Masterline Messaging Terms and Conditions Section 1
Effective January 23, 2009.
READ THIS AGREEMENT CAREFULLY BEFORE USING MASTERLINE MESSAGING SERVICES PROVIDED BY MASTERLINE TECHNOLOGIES INC.
Your agreement with Masterline Messaging ( "Masterline" ) includes these Terms and Conditions ("T&Cs"), your Service Agreement, applicable supplemental terms and conditions for other services, and your Rate Plan terms (collectively "Agreement"). Your Rate Plan includes your monthly Service allotments for minutes, messages or data ("Allotments"), rates, coverage and other terms ("Rate Plan"). The terms of your Rate Plan are available at www.masterlinenet.com. To the extent any term in your Rate Plan expressly conflicts with these T&Cs, the term in your Rate Plan will govern.
Please read these T&Cs carefully. They cover important information about all Masterline services provided to you ("Service"). These T&Cs include fees for early termination and late payments, limitations of liability, privacy and resolution of disputes by arbitration instead of in court. To the extent these T&Cs conflict with the Masterline Terms and Conditions you received verbally, these T&Cs apply.
You represent that you are at least 18 years old. If you sign for an organization, you represent that you are authorized to sign. You agree to pay all access and usage charges, taxes, fees and other charges we bill you or that were accepted or processed through your Service ("Charges"). You may designate others to manage or make changes to your account ("Authorized User"). You and Authorized Users will have access to all account information. If you give your personal account validation information to someone, they can access and make changes to your account just as you can. Those changes will be binding on you. You may request to switch to another Rate Plan, and if we authorize the change, a transfer fee may apply.
1. Acceptance. YOUR AGREEMENT WITH MASTERLINE STARTS WHEN YOU ACCEPT. You accept by doing any of the following: (a) giving us a written or facsimile signature, or telling us orally that you accept; (b) activating Service; (c) using your Service after you make a change or addition; (d) paying for the Service or Device; IF YOU DON'T WANT TO ACCEPT, DON'T DO ANY OF THESE THINGS.
2. Service Availability. Unless restricted by Your handheld device OR carrier, Services available include all messaging services generally available through Masterline's Messaging Service Group. Masterline shall provide the Services to You in accordance with the Plan selected by You. You agree we are not liable for problems relating to Service availability or quality.
3. Billing & Credit Checks. We will send you a bill that summarizes your Charges; at your request and for an additional charge, we will provide detailed bills. You agree to provide us with accurate and complete billing information and to report all changes within 30 days of the change. Operator Message usage is measured from the time the network begins to process the call (before the phone rings or the call is answered) through its termination of the call (after the caller hangs up). You may be charged for more than one message per call when the caller exceeds 80 characters. Each message is calculated at 80 characters per message per call. Common carriers ( ATT, Sprint, T-Mobile, Verizon, etc), use filters to block spam messages, thus we do not guarantee that you will receive your messages, and you agree that we are not liable for such interruptions. Credit Checks: You authorize us to obtain information about your credit history from credit-reporting agencies at any time. You understand that a credit inquiry could adversely affect your credit rating. You authorize us to report your payment record to credit-reporting agencies.
4. Term and Event of Default. You agree to maintain Service with us for your minimum term ("Initial Term"). (Periods of suspension of Service do not count toward your Initial Term.)
(4a) The Initial term of this Agreement shall commence upon activation of the Service and shall continue for an amount of time equal to the term associated with the specific service chosen by You, and shall be referred to herein as the Initial Term. Subscriber acknowledges and agrees that the Initial Term shall be non-cancelable. The Initial Term shall automatically be renewed for successive twelve (12) month periods (each a 'Renewal Term'), the Initial Term and all Renewal Terms, if any, being referred to collectively as the 'Term') at the then prevailing rates.
(4b) Upon the occurrence of an event of default, Masterline shall have the right to terminate the Agreement upon written notice to You and the failure by You to cure such default within ten (10) days following receipt of written notice thereof. As used herein, the term "event of default" shall mean (i) the failure by You to observe or perform in any material respect any of the covenants or agreements contained herein; or (ii) Your insolvency, assignment for the benefit of creditors, appointment or sufferance of appointment of a trustee, receiver or similar officer, or any voluntary or involuntary pro-ceeding seeking reorganization, rehabilitation, liquidation or similar relief under bankruptcy, insolvency or similar debtor-relief statutes. No termination of the Agreement will relieve You from any amount due and owing to Masterline or any liability arising from any breach of the Agreement.
5. Our Rights to Make Changes. Your Service is subject to our business policies, practices, and procedures, which we can change without notice. UNLESS EXPRESSLY PROHIBITED BY LAW, WE CAN CHANGE PRICES, CHARGES AND ANY TERMS IN THE AGREEMENT AT ANY TIME. IF WE MATERIALLY MODIFY THESE T&Cs IN A WAY THAT IS MATERIALLY ADVERSE TO YOU, OR IF A CHANGE INCREASES YOUR SET MONTHLY RECURRING CHARGE(S) (the set amount – which does not include overage, usage, features, optional services, taxes and fees – you agreed to pay each month for at least a one-year Term), WE WILL PROVIDE YOU WITH AT LEAST 30 DAYS NOTICE AND YOU MAY TERMINATE YOUR SERVICE WITHOUT AN EARLY TERMINATION FEE (WHICH IS YOUR ONLY REMEDY) BY NOTIFYING US WITHIN 30 DAYS AFTER YOU RECEIVE THE NOTICE. IF YOU FAIL TO TERMINATE WITHIN THOSE 30 DAYS, YOU ACCEPT THE CHANGES.
