SUCH A DUTY OR OBLIGATION. NOTWITHSTANDING, CELLCOM MAY PERFORM SUCH REPAIRS AT CUSTOMER’S REQUEST AND PURSUANT TO THE TERMS AND CONDITIONS OF AN AGREEMENT FOR SUCH REPAIRS. IN THE EVENT CELLCOM PERFORMS SUCH REPAIRS, AND NOTWITHSTANDING THE TERMS OR CONDITIONS OF SUCH SUBSEQUENT AGREEMENT, CUSTOMER ACKNOWLEDGES AND AGREES THAT CELLCOM’S LIABILITY, AND CUSTOMER’S SOLE REMEDY FOR ANY DEFECTS IN REPAIRS PERFORMED BY CELLCOM SHALL BE LIMITED TO THE COST OF SUCH REPAIRS; AND, UNDER NO CIRCUMSTANCES, SHALL CELLCOM BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PROPERTY DAMAGE, DAMAGE TO OR LOSS OF EQUIPMENT, LOST PROFITS OF REVENUE, COST OF RENTING REPLACEMENTS, AND OTHER ADDITIONAL EXPENSES, EVEN IF CELLCOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MOREOVER, CELLCOM WILL NOT BE LIABLE FOR ANY DAMAGES, LOSSES, OR EXPENSES RESULTING, IN WHOLE OR IN PART, FROM CUSTOMER’S NEGLIGENCE, WHETHER DEEMED ACTIVE OR PASSIVE. IN ADDITION, THE WARRANTIES SPECIFIED HEREIN SHALL NOT APPLY TO ANY EQUIPMENT THAT HAS BEEN REPAIRED OR ALTERED BY ANYONE OTHER THAN CELLCOM OR THE MANUFACTURER OF SUCH EQUIPMENT, OR TO ANY EQUIPMENT NOT OPERATED IN ACCORDANCE WITH THE MANUFACTURER’S OR CELLCOM’S DIRECTIONS REGARDING SUCH USE.
- ADDITIONAL LIMITATIONS. It is further specifically agreed as to the Equipment and Services provided hereunder that Cellcom shall NOT be liable to Customer or any other party for:
- Any injury to person or damage to property resulting from any negligent or unintentional acts or omissions of Cellcom, its employees, agents or others.
- Any damage or loss by Customer as a result of any partial or complete interruption in the operation of its business or for any failure of any of its goods, products or Services.
- Any direct, indirect, special, incidental or consequential damages of any kind sustained by Customer or any other person or entity for any failure of Customer’s Equipment, for the inability of Cellcom to promptly or properly repair Customer’s Equipment, for any interruption of any Service now or hereafter provided by Cellcom or for the loss of any transmission or the information contained therein.
- INDEMNIFICATION. Customer agrees to indemnify and hold Cellcom harmless from all claims, actions, suits, demands and judgments, including actual attorney’s fees and costs, which Cellcom may incur in defending itself against any of the aforesaid arising from Customer’s use or possession or other relationship to the Equipment, goods or Services supplied, worked on, or provided by Cellcom or its employees, agents or designers, including, but not limited to, any expenses arising from actions brought under the Occupational Safety and Health Act or other governmental regulations or laws.
TERMINATION OF SERVICE.
- Customer may terminate this Agreement prior to the expiration of the Agreement term specified on the agreement hereof by delivering written notice to Cellcom of Customer’s intention to terminate this Agreement and the effective date of such termination (which shall be no less than ten (10) business days after Cellcom’s receipt of Customer’s notice). Notwithstanding any such termination, Customer shall be responsible for payment of all outstanding charges on Customer’s account at the time of such termination and shall pay to Cellcom a “Service Cancellation Charge” prior to the effective date of Customer’s termination. If Customer obtained a “Smart Phone” for use on Customer’s account, the Service Cancellation Charge shall be Three Hundred and Fifty Dollars ($350.00), reduced by Ten Dollars ($10.00) per month for each completed month of the term of this Agreement. If Customer obtained a standard device for use on Customer’s account, the Service Cancellation Charge shall be One Hundred Seventy-Five Dollars ($175.00), reduced by Five Dollars ($5.00) for each completed month of the term of this Agreement. If Customer purchased Equipment via a Flex agreement, Customer shall pay to Cellcom any balance remaining due for any Equipment purchased upon termination of service. Customer acknowledges and agrees that Cellcom will suffer damages as a result of Customer’s early termination of this Agreement and that the Service Cancellation Charge is a reasonable estimation of these damages and shall be construed as liquidated damages, and not a penalty.
