Shop SkyTel
Terms and Conditions
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 Corp.
Post Office Box 2469
Jackson, Mississippi 39225-2469
If by overnight courier: SkyTel Corp.
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.
June 7, 2005 |