6. Your Wireless Device & Compatibility with Other Networks. Your handheld wireless device and services provided by another service provider may not be compatible with our messaging network. At times we may change software, applications or programming remotely and without notice which may impact the quality of service including compatibility.
7. Fees and Charges.
(7a) You shall timely pay all fees and charges accruing hereunder, including, without limitation, monthly recurring fees (which are payable in advance and not contingent upon usage), one-time activation charges and applicable usage charges (which are payable in arrears). Except as may otherwise be conditioned by Your Plan or with respect to Plans conditioned on all payments being paid in advance, all payments shall be due as of the date of Masterline's invoice, and any balance not paid within thirty (30) days following such due date shall bear interest from and after the due date at the lesser of one and one-half percent (1½%) per month or the maximum rate of interest allowed by law. Amounts due and owing to Masterline shall not be subject to offset or reduction for any reason.
(7b) Unless otherwise approved, Masterline shall be authorized to prepare, process and negotiate credit card charge forms for any credit card account designated by You in and for all fees and charges payable by You under the Agreement. All sales, use and other such governmentally imposed or authorized taxes, fees, surcharges and/or assessments relating to the Agreement shall be paid by You. Masterline reserves the right to modify the fees and charges for the Services; provided, however, that Masterline may increase such fees and charges only upon at least thirty (30) days written notice to You.
(7c ) Unless otherwise approved, You must present a valid credit card number (Visa, MasterCard, American Express or any other issuer then-accepted by Masterline) when the Service is activated. Masterline reserves the right to stop accepting credit cards from one or more issuers. If the card expires, you close your account, your billing address changes, or the card is cancelled and replaced owing to loss or theft, you must advise Masterline at once. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which Masterline decides to bill in arrears) to your credit card, including but not limited to: activation fees, monthly service fees, international usage charges, advanced feature charges, equipment purchases, disconnect fees and shipping and handling charges.
8. Privacy Information. Our Privacy Policy governs how we use information related to your use of our Service and is available online at www.masterlinenet.com. We may change our Privacy Policy without notice; however, if we change our policy to allow use or disclosure of personal information in a way that, in our sole determination, is materially different from that stated in the policy at the time the data was collected, we will post notice in advance of the change.
9. Disclaimer of Warranties and Limitation of Liabilities.
(9a) MASTERLINE, ITS EMPLOYEES, SALES AGENTS AND REPRESENTATIVES, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SERVICES OR THE WIRELESS MESSAGING NETWORKS THROUGH WHICH THE SERVICES ARE PROVIDED, AND HEREBY EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. UNDER NO CIRCUMSTANCES SHALL MASTERLINE, ITS EMPLOYEES, SALES AGENTS AND REPRESENTATIVES, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS, INJURY OR DAMAGE, OF WHATEVER KIND OR NATURE, RESULTING FROM OR ARISING OUT OF ANY MISTAKES, ERRORS, OMISSIONS, DELAYS OR INTERRUPTIONS IN THE RECEIPT, TRANSMISSION OR STORAGE OF ANY MESSAGES, SIGNALS OR INFORMATION ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR USE OF THE MASTERLINE MESSAGING NETWORK. WITHOUT LIMITING THE GENERALITY OF THE FORE-GOING, IN NO EVENT SHALL MASTERLINE, ITS EMPLOYEES, SALES AGENTS AND REPRESENTATIVES, BE LIABLE TO YOU OR ANY OTHER PERSON FOR INDIRECT, INCIDENTAL OR SPECIAL DAMAGES, LOST PROFITS, LOST SAVINGS OR ANY OTHER FORM OF CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF SUCH PARTIES ARE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER RESULTING FROM BREACH OF THIS AGREEMENT OR OTHERWISE.
(9b) THE SERVICES ARE PROVIDED ON AN "AS IS" AND "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OF ANY KIND. WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING YOUR SERVICE. WE CAN'T PROMISE UNINTERRUPTED OR ERROR-FREE SERVICE AND DON'T AUTHORIZE ANYONE TO MAKE ANY WARRANTIES ON OUR BEHALF. THIS DOESN'T DEPRIVE YOU OF ANY WARRANTY RIGHTS YOU MAY HAVE AGAINST ANYONE ELSE. WE DO NOT GUARANTEE THAT YOUR COMMUNICATIONS WILL BE PRIVATE OR SECURE; IT IS ILLEGAL FOR UNAUTHORIZED PEOPLE TO INTERCEPT YOUR COMMUNICATIONS, BUT SUCH INTERCEPTIONS CAN OCCUR.
10. Notices. All notices required or permitted from you, the customer, hereunder shall be in writing, certified mail, return receipt requested, to Masterline Technologies, Inc. at 5305 Waring Road, San Diego, CA 92120, Attn: Customer Service, and to You, if applicable, at the billing address designated by You when activating Your messaging service.
