ECOMOBILE TERMS AND CONDITIONS
(UPDATED JUNE 1, 2015)
In this document: (1) “we,” “us,” “our,” and “ECO Mobile” mean ECO Mobile, Inc., providing the Products and Services; (2) “you,” “your,” “customer,” and “user” mean an account holder or user with us; (3) “Device” means any phone, aircard, mobile broadband device, any other device, accessory, or other product that we provide you, we sell to you, or is active on your account with us; and (4) “Service” means our offers, rate or service plans, options, wireless services, billing services, applications, programs, products, software, or Devices on your account with us. “Service(s)” also includes any other product or service that we offer or provide to you that references these General Terms and Conditions of Service (“Ts&Cs”).
You represent that you are at least 18 years old (21 years old or legally emancipated if you are a Puerto Rico customer). If you sign for an organization, you represent that you are authorized to sign. You agree to pay any access and usage charges, taxes, fees and other charges that were accepted or processed through your Device (“Charges”). You may designate others to manage or make changes to your account (“Authorized User”). You and Authorized Users will have access to all account information. If you give your personal account validation information to someone, they can access and make changes to your account just as you can. Those changes will be binding on you. You may request to switch to another Rate Plan, and if we authorize the change, a transfer fee may apply. Changes may increase or decrease the cost of your service.
The Service Agreement
These Ts&Cs are part of your service agreement with us (the “Agreement”) and constitute a contract under which we provide you Services under terms and conditions that you accept. THIS CONTRACT CONTAINS A MANDATORY ARBITRATION PROVISION THAT DISALLOWS CLASS ACTIONS, A CLASS ACTION WAIVER PROVISION, AND A JURY WAIVER PROVISION. In addition to these Ts&Cs, there are several parts of the Agreement, which includes but is not limited to the following: (i) the subscriber agreement or transaction materials that you sign or accept; (ii) the plan(s) that you chose as set forth in our written services and transaction materials that we provide or refer you to during the sales transaction (if your service plan is not specifically set forth in any in-store brochure or printed materials, the requirements and terms set forth in the current Agreement and transaction materials apply, excluding service plan features such as pricing or minute, message, and data allocation); (iii) any confirmation materials that we may provide to you; and (iv) the terms set forth in the coverage map brochures. It is important that you carefully read all of the terms of the Agreement.
Additional terms will apply when you use certain applications, programs, Devices, and services, and these terms will be provided to you prior to your use of the items. Depending on who provides the items, the terms may come from ECO Mobile or a third party. You are subject to any terms provided by the third party, and the terms are directly between you and that third party. ECO Mobile is not responsible for these third-party items and associated terms.
Services are subject to our business policies, practices, and procedures (“Policies”). You agree to adhere to all of our Policies when you use our Services. Our Policies are subject to change at any time with or without notice.
When You Accept the Agreement
You must have the legal capacity to accept the Agreement. You accept the Agreement when you do any of the following: (a) accept the Agreement through any printed, oral, or electronic statement, for example, on the Web by electronically marking that you have reviewed and accepted; (b) attempt to or in any way use the Services; (c) pay for the Services; or (d) open any package or start any program that says you are accepting the Agreement when doing so. If you don’t want to accept the Agreement, don’t do any of these things.
To activate the Service, you must both activate your account and establish an appropriate account balance to pay for pay-per-use charges and applicable subscription charges (defined in the “Types of Charges” section) based on the service plan you select. To establish an account balance, pay a subscription charge, or make any other appropriate payments, follow the instructions provided with the equipment; at ECO Mobile.com; or through ECO Mobile Customer Care.
Our Right To Change The Agreement & Your Related Rights
We may change any part of the Agreement at any time, including, but not limited to, rates, charges, how we calculate charges, discounts, coverage, technologies used to provide services, or your terms of Service. We will provide you notice of material changes—and we may provide you notice of non-material changes—in a manner consistent with this Agreement (see “Providing Notice To Each Other Under The Agreement” section). If you continue to access or use our Services or increase your account balance on or after the effective date of a change, you accept the change. Do not access or use our Services after the effective date of a change if you decide to reject the change and terminate Service. You will not be entitled to any credit for the unused portion of your account balance if you decide to terminate Service in response to a change to the Agreement.
