"Blue Sun" or "We," "Us" or "Our" refers to Blue Sun Solutions LLC. "You" or "Your" refers to the person or entity that is the customer of record.
This agreement and any documents expressly referred to herein or therein, make up the complete agreement between you and Blue Sun and supersede any and all prior agreements and understandings relating to the subject matter of this agreement.
1. Terms of Service Agreement
1.1 Term of Agreement
Your agreement begins on the day we activate your services and continues through the term of this agreement. At the end of this agreement, this agreement will automatically renew on a month-to-month basis.
1.2 Termination of Agreement
If you terminate your agreement within three (3) days of accepting the agreement, you will be entitled to a refund of your activation fee, if any, but you must return the equipment in connection with your agreement.
You may terminate this agreement, for any reason and without incurring the early termination fee, within thirty (30) days of accepting your agreement, provided, you will remain responsible for any services fees and charges incurred. If you receive equipment from Blue Sun in connection with your agreement, but you terminate within 30 days and fail to return the equipment to Blue Sun, you will be subject to an equipment fee with the amount of $200.
You have received certain benefits from us in exchange for any service greater than one month. If we terminate your services for nonpayment or other default before the end of this agreement, or if you terminate your services for any reason other than (a) in accordance with the cancellation policy; or (b) pursuant to a change of terms, conditions or rates as set forth below, you agree to pay us with respect to GPS device delivered to you, in addition to all other amounts owed, an early termination fee in the amount specified below ("Early Termination Fee").
The early termination fee will be $ 150 minus $10 for each full month of your service that you complete. The early termination fee is not a penalty, but rather a charge to compensate us for your failure to satisfy the service on which your rate plan is based.
Either party may terminate this agreement at any time after the agreement ends with a thirty (30) days notice to the other party. We may terminate this agreement at any time without notice if we cease to provide services in your area. We may interrupt or terminate your services without notice:
If you sign a new agreement before the end of your original agreement, but terminate the new agreement within 30 days as allowed above, the new agreement will terminate and you agree to be bound to the terms and conditions of your original agreement, including any remaining service commitment.
1.3 Change of Terms
We may change any terms, conditions, rates, fees, expenses, or charges regarding your services at any time. We will provide you with notice of material changes (other than changes to governmental fees, proportional charges for governmental mandates, roaming rates or administrative charges) either in your monthly bill or separately. You understand and agree that State and Federal Universal Service Fees and other governmentally imposed fees, whether or not assessed directly upon you, may be increased based upon the governments or our calculations.
If we increase the price of any of the services to which you subscribe, beyond the limits set forth in your customer service summary, we'll disclose the change at least one billing cycle in advance (either through a notice with your bill, a text message to your device, or otherwise), and you may terminate this agreement without paying an early termination fee or returning or paying for any promotional items, provided you notice of termination is delivered to us within thirty (30) days after the first bill reflecting the change.
If you lose your eligibility for a particular rate plan, we may change your rate plan to one for which you qualify.
1.4 Billing and Payment
You are responsible for paying all charges for or resulting from services provided under this agreement, including any activation fee that may apply to each device. You will receive monthly bills that are due in full.
If you dispute any charges on your bill, you must notify us in writing regarding such charge within 30 days of the date of the bill or you'll have waived your right to dispute the bill and to participate in any legal action raising such dispute.
Charges include, without limitation, recurring monthly service, activation, administrative, and late payment charges; restoral and reactivation charges; any other charges billed to your account; and applicable taxes and governmental fees, whether assessed directly upon you or upon Blue Sun.
To determine your primary place of use ("PPU") and which jurisdiction's taxes and assessments to collect, you're required to provide us with your residential or business street address. If you don't provide us with such address, or if it falls outside our licensed services area, we may reasonably designate a PPU within the licensed services area for you. You must live and have a mailing address within Blue Sun's owned network coverage area.
1.5 Monthly Fee
Monthly fees will be billed as specified in your customer service summary or rate plan information. If the equipment is delivered to you, your services may be activated before you take delivery of the equipment so that you can use it promptly upon receipt. If, upon receiving your first bill, you have been charged for services while your equipment was in transit, you may contact Blue Sun to request a credit. Except as provided below, monthly services and certain other charges are billed one month in advance and there is no proration of such charges if service is terminated on other than the last day of your billing cycle.
Billing of service may occasionally be delayed. Such charges may appear in a later billing cycle. You also remain responsible for paying your monthly Service fee if your service is suspended for nonpayment. We may require payment by money order, cashier's check, or a similarly secure form of payment at our discretion.
1.6 Deposit or Advance Payment
We may require you to make deposits or advance payments for services, which we may offset against any unpaid balance on your account. Interest won't be paid on advance payments or deposits unless required by law. We may require additional advance payments or deposits if we determine that the initial payment was inadequate. Based on your creditworthiness as we determine it, we may establish a credit limit and restrict services or features. If your account balance goes beyond the limit we set for you, we may immediately interrupt or suspend services until your balance is brought below the limit. Any charges you incur in excess of your limit become immediately due. If you have more than one account with us, you must keep all accounts in good standing to maintain services. If one account is past due or over its limit, all accounts in your name are subject to interruption or termination and all other available collection remedies.
