1. Agreement
This agreement for Service (“Agreement”) between Credo Mobile and Customer (as identified on the Order Form) is made up of the Business Services Order Form completed and signed by the Customer, the Price Quote, the Service Plan(s) under which the Customer receives Service and this Credo Mobile Business Services Master Agreement.
2. Definitions
2.1 Corporate Subscriber. An employee of Customer using Service under this Agreement whose account is set up in Customer’s name and for which Customer has responsibility.
2.2 Associate Subscriber. An employee, or eligible relative of employee, of Customer utilizing Service whose account is registered under this Agreement and is set up in the employee’s name and for which the employee has responsibility. Credo Mobile’s relationship with Associate Subscribers will be governed by Credo Mobile’s residential Customer Agreement.
2.3 Equipment. Mobile handsets, data devices and similar devices and other accessories used in conjunction with the Service.
2.4 Line. An individual Corporate Subscriber’s line of Service using voice service, data service, or both. Each Line is associated with a single mobile telephone number.
2.5 Network. The Nationwide Sprint PCS® Network. Although Sprint provides Credo Mobile business subscribers access to its mobile network and its mobile services, Credo Mobile is the provider of the Service outlined in this Agreement.
2.6 Service. All services provided directly or indirectly by Credo Mobile.
3. Term of Agreement; Early Termination Fees
3.1 Term of Agreement (“Term”). Credo Mobile will provide Service to Customer for an initial term of one (1) year from the date this Agreement is executed by both Credo Mobile and Customer (“Effective Date”), and thereafter on a month-to-month basis until terminated by either Party with at least thirty (30) days’ Legal Notice, as set forth in Section 22 “Legal Notices” below. After termination, Service will continue for any active Corporate and Associate Subscribers. Until such mobile telephone numbers are either terminated or incorporated under another agreement, Customer and Corporate Subscribers will be subject to the terms and conditions of this Agreement and Associate Subscribers will be subject to the terms and conditions of Credo Mobile’s residential Customer Agreement; however, Credo Mobile may remove discounts and other benefits of this Agreement from any remaining active mobile telephone numbers.
3.2 Term of Lines (“Line Term”). The term for each Line begins on the date Service is activated for that Line and continues for the period required by the Service Plan or Equipment selected for that Line. Line Term extensions are required when Corporate Subscribers: (a) take advantage of promotions or services that require a Line Term extension; or (b) purchase or upgrade Handsets. When the Line Term expires, Service continues on a month-to-month basis.
3.3 Early Termination Fees (“ETF”). An ETF of $175.00 applies to each Line terminated or ported to another service provider prior to the Expiration of the Line Term. For each Line activated or Line Term extended under this Agreement, the ETF will be reduced by $5.00 for each full month of service completed toward that Line Term.
4. Rates and Charges
The Service Plan and any selected options and features determines the applicable rates, charges, allowance of minutes and Service coverage area for each Line. Corporate Subscribers activating new Service or Changing Service Plans will receive the then-current Service Plan rates, terms and conditions. Customer agrees to contact Credo Mobile for current information about Service Plans and their associated rates, terms, conditions and features before activating new Service or changing Service Plans. The monthly access fees and non-promotional allowance of minutes for each Line will not change during the Line Term as long as the Service Plan is not changed on that Line. Other rates, charges and fees including, but not limited to, options and feature charges, may be changed upon notice (which may be by mail, email, and/or bill message). Credo Mobile may change or discontinue business or consumer Service Plans from time to time.
5. Phones and Equipment
5.1 Purchase, Shipping and Return. Equipment may be purchased and returned through Credo Mobile. Credo Mobile is not the manufacturer of the Equipment and the only warranties on the Equipment are any limited warranties extended by the manufacturers. Credo Mobile has no liability in connection with the Equipment or for the manufacturers’ acts or omissions, or both. Equipment will be shipped to the address designated on the Customer’s Order Form. Title and risk of loss pass to Customer and acceptance occurs upon receipt of the Equipment by Customer. Equipment is deemed delivered five (5) business days after shipping date. Credo Mobile may charge Customer for Shipping. Credo Mobile will ship Equipment within five (5) business days of receipt of Customer’s Order Form, subject to availability.
Return Policy: Customer shall have thirty (30) days from date of order to exchange Equipment or return it for a refund and terminate the Line without an ETF. (1) The product(s) must be returned in like-new condition and undamaged in its original box(es) and (2) all accessories, printed material and package inserts must be included with the product(s) being returned.
