Banner Engineering Cellular Data Plans TERMS AND CONDITIONS OF SERVICE

1. SCOPE OF TERMS AND CONDITIONS OF SERVICE
Please read these Terms and Conditions of Service ("Terms") carefully. These Terms are a legally binding agreement ("Agreement") between the customer ("You") and Banner Engineering, ("Banner Engineering"). THESE TERMS AND CONDITIONS OF SERVICE CONTAIN IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS, AND REQUIRE THAT CERTAIN DISPUTES BE RESOLVED THROUGH ARBITRATION INSTEAD OF A COURT TRIAL. FOR MORE INFORMATION SEE SECTION 12 BELOW.

By purchasing, activating, and/or using Banner Engineering cellular data services ("Service"), You acknowledge and agree to these Terms and Conditions of Service. Banner Engineering reserves the right to change or modify any of these Terms at any time and without notice. Any changes or modifications to these Terms and Conditions of Service are effective and will be binding when posted on our website at
https://secure.bannercelldata.com.

Banner Engineering uses Contractors to assist us with certain functions including wireless device activation, wireless service account maintenance, and wireless network operation and maintenance. For purposes of these Terms and Conditions only, Banner Engineering's Contractors (e.g., wireless network operators, activation and account management providers, distributors, and retailers) and the services that they provide to Banner Engineering will be referenced as if they are a single entity with or subsidiaries of Banner Engineering, which is how they will be perceived by customers like You in connection with Banner Engineering's wireless services.

For assistance or more information, please contact Banner Engineering at
https://secure.bannercelldata.com.

2. ACTIVATING YOUR BANNER ENGINEERING SERVICE
To use Banner Engineering's cellular wireless service ("Banner Engineering Service" or "Service"), You must first purchase a Banner Engineering device (e.g., cellular wireless module for a SureCross DXM Controller) that is compatible with Banner Engineering Service. You must also purchase a Banner Engineering service (“Data”) plan for the device by visiting our website at
https://secure.bannercelldata.com. You will be prompted for an email address upon registration at Banner Engineering's website to create and access your account. Upon registration, You will have the opportunity to provide your address and to set up a password for your account.

When You activate your Service, You will be provided with a telephone number in the form of a Mobile Device Number (MDN) given to the device. You must accept the phone number assigned to You at the time of activation. Please note that You have no ownership rights to any telephone number, Internet Protocol (IP) address, or any other identifier associated with your wireless service, and You acknowledge and agree that we may change any such telephone number, IP address or other identifier associated with your Banner Engineering Service at any time without prior notice to You. Once You have been assigned your Banner Engineering telephone number, You cannot change the telephone number.

Your Banner Engineering Service can only be activated where Banner Engineering Service is offered and supported by Banner Engineering. Banner Engineering Service is provided at Banner Engineering's discretion. The wireless telecommunications networks used to transmit emails, SMS text messages, and data for the Service are owned and operated by licensed commercial mobile radio service providers ("Carriers"), and not Banner Engineering.

Certain features and functions may not be available throughout the entire network or their functionality may be limited in certain geographic areas. All plan rates, features, functionality, and other product specifications are subject to change without notice or obligation.

Banner Engineering Service will only work with wireless devices that are compatible with our network. Not all services are available with all wireless devices or on all networks. The interface to the network (the protocols and physical layer transmission systems that allow a device to connect to the network) may change at any time. For instance, the Carrier could choose to “re-farm” the spectrum currently utilized by these devices to a newer wireless protocol. This could affect your stored data, your device's connectivity and how You are able to use your wireless device.

If You notify us that your Product is lost or stolen, your account will be deactivated and any unused Service balance will be lost and will not be transferred. At Banner Engineering's discretion, service may continue until the Service End Date.