11. Miscellaneous. (a) The Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to the principles of conflict of law; (b) if any provision of the Agreement shall be held to be illegal, invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby; (c) no delay or failure by Masterline to enforce any right under the Agreement will be deemed a waiver of that or any other right; (d) if any action shall be brought by Masterline on account of any breach of or to enforce or interpret any of the terms, covenants or conditions of the Agreement, Masterline shall be entitled to recover from You, as part of Masterline's costs, a reasonable attorneys' fee; (e) You may not assign or delegate Your obligations under the Agreement, either in whole or in part, without the prior written consent of Masterline; (f) Masterline shall not be liable for any nonperformance under the Agreement due to causes beyond its reasonable control that cannot be reasonably avoided or overcome; (g) the headings and captions used herein are used for convenience only and are not to be considered in construing or interpreting the Agreement; (h) these Terms and Conditions, together with the Plan selected by You, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
Terms and Conditions Supplemental Section 2
1. Customer Support:. When you need help troubleshooting a service problem, call the designated Masterline Customer Service number. The Messaging agent will transfer you to their Customer Service department. This service is available Monday through Friday. 5am to 5pm PST. Sample of troubleshooting inquiry: Not receiving messages
2. Modification of Service: (i) Upgrade or Downgrade of service plan will incur a one-time charge of $50.00 per user, per occurrence, or the then prevailing rate; (ii) Email domain change, SMS number change, Text-messaging address change, device PIN number change, linking phone number change, linking pager number change, or carrier change, will incur a charge of $15.00 per user, per occurrence, or the then prevailing rate.
3. Fee Proration: All activation, modification, reactivation, termination, monthly base access fees and prepaid fees are non-refundable and non-prorated.
4. Suspension of Service: Your account will be suspended if you fail to make your payments on time. Suspension is considered service interruption. You will incur a Control charge of $50.00 per occurrence per user to reactivate your service, or the then prevailing rate. If you make your Control charge payment and all other overdue payments, your service will be restored.
5. Our Rights to Limit or End Service of the Agreement. WE MAY LIMIT, SUSPEND OR TERMINATE YOUR SERVICE OR AGREEMENT WITHOUT NOTICE FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, if you, any user of your Service, or any user on your account: (a) breaches the Agreement; (b) incurs Charges greater than any billing or credit limitation on your account (even if we haven't yet billed the Charges); (c) provides inaccurate information or credit information we can't verify; (d) lives in an area where we don"t provide Service or more than 50% of your voice and/or data usage is off-net for any three billing cycles within any 12 month period (see Section 10); (e) transfer(s) Service to another person without our consent; (f) becomes insolvent, goes bankrupt or threatens bankruptcy (except as prohibited by law); (g) misuses your Service as described in Section 16, above; (h) uses your Service in a manner that is excessive, unusually burdensome, or unprofitable to us; or (i) are on a Rate Plan that we determine is no longer available to you. We may impose credit, usage or other limits to your Service, suspend your Service, or block certain types of calls, messages or sessions (such as international, 900 or 976 calls), in our sole discretion and without notice.
6. Termination, Early Termination. No termination of the Agreement will relieve You from any amount due and owing to Masterline or any liability arising from any breach of the Agreement. Termination may occur two ways: (1) Your account will be terminated and closed if you fail to restore your account due to late payment, or if you are in violation of the Terms and Conditions agreement. Accordingly, your toll-free number will be retired and permanently de-activated; (2) You may terminate your account upon written notice. There is no pro-ration of fees upon termination. You will incur a disconnect charge of $50.00 per user, per occurrence to terminate your service, or the then prevailing rate.
(6a) Early Termination/Liquidated Damages. Subscriber acknowledges and agrees that cancellation of a Subscription or termination of this Agreement prior to the end of the remaining Term by Subscriber or by Masterline for reasons of Subscriber's default will result in damages and loss of profits to Masterline which are difficult or impossible to determine exactly. Accordingly the parties agree that in the event Subscriber terminates a Subscription prior to the expiration of the remaining Term under the applicable Price Plan, then Masterline shall have the right, in addition to all other amounts due to Masterline pursuant to this Agreement and as liquidated damages and not as a penalty, to bill to Subscriber an additional amount determined by multiplying (a) the number of months (for the purposes of this calculation, partial months shall be counted as full months) remaining in the non-cancelable remaining Term by (b) the number of cancelled Subscriptions activated at any given time during the remaining Term, and then multiplying the result of (a) times (b) by the monthly minimum.
(6b) Remedies on Default and Termination. If Subscriber is in default of any of its obligations under this Agreement Masterline may, in addition to all other rights and remedies provided by this Agreement or by law, terminate this Agreement. Events of Default shall include, but not be limited to, Subscriber's failure to perform a term or condition contained herein (including, but not limited to, Subscribers failure to pay any Charges or other sums due and payable as and when required), provision of a false statement or representation made for the purpose of obtaining the Services, Subscriber's insolvency, failure to pay debts as they come due, or if Subscriber becomes subject to any proceeding under the Bankruptcy Act or similar laws. In the event that Masterline is prevented from providing any portion or all of the Service hereunder (including, but not limited to, the Services) by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental authority (including, without limitation, the Federal Communications Commission), or if a notice from a government agency or department indicates Masterline is not permitted to provide any portion or all of the service to be provided hereunder (including, but not limited to, the Services) or to operate all or any portion of the Masterline Facilities, or provide any Services, Masterline may immediately cease providing the Services without any liability whatsoever to Subscriber. Nothing herein shall be construed to require Masterline to seek a waiver of any law, rule, regulation, or restriction, or seek judicial review or appeal of any court order.