Failure to comply with the Return Policy may result in an ETF and/or an equipment fee (equal to the retail value of the phone), or, in the case of purchased equipment, the denial of a refund. Customer shall be responsible for all Service-related charges incurred up to the time of termination. If you would like to return your Credo product, contact Credo Customer Service at 866-495-3360 for return authorization and shipping instructions.
5.2 Lost or Stolen Equipment. If Customer’s Equipment is lost or stolen, Customer must notify Credo Mobile Customer Service by calling 866-495-3360. Customer may request that Credo Mobile suspend Service and billing to the affected Line for the lesser of thirty (30) days or until the date of replacement or recovery of the Equipment, at which time Service and billing for such Line shall resume. Credo Mobile may request reasonable documentation in support of such suspension. Until Credo Mobile receives Customer’s notification, Customer may be responsible for all charges associated with the Line.
6. Purchasing
6.1 Purchases by Customer (Account Administrator(s)). Customer shall identify representatives authorized to purchase Service and Equipment under this Agreement and to act on its behalf (“Account Administrator(s)”) by providing their names, telephone numbers, business addresses and email addresses in writing to Credo Mobile on the Business Services Order Form. An Account Administrator shall have full authority to handle any and all matters contemplated by this Agreement or relating to Customer’s accounts(s).
6.2 Purchases by Associates Subscribers. Associate Subscribers, as defined in Section 2.2 above and following verification by Credo Mobile, may purchase Service with Customer’s percentage discount in effect at the time of Associate Subscriber’s enrollment, but the provision of Service will be governed by Credo Mobile’s residential Customer Agreement. The discount does not apply to Associate Subscriber purchases of Equipment. Customer shall not be responsible for any Service or Equipment purchased by or on behalf of an Associate Subscriber. In order to receive the Customer discount, Associate Subscriber may be required to enter into a new Credo Mobile term contract.
6.3 Prohibition Against Resale. This Agreement specifically contemplates the purchase of Services by Corporate and Associate Subscribers only. Third parties (including agents, contractors or contract employees of Customer) are not eligible to purchase Service or Equipment under this Agreement. Customer may not resell the Service.
7. Billing and Payment
7.1 Credit and Deposit. Customer must have and maintain satisfactory credit to receive and continue to receive Service under this Agreement. Credo Mobile may verify Customer’s credit as a condition of providing Service and may verify credit at any time during the Term of this Agreement. Credo Mobile may request that Customer provide any information that Credo Mobile deems reasonably necessary to determine the creditworthiness of Customer. At any time during the Term, Credo Mobile may require Customer to provide a deposit as a guarantee of payment based upon Customer’s creditworthiness or payment history. Any such deposit shall not relieve Customer of its obligations to pay any Credo Mobile bills. Credo Mobile shall pay any required interest on such deposit.
7.2 Monthly Bills. Credo Mobile bills on a monthly basis, and Customer is liable for all fees and charges, including any applicable Taxes and Surcharges, on Corporate Subscriber Lines. Monthly access fees and feature charges are generally billed in advance, while airtime overage and other usage rates or charges are billed in arrears. Monthly billing cycles vary and do not necessarily correspond to calendar months. Paperless billing is required on Credo Mobile Business Services accounts.
7.3 Payment Terms. Customer shall pay all charges within thirty (30) days of the date of each bill. Past due amounts shall be, to the extent permitted by applicable law, subject to a late payment fee of up to one-and-a-half percent (1½%) per month. If payment by check or similar negotiable instrument is returned by a financial institution for any reason, Credo Mobile will charge Customer a returned check fee.
7.4 Disputed Charges. In the event of disputed charges, Customer must notify Credo Mobile in writing, including the date of the bill, disputed amounts, the reason for the dispute and any supporting documentation, within ninety (90) days of the bill date. Customer may withhold payment of a disputed charge, up to the amount of the dispute, only if it disputes such charge on or before the applicable bill due date; otherwise, Credo Mobile may take any action permitted for Customer’s failure to pay in full. The Parties will use their good faith efforts to reconcile any disputed charges within sixty (60) days of the date of notification, after which the Parties may invoke the procedures set forth in Section 14 “Dispute Resolution” below.
7.5 Failure to Pay. Credo Mobile may, upon prior communication to Customer (which may be by mail, email and/or bill message) suspend or terminate Service to some or all Corporate Subscribers or deny activation to new Corporate Subscribers due to Customer’s failure to make payment or dispute charges in accordance with the foregoing provisions, regardless of any deposit provided by Customer.
