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Mobile Callback User Agreement
This Agreement is entered into by and between Mobile Callback, Ltd. a Texas limited partnership (referred to herein as "Company"), and the individual who "Accepts" this Agreement by electronically agreeing to the terms hereof at the conclusion of this Agreement (referred to herein as "User").
1.0 DEFINITIONS
For purposes of this Agreement, the following definitions shall apply:
(i) Mobile Callback. The "Mobile Callback" is a service of Company to provide a electronic supervisor which tracks an individual and automatically contacts a Responsive Entity (as hereinafter defined) in the event the individual may be in danger or does not respond to a call.
(ii) Interface. "Interface" is the hardware, software and attendant technical support necessary and required to receive and store information, and transmit and receive communication signals between Company and User and between Company and a Responsive Entity (as hereinafter defined).
(iii) Responsive Entity. A "Responsive Entity" may include an employer or other entity which may be able to follow up with User.
(iv) Communication Device. A "Communication Device" is the electronic device which receives communication signals from Company during Activated Periods (as defined below). The Communication Device currently includes a wireless telephone, pager and land line.
(v) Activated Period. An "Activated Period" is any period of time during which User requests active communication with User.
2.0 THE MOBILE CALLBACK SYSTEM
2.1 Duties of Company. Subject to the exceptions stated elsewhere in this Agreement, Company will implement, operate and maintain Mobile Callback and the Mobile Callback Interface for the use and benefit of User through a single Communication Device. Subject to the duties of User set forth in Section 2.2 below, Company will provide all reasonable and necessary technical support, hardware and software, and modifications to the Mobile Callback system to maintain an Interface between Company, User, and Responsive Entities.
Until otherwise notified by Company, Mobile Callback will be available, operational and fully functional to provide monitoring on all days of the week, twenty-four (24) hours a day.
2.2. Duties of User. User shall cooperate fully with Company personnel with respect to the implementation of Mobile Callback and the Mobile Callback Interface. User shall provide a Communication Device to specifications established by Company for connection with Mobile Callback. User shall provide to Company all information required by Company in the form of a "User Profile" and such other information as may be required in order to implement the Mobile Callback monitoring system and Interface, including, without limitation, scheduling information for Activated Periods, locations of User during Activated Periods, contact persons (Responsive Entities), and specifics for the Communication Device to be utilized by User with the Mobile Callback service and Interface. User will further maintain his/her Communication Device in good working order and be responsible for any and all expenses associated with airtime, telephone calls, or other communication delivered on User’s Communication Device. User will further notify Company of any change with respect to his or her Communication Device by modifying such information in the User Profile. User acknowledges and agrees that Mobile Callback is designed to communicate and Interface with a single Communication Device per user, and if User desires to have the Mobile Callback services applicable to additional Communication Devices, User must accept an additional Agreement and pay all costs associated with the Account Activation Fee and Monitoring Fee for each additional Communication Device.
2.3 Enhancement or Modification of the Mobile Callback System. Company may undertake to modify the operation or enhance the capability of Mobile Callback or the Mobile Callback Interface. In such event, Company will make such adjustments and modifications to Company’s system, at Company’s sole expense, as are reasonable and necessary to maintain the Interface with User. User agrees to cooperate with Company during the modification and enhancement process.
3.0 FEES AND COSTS
3.1 Account Activation Fee. Upon full execution of this Agreement, User shall pay Company an account activation fee to connect, test and implement Mobile Callback and the Mobile Callback Interface. The Account Activation Fee shall be charged upon User’s selected credit card ("Credit Card" as defined below) on the date of acceptance of this Agreement. Except in the event of User’s default, the Account Activation Fee will be charged only once per active area code to User at the inception of this Agreement.
3.2 Monitoring Fee. For the monitoring services provided by Company as set forth herein, User shall pay to Company a monitoring fee ("Monitoring Fee") each month during the term of this Agreement, it being understood that Company reserves the right to notify User of a change in the amount of such Monitoring Fee upon thirty (30) days Notice. The first Monitoring Fee payment will be charged to User’s Credit Card on the date of acceptance of this Agreement. Thereafter, each succeeding monthly Monitoring Fee payment will be charged to User’s Credit Card on or around the same day of the month until termination of this Agreement in accordance with the terms hereof. In the event of termination, in no event will User be entitled to a refund for the unused portion of any monthly Monitoring Fee charges.
3.3 Credit Card Payment. All payments must be made by User through a credit card unless accounts are purchased for ten (10) or more people (See 3.4) approved by Company for charges in connection with this Agreement. User will designate its selected credit card (the "Credit Card") upon acceptance of this Agreement, and thereafter the Credit Card will be utilized to accept all charges associated with Mobile Callback although User may notify Company of a change in its selected Credit Card by electronically updating its User Profile and by electronically mailing such communication to Company. In the event payment is declined upon User’s Credit Card, Company will provide "Notice" to User (in the form specified in Section 9.4 of this Agreement), and User will have five (5) days within which to either cause the charges to be accepted on the Credit Card or to designate an alternate Credit Card acceptable to Company and upon which all unpaid charges may be paid in full. Failure to satisfy these conditions may result in termination at Company’s sole discretion, as more fully described below. If services are terminated, any renewal of service will be subject to a new Account Activation Fee charge.