Our Right to Suspend or Terminate Services
We can, without notice, suspend or terminate any Service at any time for any reason. All account(s) will deactivate 60 days after they have been suspended if no payment has been acquired. For example, we can suspend or terminate any Service for the following: (a) Excessive Use of Unlimited Services; (b) responding to a request by law enforcement of other government agencies: (c) failure to have or maintain an appropriate account balance for applicable charges; (d) harassing/threatening/abusing/offending our employees or agents; (e) providing false or inaccurate information; (f) interfering with our operations; (g) using/suspicion of using Services in any manner restricted by or inconsistent with the Agreement and Policies; (h) breaching, failing to follow, or abusing the Agreement or Policies; (i) modifying a Device from its manufacturer specifications (for example, rooting the device); (j) if your financial institution dishonors or returns for insufficient funds on any payments you attempt to make; (k) disputed credit card charges; or (l) if we believe the action protects our interests, any customer’s interests, or our networks.
Your Right to Change Services & When Changes Are Effective
The account holder can typically change Services upon request. In some instances, changes may be conditioned on payment of certain charges. The effective date of any changes will depend on our Policies, the old Services, and the requested Services. We will not credit or refund any subscription or other charges as a result of a change in Services. We may—but are not obligated to—provide you the opportunity to authorize someone else to make changes to your Services. You are responsible for any changes to your Services made by a person you authorize, and those changes will be treated as modifications to this Agreement.
Your Device, Number, & Email Address; Caller ID
We don’t manufacture any Device that we might sell to you or that is associated with our Services, and we aren’t responsible for any defects, acts, or omissions of the manufacturer. The only warranties on your Device are the limited warranties given to you by the manufacturer directly or that we pass through. Device performance may vary based on device specifications (for example, a device’s software, memory, and storage), and device performance may impact access to all of our Services. This Device is sold exclusively for use with our Service and in other coverage areas that we may make available to you. As programmed, it will not accept wireless service from another carrier. Except for any legal right you may have to port/transfer your phone number to another carrier, you have no—and cannot gain any (for example, through publication, use, etc.)—proprietary, ownership, or other rights to any phone number, identification number, email address, or other identifier that we assign to you, your Device, or your account. We’ll notify you if we decide to change or reassign them.
Porting/Transferring Phone Numbers
We don’t guarantee that number transfers to or from us will be successful. If you authorize another carrier to transfer a number away from us, then that is considered a request by you to us to terminate all of the Services associated with that number.
When making 9-1-1 or other emergency calls, you should be prepared to provide information about where you are located. 9-1-1 operators may not know your phone number or have information about your location. If you are porting a phone number to or from us, we may not be able to provide you with some Services, such as 9-1-1 location services, while the port is being implemented. ECO Mobile is not responsible for failures to connect or complete 9-1-1 calls or if inaccurate location information is provided.
Our coverage maps are available at our authorized retail locations or ECO Mobile.com. The specific network coverage you get will depend on the radio transmissions your Device can pick up and Services you’ve chosen. Our coverage maps provide high level estimates of our coverage areas when using Services outdoors under optimal conditions. Coverage isn’t available everywhere. Coverage and Service speeds are not guaranteed. Coverage is subject to change without notice. Service speeds may depend on the Service purchased. Actual speeds will vary. Estimating wireless coverage, signal strength, and Service speed is not an exact science. There are gaps in coverage within our estimated coverage areas that—along with other factors both within and beyond our control (for example, network problems, network or Internet congestion, software, signal strength, your Device, structures, buildings, weather, geography, topography, server speeds of the websites you access, actions of third parties, etc.) —may result in dropped and blocked connections, slower Service speeds, or otherwise impact the quality of Service. Services that rely on location information, such as E911 and GPS navigation, depend on your Device’s ability to acquire satellite signals (typically not available indoors) and network coverage. While your Device is receiving a software update, you may be unable to use your Device in any manner until the software update is complete.
The term “roaming” typically refers to coverage on another carrier’s network that we may make available to you based on our agreements with other carriers. These agreements may change from time to time, and roaming coverage is subject to change without notice. Your ability to receive roaming coverage depends on the radio transmissions your Device can pick up and the availability of roaming coverage. We make no guarantee that roaming coverage will be available. Roaming coverage may exist both within and outside our network coverage areas. Your Device will generally indicate when you’re roaming. Depending on your Services, separate charges or limits on the amount of minutes used while roaming may apply. Certain Services may not be available or work the same when roaming (for example, data Services, voicemail, call waiting, etc.). For information on whether roaming applies, see your service plan details.