7. Indemnification. Subscriber Indemnity/Liability. Subscriber shall defend, indemnify, and hold harmless Masterline, its parents, successors, affiliates and agents from any claims, damages, losses, or expenses (including without limitation attorney fees and costs) incurred by Masterline in connection with all claims, suits, judgments, and causes of action (i) for infringement of patents or other proprietary rights arising from combining with or using any device, system or service in connection with Masterline Facilities (ii) for libel, slander, defamation or infringement of copyright or other proprietary rights with respect to material transmitted or received by Subscriber over the Masterline Facilities or (iii) injury, death or property damage arising in connection with the presence, use or non-use of the Services. Notwithstanding any termination of this Agreement, Subscriber shall be liable and shall immediately pay to Masterline all Charges due, or which would have become due throughout the entire Term of this Agreement. No remedy herein conferred upon Masterline is intended, nor shall it be construed to be exclusive of any other remedy provided herein or as allowed by law or in equity, but all such remedies shall be cumulative. Subscriber shall pay to Masterline all costs and reasonable attorneys fees, collection fees, and related expenses, (including, but not limited to, telephone, freight, express and postal Charges, expenses of paid investigators and reasonable compensation for time of Masterline's representatives) expended or incurred by Masterline in the enforcement of any right or privilege hereunder or in attempting to collect any Charge or other obligation due hereunder.
8. Late Payments, Billing Dispute. If Masterline does not receive Subscriber's payment before the next billing date, Subscriber shall pay interest at the rate equal to the lesser of (i) 1.5% per month or (ii) the highest rate allowed by law, on all due and unpaid amounts to be paid to Masterline. Acceptance of late or partial payments (even if marked 'Paid in Full') shall not waive any of Masterline's rights to collect the full amount due under the Agreement. We may use a collection agency and you agree to pay collection agency fees we incur to collect payment. If we accept late or partial payments, we do not waive our right to collect all amounts that you owe, including late fees. If your check is dishonored or returned, we may charge you up to $20, require another payment method, and/or immediately suspend or cancel your Service. We will not honor limiting notations you make on or with your checks. Subscriber waives any objection it may have with respect to any invoice, charge or fee if Subscriber fails to provide Masterline written notice of such objection within 30 days of receipt of invoice. In addition to the foregoing, Subscriber shall pay Masterline's costs and reasonable attorneys fees incurred in enforcing any provision of this Agreement, including, but not limited to costs of collection.
9. Deposits. As partial guarantee of Subscriber's payment of Charges, Masterline may at any time require the Subscriber to make a deposit ('Deposit') to be held by Masterline in an amount to be determined at the sole discretion of Masterline and without interest except as may be required by applicable law. Masterline may require Subscriber to increase its Deposit at any time to reflect Subscriber's estimated monthly Charges based on actual usage or Masterline's re-evaluation of Subscriber's ability to pay. Masterline shall have the right, at its discretion, to apply all or any portion of the Deposit in total or partial satisfaction of any of the Subscriber's obligations under this Agreement. Subscriber's Deposit will not relieve it of the obligation to pay Charges in full when due, nor shall it prevent Masterline from discontinuing or restricting service for non-payment of amounts due to Masterline, nor shall use of the Deposit constitute a waiver by Masterline of Subscriber's non-performance in the event that Masterline should use any portion of the Deposit pursuant to this provision. Subscriber shall immediately and upon notice from Masterline restore the Deposit to its original amount or such other amount specified by Masterline. Upon termination of service, the amount of Deposit, including any interest required by law, will be credited to Subscriber's Charges, and any credit balance will be refunded.
10. Use of Service. MASTERLINE MAY AT ITS SOLE DISCRETION RESTRICT, SUSPEND, MODIFY OR TERMINATE THE SERVICE WITHOUT NOTICE if Subscriber (1) pays late more than once in any 12 month period; (2) incurs Charges in excess of any Deposit; (3) interferes with customer service or business operations; (4) uses the Services in such a way as to have a detrimental effect upon the Masterline Facilities; (5) transmits obscene, indecent, harassing, profane, abusive, false illegal or deceptive messages; or (6) to maintain or improve service, or for other business reasons.
11. Rules and Regulations. Masterline may at its sole discretion adopt reasonable usage rules, regulations, and fees from time to time to prevent abuse of the System.
12. General Provisions.
(12a) All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination of this Agreement, including without limitation, those relating to Limitation of Liability and Indemnification, shall survive such termination.
(12b) Masterline will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes, work slow-downs or other labor-related activity, or an inability to obtain necessary equipment or services.
(12c) You may not assign or otherwise transfer this Agreement, or your rights or obligations under it, in whole or in part, to any other person. Any attempt to do so shall be void. We may freely assign all or any part of this Agreement with or without notice and you agree to make all subsequent payments as directed.
(12d) Masterline"s failure at any time to insist upon strict compliance with any of the provisions of this Agreement shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
(12e) This Agreement, including all Policies referred to herein and posted on the Website, constitutes the entire agreement between you and Masterline with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. No changes by you to this Agreement shall be effective unless agreed to in a writing signed by an authorized person at Masterline.
ACCEPTABLE USE POLICY
1.General Policy: Masterline reserves the sole discretion to deny or restrict your Service, or immediately to suspend or terminate your Service, if the use of your Service by you or anyone using it, in our sole discretion, violates the Agreement or other Masterline policies, is objectionable or unlawful, interferes with the functioning or use of the Internet or the Masterline/Telisimo network by Masterline/Telisimo or other users, or violates the terms of this Acceptable Use Policy ("AUP").
