Terms and Conditions

1. ACCEPTANCE OF THE TERMS OF USE.

Use of the Website is offered and available to users who are 18 years of age or older or the age of majority in their jurisdiction of residence, and reside in the United States or any of its territories or possessions. By accessing and using the Website, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website.

These Terms of Use are entered into by and between you and Locus Telecommunications, LLC d/b/a H2O Wireless (“Locus,” “Company”, “we”, “our” or “us”). The terms “you,” “your,” and “user” refer to a distributor who has a written and signed distribution agreement with Locus Telecommunications, LLC (“Distributor”), or a retailer who is authorized by a Distributor with a signed distribution agreement with Locus to be a reseller of H2O Wireless products and certain third party services and/or products to end consumers (“Retailer”), as applicable, using a Company web site for Distributor or Retailer activities.

These Terms of Use, together with any documents that they expressly incorporate by reference (collectively, these “Terms”), govern your access to and use of www.h2odirectnow.com, including, but not limited to, any content, functionality and services offered on or through the Website, including, but not limited to, third party websites or services.

These Terms do not modify or supersede and in no way override the terms and conditions of any written distributor agreement between Locus and a Distributor (“Distributor Agreement”). IN CASE OF A CONFLICT BETWEEN THE TERMS AND CONDITIONS OF A DISTRIBUTOR AGREEMENT AND THESE TERMS, THESE TERMS WILL CONTROL, BUT ONLY WITH RESPECT TO DISTRIBUTOR’S ACCESS AND USE OF THE WEBSITE AND/OR DISTRIBUTOR’S INTERACTIONS WITH RETAILER(S).

2. CHANGES TO THE TERMS.

We may, in our sole discretion, at any time and without prior notice, revise and/or update these Terms and/or to impose new terms and conditions with respect to access to or use of the Website. Such revisions and additions shall be effective immediately upon notice thereof, which may be given by any means, including, but not limited to, posting the revised or additional terms and conditions on the Website. The date of the last revision of the Terms will appear at the top of these Terms. You are responsible for reviewing the Website periodically for any modification to these Terms. You agree that you shall be deemed to be apprised of and bound by any revisions or additions by Company to the Terms. Your continued use of the Website following the posting of revised Terms means that you accept and agree to the changes, whether or not you actually reviewed them. You are expected to check this page each time you access the Website so you are aware of any changes, as they are binding on you.

No modification to these Terms by any party other than Company shall be valid or enforceable against Company unless expressly agreed to by Company in writing signed by a duly authorized officer of Company.

3. UNAVAILABILITY; DISCONTINUED OPERATION OF THE WEBSITE.

The Website may, from time to time, be unavailable, including, but not limited to, for system maintenance and upgrades.

Company shall have the right, in its sole discretion, without notice and at any time and for any reason to discontinue operation of the Website, or any portion thereof, or any goods or services offered through, if any, or advertised on the Website, or to terminate yours or any user or individual's access to or use of the Website. Company shall also have the right to terminate your access to the Website at any time, in its sole discretion, for any or no reason and in such case you will not be able to access certain features of the Website. The restrictions imposed on you, the disclaimers, indemnities and limitations of liability set forth in these Terms shall survive any termination of the Website or your use thereof.

4. TRADEMARKS.

The Company name, the Company logo, and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on the Website are the trademarks of their respective owners.

5. SITE CONTENT; TRADEMARK AND COPYRIGHT.

The text, images, photographs, graphics, logos, illustrations, descriptions, data and other material provided on the Website, as well as the selection, assembly and arrangement thereof, are referred to collectively as the “Content.” The Content may contain errors, omissions, or typographical errors or may be out of date. Company may change, delete, or update any Content at any time and without prior notice. The Content is provided for informational and promotional purposes only and is not binding on Company in any way except to the extent it is expressly provided to be so. Unless otherwise noted, all Content is protected by copyrights, trademarks, service marks, and other proprietary rights that are owned by Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. You may not use, reproduce, copy, modify, transmit, display, publish, sell, license, publicly perform, distribute, or commercially exploit any of the Content. You may not frame or utilize framing techniques to enclose any trademark, logo or other proprietary information (including images, text, page layout or form) without the express, written consent of Company. Any use of the Content, except as specifically permitted in these Terms or as otherwise expressly permitted in the Content or in a writing signed by an authorized representative of Company is strictly prohibited.

If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Website in breach of the Terms, your right to use the Website will cease immediately and you must destroy any and all copies of the materials you have made. No right, title or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Website not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark and other laws.

6. THIRD PARTY SITES.

Links contained on the Websites to other websites operated by third parties (“Linked Sites”), including any partners or vendors, do not constitute sponsorship, endorsement, or approval by Company of the content, policies, or practices of such Linked Sites. Linked Sites are not operated or controlled by Company, and Company is not responsible for the availability, content, policies, or practices of Linked Sites, including without limitation privacy policies, practices, transactions, agreements, any sale of goods and/or services, and/or other form of transaction, including, but not limited to, terms and conditions, payment processing, return of goods, communication by a third party to you, or dispute arising from your use of a Linked Site (“Third Party Transactions”). Links to Linked Sites are provided for your convenience only, and you access them at your own risk. Once you leave the Website and go to any Linked Site(s), any Third Party Transactions are between you and the operator of or other responsible party for the Linked Site(s) and Company is not a party to nor a third party beneficiary of any Third Party Transactions.

