WIRELESS MANAGED SERVICES STANDARD TERMS & CONDITIONS
These supplementary standard terms and conditions together with any other documents annexed hereto and made a part of the agreement (collectively, the “Agreement”) is made by and between ComTec Systems Inc. (“ComTec”) with an address at 2658 N. West Boulevard, Vineland, New Jersey, 08360, and the Clients of ComTec’s wireless managed services (“the Service”).
- Access: Client agrees to provide ComTec reasonable access to Client’s mobile (cellular/wireless) billing and device reporting, in order that Services may be performed as set forth in the Agreement, addendum, work order or other service form. In the event that said access is not provided as requested, Client is aware that delivery and effectiveness of Services may be jeopardized and that additional charges may be incurred.
- Security & Usage: Client understands that ComTec and its Underlying Service Providers, including ForgeOS, LLC, cannot guarantee the security of any transmissions and will not be liable for any lack of security relating to the use of the Services. Notwithstanding the foregoing, ComTec agrees to use no less than a reasonable degree of care, including relevant industry-standard practices, to protect the security of any Client transmissions while providing Services to Client. Client understands and agrees that (1) Client’s data may be stored in the OS of ForgeOS, LLC and Client agree to ForgeOS, LLC’s Terms of Service, found here: https://forgeos.co/terms-of-service. Client grants ComTec and ForgeOS, LLC the right to use Client’s data to provide Services to Client. Client understands and agrees that its data may be anonymized and aggregated. Client will have access to its data through ForgeOS, LLC while they are a Client of ComTec. Client understands and agrees that, if ComTec enables wireless services for Client, Client grants ComTec and ForgeOS, LLC the right to use Client’s carrier login information to retrieve carrier data as needed for the engagement. The Services are for Client’s use only and Client may not resell the Services or confidential know-how to any other party.
- Data Storage Surcharge: All Clients utilizing the ForgeOS platform may be charged a data storage surcharge of ten percent (10%) of Customer’s Monthly Recurring Charge (“MRC”) beginning Feb 1, 2024. This fee will appear as a separate line item on all invoices from that date forward and is a pass through fee from ForgeOS, LLC .
- Late Charges and Taxes: Amounts not paid when due (total ComTec invoice, including all Service Provider and ComTec charges) will accrue interest at a rate of 1.5% per month or the highest amount permitted by applicable law, whichever is less. If Client is exempt from payment taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date ComTec receives such certificate.
- Disconnects: Client may request ComTec to handle Client-approved disconnects, either as the authorized biller (Client must provide signed documentation) or assisting Client with carrier-specific information and/or conference calls with the carrier. Client understands that all costs required and risks to effectuate such disconnection shall be borne by the Client unless same resulted from ComTec’s gross negligence or unless ComTec is otherwise responsible for these costs under a fully executed agreement.
- Warranty Exclusion: Except as expressly stated in a fully executed agreement, ComTec makes no warranties or representations, express or implied, either in fact or by operation of law, and specifically disclaims any warranties of merchantability or fitness for a particular purpose, applicable to the Services.
- Limitation of Liability: NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY LOSSES OR DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, LOSS OF USE, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF CLIENTS, LOSS OF GOODWILL OR COST OF REPLACEMENT FACILITIES OR SERVICES, ARISING IN ANY MANNER FROM A FULLY EXECUTED AGREEMENT AND/OR THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS THEREUNDER. Except as expressly stated in a fully executed agreement, Client has no contractual relationship with any Underlying Service Providers through any agreement with ComTec. Client understands and agrees that Underlying Service Providers will not have any kind of liability to Client through any agreement with ComTec, regardless of the form of action, including but not limited to failure or disruption of service. ComTec does not establish carrier rates and does not warrant that carrier rates will remain in effect for any period of time. Additionally, to the maximum extent permitted by law, Client’s recovery against ComTec under any circumstance shall not exceed the fees paid by Client to ComTec pursuant to a fully executed agreement. This limitation shall apply regardless of the cause of action or legal theory asserted.
