These First Source Wireless Push-To-Talk Over Cellular Terms and Conditions of Use (these “Terms and Conditions”) set out the terms and conditions pursuant to which First Source Wireless, L.L.C., a Maryland limited liability company (“First Source”), will make the Push-to-Talk Service (as defined herein) available, on a hosted basis, to you (“Customer”).
By using the Push-to-Talk Service, Customer agrees to the following terms and conditions and agrees to be bound hereby:
1. In these Terms and Conditions, “Push-to-Talk Service” means data and network services provided by a variety of third-party SIM card suppliers, using a specified push-to-talk device from First Source (a “Qualifying Device”) and a SIM card purchased from First Source.
2. First Source is a seller of third-party push-to-talk devices and SIM cards. First Source does not provide data and network services. All data and network services are provided by SIM card suppliers.
3. Customer’s use of the Push-to-Talk Service will be subject to these Terms and Conditions.
4. These Terms and Conditions will begin to apply when the Customer purchases a Qualifying Device and an active SIM card from First Source.
5. The purchase price paid by the Customer to First Source at the initial purchase of the Qualifying Device and SIM card will include Push-to-Talk Service for the period of one year from the date of purchase. Unless the Customer cancels Push-to-Talk Service at least 30 days before the end of (a) the first year after the date of purchase or (b) the then-current annual renewal period, the Push-to-Talk Service will renew for a one-year renewal period at the then-applicable rates established by First Source. As used in these Terms and Conditions, “Fees” means the purchase price, other amounts payable under this paragraph, and any other amounts payable by the Customer in relation to the Push-to-Talk Service under these terms and conditions.
6. First Source can increase Fees at any time during the term of these Terms and Conditions by giving written notice, which may be given electronically by email to an address provided by the Customer at the time of purchase or updated thereafter, at least 30 days before the increase becomes effective.
7. The Customer is responsible for paying any governmental taxes imposed on Customer’s purchases and use of the Service, including sales, use or value-added taxes. All sales of Push-to-Talk Service, including renewals, are final and nonrefundable.
8. The Customer and its authorized users of the Push-to-Talk Service, if any (collectively, “Users”), will use the Push-to-Talk Service only in accordance with these Terms and Conditions and any applicable end-user agreement of SIM card (collectively, “Documentation”).
9. The Customer will not resell or otherwise assign or transfer the Push-to-Talk Service and any attempt to do so will be null, void, and without effect.
10. The Customer will not remove a SIM card from the Qualifying Device with which it is sold by First Source. First Source can terminate the Push-to-Talk Service without refund if the Customer violates this provision, and the Customer will be liable to First Source for all amounts attributable to the Customer’s violation of this provision.
11. It is the responsibility of the Customer to ascertain and comply with all applicable local, state, and Federal laws in regard to the possession and use of any items purchased, used or activated through the Push-to-Talk Service. Please consult with an attorney regarding such laws if you have any questions. If the Customer is an individual, the Customer acknowledges that he or she is of legal age and agrees to use the product only in a lawful manner. The Customer will not allow the Push-to-Talk Service to be used by any person who is not of legal age.
12. The Customer will pay all Fees by a payment method authorized and accepted by First Source. At the time of the Customer’s initial purchase of a Qualifying Device and SIM card from First Source, the Customer will provide such information as First Source requires to initiate the Push-to-Talk Service, including payment method and authorization to charge the Customer for Fees as incurred. If the Customer pays by credit card or other third-party payment service, the Customer’s card issuer agreement or other applicable agreement will govern the Customer’s use of such credit card or other payment service, and the Customer should refer to that agreement to determine Customer’s rights and liabilities with respect to such credit card or payment services. CUSTOMER, AND NOT FIRST SOURCE, IS RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO CUSTOMER’S CARD OR OTHER PAYMENT SERVICE BY A THIRD PARTY. Customer agrees to pay all Fees and charges incurred in connection with Customer’s purchases and use of the Push-to-Talk Services (including any applicable taxes) at the rates in effect when the charges were incurred. Unless the Customer notifies First Source Push-to-Talk of any discrepancies within thirty (30) days after they first appear on the Customer’s credit card or other payment service statement, the Customer agrees that such charges will be deemed accepted by Customer for all purposes. If First Source does not receive payment from Customer’s credit card issuer, or other payment service provider, or its agent, the Customer will pay all Fees due to First Source by other means.