7. REGISTRATION; INFORMATION.

To access the Website or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Website that all the information that you provide on the Website is correct, current and complete. You agree that all information that you provide to register with the Website or otherwise, including, but not limited to, through the use of any interactive features on the Website, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential and you are responsible for maintaining the confidentiality of account information, including your password, and for all activity that occurs under your account. You will not disclose your password to unauthorized individuals. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Website or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security, and agree to provide us with a written report detailing the unauthorized use or access of your user name, password, or account. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

You may not use anyone else’s password to access any account or to make any unauthorized changes to the account holder’s account; any changes to the account holder’s account must be done by the account holder. You may not attempt to gain unauthorized access to the Website, and if you attempt to do so, or assist others in making such attempts, then Company may terminate your online account. You are solely responsible for changing your password from time to time. A Website may, but Company is not required to, prompt you to change your password periodically, and your access to the site may be interrupted if you fail to do so. By accessing any part of the Website that is password protected you are agreeing you are the proper and authorized individual/user of the username and password being used to obtain access. Unauthorized individuals may be subject to prosecution.

We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.

In the event that your account is improperly accessed or any changes are made to your account by someone other than you, you agree to comply with Locus to investigate the improper access and provide Locus will all necessary documentation, including the provision of a written report detailing the improper access, in support of Locus’ efforts to investigate the improper access.

For Distributor’s Only – You shall not, as Distributor, improperly use the password of any Retailer to access that Retailer’s account for any purpose not approved by the Retailer. Any such access to a Retailer’s account shall be considered a breach in accordance with these Terms and any Distributor Agreement that you are a party to. It shall be an express breach of these Terms for you to make any changes to a Retailer’s account for any purpose.

8. PROHIBITED USES.

You may use the Website only for lawful purposes and in accordance with these Terms. You agree not to use the Website:

• In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the United States or other countries).
• For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
• To send, knowingly receive, upload, download, use or re-use any material which does not comply with these Terms.
• To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.
• To impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).
• To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm the Company or users of the Website or expose them to liability.

Additionally, you agree not to:

• Use the Website in any manner that could disable, overburden, damage, or impair the Website or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
• Use any robot, spider or other automatic device, process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
• Use any manual process to monitor or copy any of the material on the Website or for any other unauthorized purpose without our prior written consent.
• Use any device, software or routine that interferes with the proper working of the Website.
• Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
• Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer or database connected to the Website.
• Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
• Otherwise attempt to interfere with the proper working of the Website.

9. RELIANCE ON INFORMATION POSTED.

The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance that you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.

The Website may include content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

10. CHANGES TO WEBSITE.

We may update the content on the Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.

11. GEOGRAPHIC RESTRICTIONS.

We provide the Website for use only by persons located in the United States, its territories, or possessions. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States or any of its territories or possessions. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

12. DISCLAIMER OF WARRANTY.

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE, LINKED WEBSITE, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR LINKED WEBSITE, OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED THEREIN, OR ON THE WEBSITE LINKED TO IT.

COMPANY SHALL NOT BE LIABLE FOR ANY NONPERFORMANCE OR DELAY IN PERFORMANCE CAUSED BY ANY ACT BEYOND THEIR REASONABLE CONTROL.

YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, A LINKED WEBSITE, IS AT YOUR OWN RISK. THE WEBSITE. LINKED WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR LINKED WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, OR ACCURACY. THE “AS IS” CONDITION OF THE CONTENT, INFORMATION AND MATERIALS PROVIDED ON THIS SITE OR ANY LINKED SITE IS EXPRESSLY MADE A CONDITION OF ANY TRANSACTION ARISING THROUGH OR AS A RESULT OF THE WEBSITE. NEITHER COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, TIMELINESS, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE OR LINKED WEBSITE, ITS CONTENT, INFORMATION, AND/OR MATERIALS. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE OR LINKED WEBSITE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR LINKED WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR WEBSITE OR THE SERVER OR LINKED WEBSITES THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICES OR LINKED WEBSITES OR ITEMS OBTAINED THROUGH THE WEBSITE OR LINKED WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

13. LIMITATION OF LIABILITY.

IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, THE WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

14. INDEMNIFICATION

YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS COMPANY, ITS AFFILIATES, LICENSORS, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE AFFILIATES AND RELATED ENTITIES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM AND AGAINST ALL CLAIMS, LOSSES, DAMAGES, AWARDS, EXPENSES, FEES, LIABILITIES, AND COSTS (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES AND COURT COSTS), ARISING OUT OF OR RELATING TO YOUR BREACH OF THESE TERMS OR YOUR ACCESS TO OR USE OF THE WEBSITE AND/OR ANY PRODUCTS OR SERVICE PROVIDED TO YOU ARISING OUT OF OR RELATING TO YOUR USE OF THE WEBSITE OR YOUR USE OF ANY INFORMATION OBTAINED FROM THE WEBSITE. THE FOREGOING INDEMNIFICATION OBLIGATION SHALL SURVIVE TERMINATION OF THESE TERMS AND THE WEBSITE AND/OR ANY PRODUCT OR SERVICE PROVIDED TO YOU ARISING OUT OF OR RELATING TO YOUR USE OF THE WEBSITE.

