Indigo Wireless Customer Service Agreement

This Customer Service Agreement ("Agreement") is for wireless radio telecommunications services and related services ("Service") between you and AmeriCell PA-3, L.P. d/b/a Indigo Wireless ("Indigo") on behalf of Indigo Wireless, Inc., the Federal Communications Commission's licensee to provide Service in the area associated with your assigned telephone number ("Number").  The term "Phone" means the SIM (Subscriber Identity Module) card and/or wireless receiving and transmitting equipment that Indigo has authorized to be programmed with the Number and any accessories.  By using your Phone, accepting a benefit in exchange for committing to these Terms and Conditions, or by paying any amount billed to your account, you consent to these Terms and Conditions.  If you do not agree with these Terms and Conditions, notify Indigo immediately to cancel Service and/or return the Phone. 

1.         Service.

a. Phone.  To qualify for service with Indigo, you must purchase a cellular phone from Indigo.  Indigo will not reprogram or allow a cellular device that has been reprogrammed to have an account with Indigo.

b. Rates.  Your Service rates ("Rate Plan"), including roaming and long distance charges, and other charges and conditions for your Phone are described in the attached Customer Order Form.  Airtime charges apply to outbound calls only and are rounded up in 60-second increments.  There is a 1-minute minimum on all completed calls.  The time starts when you first press "SEND," or when the call connects to the network.  Time may end up to several seconds after you first press "END," or after the call disconnects. When driving in Indigo's home Service area, your Phone will display "INDIGO."  When your phone displays "INDIGO EXTENDED" you are in the Nationwide Extended Coverage Area.  When the roaming indicator on your phone appears, (see owners' Phone manual), or the phone indicator reads "ROAMING" you are receiving service from a third party carrier, in which case roaming rates and other charges will apply, including, but not limited to, call waiting, call forwarding, or three-way calling.  These roaming charges will be included on your monthly invoice.  Indigo may also charge you for other reasonable taxes, charges, and cost recovery.

c. Availability/Interruption.  Service is normally available to your Phone when it is within the operating range of Indigo's system and may be available outside of that area through other participating carriers.  Service is subject to transmission limitation or interruption caused by weather, terrain, obstructions such as trees or buildings, and other conditions.  Service may be limited in some areas where coverage is not available or may be temporarily limited or interrupted due to reasons beyond Indigo's control or because of system capacity limitations and system repairs or modifications or because of Indigo's need to combat potential fraud.  Interruption may also result from nonpayment of charges by you.  Indigo may choose to block calls to certain categories of numbers (e.g. 976, 900 and certain international destinations) if, in its sole discretion, Indigo is experiencing excessive billing, fraud or other collection problems with calls to those numbers.

d. Non-Availability of Traditional 911 or E911 Dialing Service.  You acknowledge and understand that the Service does NOT support traditional 911 or E911 access to emergency services.  You agree to inform any household residents, guests and other third persons who may be present at the physical location where you utilize the Service of the non-availability of traditional 911 or E911 dialing from your Number or Phone.

e. Number "Porting."  You may choose to send all of your landline calls to your new Service and discontinue your landline service.  You may also choose to send your current wireless number to a new service provider, in which case, we will send that number to the new service provider.  These arrangements are known as "porting".  If you choose to have your number ported to a new service provider, we will interpret that request as a notice from you to terminate our service for that number once the porting has been completed.  You will then remain responsible for all fees and charges through the current billing cycle just as in any other termination.

f. Term and Termination.  The term of this Agreement for your Phone begins on the date Indigo activates Service for that Phone or the date you first use it and ends when Service for that Phone is terminated.  Indigo may terminate your Service if you:  (i) verbally or physically abuse an employee or agent of Indigo; (ii) provide false information to Indigo; (iii) interfere with network, customer service, or business operations of Indigo; (iv) "spam," "mail bomb," or otherwise engage in abusive messaging; (v) modify your Phone from its manufacture's specifications; (vi) provide unverifiable credit information; (vii) use your Services in any way that adversely affects service to other customers; or (viii) allow anyone to steal or tamper with your Phone. While there is no termination fee associated with the Indigo Service, Indigo is entitled to charge a Fifty Dollar ($50.00) processing fee to effect the porting of your Number to another carrier.

