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Data2-U Privacy and Security Statement
AGREEMENT FOR CELLULAR DATA2-U SERVICE
This is an Agreement for Cellular and Internet DATA2-U Service ("Service") between the party whose name appears on the Sales Order Form or Purchase Order Form and DATA2-U Inc. In this document, "you" or "your" refers to the individual or entity who signs the Sales Order Form or Purchase Order Form, and "we", "us", or "our" refers to Data2-U Inc.

ASSUMPTION OF SERVICE
If at any time you elect to have your Service number or Internet site assumed by some other person or entity, you are still responsible for any and all charges incurred under this Agreement up to the date your number is assumed. No assumption of Service will be effective without our consent.

TERMS AND CONDITIONS OF SERVICE
This Agreement shall take effect when we have approved your request for Service and activated your cellular RTU number. Important: Regardless of the Service Plan you select, by signing the Sales Order Form or Purchase Order Form, you agree to a minimum Service period with us (the "Minimum Term") of one (1) year, two (2) years, or three (3) years (depending on the type of Service Plan you selected). The Minimum Term starts when this Agreement takes effect. Regardless of the type of Service Plan you have selected, the Agreement shall remain in effect throughout the defined Minimum Term.

RATES AND CHARGES: You agree that as long as you subscribe to our Service, you will pay the applicable Service rates for the Service Plan you select, along with all charges properly billed to your account.

Such charges may include (but are not limited to) a one-time activation fee, charges for features, support services, applicable airtime charges, applicable late payment charges, tolls, taxes, governmental fees, and ANY APPLICABLE EARLY CANCELLATION FEES. The first year service, plus appropriate charges as described above is due at the time of sign up. Subsequent years of the term contract signed will be invoiced 60 days prior to the yearly anniversary date. Payment for the next year is required by the due date to keep the service active. At the end of the contract term this agreement will automatically renew for one-year terms; prices are subject to change.

OVERAGE CHARGES: In the event that you use more than the monthly contracted number of transmissions in any given month; you will be responsible for the over usage charges. Over usage charges are billed at the rate of $1.00 per occurrence. Data2-u will invoice these charges on an as required basis. Billing, depending on the overage volume, will take place on an as needed basis as determined by Data2-u and will occur at least once per year. Charges are due when invoiced.

LATE PAYMENTS: Payment of your Service bill is due on the date indicated on the bill. Failure to make a timely payment will result in the shutdown of your service. A reactivation fee of $150 per RTU will be charged to reactivate the service.

CHANGES: We can modify or amend this Agreement at any time by sending you notice in your yearly bill or separately. If you do not agree to the changes made to this Agreement, you must notify us in writing to cancel Service within thirty (30) days of our notice to you and pay all outstanding charges owed to us; otherwise you will be conclusively deemed to have agreed to the changes described in our notice. Such changes may include, without limitation, service rates and charges, Service Plans, billing practices, late charges and any or all other terms and conditions of this Agreement.

EARLY CANCELLATION FEE: Early Cancellation Fees vary according to the Minimum Term and Service Plan chosen. If you select any one- (1) year Service Plan and cancel Service during your Minimum Term, then you are responsible for the entire year’s service charge in addition to all other outstanding charges on your account. If you select any two- (2) year Service Plan and cancel Service during your Minimum Term, then you are responsible for two years service charges in addition to all other outstanding charges on your account. If you select any three- (3) year Service Plan and cancel Service during your Minimum Term, then you are responsible for three years service charges in addition to all other outstanding charges on your account.

RENEWALS AND/OR CHANGES: At the end of your Minimum Term your line will be renewed on the same Service Plan for successive one-year terms until you either instruct us to change your Service Plan, renew your Service Agreement, or disconnect Service.

CANCELLATION OF SERVICE: Service shall not be used for any purpose that violates the law or in any manner that interferes with the use of Service by other customers. Unlawful or interfering uses are grounds for cancellation of your Service. Furthermore, the operating characteristics of your RTU must not interfere with the Service we offer to our customers. We can also cancel your Service if you have made any false statement for purposes of inducing us to extend Services to you. We may also cancel this Agreement if cellular service ceases to be available from the Company affiliate servicing your area.

