SkyTel Messaging Terms and Conditions:

Agreement Regarding Terms and Conditions For Use of SkyTel's Messaging Products

The following Terms and Conditions (which are sometimes collectively referred to herein as the “Agreement”) shall govern SkyTel’s provision of wireless messaging services (“Services”) and related messaging devices (“Devices”) to Customer, our subscriber (“Customer”). Any terms and conditions proposed by Customer which are in addition to or which conflict with these Terms and Conditions shall be of no force or effect. By subscribing to and using the Services, Customer shall be deemed to have agreed to and accepted these Terms and Conditions.

1.         Term. Customer agrees to subscribe to the Services and procure the Devices as specified by Customer on the “Shop SkyTel Services” page located at www.skytel.com or through the SkyTel Customer Service activation procedure. 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 Device chosen by Customer, and shall be referred to herein as the “Initial Term”. Upon expiration of the Initial Term, the term of the Agreement shall continue on a month-to-month basis until terminated by either party as permitted under this Agreement.

2.         Devices.

            (a)        Customer shall pay all costs associated with Devices purchased from SkyTel, including but not limited to the initial purchase price and applicable shipping costs.

            (b)        SkyTel shall repair or replace, at no charge to Customer, any defective Device which is purchased from SkyTel if such purchased Device is covered by maintenance protection procured through SkyTel; provided, that SkyTel shall not be responsible for the cost of repair or replacement of any Device due to intentional damage, misuse or abuse. Customer shall return to SkyTel any Device that is replaced in accordance with the foregoing within thirty (30) days following receipt of the replacement Device, and shall pay SkyTel for the replacement cost of any such Device that is not timely returned to SkyTel. SkyTel shall assist Customer in the repair of any purchased defective Device which is not covered by maintenance protection, it being understood the cost of repair of any such Device will be subject to the applicable manufacturer’s warranty.

3. Fees and Charges.

            (a)        Customer 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). SkyTel shall bill Customer for such fees and charges on a monthly basis, with payment being due within thirty (30) days following the date of SkyTel’s invoice.

            (b)        In the event Customer elects to take advantage of any of the Prepaid products available from SkyTel, Customer agrees to pay the charges associated with the product at the time of initial purchase, and if applicable to the particular Prepaid product selected, Customer agrees to pay any monthly recurring fees which are based on usage by Customer beyond the scope of the Prepaid product selected, with payment being due within thirty (30) days following the date of SkyTel’s invoice.

            (c)        Any balance not paid by such due date shall bear interest from and after the invoice date at the lesser of one and one-half percent (1�%) per month or the maximum rate of interest allowed by law. Amounts due and owing to SkyTel shall not be subject to offset or reduction for any reason. SkyTel, or a third party acting on SkyTel’s behalf, shall be authorized to prepare, process and negotiate credit card charge forms for any credit card account designated by Customer in and for all fees and charges (including, without limitation, all recurring and non-recurring fees and charges) payable by Customer under the Agreement. All sales, use and other such governmentally imposed or authorized taxes, fees, surcharges and/or assessments relating to this Agreement shall be paid by Customer. In addition to any other remedies available to SkyTel hereunder and at law, SkyTel shall have the option to immediately suspend Service and/or refuse to process additional Orders in the event Customer fails to timely meet the payment obligations outlined above. If Service is suspended, SkyTel shall have the further right to condition restoration of the Services on (i) Customer bringing the payable balance to current status, and/or (ii) payment of a $25.00 per unit reconnect fee. SkyTel reserves the right to modify the fees and charges payable hereunder; provided, however, that (i) SkyTel may increase such fees and charges only upon at least thirty (30) days’ notice to Customer, and (ii) SkyTel may not increase such fees and charges until expiration of the Initial Term.

4.         Disclaimer of Warranties and Limitation of Liabilities.

            (a)        SKYTEL, ITS EMPLOYEES, SALES AGENTS AND REPRESENTATIVES, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SERVICES, THE DEVICE OR THE MESSAGING NETWORK 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 SkyTel, its sales agents or representatives be liable to Customer 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 SkyTel wireless messaging network. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL SKYTEL, ITS EMPLOYEES, SALES AGENTS OR REPRESENTATIVES, BE LIABLE TO CUSTOMER 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 ANY BREACH OF THIS AGREEMENT OR OTHERWISE.