3. TERMINATION OF SERVICE
Either party may terminate this Agreement (which will terminate the provision of Banner Engineering Service) at any time. Any unused service at the time of termination will not be refunded. Banner Engineering may terminate this Agreement at any time without notice if we cease to provide service in your area. We may interrupt or terminate your service without notice for any conduct that we believe violates this Agreement. If You behave in an abusive, derogatory or similarly unreasonable manner with any of our representatives, if we have reasonable cause to believe that You are using your Banner Engineering product and/or wireless service for an unlawful purpose or in a way that may adversely affect our Service, or if You engage in any deceptive or unfair conduct with respect to your Banner Engineering product and/or wireless service it will be considered conduct in violation of this Agreement. Any provision of this Agreement which by its context is intended to apply after termination of the Agreement will survive termination, including, but not limited to, any restrictions on the use of Banner Engineering Products.

4. BANNER ENGINEERING SERVICE PLANS. You are responsible for all monthly data overages greater than 10 MB as well as SMS text messages over 30. Overages will be charged to your credit card the following month after overages occur. Banner Engineering reserves the right to adjust SMS and Data overages rate charges at will. All rate changes will be communicated to You by email and through your website portal.

Banner Engineering does not support international SMS messaging. Attempting to send international messages where not permitted or supported could result in Service deactivation. In the event of a deactivation, your data balance previous to deactivation will be cleared from the account.

5. BANNER ENGINEERING CELLULAR DATA PLANS

Effective date: 19 August 2019.: (All prices in US dollars)

Cell Plans

Price

50 MB Per Month

$180 Annually

250 MB Per Month

$300 Annually

1 GB Per Month

$360 Annually

 

Customers will prepay with credit card for 1 month’s services including; activation fee (first month only), basic plan data usage of 10 MB, and 30 SMS text messages. Customers will post-pay for monthly services including: data usage over 10 MB AND over 30 SMS test messages.

Billing Date: Your “Billing Date” is the date of the month that You first activated service on a device at https://secure.bannercelldata.com. Subsequent devices added to the account will be billed on that same day, regardless of the day they were added to the account. Service for a portion of a month will not be pro-rated, so devices activated mid-month will incur a charge for an entire month in the first month.

Suspensions and Re-activations: Users may suspend and reactivate their devices an unlimited number of times, without incurring extra charges. (The one-time activation fee always applies the first time a device is activated.) However, enabling a device for any portion of the Billing month will incur charges for that entire month. Activations, suspensions, and re-activations are not instantaneous, so allow at least 15 minutes for status changes to be fully processed by the system.

Credit Card Fraud: Credit card fraud and identity fraud are criminal offenses. At Banner Engineering, we use automated and manual systems to obtain and confirm proper credit card authorization. Information related to fraudulent transactions, including but not limited to IP addresses, detailed call records, transaction data, location information, and email addresses is collected and will be provided to appropriate law enforcement officials to assist in the prosecution of any persons that Banner Engineering has reason to believe is attempting to commit fraud in connection with their purchases and other transactions on the Banner Engineering website or the websites of our Contractors.

You must notify us in writing of any disputed charges within sixty (60) days of the charges or You will have waived your right to dispute the charges.

6. INFORMATION STORED ON BANNER ENGINEERING PRODUCTS
Your Banner Engineering Product may contain sensitive, personal information, or data thereon. It is your responsibility to backup, remove or otherwise safeguard any sensitive, personal information or data. Banner Engineering is not responsible for the loss of any information on your Banner Engineering Product. In no event shall Banner Engineering be liable for any special, incidental, consequential, or indirect damages resulting from data loss whether Banner Engineering was informed or was aware of the possibility of such loss or damage. By returning your Banner Engineering Product to us, You agree that our employees, Contractors, or Vendors may access or destroy all of the information on your Banner Engineering Product.

Banner Engineering Service is for individual use only and may not be offered for resale. Banner Engineering reserves the right to take measures to protect the Carriers' networks (i.e., Banner Engineering's Contractors' networks) and other users from harm, compromised capacity or degradation in performance. These measures may impact your Service, and Banner Engineering reserves the right to deny, modify or terminate Service, with or without notice, to anyone believed to be using the Banner Engineering Service in a manner that adversely impacts the Carriers' networks. Banner Engineering may monitor the compliance of customers with these Terms and Conditions, but will not monitor the content of your communications except as otherwise expressly permitted or required by law.