Data Services & Content
Our data Services and your Device may allow you to access the Internet, text, pictures, video, games, graphics, music, email, applications, sound, and other materials (“Data Content”) or send Data Content elsewhere. Some Data Content is available from us or our vendors, while other Data Content can be accessed from others (for example, third party websites, games, ringers, applications, etc.). We make absolutely no guarantees about the Data Content that you access on your Device. Data Content may be: (1) unsuitable for children/minors; (2) unreliable or inaccurate; or (3) offensive, indecent, or objectionable. You’re solely responsible for evaluating the Data Content accessed by you or anyone through your Services. We strongly recommend that you monitor data usage by children/minors. Data Content from third parties may also harm your Device or its software. We are not responsible for any Data Content. We are not responsible for any damage caused by any Data Content that you access through your Services, that you load on your Device, or that you request that our representatives access or load on your Device. To protect our networks and Services or for other reasons, we may place restrictions on accessing certain Data Content (such as certain websites, applications, etc.); impose separate charges; limit throughput or the amount of data that you can transfer; or otherwise limit or terminate Services. If we provide you storage for Data Content that you have purchased, then we may delete the Data Content without notice or place restrictions/limits on the use of storage areas. Data Content stored on a Device, transmitted over our networks, or stored by ECO Mobile may be deleted, modified, or damaged. You may not be able to make or receive voice calls while using data Services. Data Content provided by our vendors or third parties is subject to cancellation or termination at any time without notice to you, and you may not receive a refund for any unused portion of the Data Content.
Restrictions on Using Services
You can’t use our Services: (a) in a way that could cause damage or adversely affect any of our other customers or our reputation, networks, property, or Services; or (b) in any way prohibited by the terms of our Services, the Agreement, or our Policies. You cannot in any manner resell the Services to another party. For additional restrictions on the use of our Services, see our Acceptable Use Policy and Visitors Agreement, which are available on our website, and the detailed plan or other information on Services that we provide or refer you to during the sales transaction.
Permissible and Prohibited Data Use
Your Data Plan is intended for Web browsing, messaging, and similar activities on your device and not on any other equipment. Unless explicitly permitted by your Data Plan, other uses, including for example, tethering your device to a personal computer or other hardware, are not permitted.
In addition to the rules for using all of our other Services, unless we identify the Service or Device that you have selected as specifically intended for that purpose (for example, USB modem, wireless routers, etc.), you can’t use our data Services: (1) with server devices or host computer applications, or other systems that drive continuous, heavy traffic or data sessions; (2) as a substitute or backup for private lines or frame relay connections; or (3) for any other unintended use as we determine in our sole discretion. We reserve the right to limit, suspend, or constrain any heavy, continuous data usage that adversely impacts our networks’ performance or hinders access to our networks. If your Services include Web or data access, you also can’t use your Device as a modem for computers or other equipment, unless we identify the Service or Device you have selected as specifically intended for that purpose (for example, with “phone as modem” plans, mobile broadband card plans, wireless router plans, etc.).
If ECO Mobile provides you software as part of the Service and there are not software license terms provided with the software (by ECO Mobile or by a third party), then ECO Mobile grants you a limited, revocable, non-exclusive, non-transferable license to use the software to access the Services for your own individual use. You will not sell, resell, transfer, copy, translate, publish, create derivative works of, make any commercial use of, modify, reverse engineer, decompile, or disassemble the software. ECO Mobile may revoke this license at any time.
Fees, Activation & Miscellaneous Charges
Based on our Policies, we may charge activation, prepayment, reactivation, program, or other fees to establish, change, or maintain Services. Certain transactions may also be subject to a charge (for example, convenience payment, changing phone numbers, handset upgrades, etc.). You will be provided notice of these types of fees before we complete the requested transaction.
The types of charges that you incur will vary depending on the Service used and your service plan. You are responsible for the Services on your account and associated charges, including charges made by a person you permit to have direct or indirect access to your device even if you did not authorize its use. Charges may include, but are not limited to, prepayment for service charges; charges for additional services; and taxes, surcharges, and fees associated with your Services. For the actual usage charges applicable to your Service, see the detailed plan or other information we provide or refer you to during the sales transaction or on our website. Depending on your Services, charges for additional services may include operator and directory assistance, voicemail, call forwarding, data calls, texts, and Web access. If you (the account holder) allow end users to access or use your Device, you authorize end users to access, download, and use Services. You will generally be charged for use of Services before or at the time of use in accordance with your service plan. In certain instances, we may charge at some point after you use the Service. Rates that vary based on the time of access will be determined based on the location of the network equipment providing service and not the location of your Device or your Device’s area code (if applicable). Charges are generally deducted from your account balance (for example, pay-per-use charges, subscription charges, etc.), though in some instances you may be able to pay for certain Services through a credit card, debit card, or other payment method. If you have incurred charges or fees that were not charged prior to your account balance reaching a zero balance, we may deduct these outstanding, unpaid charges and fees from any subsequent amounts you add to your account balance.
