Data Service Agreement

“iCone®” or “we,” “us” or “our” refers to iCone® Products LLC, “you” or “your” refers to the person or business entity that is the customer of record. “Data Services” or “Services” refers to monthly benefits outlined in your plan. PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION.

This Agreement requires the use of arbitration to resolve disputes, rather than jury trials and also limits the remedies available to you in the event of a dispute.

This Agreement starts when you accept. If you decide not to accept because you object to the terms of this Agreement, return all iCone® devices, chargers, and other related devices to Distributor that they were purchased from immediately.

iCone® will commence providing the Services as soon as practical after your acceptance of this agreement. You acknowledge and agree that, while the Services typically commence within 24-48 hours that this time is an estimate and additional time may be needed by iCone® to complete set-up and programming of the Services due to circumstances beyond its control.

iCone® will notify you, by e-mail or phone, when set-up and commencement of the Services are complete, the data files are deliverable, and are available for retrieval.

BY AGREEING TO THIS DOCUMENT YOU ARE COMMITTING TO PAYING FOR DATA SERVICES FOR THE FULL TERM OF THE CONTRACT.

After your service commitment, this agreement shall automatically renew on a month-to-month basis until either party gives written notice to the other to cease service. At least 30 days prior to the end of commitment iCone® will notify you of any change in the fee for service. At that point you may make a new commitment for service at the new fee or continue month-to-month at the new fee. If you continue on a month-to-month basis iCone® retains the right to change the fee at any future time with 30 days notice.

YOUR PLAN

Your Plan becomes part of the agreement. The Data Services Plan as presented at time of purchase of iCone® devices and specified in your Data Services Contract includes your monthly service benefits including cellular and satellite communications, the use of the iConetraffic.com web site, and other data services. By logging on with your own password you will have full access to reports, downloads, electronic feeds, remote programming of your devices, backup, and other additional benefits available now or in the future. Your plan also includes information as to the term, payment amount, and payment frequency options under your specific Data Services Contract.

YOUR BILL

iCone® bills Data Services fees one month in advance (unless your specific Data Services Contract provides for a yearly prepaid plan). The bill will be sent to the supplied email address. You can view your bill online. We’ll also send you a paper copy of your bill if you request one. We may charge a fee for bill reprints. If you choose Internet billing (where available), you waive any right to paper bills or notices. Payment is due in full as stated on your bill. IF WE DON’T RECEIVE PAYMENT IN FULL WHEN DUE, WE MAY, TO THE EXTENT PERMITTED BY THE LAW OF THE STATE OF THE BILLING ADDRESS WE HAVE ON FILE FOR YOU AT THE TIME, CHARGE YOU A LATE FEE OF UP TO 1.5 PERCENT A MONTH (18 PERCENT ANNUALLY), OR A FLAT $5 A MONTH, WHICHEVER IS GREATER, ON UNPAID BALANCES. WE MAY ALSO CHARGE YOU FOR ANY COLLECTION AGENCY FEES THAT WE ARE CHARGED BY A COLLECTION AGENCY WE USE TO COLLECT FROM YOU IF IT IS PERMITTED BY THE LAW OF THE STATE WHERE YOU HAVE YOUR BILLING ADDRESS WHEN WE FIRST SEND YOUR ACCOUNT TO A COLLECTION AGENCY.

“Sleeping” a Device

Once each contract year you will have the opportunity to “sleep” (user requested service suspension of one or more of your iCones®) which allows you to eliminate active communication to and from the specified iCone® device for up to three (3) months. When you sleep the device it will not be able to provide current data to our servers and will not be visible on iConetraffic.com. During this period previously collected historical data, reports, graphs, and downloads that include data from this iCone® device will continue to be available. There is no charge for sleeping a device if you are on a monthly payment plan. Data Services fees are waived for the period the device is inactive. Devices will be automatically taken off Sleep mode and fees reinstituted at the end of 3 months if you do not request that the device be reinstated sooner.

For contracts paid monthly the use of Sleep mode will not extend the contract expiration date. If you sleep the iCone® device during a billing period, you will receive a pro-rata credit for the partial month.

If the year’s service is covered under a fully prepaid plan there is no discount for sleeping a device.

If your contract commitment has expired and you have chosen not to renew it and you are on our month-to-month plan you may not sleep your iCone® device. If you discontinue service you will be required to sign another minimum one year contract in order to reinstate your iCone® device.