            (b)        Customer acknowledges that the term “Guaranteed Delivery” (or terms of similar connotation), as used in conjunction with SkyTel’s advanced wireless messaging Services, refers to certain technical functionality of the network and the ability of the network to repeatedly deliver messages to a Device for a predetermined period until receipt is acknowledged, as well as the ability of the network to make undelivered messages available for retrieval. Customer further acknowledges that SkyTel’s use of any such term does not constitute a representation or warranty, express or implied, regarding any of the Services.

5.         Representations and Warranties. Customer represents and warrants to SkyTel, and covenants and agrees, that (i) Customer has the power and authority to enter into this Agreement; (ii) Customer is at least eighteen (18) years old; (iii) Customer has read and agrees to be bound by this Agreement; and (iv) Customer will not use the Services or Devices or any rights granted hereunder for any unlawful purpose or in violation of any applicable law.

6.         Termination.

(a)    Following expiration of the Initial Term, either Customer or SkyTel may terminate this Agreement without cause upon at least thirty (30) days advance notice to the other party.    

 (b)   Upon the occurrence of an event of default, SkyTel shall provide Customer with written notice and Customer will have ten (10) days following receipt of such notice to cure the default.  In the event Customer fails to cure the default then SkyTel shall have the right to immediately terminate this Agreement. As used herein, the term “event of default” shall mean (i) the failure by Customer to observe or perform in any material respect any of the covenants or agreements contained herein; or (ii) Customer’s insolvency, assignment for the benefit of creditors, appointment or sufferance of appointment of a trustee, receiver or similar officer, or any voluntary or involuntary proceeding seeking reorganization, rehabilitation, liquidation or similar relief under bankruptcy, insolvency or similar debtor relief statutes.

(c)    Should Customer elect to terminate this Agreement, Customer may notify SkyTel of such termination by sending an e-mail to skyuser@skytel.com or by sending the notice by certified mail as provided in Section 8 below.  No termination of the Agreement will relieve Customer from any amount due and owing to SkyTel or any liability arising from any breach of the Agreement.

7.         Information Services. To the extent Customer utilizes any information service which contains informational content and data (“Licensed Content”) supplied through any third party unaffiliated with SkyTel (a “Content Provider”), Customer agrees: (a) that the Licensed Content is the property of the Content Provider and its licensors and may be protected by copyright, and that Customer shall not acquire any proprietary interest in the Licensed Content, (b) that the Licensed Content is presented solely for Customer’s personal use, and that Customer shall not otherwise republish, reproduce, rebroadcast, redistribute, resell, alter or modify any headline, information or other content contained in the Licensed Content, and (c) that the Content Provider, its licensors, SkyTel and its affiliates disclaim all warranties, including the implied warranties of merchantability or fitness for a particular purpose, for the Licensed Content and that the Content Provider, its licensors, SkyTel and its affiliates disclaim all liability to Customer and any third party with respect to the Licensed Content, including, without limitation, for any negligence or errors in procuring, editing, writing, reporting or delivering the Licensed Content, for any inaccuracies or errors in or omissions from the Licensed Content, and for any indirect, incidental, consequential or special damages arising therefrom.

8.         Notices. Any notice or other communication herein required or permitted to be given shall be in writing and may be personally served or sent by a recognized overnight courier or United States mail, and shall be deemed to have been received when (a) delivered in person, (b) one (1) business day after delivery to the office of such overnight courier service, or (c) three (3) business days after depositing the notice in the United States mail with postage prepaid and properly addressed to the other party, at the following respective addresses:

 

To SkyTel: To the attention of the Senior Vice President of Sales, with a copy

to the Legal Dept. at:

 

 If by United States mail:      SkyTel

                                        Post Office Box 2469

                                        Jackson, Mississippi 39225-2469

 

 If by overnight courier:        SkyTel

                                        500 Clinton Center Drive

                                        4th Floor, Building #2

                                        Clinton, Mississippi 39056

9.         Miscellaneous. (a) The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, 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 SkyTel 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 SkyTel on account of any breach of or to enforce any of the terms, covenants or conditions of the Agreement, SkyTel shall be entitled to recover from Customer, as part of SkyTel’s costs, a reasonable attorneys’ fee and/or third-party collection charges; (e) Customer may not assign or delegate Customer’s obligations under the Agreement, either in whole or in part, without the prior written consent of SkyTel; (f) SkyTel 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; and (h) no amendment to or modification of the Agreement will be binding unless in writing and signed by both parties.

10.        Product Availability. All Devices and all third-party services resold by SkyTel to the Customer under this Agreement are subject to availability and no guarantee is made as to availability. SkyTel reserves the right to withdraw and/or discontinue any product and/or service offering upon at least thirty (30) days notice to the Customer.

 

February 2007