8. Taxes, Surcharges and Exemptions
If any federal, state, local or foreign tax, fee, assessment or other charge is required by law to be collected by Credo Mobile (each a “Tax”), or a serving carrier charges Tax on a roaming call, then Credo Mobile may bill such Tax to Customer, and Customer shall pay such Tax. If Credo Mobile incurs a tax (other than a net income tax) or other expense to comply with legal or governmental requirements, or other expense to provide or improve service to its customers, and Credo Mobile bills a surcharge to recover or offset the cost of such expense (a “Surcharge”), then Customer shall pay such Surcharge. Taxes and Surcharges may change from time to time. With respect to any Tax other than a Tax charged by a serving carrier on a roaming call, if Customer provides Credo Mobile with an exemption certificate in the form provided by law, or with other evidence of exemption acceptable to Credo Mobile, then that specific Tax will not be collected from Customer. If an exemption applied by Credo Mobile at Customer’s request is found not to apply, the Customer shall upon demand pay Credo Mobile the uncollected Tax and all related interest, penalties and additions to the Tax. Credo Mobile shall not issue credits for a Tax that is billed prior to Credo Mobile’s receipt of evidence of exemption.
9. Bankruptcy/Insolvency
Either Party may terminate this Agreement upon Legal Notice, as set forth in Section 22 “Legal Notices” below, if: (a) the other Party makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts as they mature; (b) a trustee or receiver of any substantial part of the other Party’s assets is appointed by any court; or (c) a proceeding is instituted under any provision of the Federal Bankruptcy Laws by or against the other Party, and such proceeding is not acquiesced in or is not dismissed within sixty (60) days or results in an adjudication in bankruptcy. Notwithstanding the above, Customer’s right to terminate pursuant to this section may only be invoked if Credo Mobile is unable to provide Customer with Service and Equipment under this Agreement as a result of the foregoing. If Customer terminates this Agreement pursuant to this section, it shall not be relieved of its obligation to pay for any Service used and Equipment purchased.
10. LIMITATION OF LIABILITY
CREDO MOBILE SHALL NOT BE LIABLE TO CUSTOMER, ITS EMPLOYEES, AGENTS OR ANY THIRD PARTY FOR INJURY TO PERSONS OR PROPERTY, LOSSES (INCLUDING ANY LOSS OF BUSINESS), DAMAGES, CLAIMS OR EXPENSES OF ANY KIND CAUSED DIRECTLY OR INDIRECTLY BY THE EQUIPMENT, USE OF THE EQUIPMENT BY CUSTOMER’S EMPLOYEES OR CUSTOMER’S AGENTS, THE MANUFACTURER OF THE EQUIPMENT, ANY REPAIR OR SERVICE OF THE EQUIPMENT BY CUSTOMER OR A THIRD PARTY, ANY MODIFICATIONS, OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USE OF THE EQUIPMENT. IN NO EVENT SHALL CREDO MOBILE OR ITS VENDORS BE LIABLE FOR LOSSES, DAMAGES, CLAIMS OR EXPENSES OF ANY KIND ARISING OUT OF THE USE, ATTEMPTED USE, OR INABILITY TO ACCESS LIFE SUPPORT OR MONITORING SYSTEMS OR DEVICES, 911 OR E911, OR OTHER EMERGENCY CALL OR SERVICE.
11. LIMITATION OF DAMAGES
NEITHER PARTY, NOR ITS AGENTS OR VENDORS, SHALL BE LIABLE TO THE OTHER PARTY, ITS EMPLOYEES, AGENTS OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
12. DISCLAIMER OF WARRANTIES
CREDO MOBILE IS NOT THE MANUFACTURER OF THE EQUIPMENT AND MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, AS TO THE SUITABILITY, DURABILITY, FITNESS FOR USE, MERCHANTABILITY, CONDITION, QUALITY, PERFORMANCE OR NON-INFRINGEMENT OF THE EQUIPMENT. WITH RESPECT TO CREDO MOBILE, CUSTOMER PURCHASES THE EQUIPMENT “AS IS”. EQUIPMENT SHALL BE SUBJECT TO ANY WARRANTIES PROVIDED TO THE CUSTOMER BY THE EQUIPMENT MANUFACTURER. MODIFICATIONS MAY VOID OR OTHERWISE LIMIT ANY WARRANTY APPLICABLE TO THE EQUIPMENT.
13. Indemnification
13.1 Mutual Indemnification. Customer shall defend, indemnify, and hold harmless Credo Mobile from any and all losses and damages claimed by a third party in any action or proceeding, against Credo Mobile alleging bodily injury (including death) or damage to property, caused or alleged to have been caused by the negligence or other wrongful acts or omissions of the Customer, its employees and authorized agents, including any final monetary judgments, settlements, reasonable costs and reasonable attorneys’ fees awarded therein. In no event shall Credo Mobile indemnify Customer for any claims, suits or demands arising from the use, delay, failure, defect or inability to use the Service or Equipment.