7. SERVICE AREA MAPS AND COVERAGE
You will find Service Area Maps and Coverage Maps on the Banner Engineering website. These maps are for general informational purposes only. The coverage maps are provided by our Contractors (i.e., wireless network operators) and depict the general coverage area of Banner Engineering. The coverage maps are not a guarantee of coverage. Coverage is not available everywhere. The coverage maps display only the predicted and approximate optimal wireless coverage of the network on which your Banner Engineering product may be activated including the coverage area of the network's roaming partners, if applicable. The coverage areas shown do not guarantee service availability, and may include locations with limited or no coverage, especially for data service. Within coverage areas, there may be significant limitations or interruptions in coverage that may impact service and result in dropped and blocked connections, slower data speeds, or no data connectivity. This could occur due to many factors including your device, network changes, network traffic volume, network outages, technical limitations, signal strength, the terrain and your Banner Engineering Product's proximity to buildings, foliage and other obstructions, weather and other conditions. Areas with weak coverage may significantly reduce battery life of Banner Engineering Products. Your Banner Engineering Product may work outside of coverage areas, but content utilizing high bandwidth (e.g., large file size) may not be transmitted via the Banner Engineering Service to the destination You have designated. The coverage depicted on the coverage maps is based on the information provided by other carriers and public sources, and Banner Engineering cannot guarantee their accuracy. Banner Engineering is not responsible for any Service outages, interruptions in service or decline in the quality of service regardless of the cause.

8. ROAMING
Roaming is permitted wherever the cell module is able to achieve a viable network connection in the United States. International Roaming is strictly prohibited. You will not be able to send or receive data via your Banner Engineering Product on the Banner Engineering Service outside of the United States.

The Banner Engineering Cellular data service is provided “As Is” and Banner Engineering makes no other warranties or representations of any kind, express or implied, with respect to the service, including, but not limited to any warranties of merchantability, fitness for a particular purpose, or arising from course of dealing, course of performance or usage of trade, all of which Banner Engineering hereby expressly disclaims. In no event shall Banner Engineering be liable to You or any other persons or entity for any extra costs, expenses, losses, loss of profits, or any incidental, consequential or special damages resulting from software defects or from the use or inability to use the Service. Banner Engineering will indemnify, defend and hold harmless your employees and officers against all loss, cost, damage and expense arising out of or related to claims of negligence, strict liability, product liability, breach of warranty or otherwise with respect to the Software, brought by Banner Engineering or any third party and Your use of the Service.

9. LIMITATION OF LIABILITY
IN NO EVENT SHALL BANNER ENGINEERING, ITS EMPLOYEES, OR CONTRACTORS BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE, SALES OR DATA; ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, OR LOSS OF BUSINESS INFORMATION; OR FOR ANY OTHER SPECIAL, DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, COVER, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE ANY BANNER ENGINEERING PRODUCT AND/OR SERVICE INCLUDING, WITHOUT LIMITATION, ANY GPS MAPS, SOFTWARE, MOBILE WEB SERVICES OR OTHER WEB CONTENT, EVEN IF BANNER ENGINEERING, OR THEIR RESPECTIVE CONTRACTORS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITH RESPECT TO JURISDICTIONS THAT MAY NOT ALLOW THE EXCLUSION OF LIABILITY, BUT MAY ALLOW LIABILITY TO BE LIMITED IN SOME CASES, BANNER ENGINEERING, ITS EMPLOYEES, LICENSORS AND AFFILIATES' LIABILITY SHALL BE LIMITED TO U.S. $100.