Types of Charges
We typically assess the following types of charges: (1) “pay-per-use charges,” which are charges assessed each time a Service is used; (2) “subscription charges,” which are charges that allow you access to a Service or provide you a certain amount of use of a Service for a defined period of time. Subscription charges for Services end at 11:59 p.m., in the time zone in which your phone number is based, on the last day of your subscription period. Also, depending on your Service, certain types of subscription charges may be assessed automatically upon activation and automatically assessed for subsequent subscription periods; and (3) “download charges,” which are charges assessed when you download or access content, which we collect on behalf of ourselves or third-party content providers.
How We Calculate Your Charges
Regular Voice Calls: We round up partial minutes of use to the next full minute. Time starts when you press “Talk” or your Device connects to the network and stops when you press “End” or the network connection otherwise breaks. You’re charged for all calls that connect, even to answering machines, voicemail, or voice transcription services. You won’t be charged for unanswered calls or if you get a busy signal. For incoming calls answered, you’re charged from the time shortly before the Device starts ringing until you press “End” or the network connection otherwise breaks. You’re charged for the entire call based on the rate that applies to the time period in which the call starts. However, the types of charges actually deducted from your account balance will vary depending on your Service. Call time data displayed on your Device may be inaccurate and may not be relied upon for determining charges to your account. Call time for a single call may be limited. If the call exceeds the limit, then it may be automatically terminated.
Data Usage: Depending on your Service, you may be charged for data usage. Unless we specifically tell you otherwise, data usage is measured in bytes, kilobytes, megabytes, and gigabytes—not in minutes/time. 1024 bytes equals 1 kilobyte (“KB”), 1024 KB equals 1 megabyte, and 1024 megabytes equals 1 gigabyte. Bytes are rounded up to KB, so you will be charged at least 1 KB for each data usage session (“data session”). Rounding occurs at the end of each data session and sometimes during a data session. Depending on your data Services, usage may be charged against an allowance or on a fixed price per KB, and you may be subject to limitations on the amount of data usage. If you are charged on a fixed price per KB, any fractional cents will be rounded up to the next cent. You are charged for all data directed to your Device’s Internet address, including data sessions you did not initiate and for incomplete transfers. As long as your Device is connected to our data networks, you may incur data charges. Examples of data for which you will be charged includes the size of a requested file or Data Content (game, ringer, etc.); Web page graphics (logos, pictures, banners, advertisement, etc.); additional data used in accessing, transporting, and routing the file on our network; data from partial or interrupted downloads; re-sent data; and data associated with unsuccessful attempts to reach websites or use applications. These data charges are in addition to any charges for the Data Content itself (game, ringer, etc.). Data used and charged to you will vary widely, even between identical actions or data sessions. Estimates of data usage—for example, the size of downloadable files—are not reliable predictors of actual usage.
Taxes & Government Fees
You agree to pay all federal, state, and local taxes, fees, and other assessments that we’re required by law to collect and remit to the government on the Services that we provide to you. These charges may change from time to time without advance notice. If you’re claiming any tax exemption, you must provide us with a valid exemption certificate. Tax exemptions generally won’t be applied retroactively.
You agree to pay all surcharges (“Surcharges”), which may include, but are not limited to: Federal Universal Service; various regulatory charges; ECO Mobile administrative charges; gross receipts charges and certain other taxes imposed upon ECO Mobile; or charges for the costs that we incur and pass along to you. Surcharges are not taxes, and we are not required to assess them by law. They are charges we choose to collect from you, are part of our rates, and are kept by us in whole or in part. The number and type of Surcharges will be provided and may vary depending upon the location of the transaction or the primary account address of the payment method or Device and can change over time. We determine the rate for these charges, and these amounts are subject to change as are the components used to calculate these amounts. We will provide you notice of any changes to Surcharges in a manner consistent with this Agreement (see “Providing Notice To Each Other Under The Agreement” section). However, since some Surcharges are based on amounts set by the government or based on government formulas, it will not always be possible to provide advance notice of new Surcharges or changes in the amount of existing Surcharges. Information on Surcharges is provided during the sales transaction and is available on our website.
Any dispute to a charge that we assess you must be made in writing within 60 days (20 Days for Puerto Rico Customers) of the date we deduct the charge from your account balance. You accept all charges not properly disputed within the above time period.