15. ARBITRATION; WAIVER OF TRIAL BY JURY

Any controversy, claim or dispute arising out of or relating to the Agreement, or any breach, termination or invalidity thereof, shall be settled by binding arbitration at the American Arbitration Association in accordance with its then applicable rules (“Rules”), and judgment upon any award rendered may be entered in any court having jurisdiction. In accordance with such Rules, each party shall designate one arbitrator, and these two arbitrators shall designate a third arbitrator. The place of arbitration shall be Newark, NJ, USA.

In the event arbitration or litigation arises out of this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party its reasonable attorneys’ fees and costs.

EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE, ACTION, PROCEEDING, OR LITIGATION ARISING OUT OF, IN CONNECTION WITH, OR RELATED TO, THESE TERMS OR YOUR USE OF THIS SITE. EACH PARTY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED OR OTHERWISE INDICATED THAT SUCH PARTY WOULD NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT OF A JURY TRIAL IN THE EVENT OF ANY DISPUTE, ACTION, PROCEEDING, OR LITIGATION. EACH OF THE PARTIES AGREES THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR ENTERING INTO THESE TERMS.

16. GOVERNING LAW AND JURISDICTION.

All matters relating to the Website and these Terms and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New Jersey, without regard to application of conflicts of laws principles thereof. Subject to Section 11, Arbitration; Waiver of Trial by Jury, any legal suit, action or proceeding arising out of, or related to, these Terms or the Website shall be instituted exclusively in the shall be litigated before the U.S. District Court for the District of New Jersey, or, as to those lawsuits with which the federal court lacks subject matter jurisdiction, before a court located in Bergen County, New Jersey. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

17. LIMITATION ON TIME TO FILE CLAIMS.

ANY CAUSE OF ACTION OR CLAIM THAT YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

18. WAIVER AND SEVERABILITY.

No waiver by the Company of any term or condition set forth in these Terms 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 Company to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.

If any provision of these Terms 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 will continue in full force and effect.

19. HEADINGS.

The section titles in these Terms are for convenience only and have no legal or contractual effect.

20. ENTIRE AGREEMENT.

Except as otherwise identified herein, these Terms constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral terms and conditions of use between the parties with respect to such subject matter.

21. YOUR COMMENTS AND CONCERNS.

The Website is operated by Locus Telecommunications, LLC, which is located at 500 Frank W. Burr Blvd. #39 Suite 580, Teaneck, NJ 07666.

1. ACCEPTANCE.

BY ACCESSING AND USING THE WEBSITE YOU ALSO AGREE TO THE USE OF ELECTRONIC COMMUNICATIONS IN ORDER TO ENTER INTO CONTRACTS, AND YOU WAIVE ANY RIGHTS OR REQUIREMENTS UNDER APPLICABLE LAWS OR REGULATIONS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE, TO THE EXTENT PERMITTED UNDER APPLICABLE MANDATORY LAW.

By accessing and using the Website, you certify that you are 18 years of age or older or the age of majority in their jurisdiction of residence, and reside in the United States or any of its territories or possessions, and you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website.

This Retailer Purchase Agreement is entered into by and between you and Locus Telecommunications, LLC d/b/a H2O Wireless (“Locus,” “Company”, “we”, “our” or “us”). The terms “you,” “your,” and “user” refer to a retailer who is authorized by a Distributor as a reseller of H2O Wireless and certain third party services and/or products to end consumers (“Retailer,” “you,” or “your”) using the Website for Retailer activities. “Distributor” means a distributor who has a written and signed distribution agreement with Locus Telecommunications, LLC.

This Retailer Purchase Agreement, together with any documents they expressly incorporated by reference (collectively, the “Purchase Agreement”), govern your access to or use of the Website, including, but not limited to, any content, functionality and services offered on or through the Website or orders placed and/or Products purchased by you on the Website.

2. PRODUCTS.

The Website is available only for purchases of Products within the United States, its territories, or possessions, and by a Retailer.

“Product” or “Products,” as grammatically appropriate, means, collectively, products and/or services offered for sale by H2O Wireless or by a third party on the Website or on a Linked Site (as that term is defined below).

3. ORDERS.

All orders placed by you for Products from the Website are subject to written acceptance by us. All orders will be confirmed by us, in writing, by e-mail. Products displayed on the Website may be out-of-stock or discontinued. Company reserves the right to refuse any order or returns of any Products for any reason, including, but not limited to, when you have carried out an excessive number of returns beginning from the date of the first return. Any right to refusal of any orders is done at our sole discretion.

4. PRICE.

All prices are in US Dollars. Prices may change without notice from time to time. The price of any Product will be as quoted on the Website at the then current time, except in the case of obvious error. We will not accept any offers for Products other than at the then current price.

5. PAYMENT.

Retailer shall pay Company for Products in accordance with the terms and conditions set forth in this Purchase Agreement. Payment for all Products is processed securely by various third party payment gateway services. Within twenty-four (24) hours of notice to Retailer of nonpayment, Locus, in its sole option and discretion, may immediately suspend service for and/or deactivate Products that have been delivered to Retailer but not paid for by Retailer.

