Cellular Internet Failover Service Agreement

This Cellular Internet Failover Service Agreement (“Agreement” or “Schedule”) is entered into by and between eSmith IT Consulting, Inc. (“Provider” or “eSmith IT”), a North Carolina corporation, and the client entity identified in the execution block below (“Client”). This Agreement supplements and forms an integral part of any Master Services Agreement (“MSA”), Service Level Agreement (“SLA”), or accepted Quote/Order/Statement of Work (“Quote”) executed between Provider and Client.

1. Backup & Business Continuity Purpose Only

1.1 Purpose: Provider’s Cellular Internet Failover Service (“Service”) is engineered exclusively as an automated secondary backup connection to ensure critical business continuity during temporary outages, degradation, or disruption of Client’s primary wireline broadband or fiber Internet Service Provider (“Primary ISP”).

1.2 Prohibited Usages: Client shall not utilize the Service as a primary broadband replacement, primary data transport, or general-purpose Internet connection. Routing sustained high-bandwidth, non-essential network traffic over the failover cellular circuit is strictly prohibited, including but not limited to:

• Unthrottled bulk offsite backups, disk image replication, or massive cloud data synchronization;
• Continuous high-definition (HD/4K) video streaming, surveillance video broadcasting, or entertainment media;
• Peer-to-peer (P2P) file sharing, torrenting, or cryptocurrency mining operations;
• Continuous public, guest, or unauthenticated Wi-Fi network traffic.

Provider reserves the right, via managed firewall/router policies, to implement automatic traffic-shaping, quality-of-service (QoS) filtering, or protocol blocking to suppress non-essential traffic during failover events.

2. Metered Data Allotments & Overage Billing

2.1 Metered Plan Structure: Client acknowledges that cellular data is provided via commercial carrier pools with strictly metered monthly allotments. The base Monthly Recurring Charge (“MRC”) set forth in the Client’s accepted Quote includes only the specific Included Data Allotment (e.g., 5 GB, 10 GB, or as specified on the Quote) per billing cycle.

2.2 Overage Invoicing: All cellular data consumed by Client in excess of the Included Data Allotment during any calendar billing cycle will be billed in arrears to Client at the per-Gigabyte (“per-GB”) or per-Megabyte (“per-MB”) Overage Rate set forth on the accepted Quote. Data usage is billed in whole 1 GB increments (rounded up).

2.3 Carrier Metering Governance: Data consumption measurements are determined conclusively by underlying wireless carrier records (AT&T, Verizon, T-Mobile, or aggregators). Overage charges shall apply regardless of the root cause of failover activation or traffic generation, including but not limited to:

• Prolonged or unannounced outages of Client’s Primary ISP;
• Client internal network loops, broadcast storms, or misconfigured LAN devices;
• Automated endpoint software updates or scheduled background cloud synchronizations;
• Malware infections, ransomware activity, or unauthorized access within Client’s local network;
• Accidental physical disconnection or power loss to the primary ISP modem.

3. Third-Party Carrier & SLA Disclaimers

3.1 Wireless Carrier Reliance: The Service operates utilizing commercial Tier-1 wireless telecommunication networks provided by third-party cellular carriers (including AT&T Mobility LLC, Verizon Communications Inc., and/or T-Mobile USA, Inc.). Provider does not own, operate, or maintain cellular broadcast towers, radio spectrum, or wireless backhaul infrastructure.

3.2 Disclaimer of Speeds, Latency, and Continuous Uptime: Cellular connectivity is inherently subject to radio frequency (“RF”) physics, geographic terrain, atmospheric conditions, building structural materials (e.g., steel framing, concrete, low-E glass), distance from cellular base stations, and localized tower maintenance. PROVIDER EXPRESSLY DISCLAIMS ANY GUARANTEE OF SPECIFIC DATA TRANSMISSION SPEEDS, LATENCY, PACKET LOSS, RF SIGNAL PENETRATION, OR UNINTERRUPTED AVAILABILITY.

3.3 Carrier Deprioritization & Congestion: Client understands that during periods of extreme commercial network congestion or public emergency events, Tier-1 cellular carriers may deprioritize, throttle, or manage data traffic at their sole discretion. Provider shall have no liability whatsoever for carrier-level network degradation or deprioritization.

4. Hardware, SIM Card Security & Unauthorized Use

4.1 Hardware Ownership & SIM Lock: All cellular modems, gateway routers, high-gain antennas, and Subscriber Identity Module (“SIM”) cards supplied by Provider remain the exclusive personal property of eSmith IT Consulting, Inc. (unless explicitly purchased outright by Client under a hardware bill of sale). SIM cards are cryptographically provisioned and locked strictly to the MAC address/IMEI of the Provider-authorized edge appliance.

4.2 Prohibited Modification: Client, its personnel, and subcontractors shall not:

• Remove, swap, or insert the SIM card into any unauthorized third-party device (including mobile phones, tablets, laptops, or personal hotspots);
• Attempt to modify IMEI settings, clone SIM credentials, or bypass Provider router security controls;
• Relocate the failover gateway hardware from the registered Service Address without prior written notice to and written approval from Provider.

4.3 Loss, Theft, or Tampering: In the event of theft, loss, or unauthorized tampering with the gateway or SIM card, Client remains strictly liable for all accrued data usage and carrier overage charges until formal written notice is delivered to Provider at [email protected] and Provider successfully executes an administrative carrier-level line suspension.

5. Limitation of Liability & Emergency Services Exclusion

5.1 Consequential Damages Waiver: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE NORTH CAROLINA LAW, IN NO EVENT SHALL PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AFFILIATES BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS OPPORTUNITIES, DATA CORRUPTION, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING TO THE FAILURE, DELAY, OR UNAVAILABILITY OF PRIMARY OR SECONDARY CELLULAR INTERNET CONNECTIONS.

5.2 Emergency E911 Calling Exclusion: CELLULAR FAILOVER DATA CONNECTIONS ARE PURE IP DATA CIRCUITS AND DO NOT CONSTITUTE A DIRECT TELEPHONE EXCHANGE SERVICE OR DEDICATED E911 EMERGENCY WIRELINE LINK. Voice over IP (VoIP) calls transmitted over cellular failover may experience packet loss, jitter, or routing limitations during severe congestion. Client must maintain independent, reliable emergency calling pathways (such as registered E911 desk phones or employee cellular handsets).

5.3 Aggregate Liability Cap: PROVIDER’S TOTAL AGGREGATE FINANCIAL LIABILITY FOR ANY AND ALL CLAIMS OF ANY NATURE ARISING OUT OF THIS CELLULAR FAILOVER AGREEMENT SHALL BE STRICTLY LIMITED TO THE TOTAL FEES ACTUALLY PAID BY CLIENT TO PROVIDER FOR THE CELLULAR FAILOVER SERVICE DURING THE THREE (3) BILLING CYCLES IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

6. Term, Invoicing & Governing Law

6.1 Term: The initial term of this Service Schedule shall correspond to the term specified on the accepted Quote or Master Services Agreement, and shall automatically renew on a month-to-month basis unless either party provides thirty (30) days prior written notice of cancellation.

6.2 Governing Law: This Agreement shall be construed and governed in accordance with the laws of the State of North Carolina, without regard to conflicts of law principles. Any legal proceeding arising out of this Agreement shall be brought exclusively in the state or federal courts located in Mecklenburg County, North Carolina.