About Account Balances
To keep your account active and avoid service interruptions, you must either maintain a positive account balance at all times or pay any applicable subscription charges (depending on your service plan). Account balances are not transferable, redeemable for cash, or refundable; that is, once you make payment on your account, you are provided a credit on your account that can only be used to pay for our Services during the effective period, which varies depending on your service plan. Positive account balances are forfeited if they are not used within the effective period specified in your service plan (if you properly replenish your account balance during the effective period, the effective period restarts). If you do not use your account balance during the effective period, your account balance will expire and you will not be entitled to a refund or service credit. Your Service will be interrupted if you fail to maintain a positive account balance or timely pay applicable subscription charges for each effective period. When this service interruption occurs, you will be given a period of time (which varies depending on your service plan) to make any appropriate payments on your account.If you do not make such payments within this time period, your account will be cancelled. If your account is cancelled, you will lose any phone number, identification number, or email address associated with your account. Reactivation fees will apply if you choose to restart Service after cancellation. There may be limits over which your account balance may not exceed. See the detailed plan or other information we provide or refer you to during the sales transaction (also available at ECO Mobile.com) for the account status rules that apply to your Service.
Switching between Service Plans
Unless otherwise provided in the detailed plan or other information we provide or refer you to during the sales transaction, you may switch to any current service plan. If you switch service plans, you may not receive a refund of any portion of any previously paid service charges and you may lose all of your remaining unused minutes, messages, and data allotment. Some service plans are available only on certain phones. Check ECO Mobile.com for details and options.
No Refunds of ECO Mobile Airtime and Monthly Charges
We are not responsible for, nor do we refund, lost, stolen, misused, or damaged ECO Mobile cards. We do not accept returns of or provide refunds for ECO Mobile cards. Please ask your retailer any questions regarding its return policy. ECO Mobile cards must be applied to your account within the time specified on the card. All ECO Mobile sales are final and non-refundable regardless of who uses or possesses your mobile phone or Device after you purchase services, and regardless of whether the mobile phone or Device is used with your consent or knowledge.
Establishing or Replenishing Account Balances
Information on how you can establish and maintain an account balance will be provided at activation and is also available at ECO Mobile.com or through ECO Mobile Customer Care. The replenishment methods available to you will depend on the terms of your Services. A fee may apply to certain replenishment methods. Some service plans may provide for automatic account balance replenishment through, for example, automatic billing to a credit card or debit card or automatic debit from an eligible account with a financial institution. Payment through these methods may be subject to limitations, including, but not limited to, the number of times an account may be debited or charged in a particular time period; the amount that may be debited or charged from an account; or other limitations imposed by us or the financial institution that holds the account.
Protecting Our Networks & Services
We can take any action to: (1) protect our networks, our rights and interests, or the rights of others; or (2) optimize or improve the overall use of our networks and Services. Some of these actions may interrupt or prevent legitimate communications and usage—for example, message filtering/blocking software to prevent spam or viruses; limiting throughput; limiting access to certain websites, applications or other Data Content; prohibitions on unintended uses (for example, use as a dedicated line or use as a monitoring service); etc. For additional information on what we do to protect our customers, networks, Services and equipment, see our Acceptable Use Policy and Visitors Agreement at our website.
Call Monitoring: To ensure the quality of our Services and for other lawful purposes, we may monitor or record calls between us (for example, your conversations with our customer service or sales departments).
Authentication and Contact: You (the account holder) may password protect your account information by establishing a personal identification number (“PIN”). You may also set a backup security question and answer in the event you forget your PIN. You agree to protect your PIN, passwords, and other account access credentials like your backup security question from loss or disclosure. You further agree that ECO Mobile may, in our sole discretion, treat any person who presents your credentials that we deem sufficient for account access as you or an authorized user on the account for disclosure of information or changes in Service. You agree that we may contact you for Service-related reasons through the contact information that you provide, through the Services or Devices to which you subscribe, or through other available means, including text message, email, fax, recorded message, mobile, residential or business phone, or mail.
CPNI: As we provide telecommunications products and Services to you (the account holder), we develop information about the quantity, technical configuration, type, location, and destination of telecommunications products and Services you use, as well as some other information found on your bill (“CPNI”). Under federal law, you have the right, and we have a duty, to protect the confidentiality of your CPNI. For example, we implement safeguards that are designed to protect your CPNI, including authentication procedures when you contact us. For some accounts with a dedicated ECO Mobile representative, we may rely on contacting your pre-established point of contact as the standard authentication measure.
Information on Devices: Your Device may contain sensitive or personal information (for example, pictures, videos, passwords, or stored credit card numbers). ECO Mobile is not responsible for any information on your Device, including sensitive or personal information. If possible, you should remove or otherwise safeguard any sensitive or personal information when your Device is out of your possession or control, for example, when you relinquish, exchange, return, or recycle your Device. By submitting your Device to us, you agree that our employees, contractors, or vendors may access all of the information on your Device. If you exchange, return, or recycle your Device through us, we typically attempt to erase all data on your Device, but you must remove all data from your Device before you provide it to us.