1. Payment details. Retailer agrees to pay Locus via ACH on a weekly basis as invoiced by Locus for Products purchased by Retailer.
2. Automated Clearing House Payments (ACH). Retailer appoints Locus to accept payment(s) on behalf of Retailer for purchases of and transactions related to Products purchased by Retailer from the Website (“Transactions”) and acknowledges and agrees to the following terms and conditions:
1. Retailer grants authority to Locus to process Transactions and be responsible for payment to Locus for such Transactions.
2. Designated Accounts. Retailer shall complete and return to Locus any ACH Authorization Forms that may be requested by Locus, which forms shall be incorporated herein by this reference. The ACH Authorization Form shall be completed and uploaded along with a VOID check.
3. Locus and Retailer will utilize Automated Clearing House or Fedwire settlement procedures (collectively, “ACH Procedures”) for payments of amounts owed by the parties and agree to do so in accordance with the following:
1. Bank accounts identified by Retailer for the purposes of ACH (“Designated Accounts”) will be used for the Transactions, and which Designated Accounts will be debited and credited for amounts determined in accordance with the Purchase Agreement.
2. Retailer hereby authorizes Locus or its designee to initiate credit entries, debit entries and adjustments to the Designated Accounts by ACH Procedures and further authorizes Retailer’s depository financial institution identified below (“Depository”) to debit, credit, withdraw or transfer funds from the Designated Accounts to Locus in accordance with any such debit entry, credit entry or adjustment.
3. Retailer hereby authorizes Locus to reverse any credit or debit entry made to the Designated Accounts, whether such reversal is made due to an error, or any other reason.
4. Retailer hereby authorizes Depository to grant Locus access to any and all information or records regarding the Designated Accounts.
5. Retailer hereby authorizes Locus to direct Depository to hold funds in the Designated Accounts or block or restrict Retailer’s or others’ access to funds in the Designated Accounts in an amount which Locus, in its sole judgment, deems sufficient to fully protect Locus’ rights under this Purchase Agreement. Retailer shall direct Depository to immediately comply with any such direction from Locus.
6. Retailer agrees that Locus and Depository may act pursuant to any provision of this Purchase Agreement without prior notice to Retailer.
7. Retailer acknowledges and agrees that in order for Retailer and Locus to use ACH Procedures under this Purchase Agreement, Depository must be a member of the Federal Reserve System and of the National Automated Clearing House Association, and a blank, voided check for each of the Designated Accounts must be submitted by Retailer to Locus with this Amendment.
8. Retailer agrees to notify Locus of any change of its Depository or Designated Accounts in writing at least twenty (20) days prior to the effective date of such change.
9. Retailer and Locus hereby agree that the parties shall use commercially reasonable efforts to enter into any agreement or other document (including instruction letters) required by the Depository to effectuate the intent of this Section (“Depository Purchase Agreement”). To the extent that such Depository Purchase Agreement is inconsistent with this Purchase Agreement regarding Transactions hereunder, the terms of the this Purchase Agreement shall govern; provided, however, that the Depository Purchase Agreement shall govern regarding ACH Procedures, including any Federal or State law requirements where such law supersedes this Purchase Agreement.
10. Retailer shall keep sufficient funds on deposit in the Designated Accounts to cover the full amount of any deductions to be made by Locus. After termination of this Purchase Agreement, Retailer shall maintain deposits in the Designated Accounts necessary to cover any amounts owed from Retailer and/or retailers to Locus including any amounts that Retailer disputes in good faith and shall keep such amounts in the Designated Accounts until all such dispute(s) are resolved.
11. For each ACH payment that fails or is rejected, including, but not limited to insufficient funds, account closed, or unable to locate account, or due to any action or inaction of the Retailer, Locus shall have the right to charge a $25 fee (the “Returned ACH Fee”) as set by Locus in its sole discretion or the highest fee permitted under applicable state law. In addition, until the full amount of any outstanding Returned ACH Fee is paid, Locus shall have the right to cease processing any Transactions initiated by the Retailer.

6. TERM; TERMINATION; SECURITY INTEREST.

1. This Purchase Agreement will be effective upon the placement of an order by Retailer on the Website (“Effective Date”) and will continue for one (1) year and shall automatically renew on the anniversary of the Effective Date for an additional one (1) year term(s) unless terminated earlier, as hereafter provided.
2. Locus may terminate this Purchase Agreement at any time and for any reason, with or without notice to Retailer and, except with respect to any Products for which Locus has received full payment from Retailer, Locus has the right to immediately deactivate all Products delivered to Retailer under this Purchase Agreement.

Furthermore, upon termination, all distribution rights granted to Retailer under this Purchase Agreement shall terminate except for that Retailer shall have three (3) months to sell-off any remaining Products in its inventory for which Locus has received full payment (whether in Retailer’s possession or stored on its behalf at the printing company’s warehouse); and Locus shall continue providing telecommunications services for all Products for which Locus has received full payment for Products sold by Retailer during the aforementioned sell-off period.
3. Retailer further agrees to execute the documents necessary for Company to perfect its Security Interest. At its option, Company may file this Purchase Agreement or a copy with the appropriate state authorities as a financing statement to perfect its Security Interest. A financing statement may be filed without Retailer’s signature on the basis of this security agreement where allowed by law. The unpaid price will, at Company's option, be immediately due and payable if the Product is damaged or destroyed, or if Company resells, removes, or conceals the Product, or unreasonably refuses to accept delivery of the Product.

7. TAXES.

Retailer will be responsible for its tax liabilities related to the sale and/or distribution of Products. Neither party will be liable for or pay any taxes: (i) imposed on or with respect to the other party's net or gross income, capital or franchise taxes; and/or (ii) in the nature of employee withholding taxes, FICA, unemployment insurance or other taxes relating to the other party’s personnel performing services hereunder. Any claims asserted against either Party for the other Party’s tax liabilities, as set forth herein, shall be subject to the indemnification provision set forth in this Agreement.