13. If Fees are not paid when due, such amounts will be subject to a late payment charge at the rate of one and one‑half percent (1.5%) per month or the highest charge allowable by law (whichever is less), payable monthly, on the amounts outstanding from the time such amounts become due until payment in full is received by First Source. Any amount received by First Source while late payment charges are outstanding will be applied first to late payment charges. Non-sufficient funds payments will be subject to a $25.00 handling fee for each defaulted payment.
14. Fees set out herein are exclusive of all taxes and Customer shall pay (and First Source shall have no liability for), any taxes, tariffs, duties, and other charges or assessments imposed or levied by any government or governmental agency in connection with these Terms and Services, including any federal, provincial, state and local sales, use, goods and services, value-added and personal property taxes on any payments due First Source in connection with the Push-to-Talk Service provided hereunder, except for tax based solely on the net income of First Source.
15. If the Customer defaults in payment of any Fees when due or any interest thereon, then First Source can, in addition to any other rights or remedies at law or under these Terms and Conditions, and in its sole discretion, suspend or deny Customer’s access to or use of the Push-to-Talk Service or the performance of any of its obligations under these Terms and Conditions until such failure is remedied, subject to such conditions as First Source may require. Furthermore, delinquent accounts with outstanding balances due past 30 days, will be submitted to collections for processing.
16. Customer acknowledges and agrees that by selling and making the Push-to-Talk Services available to the Customer, First Source is not selling, assigning, or otherwise transferring ownership of any right, title, and interest, including but not limited to intellectual property rights (including copyrights, trade secrets, trademarks, and patent rights), in and to any element of the Push-to-Talk Service. The Customer will not, either during or after the termination of Push-to-Talk Services, contest or challenge the ownership of any intellectual property rights in any element of the Push-to-Talk Service.
17. First Source acknowledges that all Customer data, including data transmitted by the Customer to First Source for processing using the Push-to-Talk Service (“Customer Data”) and Customer systems used by the Customer to access the First Source Push-to-Talk Service shall be and remain the property of Customer. First Source shall have the right to use and reproduce Customer Data solely to the extent necessary to make the Push-to-Talk Service available to the Customer.
18. The Customer hereby grants First Source the right to send the Customer communications via e-mail of any updates, upgrades, notices, or other information relating to the Push-to-Talk Service that First Source deems important for the Customer to know.
19. To the extent deemed necessary by the Customer, the Customer shall implement security procedures necessary to limit access to the Push-to-Talk Service to the Customer and its Users. The Customer will notify First Source immediately if there is a security breach or unauthorized use of the Push-to-Talk Service. The Customer shall permit First Source review and audit the Customer’s use of the Push-to-Talk Service.
20. First Source will not be responsible or liable for any loss or damage to the Customer’s Data or any inconvenience suffered by the Customer or by any third person arising out of the use of the Push-to-Talk Service by the Customer or any of its Users.
21. First Source will not be responsible or liable for any change to any or all of the data and network service of SIM card or any component of the Push-to-Talk Service.
22. First Source makes the Push-to-Talk Service available to the Customer on an “AS IS” and “WITH ALL FAULTS” basis.
23. FIRST SOURCE EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING REPRESENTATIONS AND WARRANTIES OF SATISFACTORY QUALITY, PERFORMANCE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE.
24. FIRST SOURCE DOES NOT REPRESENT OR WARRANT THAT: (i) THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS; (ii) THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM THEIR USE WILL BE ACCURATE OR RELIABLE; OR (iii) ALL DEFICIENCIES IN THE SERVICE CAN BE FOUND OR CORRECTED. FURTHER, THE SERVICE MAY BE INTERRUPTED OR UNAVAILABLE FOR THE PURPOSES OF PERFORMING MAINTENANCE OR UPGRADES. FIRST SOURCE WILL NOT BE RESPONSIBLE FOR: (a) SERVICE IMPAIRMENTS CAUSED BY ACTS WITHIN THE CONTROL OF CUSTOMER OR ANY USER; (b) INTEROPERABILITY OF SPECIFIC CUSTOMER APPLICATIONS OR EQUIPMENT; (c) INABILITY OF CUSTOMER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET; (d) INTERACTION WITH OTHER SERVICE PROVIDERS, NETWORKS, USERS OR INFORMATIONAL OR COMPUTING RESOURCES THROUGH THE INTERNET; (e) SERVICE PROVIDED BY OTHER SERVICE PROVIDERS; OR (f) PERFORMANCE IMPAIRMENTS CAUSED ELSEWHERE ON THE INTERNET.