g. Changes to Agreement or Service.  Indigo may amend the terms of this Agreement upon advance notice provided to you in any manner Indigo chooses, including by notice contained with your invoice for the Service.  In the event that Indigo makes such a change that has a material adverse impact on your rights or use of the Service, you may terminate the Agreement by giving Indigo notice within 20 days of the date Indigo notifies you, and you will not be charged any porting fee.  If you use the Service more than 20 days after Indigo notifies you of a change, you will be deemed to have agreed to that change.  In addition, Indigo may temporarily limit your Service for commercial or governmental reasons.

2.         Charges/Payments/Defaults.

a. Taxes, Surcharges, Other Fees.  Various taxes, surcharges, fees, and other assessments (e.g., universal connectivity charge) are imposed by federal, state and municipal governments relating to the Service Indigo provides to you, goods or services you purchase, and the wireless network and equipment used in providing the Service.  Indigo will determine, in its reasonable discretion, the taxes and other assessments that you are responsible for paying and the amounts of such charges.  You are responsible for paying these taxes and other assessments, regardless of whether they are assessed on you or on Indigo.  To determine which jurisdictions' wireless telecommunications service taxes and other assessments to collect, federal law requires Indigo to obtain your Place of Primary Use ("PPU"), which must be your residential or business street address and must be within Indigo's licensed service area.  You agree to provide Indigo your PPU and to promptly notify Indigo of any changes in your PPU.  If you do not provide Indigo with an appropriate PPU, Indigo may reasonably designate one for you.  In addition to other charges, you may also be assessed a Regulatory Programs Fee, which is a monthly charge created, assessed and collected by Indigo to help defray our costs for compliance with various regulatory requirements which include, but are not limited to, the capability to provide wireless number portability and number pooling in our Service area.  This fee is not a tax or a government-required charge. In Indigo's discretion, Indigo may change the amount of the Regulatory Programs Fee.

b. Billing and Payment; Disputes.  Indigo will provide a bill for your monthly Services in a format Indigo chooses, which may change from time to time.  In order to qualify for Service under any Rate Plan offered on the Customer Order Form, you must have a major credit card and use such card to pay for all charges associated with your Service or Phone.  Payment is due immediately upon presentation of an invoice.  A fee may be charged for additional copies of bills, or billing in another format, including the detailed billing option.  You will receive one bill for all Services associated with your Phone, including any charges of a third party on whose behalf we bill.  Billing cycle end dates may change from time to time.  When a billing cycle covers less than or more than a full month, Indigo may make reasonable adjustments and prorations.  In addition, when traveling with your Phone, Service may be provided by other carriers.  Sometimes Indigo does not receive these charges (e.g., roaming) from other carriers in time for your next scheduled bill.  If this happens, Indigo will include those charges on the invoice in the month Indigo receives them and they will be charged as if used in the month they are billed.

No additional notice or consent will be required for billings to your credit card for all amounts (including late charges and fees).  You must promptly notify Indigo of any change in your PPU or changes related to the credit card used for payment.  Your payment obligations survive any termination of this Agreement.

To initiate your Service, Indigo will charge your credit card the amount of your first month of Service, based upon your Rate Plan, plus the cost of your Phone and associated charges.  Thereafter, Indigo will charge your credit card for the Service associated with your Phone on the date which is fourteen (14) days after the date of the invoice for the previous month's Service.  By signing this Agreement, you expressly authorize Indigo to bill your credit card for all charges invoiced by Indigo for your Service.  Time is of the essence for payment.  For any credit card chargebacks, Indigo will assess an additional fee not to exceed $25, or such lower amount as permitted by applicable law.   In addition, you agree to pay Indigo a late fee for amounts unpaid 20 days after the date of the invoice of 1.5% per month.  All amounts due, including disputed amounts, must be paid by the due date regardless of the status of any objection.  Payments will be applied first to amounts owed to Indigo and then to amounts owed to third parties.  All communications concerning disputed amounts owed, including any instrument tendered as full satisfaction of the amounts owed, or stipulating any other conditional action, agreement or proposed resolution of any dispute must be (i) in writing, (ii) marked "Billing Dispute" on the outside of the envelope, (iii) sent to the address provided in the Notices section below, and (iv) received by Indigo within 60 days after receipt of the disputed invoice.