Data Storage

iCone® will store data for five (5) years from the date of data generation on its servers. Under this contract, even after the expiration of your Data Services contract you will have the ability to login to the iConetraffic.com website and retrieve historical data and reports for 5 years from the date of data generation. Failure to pay all fees due under your Data Services contract or this agreement will void your future right to receive and access data and reports as described under this agreement.

Inoperable Devices

If for some reason your iCone® device becomes inoperable because of being destroyed, stolen, or technical malfunction (whether covered by warranty or not) you will have the right to suspend Service. If your device is repairable then Service will resume when the device is repaired and the contract period will be extended by the length of time measured in days that the Service was suspended. If your iCone® device is determined to need replacement under warranty, then the contract period will be extended by the length of time measured in days that the Service was suspended. If your iCone® device is destroyed, stolen, or otherwise requires replacement at your cost then the Data Services Contract may be transferred to another iCone® device not currently under contract. If You choose not to transfer the Data Services contract to another iCone® device the Data Services contract remains in full force and effect and fees remain payable by you until the end of the contract commitment.

Suspension of service as defined above for inoperable iCone® devices does not count as your once a year sleeping period. Your right to sleep the iCone® device for up to 3 months per contract year remains in force.

Data Definition and Rights

Your Plan provides you with the ability to define the user mode of each iCone® device. iCone® devices that are defined as in the construction mode are always labeled as visible to the public. This means that the location of the iCone® device and the average speed of passing traffic will be visible on the public version of the iConetraffic.com web site. If you define the user mode of the individual iCone® device as other than construction, then you may determine whether the iCone® device is visible to the public or private and thus not visible to the public on the public version of the web site.

As owner of the iCone® device You have the right to use the data generated by your devices.

If the project that you are working on is labeled “public” on iConetraffic.com we reserve the right to distribute the data as necessary. This includes to governmental entities, such as, but not limited to, a state department of transportation, toll authority, etc,. The website can also be programmed to send alerts via text message or email to other government entities (i.e. State Police, etc.) when certain conditions exist if requested by you or the government entity. Government entities have the right to internally display the data visually or audibly on their own websites such as 511 systems. Government entities do not have the right to resell, barter or provide free of charge the raw iCone® data to private third party users.

Service Limitations and Limitation of Liability

You acknowledge that the communications covered under this DATA SERVICES AGREEMENT are based on the performance of networks not owned or controlled by iCone® Products LLC. You therefore agree that iCone® Products LLC cannot be held liable for the failure of these communications networks to operate at any given time or for loss of data due to the failure of these networks to operate as expected.

iCone® Products LLC’s sole liability, and your sole remedy, for any claim arising in connection with the Services provided under this agreement will be a refund of the fees payable to iCone® in respect of the Services provided hereunder for the period of time that service was unavailable. Under no circumstances will iCone® Products LLC be liable to you for consequential or punitive damages.

Except as provided herein, the services are provided “as-is,” and to the maximum extent permitted by applicable law, iCone® disclaims all other representations and warranties, express or implied, written, oral or statutory, including without limitation warranties of merchantability, quality and fitness for a particular purpose, or noninfringement, regarding the service, and/or any other related materials. iCone® also expressly disclaims any representations or warranties that your use of the service will assist with, guarantee or otherwise ensure compliance with any applicable laws or regulations. iCone® does not warrant that the service is free from bugs, viruses, errors, or other program limitations. You acknowledge and agree that some states do not allow the exclusion of implied warranties, so the above exclusions may not apply to you. In that event, any implied warranties are limited in duration to thirty (30) days from the first date of service or the minimum time period stated in the applicable statute, whichever is less.

Arbitration

iCone® and you agree to arbitrate all disputes and claims between us. This clause shall survive the termination of this agreement including any class actions of which you may be a part. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;

References to “iCone® Products LLC,” “iCone®“, “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. 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.

Applicable Law

This Agreement is made under and shall be construed according to the laws of the State of New York. You hereby consent to the jurisdiction of the Supreme Court for the State of New York, County of Onondaga, and the United States District Court for the Northern District of New York in Syracuse, for any action to enforce this Agreement.

iCone®‘s failure to perform any obligation or satisfy any condition hereunder will be excused due to, and suspended for so long as, attributable to causes beyond its reasonable control, including without limitation ISP or other third-party service interruptions, earthquakes, floods, embargoes, fires, acts of war, insurrections, riots, labor disturbances and acts, omissions or delays by a governmental authority.