- Indemnification and Hold Harmless: Each party will defend and indemnify the other party and the Underlying Service Providers, and each of their respective officers, employees, and agents, against any liabilities and reasonably related costs (including legal fees) incurred in connection with any third party claims for property damage, personal injury or death arising from or in connection with a fully execute agreement to the extent said claims arise from the party’s gross negligence or willful misconduct. This indemnity shall survive the termination of any ComTec Service Agreement, Addendums and/or Service Order Forms (“SOF”). Additionally, Client will defend and indemnify ComTec and the Underlying Service Providers, and each of their respective officers, employees, and agents, against any liabilities and reasonably related costs (including legal fees) incurred in connection with any claim by an end user of the Services, it being understood that Client, and not ComTec, is fully responsible for any such claims. Except as is specifically set forth herein, Client agrees to hold ComTec harmless of and from any and all liability to Client concerning any increase in rates imposed by any carrier or any failure to secure greater savings from a program that is not recommended or implemented and any resultant loss in savings to Client. Client acknowledges and agrees that any changes made by Client to Client’s account may affect Client’s savings. Client shall hold ComTec harmless of and from any claims and or liability resulting from a change requested by Client without prior approval by ComTec. Client further agrees that any increase or reduction in savings resulting from such changes shall not reduce or eliminate the fees due ComTec as provided in a fully executed agreement.
- Default: If either party fails to conform or comply with any material obligation under this Agreement, that failure shall constitute a default. The non-defaulting party shall notify the defaulting party in writing of the default. If the default is not remedied to the reasonable satisfaction of the non-defaulting party within fifteen (15) days after receipt of the notice of default sent by the non-defaulting party, the non-defaulting party may declare the Agreement terminated. In the event a Client default is not remedied within the applicable fifteen (15) day period, then ComTec may declare the Agreement terminated and terminate all Services.
- Termination: Upon default, the non-defaulting party may terminate the Agreement, its Addendums and/or an affected SOF by written notice. If ComTec terminates the Agreement for Cause, ComTec will have no further liability or obligation thereunder. If Client terminates any Services (other than for ComTec’s default) prior to the completion of the then current Term, Client agrees to pay ComTec Liquidated Damages equal to the monthly charges times the number of months remaining in the Initial Term or a Renewal Term. The parties acknowledge that the Liquidated Damages is a genuine estimate of the actual damages to ComTec for Client’s early termination of a Service and is not a penalty. In no event shall Client be entitled to any refund of already paid Service Charges if the Agreement, its Addendums or any SOF is terminated, except for a termination based on ComTec’s default, as defined herein. You are purchasing the Service for full terms, meaning that if you attempt to terminate Service prior to the end of the Initial Term or any Renewal Term you will be responsible for the full monthly charges to the end of the then-current term, Including, without limitation, unbilled charges, plus liquidated damages and a reimbursement of all costs of collection including, without limitation, reasonable attorney’s fees, all of which will immediately become due and payable.
- Confidentiality: If the parties entered into a confidentiality or non-disclosure agreement in anticipation of executing an Agreement, such Agreement is incorporated herein and shall apply instead of this Section. Otherwise, the parties acknowledge that they have or will exchange certain confidential information expressly designated or which should reasonably be known as “confidential” (“Confidential Information”) and each party agrees that neither party will (a) use the other party’s Confidential Information except for the purpose(s) for which it is disclosed or (b) disclose the other party’s Confidential Information to any third party except (i) under an identical confidentiality restriction to the receiving party’s employees or contractors who have a need to know Confidential Information in connection with the purposes for which it is disclosed or (ii) when compelled by a court or other government agency (with as much advance notice to the disclosing party as reasonably possible). ComTec acknowledges that it may receive certain of Client’s information that constitutes “Customer Proprietary Network Information” or “Customer Proprietary Information” under applicable law, and ComTec agrees that it will hold all such information in compliance with applicable law.
- Client Changes to Wireless/Cellular Plan: Client has the right to make changes to its wireless/cellular plans or accounts at any time with or without ComTec’s review and recommendation. Client acknowledges that any changes it makes to its wireless/cellular plan or account, other than those provided in the Savings Proposal, may adversely affect savings projected by ComTec. Client shall hold ComTec harmless from any claims and liability resulting from such changes. Client further agrees that any increase or reduction in savings resulting from such changes shall not reduce or eliminate the fees due to ComTec as provided therein.
- Other Terms:
Acceptable Use Policy
ComTec’s provision of Services is in all cases subject to ComTec’s Acceptable Use Policy (“AUP”), which is designed to help protect ComTec, its Clients, and the Internet community in general from fraud, abuse of resources, and irresponsible or illegal activities, and which is located at the end of this document.