13.2 Notice and Defense. Credo Mobile shall: (a) provide the other party with prompt Legal Notice, as set forth in Section 22 “Legal Notices” below, of the claim; (b) allow Customer to control the defense and settlement of the claim, provided, however, that the Customer shall not agree to make any injunctive relief or settlement that obligates Credo Mobile to perform any obligation, make an admission of guilt, fault or culpability, or incur any expense, without Credo Mobile’s prior written consent; (c) have the right to obtain its own counsel at its own expense; and (d) provide reasonable cooperation to Customer.
14. Dispute Resolution
The Parties agree to arbitrate any dispute arising out of this Agreement. Such arbitration shall be held before an independent arbitrator pursuant to the Wireless Industry Arbitration (“WIA”) rules in effect at the time of the dispute, as modified by this Agreement and administered by the American Arbitration Association (“AAA”). The United States Arbitration Act, 9 U.S.C. §§ 1016, as amended, shall govern the arbitration. In the event of any conflict, the WIA rules shall govern. No arbitration between the Parties may proceed on a class basis or be consolidated with any other arbitration without the written consent of both Parties. If the prohibition on class arbitrations set forth above is deemed unenforceable, then neither Party shall be required to arbitrate. Any award shall be accompanied by a written opinion of the arbitrator giving the reasons for the award and shall be binding upon the Parties with no right of appeal. If for any reason the provisions of this Agreement requiring arbitration are declared unenforceable, void, or voidable, or if any action or judicial proceeding is permitted, each Party waives any right it may have to trial by jury. Notwithstanding the above, either Party may seek preliminary and final injunctive relief in the event of intellectual property infringement or the unauthorized disclosure of such Party’s Confidential Information.
15. Mobile Service Availability
Mobile service uses radio wave technologies and is subject to transmission and service area limitations. Service is available within the operating range of the Network. Actual coverage, quality and availability of coverage may vary based on Network problems, signal strength, Customer’s Equipment, terrain, structures, weather and other limitations or conditions beyond Credo Mobile’s control. Credo Mobile does not guarantee that there will be no interruptions or delays in Service.
16. Use of Service and Equipment
In order to protect the Network, Credo Mobile operations and other customers, Credo Mobile may suspend or terminate Service to affected Lines without notice if the Corporate Subscriber uses or modifies the Service or Equipment: (a) in an illegal or unauthorized manner (including spamming or other abusive messaging); (b) in a manner prohibited by the applicable Service Plan; (c) in a manner that has an adverse impact on the Network, Credo Mobile’s operations or other customers; or (d) in any manner which leads Credo Mobile to suspect fraud or misuse. If Customer continues using the Service in such a manner, Credo Mobile may deny activation to new Lines or, upon Legal Notice as set forth in Section 22 “Legal Notices” below, may terminate this Agreement.
17. Special Provisions for Data Services
17.1 Use of and Charges for Data Services. Use of data services (“Data Services”) requires mobile date-compatible Equipment. Data Services may only be used for Internet browsing and email. When Internet browsing, Customer will be charged for the amount of data transferred. If the Equipment uses 2G mobile technology to access the Internet, Customer will be charged for time spent connected to the Mobile Internet, including time spent browsing on the Internet and reviewing or scrolling through information online while still connected to the Network. In addition to a per minute charge, time spent accessing the Internet is deducted from Customer’s Service Plan airtime bundle.
17.2 Limitations on Data Services. Use of Data Services is subject to any memory, storage or other Equipment limitation. Repeated usage attempts in excess of such limitation may constitute misuse of Service. Other prohibited uses include, but are not limited to, using Data Services in connection with server devices or host computer applications, systems that drive continuous heavy traffic or data sessions, as a substitute for private lines or frame relay or as a modem in connection with other devices, for VoIP, peer-to-peer file sharing, or in any manner that adversely affects the Network or Services. Unlimited Service Plans cannot be used for uploading, downloading or streaming video, audio or games and cannot be used with applications that tether the equipment to a computer for any purpose. Data Service is not intended to provide full-time Internet connections, and may be discontinued after a period of inactivity or after excessive usage. Credo Mobile reserves the right, in its sole discretion, to limit data transfers or deny or terminate Data Services without notice if it believes the Data Services are being used in a prohibited manner.