Effective January 23, 2009.
READ THIS AGREEMENT CAREFULLY BEFORE USING MASTERLINE MESSAGING SERVICES PROVIDED BY MASTERLINE TECHNOLOGIES INC.
Your agreement with Masterline Messaging ( "Masterline" ) includes these Terms and Conditions ("T&Cs"), your Service Agreement, applicable supplemental terms and conditions for other services, and your Rate Plan terms (collectively "Agreement"). Your Rate Plan includes your monthly Service allotments for minutes, messages or data ("Allotments"), rates, coverage and other terms ("Rate Plan"). The terms of your Rate Plan are available at www.masterlinenet.com. To the extent any term in your Rate Plan expressly conflicts with these T&Cs, the term in your Rate Plan will govern.
Please read these T&Cs carefully. They cover important information about all Masterline services provided to you ("Service"). These T&Cs include fees for early termination and late payments, limitations of liability, privacy and resolution of disputes by arbitration instead of in court. To the extent these T&Cs conflict with the Masterline Terms and Conditions you received verbally, these T&Cs apply.
You represent that you are at least 18 years old. If you sign for an organization, you represent that you are authorized to sign. You agree to pay all access and usage charges, taxes, fees and other charges we bill you or that were accepted or processed through your Service ("Charges"). You may designate others to manage or make changes to your account ("Authorized User"). You and Authorized Users will have access to all account information. If you give your personal account validation information to someone, they can access and make changes to your account just as you can. Those changes will be binding on you. You may request to switch to another Rate Plan, and if we authorize the change, a transfer fee may apply.
1. Acceptance. YOUR AGREEMENT WITH MASTERLINE STARTS WHEN YOU ACCEPT. You accept by doing any of the following: (a) giving us a written or facsimile signature, or telling us orally that you accept; (b) activating Service; (c) using your Service after you make a change or addition; (d) paying for the Service or Device; IF YOU DON'T WANT TO ACCEPT, DON'T DO ANY OF THESE THINGS.
2. Service Availability. Unless restricted by Your handheld device OR carrier, Services available include all messaging services generally available through Masterline's Messaging Service Group. Masterline shall provide the Services to You in accordance with the Plan selected by You. You agree we are not liable for problems relating to Service availability or quality.
3. Billing & Credit Checks. We will send you a bill that summarizes your Charges; at your request and for an additional charge, we will provide detailed bills. You agree to provide us with accurate and complete billing information and to report all changes within 30 days of the change. Operator Message usage is measured from the time the network begins to process the call (before the phone rings or the call is answered) through its termination of the call (after the caller hangs up). You may be charged for more than one message per call when the caller exceeds 80 characters. Each message is calculated at 80 characters per message per call. Common carriers ( ATT, Sprint, T-Mobile, Verizon, etc), use filters to block spam messages, thus we do not guarantee that you will receive your messages, and you agree that we are not liable for such interruptions. Credit Checks: You authorize us to obtain information about your credit history from credit-reporting agencies at any time. You understand that a credit inquiry could adversely affect your credit rating. You authorize us to report your payment record to credit-reporting agencies.
4. Term and Event of Default. You agree to maintain Service with us for your minimum term ("Initial Term"). (Periods of suspension of Service do not count toward your Initial Term.)
(4a) The Initial term of this Agreement shall commence upon activation of the Service and shall continue for an amount of time equal to the term associated with the specific service chosen by You, and shall be referred to herein as the Initial Term. Subscriber acknowledges and agrees that the Initial Term shall be non-cancelable. The Initial Term shall automatically be renewed for successive twelve (12) month periods (each a 'Renewal Term'), the Initial Term and all Renewal Terms, if any, being referred to collectively as the 'Term') at the then prevailing rates.
(4b) Upon the occurrence of an event of default, Masterline shall have the right to terminate the Agreement upon written notice to You and the failure by You to cure such default within ten (10) days following receipt of written notice thereof. As used herein, the term "event of default" shall mean (i) the failure by You to observe or perform in any material respect any of the covenants or agreements contained herein; or (ii) Your insolvency, assignment for the benefit of creditors, appointment or sufferance of appointment of a trustee, receiver or similar officer, or any voluntary or involuntary pro-ceeding seeking reorganization, rehabilitation, liquidation or similar relief under bankruptcy, insolvency or similar debtor-relief statutes. No termination of the Agreement will relieve You from any amount due and owing to Masterline or any liability arising from any breach of the Agreement.
5. Our Rights to Make Changes. Your Service is subject to our business policies, practices, and procedures, which we can change without notice. UNLESS EXPRESSLY PROHIBITED BY LAW, WE CAN CHANGE PRICES, CHARGES AND ANY TERMS IN THE AGREEMENT AT ANY TIME. IF WE MATERIALLY MODIFY THESE T&Cs IN A WAY THAT IS MATERIALLY ADVERSE TO YOU, OR IF A CHANGE INCREASES YOUR SET MONTHLY RECURRING CHARGE(S) (the set amount – which does not include overage, usage, features, optional services, taxes and fees – you agreed to pay each month for at least a one-year Term), WE WILL PROVIDE YOU WITH AT LEAST 30 DAYS NOTICE AND YOU MAY TERMINATE YOUR SERVICE WITHOUT AN EARLY TERMINATION FEE (WHICH IS YOUR ONLY REMEDY) BY NOTIFYING US WITHIN 30 DAYS AFTER YOU RECEIVE THE NOTICE. IF YOU FAIL TO TERMINATE WITHIN THOSE 30 DAYS, YOU ACCEPT THE CHANGES.