Neither party shall be responsible for any loss, harm, damage, or failure to comply with any obligation hereunder resulting from circumstances beyond its reasonable control (commonly referred to as force majeure events) including, but not limited to fire, flood, war, strikes, cable cuts, acts of terrorism, explosions, loss of power, governmental restrictions, acts of third parties, or “acts of God.”
ComTec may subcontract work to be performed under this Agreement, Addendums and SOFs but shall retain responsibility for the work.
Neither party may assign its rights and obligations, whether by operation of law or otherwise, without the prior written consent of the other party, said consent not to be unreasonably withheld.
The Agreement and the relationship between the parties are governed by the laws of the State of New Jersey without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason, Client shall submit to the personal and exclusive jurisdiction of the courts located within the State of New Jersey, Cumberland County and waive any objection as to venue or inconvenient forum.
Forum and No Jury Trial. Any dispute or claim between you, or any guest or employee of Client and arising out of or relating to the Service will be resolved in the Superior Court of New Jersey, Cumberland County vicinage (the “Court”). Client and ComTec agree to the jurisdiction of the Court. Without limiting the foregoing, the parties agree that the Court shall have no authority or ability to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive, consequential or exemplary damages. Client shall not bring or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. Client and ComTec irrevocably waive any right to a trial by jury.
All notices to be given hereunder shall be given in writing and shall be deemed given when personal delivery is effected by messenger or overnight courier or three (3) days after deposit in the mail with postage, prepaid, certified or registered mail, return receipt requested; if to ComTec, to the address set forth in the first paragraph of the Agreement, attention Contracts Administration and if to Customer to the address set forth in this Agreement. Either party hereto may change the address for notices hereunder by giving notice of such change to the other party in the manner above provided.
Any fully executed agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous oral and written agreements, commitments, or understandings with respect to the matters provided for therein. Said agreements, including Addendums and SOFs, may not be modified except by a writing signed by both parties. In the event that any of the provisions therein or in these terms and conditions are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder. The waiver by either party of a breach, default, delay or omission of any of the provisions herein by the other party will not be construed as a waiver of any subsequent breach of the same or other provisions.
ACCEPTABLE USE POLICY (AUP) This Acceptable Use Policy (AUP) for ComTec products and services is designed to help protect ComTec, its customers, and the Internet community in general from fraud, abuse of resources, and irresponsible or illegal activities.
Each ComTec customer is responsible for the activities of all end-users and, by accepting service from ComTec, agrees to inform its customers and/or end-users of this AUP or its own Acceptable Use Policy, which must not be inconsistent with the terms herein.
ComTec services are only to be used for lawful and appropriate purposes. Customers may not transmit material in violation of any federal or state laws or regulations, including, but not limited to, obscenity, indecency, defamation, or material infringing trademarks or copyrights. ComTec customers may not abuse or fraudulently use ComTec products and services, nor allow or permit such use by others. The following activities illustrate some, but not all, prohibited uses under this AUP:
- Child Pornography: Receiving, transporting, or distributing by any means, sexually explicit conduct involving children.
- Inappropriate Content: Using the services to transmit, distribute or store material that, as reasonably determined by ComTec, is inappropriate, obscene, defamatory, libelous, threatening, abusive, hateful, or excessively violent.
- Denial of Service: Engaging in any activity that will interfere or attempt to interfere with the service of any other user, host, or network on the Internet.
- Distribution of Viruses: Intentional distribution of software that attempts to and/or causes damage or annoyance to persons, data, and/or computer systems.
- Forging Headers: Forging or misrepresenting any message header, in whole or in part, of any electronic transmission, originating or passing through the ComTec network.
- Email Spamming or Mailbombing: The transmitting of unsolicited Email to multiple recipients, sending large amounts of email repeatedly to a person to harass or threaten, or any attempt to use ComTec services for SPAM.
- Unauthorized Access: Illegal or Unauthorized Access to Other Computers, Accounts, or Networks.
Violations and Enforcement
At ComTec’s sole discretion, violations of any element of this AUP may result in a warning to the offender followed by suspension or termination of service if the customer does not cease the violation. If ComTec deems that a violation of this AUP has occurred, it may immediately suspend or terminate service with or without notice. ComTec is not liable for any damages of any nature suffered by any customer, user, or any third party resulting in whole or in part from ComTec exercising its rights under this AUP. ComTec reserves the right to modify this AUP at any time.