You will be in default of this Agreement if you (a) fail to pay any amount owed to Indigo or an affiliate of Indigo's or any amount appearing on your invoice within 20 days after the date of the invoice, (b) have amounts still owing to Indigo from a prior account, (c) breach any representation to Indigo or fail to perform any of the promises you made in this Agreement, (d) violate any policy applicable to the Service, or (e) are subject to any proceeding under the Bankruptcy Code or similar laws.  If you are in default, Indigo may, without notice to you, suspend Service, withhold equipment or other refunds and/or terminate this Agreement, in addition to all other available remedies.  Indigo may require reactivation charges to renew Service after termination or suspension.  Upon termination and/or porting your Phone to another carrier, you are responsible for paying all amounts and charges you owe to Indigo, including any applicable porting fee.

c. Consents.  You consent to Indigo's release of information about you and your use of Service when Indigo believes release is appropriate to (i) comply with the law (e.g. a lawful subpoena); (ii) comply with a lawful request of the Office of Homeland Security or other similar government agency; (iii) enforce or apply our customer agreements; (iv) initiate, render, bill and collect for Services; (v) protect our rights or property, or to protect users of those Services and other carriers from fraudulent, abusive, or unlawful use of, or subscription to, such Services; or (vi) facilitate or verify the appropriate calculation of taxes, fees or other obligations due to a local, state or federal government.

Indigo may also release information about you if Indigo reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure of communications or justifies disclosure of records without delay.  You consent to Indigo's monitoring of any communication to or from you or your Phone for quality control and Service related purposes.

You consent to Indigo's use and disclosure of your name, address and Phone information (e.g. mobile phone number including area code) for any lawful purpose, including without limitation the provision of directory assistance and publication of directories.  We may charge a fee for inclusion in directory listings or publications or to be unlisted or unpublished.  To remove your consent to be listed or published, notify Indigo in writing at the address provided in the Notices section below, providing your (i) name, (ii) Service billing address, (iii) Phone number including area code, and (iv) Service account number.  Indigo reserves the right to contact you by any means regarding customer service-related notifications, or other such information.  You consent to receiving advertising, alerts and other broadcast messages from Indigo or its authorized agents.  You do not have any rights regarding your wireless phone number.  In some cases, your wireless phone number and name may show up when you call someone.  This 'Caller ID' can be blocked by dialing *82 before you make each call or by ordering per-line blocking, when and where it is available.

Under federal law, you have a right, and Indigo has a duty, to protect the confidentiality of information about the amount, type, and destination of your Service usage and the location of your Phone on Indigo's network.  You consent to Indigo sharing such information with its affiliates who provide communications-related services, joint venture partners and independent contractors, to develop or bring to your attention communications-related products and services.  This consent survives the termination of your Service and is valid until you revoke it.  To revoke this consent, notify Indigo in writing at the address listed in the Notices section, providing your (i) name, (ii) Service billing address, (iii) Phone number including area code, and (iv) Service account number. Removing consent will not affect your current Service.

You consent to disclosure of your Service usage or other personal information in connection with any merger, acquisition or sale of Indigo's assets or transition of your Service to another provider, as well as in the event of an insolvency, bankruptcy or receivership in which personal information would be transferred as one of Indigo's business assets.