10. DISCLAIMER OF WARRANTIES
NO WARRANTY, EXPRESS OR IMPLIED, IS MADE REGARDING THE CONDITION OR FITNESS OF THE SERVICES OFFERED OR USE OF THE SERVICE FOR ANY PARTICULAR USE OR PURPOSE, INCLUDING WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR NON-INFRINGEMENT. BANNER ENGINEERING DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY ON ITS BEHALF AND YOU MAY NOT RELY ON ANY STATEMENT OF WARRANTY AS A WARRANTY BY BANNER ENGINEERING. YOU ACKNOWLEDGE THAT BANNER ENGINEERING SERVICE IS PROVIDED "AS IS" AND BANNER ENGINEERING MAKES NO WARRANTY TO YOU OR TO ANY THIRD PARTY WHATSOEVER, DIRECTLY OR INDIRECTLY, EXPRESS, IMPLIED OR STATUTORY, AS TO THE SUITABILITY, DURABILITY, DESCRIPTION, QUALITY, TITLE, NON-INFRINGEMENT, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR USE OR PURPOSE OF THE SERVICE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED. BANNER ENGINEERING ALSO MAKES NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. BANNER ENGINEERING DOES NOT AUTHORIZE ANYONE, INCLUDING, BUT NOT LIMITED TO, BANNER ENGINEERING EMPLOYEES, TO MAKE ANY WARRANTIES ON ITS BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. YOUR USE OF THE BANNER ENGINEERING SERVICE IS SOLELY AT YOUR RISK.

11. INDEMNIFICATION
You agree to defend, indemnify and hold harmless Banner Engineering, its affiliates, licensors, employees, and Contractors, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms and Conditions of Service or your use of Banner Engineering Products and/or Service, including, but not limited to, your use of Banner Engineering's Products and/or service including other than as expressly authorized in these Terms and Conditions of Service.

12. DISPUTE RESOLUTION
Most customer concerns can be resolved to your satisfaction by contacting Banner Engineering at
https://secure.bannercelldata.com, by email at support@bannercds.com or by phone at 763-519-7042 and provide a description of your dispute, all relevant documents, and your proposed resolution prior to taking any formal action. You further agree to submit your dispute to binding arbitration or small claims court as set forth herein if we are unable to resolve your dispute within 60 days of your notice to us.

BINDING ARBITRATION
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF ALL DISPUTES AND CLAIMS (INCLUDING ONES THAT ALREADY ARE THE SUBJECT OF LITIGATION) THROUGH BINDING ARBITRATION INSTEAD OF SUING IN COURT IN THE EVENT THAT THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE OR CLAIM. ARBITRATION IS BINDING AND SUBJECT TO ONLY A VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE TERMINATION OF BANNER ENGINEERING'S AGREEMENT WITH YOU. YOU AGREE THAT YOU ARE AWARE THAT THERE IS NO JUDGE NOR JURY IN ARBITRATION BUT THAT AN ARBITRATOR MAY AWARD YOU THE SAME DAMAGES AND RELIEF THAT YOU MAY BE ABLE TO RECOVER IN A COURT OF LAW. YOU AND BANNER ENGINEERING FURTHER AGREE THAT THE ARBITRATOR MUST HONOR THE TERMS OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY BRING A CLAIM IN SMALL CLAIMS COURT.

All claims by You against Banner Engineering or our Contractors will be resolved by binding arbitration where permitted by law. You must first present any claim or dispute to Banner Engineering, as set out above, to allow an opportunity to resolve the dispute prior to initiating arbitration. The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association ("AAA") under the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, the "AAA Rules"), as modified by this agreement. The AAA Rules are available online at
https://www.adr.org, by calling the AAA a 1-800-778-7879. You and Banner Engineering agree that use of the Banner Engineering Service evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. Additionally, for claims of $10,000 or less, You can choose to proceed with arbitration being decided on the documents submitted in an effort to minimize costs and the time it may take for an arbitrator to reach his or her decision.

You and Banner Engineering agree that any arbitration will be conducted on an individual basis and not on a consolidated, class wide, or representative basis. Further, You and Banner Engineering agree that the arbitrator may not consolidate proceedings or more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If the preclusion of consolidated, class wide, or representative proceedings is found to be unenforceable, then this entire arbitration clause shall be null and void.