Our networks generally know the location of your Device when it is outdoors and/or turned on. By using various technologies to locate your Device, we can provide enhanced emergency 911 services and optional location-enabled services provided by us or a third party. Network coverage or environmental factors (such as structures, buildings, weather, geography, landscape, and topography) can significantly impact the ability to access your Device’s location information and use of location-enabled services.
911 Or Other Emergency Calls
Public safety officials advise that when making 911 or other emergency calls, you should always be prepared to provide your location information. Unlike traditional wireline phones, depending on a number of factors (for example, whether your Device is GPS-enabled, where you are, whether local emergency service providers have upgraded their equipment, etc.), 911 operators may not know your phone number, your location, or the location of your Device. In certain circumstances, an emergency call may be routed to a state patrol dispatcher or alternative location set by local emergency service providers. Enhanced 911 service (“E911”)—where enabled by local emergency authorities—uses GPS technology to provide location information. Even when available, however, E911 does not always provide accurate location information. If your Device is indoors or for some other reason cannot acquire a satellite signal, you may not be located. Some Devices have a safety feature that prevents use of the keypad after dialing 911—you should follow voice prompts when interacting with emergency service providers employing interactive voice response systems to screen calls.
Lost or Stolen Equipment
Call us immediately if your Device is lost or stolen because you may be responsible for usage charges before you notify us of the alleged loss or theft. You agree to cooperate if we choose to investigate the matter (provide facts, sworn statements, etc.). We may not credit or refund any account balance if you choose to terminate Services as a result of loss or theft of your Device. If you do not either activate a new device or notify us that you have found your Device within 60 days of the suspension of your account, your account will be deactivated, we may assess a charge equal to the balance in your account (which is not refundable), and, if applicable, you will lose your phone number.
DISCLAIMER OF WARRANTIES
UNLESS EXPRESSLY PROVIDED IN WRITING OTHERWISE, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (TO THE EXTENT ALLOWED BY LAW) ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING YOUR SERVICES (INCLUDING YOUR DEVICE AND ANY SOFTWARE OR APPLICATIONS ON YOUR DEVICE). WE DON’T PROMISE UNINTERRUPTED OR ERROR-FREE SERVICES AND DON’T AUTHORIZE ANYONE TO MAKE WARRANTIES ON OUR BEHALF. SPRINT PROVIDES ALL SOFTWARE AND APPLICATIONS ON AN “AS IS” BASIS WITH ALL FAULTS, ERRORS, AND DEFECTS.
You Agree That We Are Not Responsible For Certain Problems
You agree that neither we nor our parent, subsidiary, or affiliate companies, nor our vendors, suppliers, or licensors are responsible for any damages resulting from: (a) anything done or not done by someone else; (b) providing or failing to provide Services, including, but not limited to, deficiencies or problems with a Device or network coverage (for example, dropped, blocked, interrupted Services, etc.); (c) traffic or other accidents, or any health-related claims relating to our Services; (d) Data Content or information accessed while using our Services; (e) an interruption or failure in accessing or attempting to access emergency services from a Device, including through 911, Enhanced 911 or otherwise; (f) interrupted, failed, or inaccurate location information services; (g) information or communication that is blocked by a spam filter; (h) damage to your Device or any computer or equipment connected to your Device, or damage to or loss of any information stored on your Device, computer, equipment, or ECO Mobile storage space from your use of the Services or from viruses, worms, or downloads of malicious content, materials, data, text, images, video, or audio; or (i) things beyond our control, including acts of God (for example, weather-related phenomena, fire, earthquake, hurricane, etc.), riot, strike, war, terrorism, or government orders or acts. You should implement appropriate safeguards to secure your Device, computer, or equipment and to backup your information stored on each.
LIMITATION OF LIABILITY
TO THE EXTENT ALLOWED BY LAW, OUR LIABILITY FOR MONETARY DAMAGES FOR ANY CLAIMS THAT YOU MAY HAVE AGAINST US IS LIMITED TO NO MORE THAN THE PROPORTIONATE AMOUNT OF THE SERVICE CHARGES ATTRIBUTABLE TO THE AFFECTED PERIOD. UNDER NO CIRCUMSTANCES ARE WE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, MULTIPLE, OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER ARISING OUT OF OR RELATED TO PROVIDING OR FAILING TO PROVIDE SERVICES IN CONNECTION WITH A DEVICE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS, OR COST OF REPLACEMENT PRODUCTS AND SERVICES.
DISPUTE RESOLUTION AND ARBITRATION
We Each Agree To First Contact Each Other With Any Disputes
We each agree to first contact each other with any Disputes (defined below) and provide a written description of the problem, relevant documents and supporting information, and the proposed resolution. We agree to contact each other as described in the “Providing Notice To Each Other Under The Agreement” section.