3.         Limitations. 

a. Resolution of Disputes.  PLEASE READ.  IT IS IMPORTANT THAT YOU READ THIS SECTION CAREFULLY.  THIS SECTION PROVIDES FOR RESOLUTION OF MOST DISPUTES THROUGH FINAL AND BINDING ARBITRATION INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION.  THIS ARBITRATION CLAUSE SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

b. Binding Arbitration.  The arbitration process established by this section is governed by the Federal Arbitration Act (the "FAA") (9 U.S.C. §§ 1-16).  The FAA, not state law, governs whether a claim related to this Agreement is subject to arbitration.  This provision is intended to be interpreted broadly to encompass all disputes or claims, including those against any subsidiary, parent or affiliate companies, arising out of any aspect of our relationship (including but not limited to this Agreement or the Service or any equipment used in connection with the Service).  All such disputes or claims, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, will be resolved by binding arbitration except that (i) you may take claims to small claims court if they qualify for hearing by such a court, or (ii) you or Indigo may choose to pursue claims in court if the claims relate solely to the collection of any debts you owe to Indigo. 

c. Arbitration Procedures.  You must first present any claim or dispute to Indigo by contacting our customer care office to allow Indigo an opportunity to resolve the dispute.  You may request arbitration if your claim or dispute cannot be resolved within sixty (60) days.  The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association ("AAA") under the Wireless Industry Arbitration Rules ("WIA Rules"), as modified by this Agreement.  The WIA Rules and information about arbitration and fees are available upon request from the AAA online at www.adr.org.  Unless you and Indigo agree in writing otherwise, any arbitration will take place in the county seat for the county in which your billing address is located.  At either party's election, the arbitration shall be held telephonically.  An arbitrator may award any relief or damages (including injunctive or declaratory relief) that a court could award, except an arbitrator may not award relief in excess of or contrary to what this Agreement provides and may not order relief on a consolidated, class wide or representative basis.  In any arbitration applying the WIA Rules applicable to large/complex cases, the Arbitrators must also apply the Federal Rules of Evidence, and the losing party may have the award reviewed in accordance with the review procedures set forth in the WIA Rules.  Judgment on any arbitration award may be entered in any court having proper jurisdiction.  If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.

d. Costs of Arbitration.  For claims of less than $1,000, you will be obligated to pay $25 and Indigo will pay all other administrative costs and fees.  For claims over $1,000 but under $75,000, you will be obligated to pay your share of the arbitration fees, but no more than the equivalent court filing fee for a court action filed in the jurisdiction where your billing address is located.  For arbitrations in excess of $75,000, all administrative fees and expenses of arbitration will be divided equally between you and Indigo.  In all arbitrations, each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration.

e. Waiver of Class Actions and Jury Trials.  By this Agreement, both you and Indigo are waiving certain rights to litigate disputes in court.  You and Indigo both agree that any arbitration will be conducted on an individual basis and not on a consolidated, class wide or representative basis.  If for any reason this arbitration clause is deemed inapplicable or invalid, or to the extent this arbitration clause allows for litigation of disputes in court, you and Indigo both waive, to the fullest extent allowed by law, any rights to trial by jury and to pursue any claims on a consolidated, class wide or representative basis.

f. Limitations Period.  Any arbitration or legal action with respect to any and all claims or causes of action related to or arising out of this Agreement must be brought within TWO (2) YEARS after the cause of action arises, or within the applicable statutory period of time, whichever is shorter.  This limitations period does not apply to any cause of action when the statutory limitations period for that cause of action cannot be waived, restricted or otherwise limited by you.

g. Limitations.  The parties intend that the limitations on liability, warranty and damage awards provided for in this Agreement will apply to the fullest extent allowed by law.  Some jurisdictions do not allow the exclusion of certain warranties or the waiver, limitation or exclusion of liability for punitive, incidental or consequential damages, or for intentional or willful conduct in some circumstances.  To the extent that any of these limitations are not permitted by applicable law, they will not apply to you.