1.7 Late Payment
The late payment charge is 1.5% of the balance carried forward to the next bill in all other states. In the event you fail to pay billed charges when due and it becomes necessary for Blue Sun to refer your account(s) to a third party for collection, Blue Sun will charge a collection fee at the maximum percentage permitted by applicable law, but not to exceed 18% to cover the internal collection-related costs Blue Sun has incurred on such account(s) through and including the date on which Blue Sun refer(s) the account(s) to such third party.
You expressly authorize, and specifically consent to allowing, Blue Sun and/or its outside collection agencies, outside counsel, or other agents to contact you in connection with any and all matters relating to unpaid past due charges billed by Blue Sun to you. You agree that, for attempts to collect unpaid past due charges, such contact may be made to any mailing address, telephone number, cellular phone number, e-mail address, or any other electronic address that you have provided, or may in the future provide to Blue Sun. You agree and acknowledge that any e-mail address or any other electronic address that you provide to Blue Sun is your private address and is not accessible to unauthorized third parties. For attempts to collect unpaid charges, you agree that in addition to individual persons attempting to communicate directly with you, any type of contact described above may be made using, among other methods, pre-recorded or artificial voice messages delivered by an automatic telephone dialing system, pre-set e-mail messages delivered by an automatic e-mailing system, or any other pre-set electronic messages delivered by any other automatic electronic messaging system.
1.8 Check bounces
We'll charge you up to $30 (depending on applicable law) for any check or other instrument (including credit card charge backs) returned unpaid for any reason.
1.9 Account access
You authorize us to provide information about and to make changes to your account, including adding new services, upon the direction of any person able to provide information we deem sufficient to identify you. You consent to the use by us or our authorized agents of regular mail, predictive or autodialing equipment, email, text messaging, facsimile or other reasonable means to contact you to advise you about our services or other matters we believe may be of interest to you. In any event, we reserve the right to contact you by any means regarding customer service-related notifications, or other such information.
2. Disputes Settlement
2.1 Arbitration
In the unlikely event that Blue Sun is unable to resolve a complaint you may have to your satisfaction (or if Blue Sun has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Any arbitration under this agreement will take place on an individual basis; class arbitrations and class actions are not permitted.
2.2 Arbitration Agreement
(1) Blue Sun and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
References to "Blue Sun," "you," and "us" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or devices under this or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this agreement, you and Blue Sun are each waiving the right to a trial by jury or to participate in a class action. This agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this agreement.
2) A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of dispute ("Notice"). The Notice to Blue Sun should be addressed to: 927 S Azusa ave, suite D, City of Industry, CA 91748 ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Blue Sun and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Blue Sun may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Blue Sun or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Blue Sun is entitled.
(3) The arbitration will be governed by the Commercial Arbitration Rules and the supplementary procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this agreement, and will be administered by the AAA. The AAA rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless Blue Sun and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as otherwise provided for herein, Blue Sun will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA rules. In such case, you agree to reimburse Blue Sun for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA rules.
(4) If Blue Sun did not make a written offer to settle the dispute before an arbitrator was selected, you and your attorney will be entitled to receive the alternative payment and the attorney premium, respectively, if the arbitrator awards you any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
(5) If you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount.
(6) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. You and Blue Sun agree that each may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both you and Blue Sun agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
(7) Notwithstanding any provision in this Agreement to the contrary, we agree that if Blue Sun makes any future change to this arbitration provision (other than a change to the Notice Address) during your service commitment, you may reject any such change by sending us written notice within 30 days of the change to the arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
3. Terms on Device and Services
Services (including without limitation, eligibility requirements, plans, pricing, features and/or service areas) are subject to change without notice.
When outside Blue Sun's coverage area, access will be limited to information and applications previously downloaded to or resident on your device. Coverage areas vary between Blue Sun network technologies. See coverage map(s), available at store or from your sales representative.
Actual network speeds depend upon device characteristics, network, network availability and coverage levels, tasks, file characteristics, applications and other factors. Performance may be impacted by transmission limitations, terrain, and in-vehicle use and capacity constraints.
3.2 Lost or Stolen Device
If your device is lost or stolen, you must contact us immediately to report the device lost or stolen. Once you report to us that the device is lost or stolen, you will not be responsible for subsequent charges incurred by that device.
You can report your device as lost or stolen and suspend services without a charge by contacting us at the phone number listed on your bill. If there are charges on your bill for service made after the device was lost or stolen, but before you reported it to us, notify us of the disputed charges and we will investigate. You may submit documents, statements and other information to show any charges were not authorized. You may be asked to provide information and you may submit information to support your claim. We will advise you of the result of our investigation within 30 days. While your device is suspended you will remain responsible for complying with all other obligations under this agreement, including, but not limited to, your monthly fee. We both have a duty to act in good faith in a reasonable and responsible manner including in connection with the loss or theft of your device.
