Terms and Conditions
ACTION CELLULAR TERMS AND CONDITIONS OF PORTABLE PHONE RENTAL EQUIPMENT
Lessor rents to Customer the Portable Telephone(s) identified herein, including the transceiver, battery, antenna and accessories (hereinafter collectively referred to as "Equipment"), and in consideration thereof, Customer agrees to the following terms and conditions of rental:
I acknowledge that I have read and understood the Terms and Conditions and authorize Action Cellular (Lessor) to invoice or charge my credit card for all charges related to the rental of the cellular/satellite equipment. Prior to the delivery of cellular equipment, or the provisioning of cellular service, a credit authorization is required for a minimum of $500.00 U.S. per telephone or per line. Rentals of satellite telephones require a prepayment of a minimum of $750 per phone prior to delivery. On termination of the rental agreement, or periodically during the rental period, all amounts including equipment rental, delivery/pick-up and call charges will be charged to Customer's credit card. Should the total charges billed exceed the amount collected or the credit authorization amount, an invoice will be issued with the balance immediately due and payable. I also acknowledge that some satellite and international cellular rentals will not be billed promptly due to delays in securing call charges from the carrier. In some cases final invoices will not be provided for several months. Details of cellular calls made may not be available for South America, Japan and Korea.
Incoming and outgoing calls are billed, including calls to Directory Assistance, and calls to "toll-free" numbers (area codes 800, 866, 877, and 888), unless specified otherwise.
Incoming and outgoing domestic text messages are billed as one-minute domestic calls, and incoming and outgoing international text messages are billed as one-minute international calls.
Calls made from cellular telephones to satellite telephones, or calls made across different satellite platforms (Iridium to Inmarsat, Inmarsat to Globalstar, Globalstar to Iridium etc.) may be billed up to $15.00 / minute.
Taxes / Surcharges range from 5% to 27% of airtime and/or equipment rental.
1. This Agreement consists of the conditions stated on all pages of this Agreement. "Customer" means the person(s) signing this Agreement and any other party to whom the charges incurred are billed at the express direction of such party, both of whom are jointly and severally liable for such charges. In the event Customer accepts and uses the Equipment, Customer agrees to be bound by the terms of this Agreement regardless of whether this Agreement is signed or not. Customer’s use of his or her company credit card (a card which contains employer’s name) for payment of rental charges constitutes Customer’s warranty and acknowledgment that he/she is authorized to enter into this Agreement on behalf of Customer’s company.
2. The Equipment is and remains Lessor's property. Customer acknowledges he or she acquires no rights hereunder other than use of the Equipment. While the Equipment is on rental to Customer, any service to or replacement of the Equipment must have Lessor's prior approval.
3. Customer shall return the Equipment to Lessor on the return date stated herein or sooner upon demand of Lessor, in the same condition as received, except for ordinary wear. In the event Customer rents 25 or more Phones, and except in the event of an authorized rental time extension, if the Equipment is not physically returned to the Company by the due date, then the Company may impose an additional handling fee of up to $100.00 per Portable Phone or $300.00 per Satellite Phone. In the event of loss, damage, theft or disappearance of the Equipment while on rental to Customer and caused by or arising out of Customer's care, control, possession, operation or use of the Equipment, the Customer shall indemnify and hold Lessor harmless from and against any and all such loss, damage, theft or disappearance or any other related expense which may be incurred by lessor. In such event, Customer shall pay to Lessor, on demand, the amount of such damages or expenses (or the replacement cost of the missing equipment in the event of loss, theft or disappearance). Placement, alteration or removal of decals on the Equipment or any of the cases is subject to additional charges. Customer may elect to purchase Insurance to protect himself from this indemnity provision as specified in Paragraph 4, below.
4. In the event of loss, damage, theft, or disappearance of the Equipment, Lessor will not hold Customer liable for any such loss, liability or expense in excess of the deductible amount for damage or loss set forth in this Agreement, if the insurance is purchased. Notwithstanding the foregoing, Customer will still be responsible for all rental and use charges incurred until Lessor has cancelled service on the Telephone(s). In the event a Telephone is lost of stolen, Customer shall provide Lessor with immediate written notice of such loss or theft and shall, in addition, contact Lessor's customer service department via telephone, The cost of the insurance is set forth herein and may be purchased by initialing the appropriate section for purchasing the insurance. Customer's own personal effects insurance may cover all or part of the liability for loss or damage to the Equipment and Customer should check with his/her insurance company to find out about such coverage if any. The insurance will not protect Customer from liability for any loss, damage, expenses, theft or disappearance, which is the result of Customer's intentional, willful or reckless conduct or for unauthorized use of the Equipment. If Customer does not purchase the insurance, Customer will be charged the full replacement value of all damaged or missing Equipment as follows:
|
Cellular |
Satellite |
Telephones |
$500 |
$2000 |
Case |
$45 |
$150 |
Batteries |
$75 |
$290 |
Chargers |
$45 |
$250 |
Data Kits |
$250 |
$250 |
Sim Cards |
$200 |
$200 |
Tax will also be charged.