CHANGE OF SERVICE PLANS: If you change Service Plans you must complete your current Minimum Term to avoid an Early Cancellation Fee unless you change to a new Service Plan with a Minimum Term that is greater than the amount of time remaining on your current Minimum Term. If you change to a plan that requires fewer transmissions or data points anytime during your Minimum Term, a $100.00 Service Transfer Fee will be charged to your account.

DEFAULT: If you do not pay any charges owed to us or if you violate any of the terms of this Agreement, in addition to any and all rights and remedies available to us at law or equity, we have the right to discontinue or restrict any and/or all of your Service either temporarily or permanently. In either case, we shall incur no liability whatsoever. If we refer your account to an attorney or agency for collection, you agree to pay our actual collection costs, including court costs and reasonable attorneys' fees, unless prohibited by law. For each check returned unpaid, we will impose a charge of $75.00 or the highest amount that is allowed by law, whichever is less. If any Service is interrupted, a restoring fee will apply.

CELLULAR RTU: We are not responsible for the installation, operation, quality of transmission or reception or for the maintenance of your cellular RTU. You must provide your own cellular RTU and maintain it. You must also ensure that it is technically and operationally compatible with our system and that it complies with the rules and regulations of the Federal Communications Commission.

CELLULAR NUMBER: Subject to any applicable law or regulation, you have no property right or interest in your cellular telephone number. We reserve the right to change your number or to assign it to someone else when we alone consider such a change or assignment necessary to the conduct of our business.

AVAILABILITY: We will use our best efforts to provide you with quality Service, without interruption. Service is available to working cellular RTUs when those units are within the range of cell sites located in a Cellular Geographic Service Area ("Service Area") included within our plan. Service is subject to transmission limitations caused by atmospheric and various other conditions beyond our and our service providers’ control. Service may be temporarily unavailable or limited because of the cellular system's capacity limitations. Service to any or all customers may be temporarily interrupted or curtailed because of equipment modifications, upgrades, relocations, repairs and similar activities necessary for the proper operation of Service.

Where subject to state regulations, Service is offered pursuant to tariffs on file with the local regulatory commissions. Unregulated service is offered pursuant to such terms and conditions as may be determined from time to time by local cellular service providers.

CARRIER LIABILITY EXCLUSION: You acknowledge that the service provided by us hereunder is based upon MicroBurst Service furnished to us by Aeris Communications, Inc. or some other Service provider, and utilizes cellular telephone service that is furnished to Aeris or other Service Provider by one or more Participating Carriers pursuant to agreements between Aeris or other Service Providers and such Participating Carriers and is subject to the terms, conditions and limitations therein set forth. You further acknowledge that participating carriers disclaim all liability of any nature to you, whether direct, indirect, incidental or consequential, arising out of use of Service, and you agree that you shall have no claims against participating carriers of any kind with respect thereto.

TERMINATION OF COVERAGE AVAILABILITY: Data2-U will provide you with at least 90-day notice in advance of the termination of service coverage availability in any geographic area of the Territory where such service had previously been available. At the end of the 90-day period, unless Data2-U has rescinded such notice, any geographic area described in such notice will no longer be part of the territory. Data2-U and our Service Providers will use its best efforts to maintain Service Coverage throughout the Territory and will further use best efforts to replace any coverage that becomes unavailable for any reason. In the event that coverage territory is permanently unavailable, making transmission to the Data2-U Internet site impossible, Data2-U will refund and unused portion of the prepaid service fee. You acknowledge that Data2-U disclaims all liability of any nature to you, whether direct, indirect, incidental or consequential, arising out of use of Service or discontinuation of service, and you agree that you shall have no claims against Data2-U of any kind with respect thereto.

LIMITATION OF LIABILITY

OUR ONLY LIABILITY TO YOU IS AS FOLLOWS:
DATA2-U SHALL NOT BE RESPONSIBLE FOR ANY CLAIMED DAMAGES, INCLUDING INCIDENTAL AND CONSEQUENTIAL DAMAGES, WHICH MAY ARISE FROM DATA2-U SERVERS GOING OFF-LINE OR BEING UNAVAILABLE FOR ANY REASON WHATSOEVER. FURTHERMORE, DATA2-U SHALL NOT BE RESPONSIBLE FOR ANY CLAIMED DAMAGES, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE CORRUPTION OR DELETION OF ANY WEB SITE FROM ONE OF DATA2-U SERVERS. DATA2-U CANNOT BE HELD LIABLE FOR SYSTEM DOWNTIME, CRASHES, OR DATA LOSS.