4. Terms on limitations of Service
4.1 Limitations on service and liability
Unless prohibited by law, the following limitations of liability apply. Service may be interrupted, delayed, or otherwise limited for a variety of reasons, including environmental conditions, system capacity, priority access by National Security and Emergency Preparedness personnel in the event of a disaster or emergency, coordination with other systems, equipment modifications and repairs, and problems with the facilities of interconnecting carriers. We may block access to certain categories of numbers at our sole discretion.
Some solutions may require third party products and/or services, which are subject to any applicable third party terms and conditions and may require separate purchase from and/or agreement with the third party provider. Blue Sun is not responsible for any consequential damages caused in any way by the preceding hardware, software or other items/requirements for which you are responsible.
Blue Sun is not responsible for loss or disclosure of any sensitive information you transmit. Blue Sun's wireless services are not equivalent to wire line Internet. Blue Sun is not responsible for nonproprietary services or their effects on devices.
Notwithstanding the foregoing, if your service is interrupted for 24 or more continuous hours by a cause within our control, we will issue you, upon request, a credit equal to a pro-rata adjustment of the monthly service fee for the time period your service was unavailable, not to exceed the monthly service fee. Our liability to you for service failures is limited solely to the credit set forth above.
Unless prohibited by law, Blue Sun isn't liable for any indirect, special, punitive, incidental or consequential losses or damages you or any third party may suffer by use of, or inability to use, services, software, or devices provided by or through Blue Sun, including loss of business or goodwill, revenue or profits, or claims of personal injuries.
To the full extent allowed by law, you hereby release, indemnify, and hold Blue Sun and its officers, directors, employees and agents harmless from and against any and all claims of any person or entity for damages of any nature arising in any way from or relating to, directly or indirectly, service provided by Blue Sun or any person's use thereof (including, but not limited to, vehicular damage and personal injury), Including claims arising in whole or in part from the alleged negligence of Blue Sun, or any violation by you of this agreement. This obligation shall survive termination of your service with Blue Sun. Blue Sun is not liable to you for changes in operation, equipment, or technology that cause your device or software to be rendered obsolete or require modification.
Some states, including the state of Kansas, don't allow disclaimers of implied warranties or limits on remedies for breach. Therefore, the above limitations or exclusions may not apply to you. This agreement gives you specific legal rights, and you may have other rights which vary from state to state.
4.2 Software
The webpage setup, interfaces, documentation, data, and content provided for your equipment as may be updated, downloaded, or replaced by feature enhancements, software updates, system restore software or data generated or provided subsequently by Blue Sun (hereinafter "Software") is licensed, not sold, to you by Blue Sun and/or its licensors/suppliers for use only on your equipment. Your use of the software shall comply with its intended purposes as determined by us, and all applicable laws.
You are not permitted to use the software in any manner not authorized by this license. You may not (and you agree not to enable others to) copy, decompile, reverse engineer, disassemble, reproduce, attempt to derive the source code of, decrypt, modify, defeat protective mechanisms, combine with other software, or create derivative works of the software or any portion thereof. You may not rent, lease, lend, sell, redistribute, transfer or sublicense the software or any portion thereof. You agree the software contains proprietary content and information owned by Blue Sun and/or its licensors/suppliers.
Blue Sun and its licensors/suppliers reserve the right to change, suspend, terminate, remove, impose limits on the use or access to, or disable access to, the software at any time without notice and will have no liability for doing so. You acknowledge Blue Sun's software licensors/suppliers are intended third party beneficiaries of this license, including the indemnification, limitation of liability, disclaimer of warranty provisions found in this Agreement.
4.3 Notice
Blue Sun will provide notice that it intends to take any of the above actions, and you may terminate this agreement.
You must respect the intellectual property rights of Blue Sun, our third-party content providers, and any other owner of intellectual property whose protected property may appear on any website and/or dialogue box controlled by Blue Sun or accessed through the Blue Sun's websites. Except for material in the public domain, all material displayed in association with the service is copyrighted or trademarked. Except for personal, non-commercial use, trademarked and copyrighted material may not be copied, downloaded, redistributed, modified or otherwise exploited, in whole or in part, without the permission of the owner.
6. Severability
If any provision of this agreement is found to be unenforceable by a court or agency of competent jurisdiction, the remaining provisions will remain in full force and effect. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration clause; if that prohibition is found to be unenforceable, the arbitration clause (but only the arbitration clause) shall be null and void.
7. Assignment
Blue Sun may assign this agreement, but you may not assign this agreement without our prior written consent.
8. Governing law
The law of the state of your billing address shall govern this agreement except to the extent that such law is preempted by or inconsistent with applicable federal law. In the event of a dispute between us, the law of the state of your billing address at the time the dispute is commenced, whether in litigation or arbitration, shall govern except to the extent that such law is preempted by or inconsistent with applicable federal law.
9. English language
The original version of this agreement is in the English language. Any discrepancy or conflicts between the English version and any other language version will be resolved with reference to and by interpreting the English version.