h. Limitation of Liability.  INDIGO IS NOT LIABLE FOR ACTS OR OMISSIONS OF ANOTHER SERVICE PROVIDER OR ANY THIRD PARTY PROVIDERS OF SERVICES RELATED TO USE OF YOUR PHONE OR SERVICE, FOR INFORMATION PROVIDED THROUGH YOUR PHONE, LACK OF PRIVACY OR SECURITY EXPERIENCED WHEN USING YOUR PHONE, EQUIPMENT FAILURE, MALFUNCTION OR MODIFICATION, OR OTHER CAUSES BEYOND INDIGO'S REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS THAT THE SERVICE WILL BE ERROR-FREE, UNINTERRUPTED, OR FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD PARTY HACKERS OR DENIAL OF SERVICE ATTACKS).  INDIGO AND ANY THIRD PARTY CARRIER ARE NOT LIABLE FOR SERVICE OUTAGES, LOSS OF DATA, INABILITY TO RETRIEVE DATA, SERVICE LIMITATIONS OR INTERRUPTIONS, AS DESCRIBED ABOVE, ECONOMIC LOSS OR INJURIES TO PERSONS OR PROPERTY ARISING FROM USE OF THE SERVICE, YOUR PHONE, OR ANY EQUIPMENT USED IN CONNECTION WITH YOUR PHONE UNLESS ARISING FROM INDIGO'S SOLE AND GROSS NEGLIGENCE. INDIGO'S LIABILITY AND THE LIABILITY OF ANY THIRD PARTY CARRIER ARISING FROM ANY SUCH SOLE AND GROSS NEGLIGENCE SHALL IN NO EVENT EXCEED INDIGO'S SERVICE CHARGES DURING THE AFFECTED PERIOD.  INDIGO AND ANY THIRD PARTY CARRIER ARE NOT LIABLE FOR ANY INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES SUCH AS LOST PROFITS.  YOU AND INDIGO BOTH WAIVE TO THE FULLEST EXTENT ALLOWED BY LAW, ANY CLAIMS TO RECOVER INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES.  INDIGO IS NOT LIABLE FOR THE INSTALLATION OR REPAIR OF YOUR PHONE BY ANY PARTIES WHO ARE NOT INDIGO EMPLOYEES.  SOME STATES DO NOT ALLOW THE LIMITATIONS SET FORTH ABOVE SO THE LIMITATIONS MAY NOT APPLY TO YOU, IN WHOLE OR IN PART.  YOU AGREE THAT THE INCLUSION OF THIS PARAGRAPH WAS A MATERIAL CONSIDERATION FOR INDIGO TO ENTER INTO THIS AGREEMENT.  THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

THE LIMITATIONS SET FORTH ABOVE WITH RESPECT TO LIMITATION OF DAMAGES AND LIMITATION OF REMEDY ARE INDEPENDENT OF ONE ANOTHER AND WILL SURVIVE ANY FAILURE OF ALL OR PARTS OF THE ESSENTIAL PURPOSE OF THE OTHER.

i. Indemnification.  YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD INDIGO, ITS AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER, HARMLESS FROM CLAIMS OR DAMAGES RELATING TO THIS AGREEMENT OR YOUR PROMISES OR STATEMENTS MADE IN IT, CONTENT YOU STORE, PROCESS OR TRANSMIT USING THE SERVICE AND ANY OTHER USE OF YOUR PHONE OR SERVICE UNLESS DUE TO OUR SOLE AND GROSS NEGLIGENCE.  YOU ALSO AGREE TO PAY INDIGO'S REASONABLE ATTORNEYS' AND EXPERT WITNESS FEES AND COSTS INCURRED IN ENFORCING THIS AGREEMENT, INCLUDING THROUGH ANY APPEAL, EXCEPT AS PROVIDED OTHERWISE IN THIS AGREEMENT.  USE OF YOUR PHONE WHILE OPERATING A MOTOR VEHICLE OR IN A DISTRACTED OR NEGLIGENT MANNER MAY BE PROHIBITED OR RESTRICTED BY LAW IN SOME AREAS.  IT IS YOUR RESPONSIBILITY TO CONFORM TO ALL SUCH LAWS OR REGULATIONS AND YOU SHALL INDEMNIFY INDIGO FROM CLAIMS ARISING FROM ANY SUCH UNLAWFUL USE. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