6. Your Wireless Device & Compatibility with Other Networks. Your handheld wireless device and services provided by another service provider may not be compatible with our messaging network. At times we may change software, applications or programming remotely and without notice which may impact the quality of service including compatibility.
7. Fees and Charges.
(7a) You shall timely pay all fees and charges accruing hereunder, including, without limitation, monthly recurring fees (which are payable in advance and not contingent upon usage), one-time activation charges and applicable usage charges (which are payable in arrears). Except as may otherwise be conditioned by Your Plan or with respect to Plans conditioned on all payments being paid in advance, all payments shall be due as of the date of Masterline's invoice, and any balance not paid within thirty (30) days following such due date shall bear interest from and after the due date at the lesser of one and one-half percent (1½%) per month or the maximum rate of interest allowed by law. Amounts due and owing to Masterline shall not be subject to offset or reduction for any reason.
(7b) Unless otherwise approved, Masterline shall be authorized to prepare, process and negotiate credit card charge forms for any credit card account designated by You in and for all fees and charges payable by You under the Agreement. All sales, use and other such governmentally imposed or authorized taxes, fees, surcharges and/or assessments relating to the Agreement shall be paid by You. Masterline reserves the right to modify the fees and charges for the Services; provided, however, that Masterline may increase such fees and charges only upon at least thirty (30) days written notice to You.
(7c ) Unless otherwise approved, You must present a valid credit card number (Visa, MasterCard, American Express or any other issuer then-accepted by Masterline) when the Service is activated. Masterline reserves the right to stop accepting credit cards from one or more issuers. If the card expires, you close your account, your billing address changes, or the card is cancelled and replaced owing to loss or theft, you must advise Masterline at once. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which Masterline decides to bill in arrears) to your credit card, including but not limited to: activation fees, monthly service fees, international usage charges, advanced feature charges, equipment purchases, disconnect fees and shipping and handling charges.
8. Privacy Information. Our Privacy Policy governs how we use information related to your use of our Service and is available online at www.masterlinenet.com. We may change our Privacy Policy without notice; however, if we change our policy to allow use or disclosure of personal information in a way that, in our sole determination, is materially different from that stated in the policy at the time the data was collected, we will post notice in advance of the change.
9. Disclaimer of Warranties and Limitation of Liabilities.
(9a) MASTERLINE, ITS EMPLOYEES, SALES AGENTS AND REPRESENTATIVES, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SERVICES OR THE WIRELESS MESSAGING NETWORKS THROUGH WHICH THE SERVICES ARE PROVIDED, AND HEREBY EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. UNDER NO CIRCUMSTANCES SHALL MASTERLINE, ITS EMPLOYEES, SALES AGENTS AND REPRESENTATIVES, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS, INJURY OR DAMAGE, OF WHATEVER KIND OR NATURE, RESULTING FROM OR ARISING OUT OF ANY MISTAKES, ERRORS, OMISSIONS, DELAYS OR INTERRUPTIONS IN THE RECEIPT, TRANSMISSION OR STORAGE OF ANY MESSAGES, SIGNALS OR INFORMATION ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR USE OF THE MASTERLINE MESSAGING NETWORK. WITHOUT LIMITING THE GENERALITY OF THE FORE-GOING, IN NO EVENT SHALL MASTERLINE, ITS EMPLOYEES, SALES AGENTS AND REPRESENTATIVES, BE LIABLE TO YOU OR ANY OTHER PERSON FOR INDIRECT, INCIDENTAL OR SPECIAL DAMAGES, LOST PROFITS, LOST SAVINGS OR ANY OTHER FORM OF CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF SUCH PARTIES ARE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER RESULTING FROM BREACH OF THIS AGREEMENT OR OTHERWISE.
(9b) THE SERVICES ARE PROVIDED ON AN "AS IS" AND "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OF ANY KIND. WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING YOUR SERVICE. WE CAN'T PROMISE UNINTERRUPTED OR ERROR-FREE SERVICE AND DON'T AUTHORIZE ANYONE TO MAKE ANY WARRANTIES ON OUR BEHALF. THIS DOESN'T DEPRIVE YOU OF ANY WARRANTY RIGHTS YOU MAY HAVE AGAINST ANYONE ELSE. WE DO NOT GUARANTEE THAT YOUR COMMUNICATIONS WILL BE PRIVATE OR SECURE; IT IS ILLEGAL FOR UNAUTHORIZED PEOPLE TO INTERCEPT YOUR COMMUNICATIONS, BUT SUCH INTERCEPTIONS CAN OCCUR.
10. Notices. All notices required or permitted from you, the customer, hereunder shall be in writing, certified mail, return receipt requested, to Masterline Technologies, Inc. at 5305 Waring Road, San Diego, CA 92120, Attn: Customer Service, and to You, if applicable, at the billing address designated by You when activating Your messaging service.