Retailer shall be responsible for the collection and remittance to the appropriate federal or state government(s) or governmental agencies of any and all taxes and fees dues and owing by customers. Under no circumstance shall Locus be responsible for the collection and remittance of any taxes and fees that are due and owing from Retailer’s customers, and Locus shall be entitled to indemnification from Retailer for any claims made by any entity, including any and all government and/or governmental agency, to the contrary.

8. RETURNS.

All sales are final; no returns. Retailer must notify Locus if duplicate transactions occur and/or a transaction fails but charges still occurred; Locus, in its sole discretion, may apply credit for the foregoing transactions.

9. SHIPMENT AND DELIVERY.

Products are shipped/delivered electronically through the APIs.

10. THIRD PARTY SITES.

Links contained on the Websites to other websites operated by third parties (“Linked Site”), including any partners or vendors, do not constitute sponsorship, endorsement, or approval by Company of the content, policies, or practices of such Linked Sites. Linked Sites are not operated or controlled by Company, and Company is not responsible for the availability, content, policies, or practices of Linked Sites, including without limitation privacy policies, practices, transactions, agreements, any sale of goods and/or services, and/or other form of transaction, including, but not limited to, terms and conditions, payment processing, return of goods, communication by a third party to you, or dispute arising from your use of a Linked Site (“Third Party Transactions”). Links to Linked Sites are provided for your convenience only, and you access them at your own risk. Once you leave the Website and go to a Linked Site, any Third Party Transactions are between you and the operator of or other responsible party for the Linked Site and you acknowledge and agree that Company is not a party to nor a third party beneficiary of any Third Party Transactions.

11. CHANGES TO THE TERMS.

We may, in our sole discretion, at any time and without prior notice, revise and/or update the terms and conditions of this Purchase Agreement and/or to impose new terms and conditions with respect to access to or use of the Website or the purchase or Products. Such revisions and additions shall be effective immediately upon notice thereof, which may be given by any means, including but not limited to posting the revised or additional terms and conditions on the Website. The date of the last revision of this Purchase Agreement will appear at the top of this Purchase Agreement. You are responsible for reviewing the Website periodically for any modification to this Purchase Agreement. You agree that you shall be deemed to be apprised of and bound by any revisions or additions by Company to this Purchase Agreement. Your continued use of the Website following the posting of revised Purchase Agreement means that you accept and agree to the changes, whether or not you actually reviewed them. You are expected to check this page each time you access the Website so you are aware of any changes, as they are binding on you.

No modification to this Purchase Agreement by any party other than Company shall be valid or enforceable against Company unless expressly agreed to by Company in writing signed by a duly authorized officer of Company.

12. TRADEMARKS.

1. Locus owns and will continue to exclusively own all right, title and interest in and to Locus’ Intellectual Property and/or other information provided by Locus to Retailer pursuant to or in connection with this Purchase Agreement.
2. Retailer acknowledges and agrees that all proprietary property, trademarks, service marks, trade names, logos, symbol, word, phrase, slogans, container designs, other intellectual property, and/or any combination of the foregoing appearing on or used by Locus in connection with any of the products or services and any other trade and service marks owned or licensed by Locus (collectively the “Intellectual Property”) are exclusively owned by or licensed to Locus. The benefit of any use of any Intellectual Property by Retailer pursuant hereto shall inure to the benefit of Locus or the third party that owns the involved Intellectual Property (“third party owner”). If, as a result of Retailer’s use, Retailer is deemed, by operation of law or otherwise, to have acquired any title or other rights to any Intellectual Property or any of their components, Retailer shall forthwith assign the same to Locus or the third party owner without consideration.
3. Retailer shall not at any time do, or knowingly suffer to be done, any act or thing which will impair the ownership and rights of Locus and/or any third party owner in and to any Intellectual Property. Retailer shall immediately report to Locus in writing any infringement that becomes known to Retailer and will fully cooperate with Locus and/or the third party owner thereof in connection with the prosecution of any infringement action or other proceeding for the protection of such Intellectual Property.
4. Retailer IP License. Subject to the terms and conditions herein, Locus hereby grants to Retailer a royalty free, revocable, non-exclusive, and non-transferable license for Retailer to use the Intellectual Property for the purpose of Retailers advertising and/or resale of the Products to end consumers (“Retailer IP License”). The Retailer IP License shall continue until the right of the Retailer to resell Products is terminated or expires; provided, however, that Locus may revoke the Retailer IP License at any time for any reason.
5. Upon termination of this Purchase Agreement, Retailer will cease use of Locus’ Intellectual Property for advertising and promotional purposes immediately. All outstanding advertising and promotional materials utilizing said trademarks must be destroyed by Retailer within five (5) days of the effective date of termination.
6. The provisions of this Section shall survive the expiration or any termination of this Purchase Agreement; except that the Retailer IP License shall expire or terminate as identified herein.

13. ADVERTISING.

Retailer agrees to submit to Locus for review and pre-approval, as granted in Locus’ sole discretion, in each occurrence of all advertisements, business cards, signage, and/or any other use of Locus’ names and/or Intellectual Property. Locus reserves the right to withhold consent of any advertising for any reason, or no reason at all, at its sole discretion.