IN NO EVENT SHALL WE BE LIABLE FOR INTERRUPTIONS OR DELAYS IN TRANSMISSION / INTERNET SERVICES OR FOR ERRORS OR DEFECTS IN TRANSMISSION / INTERNET SERVICES; NOR FOR FAILURE TO TRANSMIT / PRESENT DATA WHEN ANY SUCH PROBLEMS ARE CAUSED BY ACTS OF GOD, FIRE, WAR, RIOTS, GOVERNMENT AUTHORITIES OR BY OTHER CAUSES BEYOND OUR CONTROL. NO CREDIT ALLOWANCE WILL BE GIVEN FOR INTERRUPTIONS CAUSED BY YOUR NEGLIGENCE OR BY YOUR WILLFUL ACTS, OR FOR INTERRUPTIONS CAUSED BY FAILURE OF SERVICE OTHER THAN OUR SERVICE, OR EQUIPMENT FAILURE OF ANY KIND.

IF SERVICE IS EVER INTERRUPTED FOR REASONS BEYOND YOUR CONTROL FOR MORE THAN A CONTINUOUS FORTY-EIGHT (48) HOUR PERIOD, AS YOUR SOLE REMEDY, WE WILL MAKE A CREDIT ALLOWANCE, AT YOUR REQUEST IN THE FORM OF A PRORATA ADJUSTMENT OF THE FIXED YEARLY CHARGES WE BILL YOU. THE PRO RATA ADJUSTMENT WILL BE COMPUTED BY DIVIDING THE LENGTH OF THE SERVICE INTERRUPTION (MEASURED IN 24-HOUR DAYS FROM THE TIME THE INTERRUPTION IS REPORTED TO US) BY A STANDARD 360-DAY YEAR AND THEN MULTIPLYING THAT RESULT BY OUR FIXED ANNUAL CHARGE FOR EACH INTERRUPTED CELLULAR NUMBER. INTERRUPTIONS OF LESS THAN FORTY-EIGHT (48) HOURS TOTAL DURATION WILL NOT BE CREDITED. IN NO CASE SHALL THE CREDIT EXCEED THE FIXED YEARLY CHARGE. THIS IS OUR COMPLETE AND ONLY LIABILITY TO YOU FOR SERVICE INTERRUPTION.

COMPANY WILL NOT BE LIABLE FOR ANY ACCIDENTS OR INCIDENTS WHICH RESULT FROM THE PRESENCE OF A CELLULAR RTU OR ITS USE BY A CUSTOMER OR ANY OTHER PERSON. CUSTOMER SHALL INDEMNIFY COMPANY AGAINST ANY CLAIMS FOR SUCH EVENTS. THE USE OF A CELLULAR RTU MAY BE PROHIBITED OR RESTRICTED IN SOME AREAS. IT IS THE CUSTOMER'S RESPONSIBILITY TO CONFORM TO ALL SUCH LAWS OR REGULATIONS AND THE CUSTOMER SHALL INDEMNIFY US FROM CLAIMS ARISING FROM ANY SUCH UNLAWFUL USE. IN NO EVENT SHALL WE BE LIABLE FOR LOST PROFITS, ACTUAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.

WARRANTY LIMITATIONS: THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE RESPECTING THIS AGREEMENT AND THE SERVICE PROVIDED.
WE MAKE NO REPRESENTATION OR WARRANTY REGARDING THE PRIVACY OF ANY
USE OF SERVICE. WE SHALL NOT BE LIABLE FOR DAMAGES FOR ANY DELAYS OR INTERRUPTIONS OF SERVICE ARISING OUT OF CAUSES BEYOND OUR REASONABLE CONTROL.

GOVERNING LAW.
The parties agree that this Agreement is entered into in and is to be governed by the laws of the State of Illinois.

TERMINATION FOR ACTS OF INSOLVENCY.
Either party may terminate this Agreement by written notice if the other party becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated, voluntarily or otherwise.

PROPRIETARY RIGHTS. You acknowledge that no proprietary rights shall accrue to you in any software, programs, drawings, specifications, or other materials or services provided by us, and that all such items shall remain our property.

January 28, 2001

Copyright © 2000-2003 Data2-U, Inc.

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