- Cellcom may, after giving prior written notice to Customer, terminate or temporarily discontinue or restrict Customer’s Service if: (1) Customer fails to pay any charge due or otherwise violates any term of this Agreement, (2) Customer fails to maintain a billing address within Cellcom’s licensed market, or (3) Customer utilizes less than fifty percent (50%) of Customer’s overall minutes of airtime within Cellcom’s licensed market during any three (3)-month period during the term of this Agreement. In addition, Cellcom may discontinue Customer’s Service without prior notice if: (4) Customer’s Service is reasonably suspected of being used in an illegal or other manner that causes or is likely to cause any form of harm to Cellcom or any other person, or (5) Customer commits or assists a third party in committing cellular or subscriber fraud. “Cellular fraud” is defined as the unauthorized use, tampering, or manipulation of Equipment or service and specifically includes acts of cloning (i.e., the manipulation of Equipment to reprogram the Equipment to transmit the electronic serial number and telephone number belonging to other devices). “Subscriber fraud” is defined as the initialization or use of wireless services using fraudulently obtained customer information or false identification.
- In the event Cellcom, in its sole discretion, undertakes litigation or collection efforts against Customer to enforce the terms of this Agreement, and Cellcom prevails in such efforts, Customer shall be responsible to reimburse Cellcom for all costs and expenses, including actual attorneys’ fees, incurred by Cellcom relative to such efforts, unless otherwise precluded by law. Further, in the event such litigation or collection effort arises from, or results in, the termination of this Agreement prior to the expiration of its term, Customer shall be liable to Cellcom for the Service Cancellation Charge (in addition to all outstanding charges on Customer’s account at the time of such termination).
- The term of this Agreement shall be tolled, and its expiration date extended, for any periods during which Customer’s Service is suspended due to nonpayment or other violations of the terms of this Agreement by Customer. Upon Customer’s cure of such violation, Cellcom may, acting in its sole discretion, reactivate Customer’s Service and shall be entitled to charge Customer a reasonable reactivation fee.
- Cellcom reserves the right, in its sole discretion, to change Customer’s access number upon notice to the Customer. Customer acknowledges that Customer has no proprietary or ownership rights or interest in or to Customer’s number(s), except as allowed for by law, and cannot acquire such rights or interest through usage, publication or otherwise.
- Customer may request that Customer’s access number(s) be transferred to or from another service provider.
- If Customer transfers the access number(s) to Cellcom, all activation requirements and charges, including credit approval, apply. Customer remains liable for charges (including cancellation fees) incurred with a former service provider. If a transfer is unsuccessful and the request is cancelled, and Customer does not ask Cellcom to assign a new number, Customer shall be required to return to Cellcom all Equipment and/or goods supplied hereunder.
- If Customer requests to transfer the access number(s) to another service provider, this request will be considered a notice of Customer’s intention to terminate Service; and the terms of the Agreement set forth in the Termination of Service paragraphs will apply. Upon request, all amounts then owed to Cellcom (including the Service Cancellation Charge and any amounts that appear on the final invoice) shall become immediately due. If a transfer is unsuccessful for any reason, Customer’s Service will not terminate, and Customer will continue to be responsible for all Service or other charges (not the Service Cancellation Charge).
- When transferring access numbers to another service provider, voice mail, phone book or other Services will be lost.
- Cellcom does not guarantee, in any way, that such access number transfers to or from Cellcom will be successful.
RATES AND CHARGES.
- Customer acknowledges that it is responsible to pay to Cellcom all charges resulting from the use of the Service for calls, incoming or outgoing, either within or outside Cellcom’s service area. Customer must also pay for all charges on calls billed to Customer’s access number. Such charges are in addition to the charges for Service usage. Each partial minute of airtime shall be billed as a full minute unless otherwise noted for Customer’s billing plan. Payment of the Service bill is due on the date when indicated on said bill. A balance which remains unpaid as of the next billing date shall accrue interest at the monthly rate of 1.5%, or $7, whichever is greater, from the original due date until such balance is paid in full.
- Except as may be prohibited by law, Cellcom reserves the right to amend the terms and conditions of the agreement the Customer has signed, including, but not limited to, Customer’s rate plan and rates charged to Customer under applicable rate plans, upon notice to Customer and the expiration of a thirty (30)-day objection period afforded to Customer. If, after receiving any such notice from Cellcom, Customer desires to terminate the Agreement due to the proposed amendment(s), Customer shall, within thirty (30) days of receipt of Cellcom’s notice, deliver written notice of termination to Cellcom; and the Agreement and Customer’s ability to utilize the Services shall terminate on the fifth (5th) day following Cellcom’s receipt of Customer’s notice of termination. Upon such termination by Customer, Customer will not be assessed an early termination fee. Notwithstanding, if Customer utilizes the Services or makes payment to Cellcom therefor after Customer’s receipt of Cellcom’s notice, Customer shall be deemed to have agreed to Cellcom’s proposed amendment(s) and shall not thereafter have any right to terminate the Agreement due to such amendment(s).
- There may be added to any charges incurred by Customer amounts equal to any industry-wide surcharges and/or fees and any surcharge, duty, levy, tax, or withholding, including, but not limited to, sales, property, ad valorem, excise and use taxes, or any tax in lieu thereof or in addition thereto, imposed by any local, state, or federal government or governmental agency with respect to the Services, or with respect to services provided to customers, excepting only taxes on the income of Cellcom. In addition, there may be added to any charges, additional charges to reimburse Cellcom for its reasonable and necessary costs and expenses incurred in maintaining compliance with regulatory requirements imposed by any local, state, or federal government or governmental agency having jurisdiction over Cellcom.