14. CONFIDENTIAL INFORMATION.

1. "Confidential Information" means any competitively sensitive or secret business, marketing, or technical information of Locus, including the terms of this Purchase Agreement, including, but not limited to Product pricing.
2. Confidential Information shall not include information which is (1) generally known to the public or readily ascertainable from public sources (other than as a result of a breach of confidentiality hereunder), (2) independently developed by Retailer without reference to or reliance on any Confidential Information of Locus, as demonstrated by written records of Retailer, or (3) obtained from an independent third party who created or acquired such information without reference to or reliance on Confidential Information.
3. Confidentiality. Retailer agrees to maintain the complete confidentiality of the Confidential Information of Locus. Retailer shall disclose or supply the Confidential Information of the other to any non-employee third party without the prior written approval of Locus. Retailer may disclose portions of the Confidential Information of the other to governmental regulatory authorities if such disclosure is required by applicable laws, provided Retailer notifies Locus of the applicable legal requirements before such disclosure occurs and assists Locus to obtain such protection as may be available to preserve the confidentiality of such information.
4. Disposal. Prior to disposal of any media or materials that contain any part of the Confidential Information of the other, Retailer shall obliterate or otherwise destroy all Confidential Information, for example, by erasing, incinerating, or shredding such materials.
5. The provisions of this Section shall survive the expiration or any termination of this Agreement.

15. WARRANTIES.

1. LOCUS MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE PRODUCTS OFFERED BY LOCUS, INCLUDING NETWORK ISSUES, AND HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. UNDER NO CIRCUMSTANCES SHALL LOCUS BE LIABLE TO THE RETAILER OR ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION, CUSTOMERS AND/OR SUBSCRIBERS, FOR ANY LOSS, INJURY OR DAMAGE, OF WHATEVER KIND OR NATURE, RESULTING FROM OR ARISING OUT OF ANY MISTAKES, ERRORS, OMISSIONS, DELAYS OR INTERRUPTIONS IN THE RECEIPT, TRANSMISSION OR STORAGE OF ANY MESSAGES, SIGNALS OR INFORMATION ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR USE OF LOCUS’ PRODUCTS.
2. Neither party shall make any warranty commitment, whether written or oral, on its own behalf or on behalf of the other party.
3. The provisions of this Section shall survive the expiration or any termination of this Agreement.

16. LIMITATION OF LIABILITY.

1. EXCEPT TO THE EXTENT REQUIRED BY LAW OR AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE PARTIES AGREE THAT LOCUS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, OR SPECIAL DAMAGES, LOST PROFITS, LOST SAVINGS OR ANY OTHER FORM OF CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION TO RETAILER OR ANY OTHER PERSON INCLUDING, WITHOUT LIMITATION, CUSTOMERS OR SUBSCRIBERS, EVEN IF RETAILER HAS BEEN ADVISED OF OR COULD HAVE FORESEEN THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF LOCUS UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LIABILITY FOR DAMAGES RESULTING FROM NEGLIGENCE AND/OR WRONGFUL CONDUCT, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY RETAILER TO LOCUS HEREUNDER.
2. The provisions of this Section shall survive the expiration or any termination of this Agreement.

17. INDEMNIFICATION.

1. Retailer shall indemnify, defend, and hold harmless Locus (including its affiliates, and its and their respective officers, directors, employees, agents, successors and permitted assigns thereof), its directors, officers, employees, agents, and representatives from and against any and all Losses (as hereinafter defined) arising out of or resulting from any third party claim, action, lawsuit, or other proceeding (collectively, a “Third Party Claim”) to the extent such Losses: (1) result from or are caused by: (i) the injury of or damage to any person or real or tangible personal property to the extent such injury or damage is proximately caused by the gross negligence or misconduct of Retailer or Retailer’s employees, vendors, subcontractors, or agents; (ii) Retailer’s breach of its obligations set forth in this Agreement; (iii) Retailer’s willful misconduct and/or intentional or grossly negligent actions or omissions hereunder; and/or (iv) any Losses from any Intellectual Property infringement and (2) are not the result of the gross negligence or willful misconduct of, or breach of this Agreement by, Locus.
2. For purposes of this Agreement, “Losses” shall mean and include any and all losses, liabilities, damages, claims, costs (including, but not limited to, cost of cover), penalties, expenses, and fees (including, but not limited to, reasonable attorneys’ fees, disbursements of counsel, and costs of investigation, litigation, third party discovery, and settlement, incurred in any action or proceeding between Locus and Retailer or between either party and any third party). Locus shall provide Retailer with prompt written notice of any such claims, and Retailer shall have the right to control and direct the investigation, defense, and settlement of each such claim. Locus shall reasonably cooperate with Retailer in connection with the foregoing. Locus may, at its sole option and at its own expense, participate in the claim or action with its own separate legal counsel, in which event the cost of such participation (including the cost of such separate legal counsel) shall be borne by Locus. The exercise by Locus of its option to participate in the claim or action and/or to select its own separate legal counsel shall in no way limit or modify Retailer’s obligations set forth above in this Section.
3. The provisions of this Section shall survive the expiration or any termination of this Agreement.