j. No Warranties.  INDIGO MAKES NO EXPRESS WARRANTY REGARDING THE SERVICE OR YOUR PHONE OR ANY SERVICES PROVIDED BY ANY THIRD PARTIES, AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  INDIGO DOES NOT AUTHORIZE ANYONE TO MAKE ANY WARRANTY ON ITS BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT.  INDIGO IS NOT THE MANUFACTURER OF YOUR PHONE AND ANY STATEMENT REGARDING IT SHOULD NOT BE INTERPRETED AS A WARRANTY.  THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

4.        Safety Issues Related to Radio Frequency Signals. 

a. A wireless phone operates by sending and receiving radio frequency (RF) signals and therefore emits low levels of RF energy when the phone is on.  Many studies have been conducted concerning RF exposure.  Based on these studies, the U.S. Food and Drug Administration (FDA) has concluded that the available scientific evidence does not show that any health problems are associated with using wireless phones, although there is no proof that wireless phones are absolutely safe.  Further scientific research is ongoing.  For more information on this subject, you may call the FDA at 1-888-463-6332.  Additional consumer information on wireless phones and RF safety is available online at the joint FDA-FCC web site "Cell Phone Facts," at www.fda.gov/cellphones .

b. If you have concerns about RF exposure, there are steps you can take to reduce your exposure including decreasing your use of wireless phones or using an ear piece, headset or other hands-free device (such as a car phone with an externally mounted antenna) to increase the distance between your body and RF energy from the cell phone.  In addition, Indigo recommends that your use of your Phone only when parked in a safe place, and consistent with all relevant local, state and federal laws.   

5.        General.

a.   You must represent that you are at least 18 years old and have the capacity to legally accept this Agreement.

b. Assignment.  Indigo may assign all or part of this Agreement, without notice to you, and such assignment will not be deemed to be a change to the Agreement.  Indigo is then released from all liability.  You may not assign this Agreement without Indigo's prior written consent.

c. Notices.  Indigo may send you notices by mail or electronic means, in Indigo's sole discretion.  Notices to you shall be effective (i) 3 days following the date deposited in the U.S. Mail or delivered to a nationally recognized courier or delivery service to your address as kept in Indigo's files and/or (ii) immediately upon our transmission using an electronic means such as e-mail or text messaging service.  You are responsible for notifying Indigo of any changes in your mailing or e-mail address.  Written notice to Indigo shall be effective when directed to Indigo Wireless, Inc., 23 North Main Street, Mansfield, PA 16933 and received by Indigo.  Your notice must contain specific information adequate to identify you and your Service.  Oral and electronic notices shall be deemed effective on the date reflected in Indigo's records.

d. Entire Agreement.  This Agreement, together with your Customer Order Form and all other documents and policies referenced herein, represent the entire agreement between you and Indigo, which may only be amended as described in this Agreement.  This Agreement supersedes any inconsistent or additional representations made to you by any of Indigo's representatives, agents or dealers.  Subsequent purchases of additional services from Indigo may require you to enter into a separate agreement.  If any part of this Agreement is found invalid, the balance of the Agreement remains enforceable.  If, at any time, Indigo does not enforce any right or remedy available under this Agreement, that failure is not a waiver of Indigo's right to enforce the right or remedy at a later time.  Copied, microfiched, scanned or other duplicate or electronic images of this Agreement are admissible for all purposes.

e. Governing Laws.  This Agreement is subject to applicable federal laws, federal or state tariffs, if any, and the laws of the state associated with your Phone.  Where our Service terms and conditions are regulated by a state agency or the FCC, the regulations are available for your inspection and if there is any inconsistency between this Agreement and those regulations, this Agreement shall be deemed amended as necessary to conform to such regulations.