- In the event Customer accesses or uses Cellcom’s messaging or data services, Customer shall be responsible for all charges and the prompt payment of these services regardless of who initiates the activity or whether the Customer’s Equipment actually received the data. This includes, but is not limited to, the amount of data associated with a particular service (applications, messaging etc.), additional data usage in accessing, transporting and routing this service on Cellcom’s network, data from partial or interrupted downloads, re-sent data, and data associated with unsuccessful attempts to reach websites or use applications. The charges for Customer’s access to or use of the messaging or data services shall be in addition to any charges specified in Customer’s rate plan. Messaging and data usage may be charged against a feature package or on a fixed price per unit. Customer may not utilize airtime or any other benefit specified in Customer’s rate plan as payment or credit towards Customer’s access to or utilization of Cellcom’s messaging or data services. Downloads cannot be transferred if Equipment is returned, upgraded or exchanged or lost. Estimates of data usage may not be an accurate predicator of actual usage. Data usage is measured and billed in kilobyte increments. Partial kilobyte increments of use will be rounded to the next full kilobyte. Unused kilobytes may not be carried over to subsequent monthly billing cycles. Customer may not receive voice calls while using data services. Customer may have access to “Premium Services” that are available for an additional charge (e.g., applications + other items). Customer will be billed for Premium Service purchases based on the charges as specified at purchase. Subject to the terms of the content purchased, Cellcom may delete premium and non-premium items downloaded to any storage areas Cellcom may provide, including any pictures, games and other content. We may limit the amount of Premium Services you may purchase in a specific timeframe (month, week, day or other period). We may terminate services without notice for any misuse. Customer’s access to, and use of, Cellcom’s messaging and data services is further governed by Cellcom’s “Data Acceptable Use Policy” which can be found at www.cellcom.com/AUP. Among other things, the Data Acceptable Use Policy provides that Cellcom may terminate Customer’s access or use of Cellcom’s messaging or data services at any time and without notice to Customer in the event Customer violates any term or condition of the Data Acceptable Use Policy.
- When Customer provides a check as payment, Customer authorizes Cellcom to make a one-time electronic funds transfer from Customer’s account. Therefore, funds may be withdrawn from Customer’s account on the same day Customer’s payment is received. Customer may not receive Customer’s check back from Customer’s financial institution.
- Entire Agreement. These terms and conditions, together with all agreements and any other documents referenced herein, shall constitute the entire agreement between the parties; and no term or condition contained herein or therein may be modified or waived, except in writing signed by an authorized representative of Cellcom. The acceptance by Cellcom of any payment after it shall become due shall not constitute or be construed as a waiver of any or all of Cellcom’s rights hereunder.
- Assignment and Interpretation. These terms and conditions shall be binding upon and inure to the benefit of the heirs, representatives, successors and assigns of the parties hereto; provided, however, that Customer may not assign this Agreement, or any or all rights or obligations hereunder, to any third party without the prior written consent of Cellcom. The interpretation of this Agreement shall be subject to the laws of the State of Wisconsin.
- Severability. The invalidity of any portion of any provision of these terms and conditions shall not affect the validity of the remainder of the provisions hereof.
- Service Fee. Customer will be billed monthly for Service pursuant to the terms of Cellcom’s current Service price list pursuant to the applicable pricing package. Customer may change to other pricing plans available to existing customers, but the term of this Agreement will remain unchanged unless such term is otherwise extended under the terms of another pricing package selected by Customer.
- Cellcom, in its sole discretion, may require Customer to provide a security deposit as a precondition to Service activation in an amount determined by Cellcom. Upon termination or expiration of this Agreement, Cellcom shall have the right to apply all or any part of the security deposit to the outstanding balance on Customer’s account. If any surplus remains, such surplus shall be refunded to Customer. If Customer so requests, in writing delivered prior to the expiration or termination of this Agreement, Cellcom shall refund the security deposit to Customer if the following conditions are met:
- Customer paid to Cellcom Customer’s monthly invoices in a full and timely fashion in accordance with the terms of this Agreement and Cellcom’s invoices for a period of not less than twelve (12) consecutive months; and
- Customer’s most recent bill has likewise been paid in a full and timely fashion.
- Cellcom has received a verbal or written request for the refund. If Customer terminates service with Cellcom at any time, the deposit will be applied toward Customer’s final bill. If any surplus remains, the balance will be refunded to Customer.
- Stolen or Lost Equipment. Customer shall immediately report all lost or stolen Equipment to Cellcom and to an appropriate law enforcement authority. Customer remains responsible for paying all charges incurred on the stolen or lost Equipment prior to the notification to Cellcom. Any request for credit against such charges must be in writing, accompanied by a police report verifying law enforcement notification, and must be received by Cellcom before the date when payment for such charges is due.
- Technology Enhancements. Cellcom reserves the right to change your Equipment’s software or programming, over the air, without notice.