11. Miscellaneous. (a) The Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to the principles of conflict of law; (b) if any provision of the Agreement shall be held to be illegal, invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby; (c) no delay or failure by Masterline to enforce any right under the Agreement will be deemed a waiver of that or any other right; (d) if any action shall be brought by Masterline on account of any breach of or to enforce or interpret any of the terms, covenants or conditions of the Agreement, Masterline shall be entitled to recover from You, as part of Masterline's costs, a reasonable attorneys' fee; (e) You may not assign or delegate Your obligations under the Agreement, either in whole or in part, without the prior written consent of Masterline; (f) Masterline shall not be liable for any nonperformance under the Agreement due to causes beyond its reasonable control that cannot be reasonably avoided or overcome; (g) the headings and captions used herein are used for convenience only and are not to be considered in construing or interpreting the Agreement; (h) these Terms and Conditions, together with the Plan selected by You, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
Terms and Conditions Supplemental Section 2
1. Customer Support:. When you need help troubleshooting a service problem, call the designated Masterline Customer Service number. The Messaging agent will transfer you to their Customer Service department. This service is available Monday through Friday. 5am to 5pm PST. Sample of troubleshooting inquiry: Not receiving messages
2. Modification of Service: (i) Upgrade or Downgrade of service plan will incur a one-time charge of $50.00 per user, per occurrence, or the then prevailing rate; (ii) Email domain change, SMS number change, Text-messaging address change, device PIN number change, linking phone number change, linking pager number change, or carrier change, will incur a charge of $15.00 per user, per occurrence, or the then prevailing rate.
3. Fee Proration: All activation, modification, reactivation, termination, monthly base access fees and prepaid fees are non-refundable and non-prorated.
4. Suspension of Service: Your account will be suspended if you fail to make your payments on time. Suspension is considered service interruption. You will incur a Control charge of $50.00 per occurrence per user to reactivate your service, or the then prevailing rate. If you make your Control charge payment and all other overdue payments, your service will be restored.
5. Our Rights to Limit or End Service of the Agreement. WE MAY LIMIT, SUSPEND OR TERMINATE YOUR SERVICE OR AGREEMENT WITHOUT NOTICE FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, if you, any user of your Service, or any user on your account: (a) breaches the Agreement; (b) incurs Charges greater than any billing or credit limitation on your account (even if we haven't yet billed the Charges); (c) provides inaccurate information or credit information we can't verify; (d) lives in an area where we don"t provide Service or more than 50% of your voice and/or data usage is off-net for any three billing cycles within any 12 month period (see Section 10); (e) transfer(s) Service to another person without our consent; (f) becomes insolvent, goes bankrupt or threatens bankruptcy (except as prohibited by law); (g) misuses your Service as described in Section 16, above; (h) uses your Service in a manner that is excessive, unusually burdensome, or unprofitable to us; or (i) are on a Rate Plan that we determine is no longer available to you. We may impose credit, usage or other limits to your Service, suspend your Service, or block certain types of calls, messages or sessions (such as international, 900 or 976 calls), in our sole discretion and without notice.
6. Termination, Early Termination. No termination of the Agreement will relieve You from any amount due and owing to Masterline or any liability arising from any breach of the Agreement. Termination may occur two ways: (1) Your account will be terminated and closed if you fail to restore your account due to late payment, or if you are in violation of the Terms and Conditions agreement. Accordingly, your toll-free number will be retired and permanently de-activated; (2) You may terminate your account upon written notice. There is no pro-ration of fees upon termination. You will incur a disconnect charge of $50.00 per user, per occurrence to terminate your service, or the then prevailing rate.
(6a) Early Termination/Liquidated Damages. Subscriber acknowledges and agrees that cancellation of a Subscription or termination of this Agreement prior to the end of the remaining Term by Subscriber or by Masterline for reasons of Subscriber's default will result in damages and loss of profits to Masterline which are difficult or impossible to determine exactly. Accordingly the parties agree that in the event Subscriber terminates a Subscription prior to the expiration of the remaining Term under the applicable Price Plan, then Masterline shall have the right, in addition to all other amounts due to Masterline pursuant to this Agreement and as liquidated damages and not as a penalty, to bill to Subscriber an additional amount determined by multiplying (a) the number of months (for the purposes of this calculation, partial months shall be counted as full months) remaining in the non-cancelable remaining Term by (b) the number of cancelled Subscriptions activated at any given time during the remaining Term, and then multiplying the result of (a) times (b) by the monthly minimum.
(6b) Remedies on Default and Termination. If Subscriber is in default of any of its obligations under this Agreement Masterline may, in addition to all other rights and remedies provided by this Agreement or by law, terminate this Agreement. Events of Default shall include, but not be limited to, Subscriber's failure to perform a term or condition contained herein (including, but not limited to, Subscribers failure to pay any Charges or other sums due and payable as and when required), provision of a false statement or representation made for the purpose of obtaining the Services, Subscriber's insolvency, failure to pay debts as they come due, or if Subscriber becomes subject to any proceeding under the Bankruptcy Act or similar laws. In the event that Masterline is prevented from providing any portion or all of the Service hereunder (including, but not limited to, the Services) by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental authority (including, without limitation, the Federal Communications Commission), or if a notice from a government agency or department indicates Masterline is not permitted to provide any portion or all of the service to be provided hereunder (including, but not limited to, the Services) or to operate all or any portion of the Masterline Facilities, or provide any Services, Masterline may immediately cease providing the Services without any liability whatsoever to Subscriber. Nothing herein shall be construed to require Masterline to seek a waiver of any law, rule, regulation, or restriction, or seek judicial review or appeal of any court order.