18. FORCE MAJEURE.

Neither party shall be liable to the other for any failure of performance hereunder which is due to a so-called ‘act of God’, accident, fire, lockout, strike or other labor dispute, riot or civil commotion, failure of technical or electrical facilities not within the parties’ reasonable control, act of public enemy, enactment, rule, order or act of government (whether national or local), or other act or event of a similar or dissimilar nature beyond the reasonable control of either party, with any such act or event being deemed a force majeure event (“Force Majeure Event”). Notwithstanding the foregoing, no obligation to make a payment required under this Purchase Agreement is excused as a result of a Force Majeure Event.

19. ARBITRATION; WAIVER OF TRIAL BY JURY.

Any controversy, claim or dispute arising out of or relating to the Agreement, or any breach, termination or invalidity thereof, shall be settled by binding arbitration at the American Arbitration Association in accordance with its then applicable rules (“Rules”), and judgment upon any award rendered may be entered in any court having jurisdiction. In accordance with such Rules, each party shall designate one arbitrator, and these two arbitrators shall designate a third arbitrator. The place of arbitration shall be Newark, NJ, USA.

In the event arbitration or litigation arises out of this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party its reasonable attorneys’ fees and costs.

EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE, ACTION, PROCEEDING, OR LITIGATION ARISING OUT OF, IN CONNECTION WITH, OR RELATED TO, THIS PURCHASE AGREEMENT OR YOUR USE OF THIS SITE. EACH PARTY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED OR OTHERWISE INDICATED THAT SUCH PARTY WOULD NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT OF A JURY TRIAL IN THE EVENT OF ANY DISPUTE, ACTION, PROCEEDING, OR LITIGATION. EACH OF THE PARTIES AGREES THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR ENTERING INTO THIS PURCHASE AGREEMENT.

20. GOVERNING LAW AND JURISDICTION.

All matters relating to the Website and this Purchase Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New Jersey, without regard to application of conflicts of laws principles thereof. Subject to Section 19, Arbitration; Waiver of Trial by Jury, any legal suit, action or proceeding arising out of, or related to, this Purchase Agreement or the Website shall be instituted exclusively in the shall be litigated before the U.S. District Court for the District of New Jersey, or, as to those lawsuits with which the federal court lacks subject matter jurisdiction, before a court located in Bergen County, New Jersey. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

21. LIMITATION ON TIME TO FILE CLAIMS.

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS PURCHASE AGREEMENT OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

22. WAIVER AND SEVERABILITY.

No waiver by the Company of any term or condition set forth in this Purchase Agreement 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 Company to assert a right or provision under this Purchase Agreement shall not constitute a waiver of such right or provision.

If any provision of this Purchase Agreement 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 Purchase Agreement will continue in full force and effect.

23. HEADINGS.

The section titles in this Purchase Agreement are for convenience only and have no legal or contractual effect.

24. ENTIRE AGREEMENT.

Except as otherwise identified herein, this Purchase Agreement constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral terms and conditions of use between the parties with respect to such subject matter.

25. CREDIT CARD FEATURE.

You can choose if you would like your Retailer (an entity authorized by you to resell Locus Products) to have the ability to prepay for Locus Products with a credit card via the H2Odirect website. In the event that a charge for a Locus Product made via credit card by the Retailer is reversed by the credit card issuer (“Chargeback”), you will be responsible to pay the amount of such Chargeback to Locus.

26. CREDIT CARD PAYMENTS.

Using a payment method other than ACH on the H2Odirectnow platform incurs a 3% convenience fee. To avoid this fee, you can make your payment using ACH. For example, if you wish to purchase $100 of Locus Products with a credit card, your total charge would be $100 of Locus Product + $3 convenience fee (3% x $100) = $103 total. You may use a maximum of five different credit cards (i.e. unique credit card numbers) per year (365 days) from the date of the first transaction with a credit card. A maximum of 3 credit card transactions per week (Monday 0:00:00AM ET through Sunday 11:59:59PM ET) are permitted.

27. LOW PERFORMANCE/FRAUDULENT CONDUCT RETAILER TERMINATION POLICY.

Locus reserves the right, at its sole discretion, to terminate any retailer who activates ten (10) or more customers in any given month for two (2) or more consecutive months, if ten percent (10%) or less of those activations are recharged for a second (2nd) month. Any such activations shall be deemed fraudulent, and Locus, at its sole discretion, shall be able to both terminate the retailer who is engaged in such activation patterns and withhold commission and/or spiff payments for such activations. Locus further reserves the right, at its sole discretion, to terminate any retailer who is suspected of engaging in fraudulent conduct and/or exhibits poor performance. Determination of fraudulent conduct and/or poor performance, as used herein, is based solely on Locus’ determination based on a review of the performance and activations made by the dealer. Upon termination, the terminated retailer will no longer be entitled to activate and recharge H2O Wireless products on HDN or through any other method, and shall no longer be entitled to any commissions and/or spiff payments. The terminated retailer shall further be locked out of HDN

28. Ninety (90) Day Inactivity Termination

Locus reserves the right, at its sole discretion, to terminate any retailer who remains inactive for ninety (90) consecutive days. Locus may terminate any such dealer without notice at the conclusion of ninety (90) days of inactivity. Locus reserves the right, at its sole discretion, to change the length of inactivity necessary for termination, and shall have no obligation to notify inactive retailers of any such changes prior to termination. Upon termination, the terminated retailer will no longer be entitled to activate and recharge H2O Wireless products on HDN or through any other method, and shall no longer be entitled to any commissions and/or spiff payments. The terminated retailer shall be locked out of HDN. Locus further reserves the right to terminate any inactive dealer prior to the expiration of ninety (90) days if such dealer is in violation of any other provision set forth herein.