Unless You and Banner Engineering agree otherwise, the location of any arbitration shall be in Minneapolis, Minnesota and Minnesota state law shall apply. Either or both parties may participate in the proceedings by telephone.

CHOICE OF LAW
This Agreement shall be construed and interpreted under the substantive laws of the State of Minnesota without giving effect to any choice of law provision or conflict of law provision or rule of the State of Minnesota or any other jurisdiction.

13. PRIVACY POLICY
The Banner Engineering Privacy Policy may be viewed at
www.bannerengineering.com  

14. WAIVER AND SEVERABILITY
No waiver of by the Company of any term or condition set forth in these Terms and Conditions of Service shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the You to assert a right or provision under these Terms and Conditions of Service shall not constitute a waiver of such right or provision. If any provision of these Terms and Conditions of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms and Conditions of Service will continue in full force and effect.

15. ENTIRE AGREEMENT
The Terms and Conditions of Service and our Privacy Policy constitute the sole and entire agreement between You and Banner Engineering with respect to Banner Engineering's website, Banner Engineering's Contractors' websites, Banner Engineering's Contractors' Services, and Banner Engineering's Service and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral.

Terms and Conditions Addendum for Cloud Data Customers
For customers that use or purchase the Banner Engineering Cloud webhosting and data storage solutions, the following additional terms and conditions apply. The Banner Engineering Cloud as referred to in this document consists of both the electronic repository for data sent in by authorized end devices and the data presentation services that allow customers to access, view, and change data and properties on the end devices using an internet connected computer and a web browser.

Data Retention and Register Limits Accounts are limited by the number of data points (register points) allowed in the system. While above the register limit, new data points will not be accepted. To manage the data in the system, users can update the number of days their data will be retained within the system. On a nightly basis, data older than the data retention limit will be removed from the system.

Data Loss and Unintended Dissemination Reasonable precaution and engineering judgment has been taken to safeguard user data. However, it is possible that user data will not be captured by the system due to scheduled or unscheduled system down time. Once captured, it is possible that user data will be accidentally lost or destroyed. It is also possible that data will be disseminated to an incorrect or unauthorized user.

Alarm or Communications Failures Alarms that are programmed into the system may fail to work. Alarms are intended as a convenience feature and should not be relied upon exclusively. It is inadvisable to use them as part of a control system that is mission critical. Mission critical control functions should be performed locally by appropriate hardware and not be distributed across public network infrastructure. Banner Engineering has no control over and therefore cannot make reliability guarantees or promises on behalf of these networks or their operators

Extended System Downtime Weather, natural disasters, or malicious action by third parties may render the Banner Engineering Cloud unavailable for extended periods. Customers are advised to expect and plan for such outages and build appropriate safeguards into their systems to mitigate for these and similar problems.

Unauthorized System Access Customers are reminded to use strong passwords for the Banner Engineering Cloud. Because devices may be configured to allow remote access and control of storage registers using SMS, it is imperative that customers take appropriate precaution and set register permissions so as to not expose important data or control functionality through this interface. However, even if all proper precautions are undertaken, it is still possible that unintended or unauthorized users may access or gain control of a system.

Web Services are only available to Banner Engineering client hardware. Sending to this service from other hardware is prohibited and could result in service suspension or termination.

IN NO EVENT SHALL Banner Engineering, BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY FOR ANY EXTRA COSTS, EXPENSES, LOSSES, LOSS OF PROFITS, OR ANY INCIDENTAL,CONSEQUENTIAL OR SPECIAL DAMAGES RESULTING FROM ANY PRODUCT DEFECT OR FROM THE USE OR INABILITY TO USE THE PRODUCT, WHETHER ARISING IN CONTRACT OR WARRANTY, STATUTE, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE.

Banner Engineering, reserves the right to change, modify or improve the design or function of the product or services without assuming any obligations or liabilities relating to any product or service previously created by Banner Engineering,