7. Indemnification. Subscriber Indemnity/Liability. Subscriber shall defend, indemnify, and hold harmless Masterline, its parents, successors, affiliates and agents from any claims, damages, losses, or expenses (including without limitation attorney fees and costs) incurred by Masterline in connection with all claims, suits, judgments, and causes of action (i) for infringement of patents or other proprietary rights arising from combining with or using any device, system or service in connection with Masterline Facilities (ii) for libel, slander, defamation or infringement of copyright or other proprietary rights with respect to material transmitted or received by Subscriber over the Masterline Facilities or (iii) injury, death or property damage arising in connection with the presence, use or non-use of the Services. Notwithstanding any termination of this Agreement, Subscriber shall be liable and shall immediately pay to Masterline all Charges due, or which would have become due throughout the entire Term of this Agreement. No remedy herein conferred upon Masterline is intended, nor shall it be construed to be exclusive of any other remedy provided herein or as allowed by law or in equity, but all such remedies shall be cumulative. Subscriber shall pay to Masterline all costs and reasonable attorneys fees, collection fees, and related expenses, (including, but not limited to, telephone, freight, express and postal Charges, expenses of paid investigators and reasonable compensation for time of Masterline's representatives) expended or incurred by Masterline in the enforcement of any right or privilege hereunder or in attempting to collect any Charge or other obligation due hereunder.
8. Late Payments, Billing Dispute. If Masterline does not receive Subscriber's payment before the next billing date, Subscriber shall pay interest at the rate equal to the lesser of (i) 1.5% per month or (ii) the highest rate allowed by law, on all due and unpaid amounts to be paid to Masterline. Acceptance of late or partial payments (even if marked 'Paid in Full') shall not waive any of Masterline's rights to collect the full amount due under the Agreement. We may use a collection agency and you agree to pay collection agency fees we incur to collect payment. If we accept late or partial payments, we do not waive our right to collect all amounts that you owe, including late fees. If your check is dishonored or returned, we may charge you up to $20, require another payment method, and/or immediately suspend or cancel your Service. We will not honor limiting notations you make on or with your checks. Subscriber waives any objection it may have with respect to any invoice, charge or fee if Subscriber fails to provide Masterline written notice of such objection within 30 days of receipt of invoice. In addition to the foregoing, Subscriber shall pay Masterline's costs and reasonable attorneys fees incurred in enforcing any provision of this Agreement, including, but not limited to costs of collection.
9. Deposits. As partial guarantee of Subscriber's payment of Charges, Masterline may at any time require the Subscriber to make a deposit ('Deposit') to be held by Masterline in an amount to be determined at the sole discretion of Masterline and without interest except as may be required by applicable law. Masterline may require Subscriber to increase its Deposit at any time to reflect Subscriber's estimated monthly Charges based on actual usage or Masterline's re-evaluation of Subscriber's ability to pay. Masterline shall have the right, at its discretion, to apply all or any portion of the Deposit in total or partial satisfaction of any of the Subscriber's obligations under this Agreement. Subscriber's Deposit will not relieve it of the obligation to pay Charges in full when due, nor shall it prevent Masterline from discontinuing or restricting service for non-payment of amounts due to Masterline, nor shall use of the Deposit constitute a waiver by Masterline of Subscriber's non-performance in the event that Masterline should use any portion of the Deposit pursuant to this provision. Subscriber shall immediately and upon notice from Masterline restore the Deposit to its original amount or such other amount specified by Masterline. Upon termination of service, the amount of Deposit, including any interest required by law, will be credited to Subscriber's Charges, and any credit balance will be refunded.
10. Use of Service. MASTERLINE MAY AT ITS SOLE DISCRETION RESTRICT, SUSPEND, MODIFY OR TERMINATE THE SERVICE WITHOUT NOTICE if Subscriber (1) pays late more than once in any 12 month period; (2) incurs Charges in excess of any Deposit; (3) interferes with customer service or business operations; (4) uses the Services in such a way as to have a detrimental effect upon the Masterline Facilities; (5) transmits obscene, indecent, harassing, profane, abusive, false illegal or deceptive messages; or (6) to maintain or improve service, or for other business reasons.
11. Rules and Regulations. Masterline may at its sole discretion adopt reasonable usage rules, regulations, and fees from time to time to prevent abuse of the System.
12. General Provisions.
(12a) All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination of this Agreement, including without limitation, those relating to Limitation of Liability and Indemnification, shall survive such termination.
(12b) Masterline will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes, work slow-downs or other labor-related activity, or an inability to obtain necessary equipment or services.
(12c) You may not assign or otherwise transfer this Agreement, or your rights or obligations under it, in whole or in part, to any other person. Any attempt to do so shall be void. We may freely assign all or any part of this Agreement with or without notice and you agree to make all subsequent payments as directed.
(12d) Masterline"s failure at any time to insist upon strict compliance with any of the provisions of this Agreement shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
(12e) This Agreement, including all Policies referred to herein and posted on the Website, constitutes the entire agreement between you and Masterline with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. No changes by you to this Agreement shall be effective unless agreed to in a writing signed by an authorized person at Masterline.
ACCEPTABLE USE POLICY
1.General Policy: Masterline reserves the sole discretion to deny or restrict your Service, or immediately to suspend or terminate your Service, if the use of your Service by you or anyone using it, in our sole discretion, violates the Agreement or other Masterline policies, is objectionable or unlawful, interferes with the functioning or use of the Internet or the Masterline/Telisimo network by Masterline/Telisimo or other users, or violates the terms of this Acceptable Use Policy ("AUP").