29. PREPAYMENT; IMPACT OF TERMINATION ON PREPAYMENT

We may, at our sole discretion, authorize your master distributor to allow you to prepay into your HDN account and keep a balance on your HDN account. If your master distributor authorizes you to prepay into your HDN account, you agree that your master distributor must authorize the prepayment used to prepay into your HDN account, and that the master distributor shall be responsible for any payments that are declined. Any prepaid amount will be used to pay for purchases that you make using your HDN account up to the amount of the authorized prepaid amount; you will not be allowed to make purchases using your HDN account that exceed the prepayment amount that you have in your HDN account. If we authorize your master distributor to allow you to prepay into your HDN account and keep a balance on your HDN account, you are not obligated to do so, however, you will not be allowed to make purchases using your HDN account unless and until you are otherwise authorized to use a valid payment method to pay for purchases made using your HDN account. Prepaid balances may be refilled in one of three ways: (i) ACH, with the provision of wire information and compliance with a posting limit set by your master distributor, (ii) credit card, if authorized for use by your master distributor, with compliance with a posting limit set by your master distributor, or (iii) cash prepayment made by your master distributor on your behalf, as long as the prepayment complies with the posting limit set by your master distributor.

All prepaid account funds are kept at Locus’ sole discretion and will be returned upon the termination of this Agreement in accordance with the provisions of this Section, the Agreement, and any additional agreements that govern any prepaid amounts. In the event that Locus terminates this Agreement because you are found to be engaged in fraud or abuse, Locus shall deduct any amounts owed to Locus from the prepaid amount in your HDN account, including, but not limited to, (i) amounts owed to Locus for any and all sales and transactions, including RTR, (ii) any returned Spiff and Residual payments that Locus is owed because of fraud and/or abuse, and (iii) any penalty amounts that Locus is entitled to in accordance with this Agreement. Penalty amounts include, but are not limited to, any amounts that Locus may recover for your breach of this Agreement. Locus shall be entitled to keep the prepaid amount for up to ninety (90) days to allow Locus to offset any amounts that become due and owing to Locus. Upon expiration of up to ninety (90) days, the prepaid amount, minus the offset and penalty amounts, shall be returned to you. For purposes of this Agreement, fraud and abuse shall include, but not be limited to, the conditions identified in Section 27 of this Agreement and any conduct that may be deemed by Locus, at our sole discretion, to involve deception for the purpose of your financial gain at our expense. By keeping prepaid amounts on your HDN accounts, you expressly authorize Locus to take the steps set forth herein in the event that you are terminated as an authorized dealer.

30. Minimum Performance Requirements

As of June 8, 2020, any dealer who activates H2O Wireless products shall be subject to Minimum Performance Requirements (“MPR”). The policy has been updated as of September 15, 2020, as set forth below, with retroactive application as of June 8, 2020. Pursuant to the MPR, any dealer who has ten (10) or more gross adds within a four (4) week period is subject to the forfeiture of accrued 1st spiff if 2nd recharge thresholds are not met; first spiff includes “instant spiff” and/or any other payout form, including, but not limited to, monthly payout from Locus-authorized Master Agents and/or Locus-authorized portal operators (e.g., TSPs). The MPR is in addition to, and not a substitution for, any other conditions set forth in this Retailer Purchase Agreement, including, but not limited to, low performance and fraudulent conduct limitations, and any other requirements that are incorporated into the Retailer Purchase Agreement. Any dealer subject to the MPR must maintain a minimum of thirty percent (30%) 2nd refills to be compliant with the MPR. Failure to maintain a minimum of thirty percent (30%) 2nd refills will result in the forfeiture of the dealer’s accrued 1st spiff.

Locus will provide a warning to all dealer’s whose 2nd refills fall between 40% and 49.99%. If a dealer’s 2nd refill is between 30% and 39.99%, Locus shall provide a second warning, if performance does not improve. Locus shall not provide any warning to dealer’s who fail to meet the MPR. All notifications and spiff forfeiture will be done on a weekly basis effective as of the week of June 8, 2020. All warnings and notices of spiff forfeiture shall be communicated by Locus by electronic mail and through the Website, to the extent feasible. Any improvement of 2nd refills by dealer’s after the issuance of warnings and/or the forfeiture of spiff will not entitle the dealer to the recovery of the forfeited spiff. Locus reserves the right, at its sole discretion, to modify the MPR at any time. Notice of any further changes to this policy, including retroactive application, if any, shall be posted in these terms and conditions, as applicable.

Reinstatement Policy: Any dealer whose 2nd recharge improves to 40% or above for 2nd recharges for four (4) consecutive weeks, shall be eligible to receive commissions for 1st spiff retroactive to 1st spiff for activations made commencing on the date of notice of reinstatement from Locus. Reinstatement for receipt of 1st spiff shall not entitle the dealer to the recovery of forfeited spiff, if any, that was forfeited prior to reinstatement. In the event that after the four (4) week period, the reinstated dealer fails to meet the MPR, the dealer will again forfeit any first spiff until the dealer improves to 40% or above for 2nd recharges for four (4) consecutive weeks, and shall not be entitled to recovery of the forfeited accrued first spiff. Locus reserves the right, at its sole discretion, to modify the MPR at any time.