3.4 Billing If accounts are purchased for ten (10) or more users, the person purchasing service may opt to receive a monthly invoice from Mobile Callback. This payment is due on receipt of invoice. Failure to satisfy these conditions may result in termination at Company’s sole discretion, as more fully described below. If services are terminated, any renewal of service will be subject to a new Account Activation Fee charge.
3.4 Equipment Costs. User shall pay for all costs incurred in acquiring and providing the necessary Communication Device and/or any modems for the maintenance and operation of the Interface with Mobile Callback.
4.0 TERM
4.1 Term of Agreement. This Agreement will have a month-to-month term and be terminable at the will of either party hereto. Except in the event of default, either party may terminate upon delivery of Notice of Termination thirty (30) days in advance of the termination date.
5.0 USER DEFAULT
5.1 Declaration of Default. Company may, at its sole discretion, declare User in default on the occurrence of the following:
(a) Failure of User’s Credit Card company (whether originally designated or designated as an alternative Credit Card) to honor and pay in full all unpaid Company charges after five (5) days Notice to User;
(b) Failure of User’s Credit Card to accept and pay Company’s charges more than two (2) times during any twelve (12) month period (without entitlement to Notice and opportunity to cure); or
(c) Failure of User to cure any other material obligations of this Agreement after five (5) days Notice to User.
5.2 Company's Rights and Remedies. If Company declares a default, pursuant to Section 5.1 above, Company may exercise any one or more of the following remedies:
(a) Immediate termination of User’s access under this Agreement to any communication with or use of Mobile Callback or the Mobile Callback Interface.
(b) A declaration that all due but unpaid fees and all other charges due under the Agreement are due and payable immediately, and that Company is entitled to this balance together with interest at the rate of five percent (5%) per month or the maximum allowable legal rate, whichever is less, from the date of notification of default to the date of payment.
(c) Any other remedy available at law or in equity.
5.3 User’s Obligation for Company’s Costs and Attorney’s Fees. If User defaults, User shall reimburse Company for all reasonable expenses of termination/revoking access and enforcement of Company’s rights and remedies, and costs of court, if any. Notwithstanding any other provisions of this Agreement, if Company places all or any part of Company’s claim against User in the hands of an attorney for collection, User shall pay Company's reasonable attorney’s fees.
5.4 Remedies Cumulative. The remedies of Company set forth in this Article are cumulative to the extent permitted by law and may be exercised partially, concurrently, or separately. The exercise of one remedy does not preclude the exercise of any other remedy.
5.5 Failure to Enforce Not Waiver. Any failure or delay on the part of Company to exercise any remedy or right under this Agreement is not a waiver. The failure of Company to require performance of any of the terms, covenants, or provisions of this Agreement by User will never constitute a waiver of any of the rights under the Agreement. No single or partial exercise by Company of any remedy or right precludes any other or further exercise of that remedy or right or the exercise of any other rights or remedies. No forbearance by Company to exercise any rights or privileges under this Agreement is a waiver, but all rights and privileges continue in effect as if no forbearance occurred. Acceptance by Company of Monitoring Fees after default is not a waiver of Company’s rights and remedies arising from User’s default.
6.0 COMPANY DEFAULT
6.1 Notice of Default. In the event of Company’s material failure to provide the services set forth in this Agreement, User must notify Company in writing of the specific material cause of default. Company will have a period of 10 business days to cure such default.
6.2 User’s Remedy. In the event of Company’s failure to cure a material default within ten (10) business days from the date Company has received notice, as User’s sole and exclusive remedy, User may terminate and not incur any further obligations under this Agreement. Notwithstanding, User will continue to remain obligated with respect to any unpaid fees which may have become due prior to the date of notice of material default to Company. Notwithstanding, in no event will User be entitled to any refund of the unused portion of any Monitoring Fee already collected by Company.
6.3 Force Majeure. It shall not constitute a default if Company’s failure is caused by or results from acts of God, fire, war, civil unrest, accident, power fluctuations or outages, telecommunication fluctuations, outages or delays, utility failures, mechanical defects, or other events beyond the control of Company.
7.0 INDEMNIFICATION
7.1 Indemnification in the Event of Certain Losses. User hereby indemnifies and holds harmless and agrees to defend Company and Company’s officers, directors, members, partners, and employees from and against all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements (including court costs and reasonable attorney’s fees) resulting from any injuries to or death of any person or damage to any property occurring during the term of this Agreement in relation to any use of Mobile Callback or the Mobile Callback Interface. Company and User acknowledge and agree that User will defend, indemnify and hold harmless Company regardless of whether any actions against Company in connection with Mobile Callback or Mobile Callback Interface involve Company’s alleged or actual negligence whether sole, contributory or shared with other parties for any reason.