17.3 Availability. Data Services may not be immediately available in some markets. Telephone numbers are transmitted to any web site Customer visits on the Internet. Not all Internet web sites can be accessed, and Customer may receive an error message if Customer attempts to access a web site that cannot be accessed through the Data Services. Data Services are currently not available when Customer is roaming off the Network. Text messaging is not available on all Equipment models.
17.3 Mobile Content. Data compatible Equipment can be used to purchase goods, content and services (including subscription plans) from other companies (“Mobile Content”). Customer is responsible for all charges for Mobile Content incurred by Corporate Subscribers on any Equipment assigned to Customer’s account. Charges for Mobile Content will appear on Customer’s bill, including charges on behalf of other companies. Mobile purchases may be restricted by blocking Corporate Subscribers’ access. Credo Mobile is not a publisher of third party Mobile Content that can be accessed through Data Services. Credo Mobile is not responsible for any opinions, advice, statements, services or other information provided by third parties and accessible through Data Services. Credo Mobile does not guarantee the accuracy, completeness or usefulness of information obtained through Data Services.
17.4 Ringtones and Graphics. Ringtones and graphics may be downloaded from the Internet on selected Equipment models for an additional fee per download, which fees will appear on Customer’s monthly bill. In addition to the cost of the downloaded content, Customer will be charged for the amount of data transferred during web browsing while downloading the purchased item. If Equipment needs to be replaced, previously downloaded items must be downloaded and purchased again. Credo Mobile reserves the right to change product attributes and prices at any time without notification to Customer. Ringtones and graphics are protected, copyrighted materials and may only be purchased for individual, personal use on a Corporate Subscriber’s Line and may not be copied, transferred or distributed without the prior written consent of the current owner. Ringtones and graphics cannot be downloaded while roaming off the Network.
18. Assignment
Provided an assignee possesses the financial and operational ability to perform under this Agreement and agrees to assume and fully discharge all of the duties and obligations of the assignor arising under this Agreement, either Party may assign this Agreement in its entirety, without the other Party’s consent, upon Legal Notice as set forth in Section 22 “Legal Notices” below, to: (a) any parent, subsidiary or affiliate entity; or (b) a successor in interest of all or substantially all of the assets, stock, or business of the assigning Party. Neither Party may assign its rights or delegate its duties under this Agreement to any other entity without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Customer may not assign its rights or delegate its duties under this Agreement to any direct competitor of Credo Mobile without the prior written consent of Credo Mobile. Subject to the provisions of this section, this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns, if any, of the Parties hereto.
19. Force Majeure
Credo Mobile’s performance hereunder shall be excused if caused by a failure of a third party mobile or telecommunications provider serving a particular area, power failure, national emergency, interference by any governmental agency, acts of God, strikes, other labor disturbances, severe weather conditions, fire, terrorism, riots, war, earthquakes, or any other causes beyond Credo Mobile’s reasonable control.
20. Governing Law, Venue and Jurisdiction
The validity, construction and performance of this Agreement and any dispute resolution in accordance with Section 14 “Dispute Resolution” above shall be governed by the laws of the State of California, without regard to its conflict of laws provisions. Each Party submits to personal jurisdiction exclusively in San Francisco, California, and waives all objections to a California venue.
21. Legal Notices
Unless otherwise stated herein, Legal Notices required under this Agreement shall be in writing and shall be valid and sufficient if dispatched by: (a) registered or certified mail, postage prepaid, in any United States post office; (b) hand delivery; or (c) nationally recognized express courier. Such Legal Notice shall be deemed effective upon delivery to the address(es) designated on the Order Form (as may be updated in writing from time to time). Legal Notice to Customer may be made to Customer’s designated Account Administrator(s). All other notices and communications may be made via mail, email to the billing address on the account, and/or message in the Customer’s monthly bill.
22. Waiver, Severability and Survival
22.1 Waiver. Any forbearance or delay on the part of either Party in enforcing any rights under this Agreement shall be construed as a waiver of such rights. No terms of this Agreement shall be waived unless expressly waived in writing.
22.2 Severability. If any provisions of this Agreement are held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall remain in full force and effect.
22.3 Survival. Termination of this Agreement shall not affect either Party’s accrued rights or obligations under this Agreement as they exist at the time of termination, or any rights or obligations that either expressly or by implication continue after this Agreement is terminated.
23. Entire Agreement
This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof. Customer agrees to refer to Customer Service for current information about Service Plans and Equipment. The terms and conditions of this Credo Mobile Business Services Master Agreement shall prevail over any conflicting terms and conditions of a Service Plan; however, if such terms and conditions are specific to that Service Plan, then those terms and conditions shall prevail for any Line activated on that Service Plan.