In the event Customer purchases insurance, Customer will be charged a deductible for damaged or missing Equipment as follows:
|
Cellular |
Satellite |
Telephones |
$200 |
$600 |
Case |
$10 |
$40 |
Batteries |
$15 |
$60 |
Chargers |
$10 |
$60 |
Data Kits |
$100 |
$100 |
Sim Cards |
$35 |
$35 |
Tax will also be charged.
5. All charges and other amounts billed pursuant to this Agreement are payable in cash or credit card by Customer at conclusion of rental, or if not computed at conclusion of rental then upon demand of lessor. Customer may be billed or Customer's credit card account may be charged daily for all estimated charges. Charges and other amounts billed under other credit cards acceptable to Lessor are payable in accordance with the terms of the card issuer's or Lessor's statement or invoice. If payment is made with a credit card, the Company shall have the right to submit an unsigned credit card charge form for the purpose of transacting debits or credits to Customer's account, specifying that Customer's signature is on file. Company shall have the right to determine the method of payment of any refunds due, whether by cash, check or issuance of a credit to credit card account, regardless of the method by which Customer paid for the rental charges. Any amounts received later than 10 days after the Equipment is returned must include a late charge of ten percent (10%) of the amount due, with a minimum charge of $25.00 per phone. All accounts delinquent 30 days or more will be charged interest at the rate of two percent (2%) per month (24% per annum) on the outstanding balance, or the maximum allowed by law, whichever is greater. Customer acknowledges that Lessor requires immediate payment for services rendered. In the event Customer disputes charges through his/her credit card company, and in the event Lessor prevails, Customer shall be liable to Lessor for an additional processing fee in the amount of $100.00 per phone rented.
6. Subject to Paragraph 5 hereof, Customer shall pay Lessor on demand the sum of:
a. Equipment rental charges, airtime or meter usage charges, long distance charges, pick-up and delivery charges, airtime adjustment charges (difference between actual usage and required minimum usage), taxes and other charges computed at the rates specified herein from the customer requested receive date until all Equipment is returned to Lessor's rental location. Total airtime charges are determined by the number of minutes during which the Equipment is in use for outgoing and incoming calls. On outgoing calls, charges commence when the "send" button is pressed. In the case of cellular phones, the total number of minutes of airtime usage is determined by reading the factory-installed, electronic commulative timer of the Portable Cellular Telephone at the time Customer takes physical possession of the Equipment and, again, at the time the Equipment is returned to the Company. Customer shall verify initial and ending meter readings on some Motorola cellular phones by pressing "recall # # # #" on the Telephone. The Phone meter advances when the phone is ringing (inbound and outbound calls), even if the phone is not answered. EACH OUTGOING AND INCOMING MINUTE IS ROUNDED TO THE NEXT WHOLE MINUTE. The meters on Nokia cellular phones are only an estimate of actual usage, which sometimes differs significantly. Metered minutes may vary from actual completed call minutes Customer understands and acknowledges that the charges may include required minimum usage of the Telephone during the rental period. Credit will not be due or given for incomplete or dropped calls due to battery life, atmospheric conditions, terrain or the cellular telephone system. By written request, a listing of all numbers called may be available sixty to ninety days after Customer's rental end date. Call detail is not always available or may be delayed for phone usage in some countries. Call detail does not necessarily match the usage meter reading. Customer's invoice is based on the actual calls as outlined in the Customer’s billing statement, or the phone’s meter reading, whichever is greater. Customer agrees that payment of usage charges will not be withheld by client pending receipt of call detail.
b. Applicable sales, use, transaction and/or excise taxes, and any amounts charged by Lessor as reimbursement for taxes paid are the responsibility of the customer.
c. Lessor's cost, including reasonable attorney's fees, incurred in collecting charges due hereunder, or in recovering Equipment. All charges are subject to final audit. If upon final audit, an error is found in an earlier calculation or if additional call charges are discovered, Customer shall pay the corrected charges or additional call charges, in which case, Customer authorizes Lessor to correct any charge card receipt or invoice signed by Customer to reflect the corrected charges, and Customer agrees to pay such additional charges upon request of Lessor.
7. Lessor has contracted with a cellular/satellite service company for the phone service to be used in conjunction with the Portable Phone. NEITHER THE LESSOR NOR THE ESTABLISHMENT FROM WHICH THE EQUIPMENT IS RENTED MAKE ANY WARRANTY OF ANY KIND, NATURE OR DESCRIPTION, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE EQUIPMENT OR THE PORTABLE PHONE SERVICE. NEITHER THE LESSOR NOR THE ESTABLISHMENT FROM WHICH THE PHONE IS RENTED SHALL IN ANY EVENT BE LIABLE FOR ANY DIRECT, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE, OR USE OF THE EQUIPMENT, INCLUDING ANY CLAIMS BASED UPON FAILURE TO HONOR A PORTABLE PHONE RESERVATION AS REQUESTED BY CUSTOMER, WHETHER DUE TO LESSOR'S NEGLIGENCE OR OTHERWISE.