8.0 DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND LIABILITY
8.1 Waiver of Warranties. User acknowledges and agrees that Company SHALL NOT HAVE ANY LIABILITY FOR ANY ACT OR FAILURE TO ACT EXCEPT AS EXPRESSLY SET FORTH HEREIN, EXCEPT LIABILITY RESULTING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE PRODUCT OR SERVICE OR OTHERWISE, ARE DISCLAIMED AND WAIVED. COMPANY HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTEES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO MOBILE CALLBACK . USER FURTHER ACKNOWLEDGES AND AGREES THAT, BEING GIVEN THE OPPORTUNITY TO INSPECT MOBILE CALLBACK , PURCHASER WILL BE ENTERING INTO THIS AGREEMENT BASED UPON USER’S INDEPENDENT EXAMINATION, STUDY, INSPECTION AND KNOWLEDGE, AND USER IS RELYING UPON ITS OWN DETERMINATION AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY COMPANY. User’s execution of this Agreement shall constitute an acknowledgment by User that Mobile Callback was accepted without representation or warranty, expressed or implied (except as set forth herein) and otherwise in an "AS IS", "WHERE IS", and "WITH ALL FAULTS" condition based solely on User’s own investigation.
8.2 Assumption of Risk and Release. Company does not represent or warrant that the Mobile Callback system may not be compromised or circumvented; that the Mobile Callback system will prevent any injury or loss by burglary, hold-up, fire, or otherwise; or that the Mobile Callback system will in all cases provide the detection for which it is intended. User assumes all risk for injury to User or for loss or damage to any property. User acknowledges that Company is not an insurer. User hereby waives and releases Company from any and all liability with respect to personal injury or property damage incurred by User or any other party even in the event such injury or damage results from Company’s negligence as the sole or contributory cause, except in the event of Company’s gross negligence or willful misconduct.
8.3 No Consequential Damages. Neither party shall be liable to the other for any consequential damages proximately caused or resulting from any breach of this Agreement or arising out of the performance of this Agreement, and each party hereby expressly waives such damages. The covenants, waivers and releases stated in Sections 8.1 through 8.3 of this Agreement will survive termination of this Agreement for any reason.
8.4 Right to Repair. Notwithstanding any other provision of this Agreement, the only obligation of Company in the event of a material failure in the operation or performance of Mobile Callback or the Mobile Callback Interface shall be to repair the system within a reasonable time of notice from User requesting such repair.
9. MISCELLANEOUS
9.1 Arbitration of Disputes. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. There shall be a panel of three arbitrators. Each party shall select one arbitrator and the two arbitrators selected shall select a third neutral arbitrator. All reasonable and necessary costs and fees (including attorney’s fees) incurred in connection with the arbitration shall be borne by the losing party or assessed in the award as otherwise deemed appropriate by the arbitrators. Regardless of who initiates arbitration, venue of the arbitration proceedings will be in Dallas County, Texas.
9.2 Status of Parties. This Agreement shall not constitute a partnership, joint venture or similar arrangement. The parties hereto are separate and distinct entities independently contracting with each other at arm’s length. Company shall not be deemed by this Agreement to be granting a license to User, with respect to Mobile Callback, Mobile Callback Interface, or any software or service mark related thereto, or otherwise, this being a contract for the use and rendering of services only.
9.3 Assignment. This Agreement is not assignable by User without the prior written consent of Company, at Company’s sole discretion. Company may assign this Agreement at its discretion.
9.4 Notices. All notices of default, requests, consents, payments and other communications contemplated hereby ("Notices") shall be in writing and either (a) transmitted via electronic mail or electronic messaging; or (b) transmitted by facsimile/telecopy (if such number is made available below) to the following Email addresses and/or facsimile numbers:
Email: support@mobilecallback.com
Facsimile: 214-368-0699
or to such other Email addresses or facsimile numbers as any party may request by Notice duly given hereunder. Except as otherwise specified herein, Notices shall be deemed given and received as follows: i) if sent by electronic mail, at the time and date designated upon sender’s electronic mail service as having been sent from the sender’s electronic mail / electronic message system; or ii) if sent by facsimile or telecopy, upon the date noted on sender’s facsimile delivery receipt.
9.5 Controlling Law. This Agreement shall be interpreted pursuant to the laws of the State of Texas without reference to its conflict of laws principles. Venue of any action to enforce the terms hereof will be in Dallas County, Texas.
9.6 Entire Agreement. This Agreement constitutes the entire agreement between Company and User with respect to the implementation and operation of the Mobile Callback system and supersedes and replaces any and all other agreements and representations, verbal or written, with respect to the subject matter of this Agreement. There are no representations, warranties or agreements made or relied upon by either party with respect to the subject matter of this Agreement which are not contained in this Agreement.
9.7 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the legal representatives, successors and duly authorized assigns of each party whether resulting from merger, acquisition, reorganization or assignment pursuant to the terms hereof. |