25. FOR ANY BREACH OR DEFAULT BY FIRST SOURCE OF ANY OF THE PROVISIONS OF THESE TERMS AND CONDITIONS, OR WITH RESPECT TO ANY CLAIM ARISING HEREFROM OR RELATED HERETO, FIRST SOURCE’S ENTIRE LIABILITY SHALL IN NO EVENT EXCEED THE LESSER OF THE FOLLOWING: (i) THE FEES PAID TO FIRST SOURCE BY THE CUSTOMER PURSUANT TO THESE TERMS AND CONDITIONS IN THE CALENDAR MONTH IMMEDIATELY PRECEDING THE CLAIM, OR (ii) IN THE AGGREGATE WITH RESPECT TO ALL CLAIMS MADE UNDER OR RELATED TO THESE TERMS AND CONDITIONS, THE AMOUNT PAID BY CUSTOMER UNDER THESE TERMS AND CONDITIONS.
26. IN NO EVENT WILL FIRST SOURCE BE LIABLE FOR DIRECT, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE, LOST BUSINESS REVENUE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF COVER, DAMAGES FOR DELAY, PUNITIVE OR EXEMPLARY DAMAGES, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS OR ANY CLAIM AGAINST CUSTOMER BY ANY OTHER PERSON, EVEN IF FIRST SOURCE HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES.
27. FIRST SOURCE SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS OR DESTRUCTION OF ANY DATA, EQUIPMENT OR SERVICES, INCLUDING THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD.
28. FIRST SOURCE SHALL BE LIABLE TO CUSTOMER ONLY AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS BUT SHALL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE TO CUSTOMER. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THESE TERMS AND CONDITIONS SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR ACTION BY CUSTOMER, INCLUDING BREACH OF CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY AND SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THESE TERMS AND CONDITIONS OR OF ANY REMEDY CONTAINED HEREIN. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE ADDITIONAL RIGHTS NOT STATED IN THIS DOCUMENT.
29. Neither party may bring an action, regardless of form, arising out of or related to these Terms and Conditions (other than to recover Fees due to First Source) more than one year after the cause of action has arisen or the date of discovery of such cause, whichever is later.
30. The Customer will indemnify, defend, and hold First Source, its affiliates, employees, officers, directors and shareholders harmless from and against any claims, suits, actions or proceedings (“Claims”) brought and damages, costs (including attorneys’ fees) or judgments awarded against First Source that arise from or in connection with: (i) Claims by any person or entity to the extent that such Claims are based upon or arise out of the Customer’s or any of its Users’ use of the Push-to-Talk Service or such Customer’s or Users’ actions; (ii) breach by Customer or any of its Users of these Terms and Conditions; or (iii) Customer’s or any of its Users’ failure to comply with all applicable laws. First Source shall give the Customer prompt written notice of such Claims, permit Customer to defend (with counsel reasonably acceptable to First Source) and/or settle such Claims (upon terms reasonably acceptable to First Source), and give the Customer all information and assistance reasonably requested by the Customer in connection with such Claims.
31. Provisions of these Terms and Conditions that require performance or fulfillment after expiration or termination of use of the Push-to-Talk Services by the Customer, or by their nature are intended to survive such expiration termination, including but not limited to provisions relating to ownership, confidential information, warranty disclaimer, and limits of liability, will survive such expiration or termination.
32. If any provision or portion of these Terms and Conditions is deemed to be invalid, illegal, or unenforceable, such provision or portion shall be severed and deleted or limited so as to give effect to the intent of the parties insofar as possible and the remainder of these Terms and Conditions shall remain binding upon the parties.
33. First Source reserves the right to change these Terms and Conditions at any time. Continued use of the Push-to-Talk Service for more than thirty (30) days after any such change constitutes the Customer’s consent to such changes. A failure or delay by First Source to enforce any right under these Terms and Conditions will not constitute a waiver of such right, or of any other right, and shall not modify the rights or obligations of either party under these Terms and Conditions.
34. These Terms and Conditions are governed by and will be construed in accordance with the laws of the State of Maryland without reference to conflict or choice of law rules or principles. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the State of Maryland located in Baltimore County or in the United States District Court for the District of Maryland (Northern Division) for the purposes of any suit, action or other proceeding arising out of these Terms and Conditions or the subject matter hereof brought by any party hereto; and (b) hereby waive and agree not to assert as a defense or otherwise, in any such suit action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that these Terms and Conditions or the subject matter hereof may not be enforced by such court.
35. If any legal action is necessary in order for First Source to enforce any of these Terms and Conditions, First Source will be entitled to recover its reasonable attorneys' fees and costs from the Customer.