8. Customer acknowledges that the Equipment received from Lessor is in good working order. Customer will be responsible for all rental charges (including minimum charges) regardless of whether the Equipment functions properly or not, unless Customer (i) notifies Lessor in writing and by telephone call, of any problems within 24 hours of receiving Portable Phone (24 hours after reaching destination for phones being used outside the US or Canada) and (ii) returns Portable Phone to Lessor within 48 hours of receiving same (or immediately upon return to the US/Canada for phones to be used outside the US/Canada). Lessor's address, phone number, fax number, and e-mail address are shown on the first page of this agreement. Messages left at 415-346-1080 are time and date stamped.
9. Lessor does not guarantee uninterrupted service and shall not be liable for the inability of Customer to complete telephone calls due to circumstances beyond the reasonable control of Lessor. Customer Acknowledges that the Equipment may not function in certain geographic areas, such as, but not limited to (i) within some steel and concrete buildings, (ii) in basements or parking garages, or (iii) in some rural, coastal or mountainous areas.
10. With regard to the transporting or shipping of any Equipment into or out of any foreign countries (outside the U.S.), Customer is fully responsible for all shipping costs, duties and taxes as well as the completion of any and all necessary forms or paperwork required by the applicable local or federal government(s). Some governments restrict the entry of telecommunication equipment into the country, and it shall be Customer’s sole responsibility to contact each country’s consulate or appropriate government office to ascertain what restrictions, if any, will be imposed.
11. If Customer has directed the billing for charges hereunder to be transmitted to another person, firm, or organization which, upon being so billed, has failed to make payment, then Customer shall, upon being billed, promptly pay said charges. In the event Customer rents his or her Equipment in the name of his or her company, or employer, then the rental contract shall be deemed to be between Lessor and Customer and Customer's company/ employer.
12. In the event Customer violates the terms and conditions of this Agreement or Customer has furnished Lessor or its agents false information, Lessor may terminate this Agreement with Customer and Customer shall return the Equipment, and all charges in connection therewith shall become immediately due and payable. Lessor may terminate this Agreement or disconnect telephone service at any time for any reason.
13. This Agreement cannot be assigned or transferred by Customer.
14. No term or condition of this Agreement may be waived or modified as to Lessor except by written instrument signed by Lessor's authorized representative.
15. This Agreement constitutes the entire agreement between Lessor and Customer covering the Equipment. There are no other representations, conditions, warranties, guaranties or collateral agreements, express or implied, statutory or otherwise, concerning the Equipment, its use, or this Agreement, other than as set forth herein.
16. This Agreement shall be governed by and construed under the laws of the State of California. The federal and state courts within the State of California shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. Customer hereby expressly consents to (i) personal jurisdiction of the federal and state courts within California and (ii) service of process being effected upon Customer by registered mail sent to the address set forth on the front page of this agreement. In the event Lessor elects to pursue legal action against Customer, Lessor shall be entitled to have the matter heard by and in accordance with the rules of the American Arbitration Association.
17. The prevailing party in any legal action brought by one party against the other and arising out of this Agreement shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorney's fees.
18. Unless specified otherwise in this Agreement or in Lessor’s rate plans, all reservations shall be subject to the 48-hour cancellation requirement. In the event Lessee cancels its reservation less than 48 hours prior to the Phone Requested Date and Time, Lessee shall be responsible for the following charges for one day (in the event equipment has not been shipped), or until the phone is returned to Lessor (in the event the phone had already been shipped): (i) equipment rental fees, if any, plus (ii) minimum airtime charges, plus (iii) delivery charges (both directions if the equipment was already shipped prior to the date Lessee provided Lessor with written notice of its cancellation). In the event Lessee provides written notice of its intent to cancel more than 48 hours prior to the Phone Requested Date and Time, Lessee’s liability shall be limited to the round trip delivery charges outlined in the Rental Agreement which charges shall only be assessed in the event the equipment had already been shipped prior to Lessee’s giving written notice to Lessor. Phone Requested Date and Time is the date and time Lessee requested the phone be delivered as outlined in the Rental Agreement.
Satellite Telephone Rental Disclosure. Customer understands and agrees to the following conditions, which is provided to customer due to potential difficulties that may be encountered using the satellite telephone.
1. Customer may find it difficult to make a connection with the satellite telephone.
2. When a connection is made, the caller may experience frequent dropped calls.
3. Satellite phones require line-of-sight access to the satellite in the sky at all times in order to function. Anything blocking the view of the satellite such as a building, tree, mountain, canyon, smoke, etc. may prevent making a connection.
4. The Inmarsat Phone is not designed to work while in motion.
5. Satellite Phones must be turned on and connected with a satellite in order to make or receive calls.
6. It is the Customer’s responsibility to ensure that the Satellite Phone functions properly prior to leaving the United States. Customer should become familiar with the operation of the phone and make at least two successful, fully terminated calls prior to leaving the country. If Customer deems the phone inoperable, the phone must be returned to Lessor immediately to Action Cellular, (prior to leaving the United States). If the Customer does not make test calls or does not return the Satellite Phone prior to traveling abroad or within 36 hours of receipt of equipment, the phone shall be deemed operable, and Customer agrees to be responsible for all charges set forth in the rental agreement, including minimum usage fees until the phone is returned to Lessor.
11/20/2005