Instead Of Suing In Court, We Each Agree To Arbitrate Disputes
We each agree to arbitrate all Disputes between us, on an individual basis, not on a class-wide or consolidated basis. This agreement to arbitrate is intended to be broadly interpreted. In arbitration, there’s no judge or jury. However, just as a court would, the arbitrator must honor the terms and limitations in the Agreement and can award damages and relief, including any attorneys’ fees authorized by law. The arbitrator’s decision and award is final and binding, with some exceptions under the Federal Arbitration Act (“FAA”), and judgment on the award may be entered in any court with jurisdiction. We each also agree as follows:
(1) “Disputes” are any claims or controversies against each other related in any way to or arising out of in any way our Services or the Agreement, including, but not limited to, coverage, Devices, billing services and practices, policies, contract practices (including enforceability), service claims, privacy, or advertising, even if it arises after Services have terminated. Disputes include claims that: (a) you bring against our employees, agents, affiliates, or other representatives; (b) you bring against a third party, such as a retailer or equipment manufacturer, that are based on, relate to, or arise out of in any way our Services or the Agreement; or (c) that we bring against you. It also includes but is not limited to claims related in any way to or arising out of in any way any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory.
(2) If either of us wants to initiate a claim to arbitrate a Dispute, we each agree to send written notice to the other providing a description of the dispute, a description of previous efforts to resolve the dispute, relevant documents and supporting information, and the proposed resolution. Notice to you will be sent as described in the “Providing Notice To Each Other Under The Agreement” section and notice to us will be sent to: General Counsel; Arbitration Office; 12502 Sunrise Valley Drive, Mailstop VARESA0202-2C682; Reston, Virginia 20191. We each agree to make attempts to resolve the dispute prior to filing a claim for arbitration. If we each cannot resolve the dispute within forty-five (45) days of receipt of the notice to arbitrate, then we each may submit the dispute to formal arbitration.
(3) The FAA applies to this Agreement and arbitration provision. We each agree that the FAA’s provisions—not state law—govern all questions of whether a dispute is subject to arbitration.
(4) Unless we each agree otherwise, the Arbitration will be conducted by a single neutral arbitrator and will take place in the county of the last billing address of the Service.
(5) The arbitration will be governed and conducted by (a) a neutral third party arbitrator selected by each of us and based upon rules mutually agreed to by each of us or (b) JAMS. The JAMS rules, including rules about the selection of an arbitrator, filing, administration, discovery, and arbitrator fees, will be conducted under JAMS Comprehensive Arbitration Rules & Procedures. The JAMS rules are available on its website at jamsadr.com. To the extent that this “Dispute Resolution and Arbitration” section conflicts with JAMS’s minimum standards for procedural fairness, the JAMS’s rules or minimum standards for arbitration procedures in that regard will apply. However, nothing in this paragraph will require or allow us or you to arbitrate on a class-wide or consolidated basis.
(6) WE EACH AGREE THAT WE WILL ONLY PURSUE ARBITRATION ON AN INDIVIDUAL BASIS AND WILL NOT PURSUE ARBITRATION ON A CLASS-WIDE OR CONSOLIDATED BASIS. We each agree not to pursue arbitration on a classwide basis. We each agree that any arbitration will be solely between you and ECO Mobile (not brought on behalf of or together with another individual’s claim). If for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate doesn’t apply and the dispute must be brought in court.
(7) We each are responsible for our respective costs relating to counsel, experts, and witnesses, as well as any other costs relating to the arbitration. However, we will pay for the arbitration administrative or filing fees, including the arbitrator fees. Otherwise the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses, Minimum Standards of Procedural Fairness regarding costs and payment apply.
NO CLASS ACTIONS
TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.
NO TRIAL BY JURY
TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.
You agree to indemnify, defend, and hold ECO Mobile and our subsidiaries, affiliates, parent companies, vendors, suppliers, and licensors harmless from any claims arising out of or relating to your actions, including, but not limited to, your use of the Service and any information you submit, post, transmit, or make available via the Service; failing to provide appropriate notices regarding location-enabled services (see “Location-Enabled Services” section); failure to safeguard your passwords, backup question to your shared secret question, or other account information; or violating this Agreement or any policy referenced in this Agreement, any applicable law or regulation, or the rights of any third party.
You agree not to infringe, misappropriate or injure the intellectual property rights of ECO Mobile or any third party. Except for a limited license to use the Services or Devices arising from the sale of a product, your purchase of ECO Mobile Devices and Services does not grant you any license to copy, modify, reverse engineer, download, redistribute, or resell the intellectual property of ECO Mobile or others related to the Devices and Services, which may be used only with ECO Mobile Service unless expressly authorized by ECO Mobile. You agree that a violation of this section harms ECO Mobile, which cannot be fully redressed by money damages, and that ECO Mobile shall be entitled to immediate injunctive relief in addition to all other remedies available.
Other Important Terms
Subject to federal law or unless the Agreement specifically provides otherwise, this Agreement is governed solely by the laws of the state encompassing the area code assigned to your Device, without regard to the conflicts of law rules of that state. If either of us waives or doesn’t enforce a requirement under this Agreement in an instance, we don’t waive our right to later enforce that requirement. Except as the Agreement specifically provides otherwise, if any part of the Agreement is held invalid or unenforceable, the rest of this Agreement remains in full force and effect. This Agreement isn’t for the benefit of any third party except our corporate parents, affiliates, subsidiaries, agents, and predecessors and successors in interest. You can’t assign the Agreement or any of your rights or duties under it unless we agree to the assignment. We can assign the Agreement without notice. You cannot in any manner resell Devices or Services to another party. You cannot export any Device. The Agreement and the documents it incorporates make up the entire agreement between us and replaces all prior written or spoken agreements—you can’t rely on any contradictory documents or statements by sales or service representatives. The rights, obligations, and commitments in the Agreement that—by their nature—would logically continue beyond the termination of Services (for example, those relating to billing, payment, 911, dispute resolution, no class action, no jury trial) survive termination of Services.
For any Service that includes unlimited features, “unlimited” does not mean unreasonable use. ECO Mobile’s unlimited voice features are provided solely for dialogue between two individuals and for non-commercial use. Other uses have a disproportionate impact on network resources and are therefore considered unreasonable. Unreasonable voice use includes, but is not limited to, the following: monitoring services, transmission of broadcasts, telemarketing, call center services, autodialed calls, an abnormally high number of conference calling, calls, or messages, and/or calls of abnormally long duration. ECO Mobile’s unlimited data or messaging features are provided solely for purposes of non-commercial messaging, Internet browsing, e-mail access, and the non-continuous streaming of data (e.g. downloading files). While most common uses are permitted by our data and messaging features, there are certain uses that cause extreme network capacity issues and are therefore prohibited. Our data and messaging services may not be used: (a) to generate excessive amounts of Internet traffic through the continuous, unattended streaming, downloading, or uploading of videos or other files, (b) to operate hosting services, (c) to maintain continuous active network connections to the Internet such as through a web camera or automated machine-to-machine connection or peer-to-peer (P2P) file sharing, (d) to disrupt e-mail use by others using automated or manual routines, including, but not limited to “auto-responders” or cancel bots or other similar routines, (e) to transmit or facilitate any unsolicited or unauthorized advertising, promotional materials, “spam,” unsolicited commercial or bulk e-mail or messaging, (f) for activities adversely affecting the ability of other people or systems to use either ECO Mobile’s wireless services or other parties’ Internet-based resources, including, but not limited to, “denial of service” (DoS) attacks against another network host or individual user, (g) for an activity that tethers or connects any device to personal computers or other equipment for the purpose of transmitting wireless data over the network (unless customer is using a plan designated for such usage), (h) as a dedicated data connection, (i) for abnormally long data transmissions, or (j) for any other reason that, in our sole discretion, violates our policy of providing “unlimited” Services for non-commercial use.
ECO Mobile data services are provided solely for purposes of web surfing, sending and receiving email, photographs and other similar messaging activities. Our data services may not be used for an activity that connects any device to Personal Computers (including without limitation, laptops), or other equipment for the purpose of transmitting wireless data over the network (unless customer is using a plan designated for such usage). If you subscribe to rate plans, services or features that are described as unlimited, you should be aware that such “unlimited” plans are subject to these ECO Mobile Prohibited Network Uses. Except with Phone-as-Modem plans, you may not use a phone (including a Bluetooth phone) as a modem in connection with a computer, PDA, or similar device.
In addition to the rules for using all of our other Services, unless we identify the Service or Device that you have selected as specifically intended for that purpose, you may only use your Device in the manner mentioned above. If your Services include web or data access, you also can’t use your Device as a modem for computers or other equipment, unless we identify the Service or Device you have selected as specifically intended for that purpose (for example, with “phone as modem” plans, ECO Mobile Broadband card plans, etc.).
Additionally, consuming a disproportionate amount of available Network resources resulting in the potential to disrupt or degrade the Network or Network usage by others, is subject to ECO Mobile’s discretion. The determination of what constitutes excessive use depends on the specific state of the Network at any given time. Excessive use is determined by resource consumption relative to that of a typical individual user of the Network and not by the use of any particular application. ECO Mobile reserves the right to limit or terminate usage as a result of infringing Acceptable Use policies.