SIMPLE MOBILE TERMS AND CONDITIONS OF SERVICE
Please read these Terms and Conditions of Service carefully. These Terms and Conditions of Service are a legally binding agreement (“Agreement”) between you and Simple Mobile. Simple Mobile is a brand of TracFone Wireless, Inc.
THESE TERMS AND CONDITIONS OF SERVICE CONTAIN IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS, AND REQUIRE THAT CERTAIN DISPUTES BE RESOLVED THROUGH ARBITRATION INSTEAD OF A COURT TRIAL. FOR MORE INFORMATION SEE SECTION 16 BELOW.
By purchasing, activating, and/or using any Simple Mobile product (“Product”) or service (“Service”) you the customer (“You”) acknowledge and agree to these Terms and Conditions of Service. Simple Mobile reserves the right to change or modify these Terms and Conditions at any time. Any changes or modifications to these Terms and Conditions of Service are effective and will be binding upon you when posted on our website at simplemobile.com. Because these Terms and Conditions of Service are subject to change at any time you should always check our website for the most current version.
For assistance or more information, please contact Simple Mobile Customer Care at 1-877-878-7908.
1. ACTIVATING AND USING YOUR SIMPLE MOBILE SERVICE
To use the Simple Mobile Service, you must purchase a Simple Mobile wireless phone or a Simple Mobile SIM card to be used with a compatible phone. To activate your Simple Mobile Service you must contact Customer Care from a separate phone or visit our website at simplemobile.com. If you have purchased a Simple Mobile SIM card for use with your own compatible phone, follow the instructions that came with the SIM card to activate your service. When you activate your service and establish an account (“Account”), you will have the option of registering with us and providing your name, address, email address and alternative contact telephone number. If you elect not to register at the time of activation, you may not be able to obtain copies of your call detail records except upon service of a valid Subpoena or a Court order.
Your Simple Mobile Phone can only be used with Simple Mobile Service and cannot be activated with any other wireless carrier or service. Simple Mobile provides Service at its discretion. Some functions and features referenced in the manufacturer’s manual provided with your Simple Mobile Phone may not be available on your phone when using the Service. Simple Mobile may, at any time and without prior notice to you, modify, cancel and/or deactivate your Service and/or take other corrective action, for any reason in Simple Mobile’s sole discretion including, but not limited to, your violation of these Terms and Conditions of Service.
Certain mobile phone features may not be available throughout the entire network or their functionality may be limited. Some Simple Mobile features are available only on Simple Mobile phones purchased from Simple Mobile and will not be available if you have purchased a Simple Mobile SIM card for use on a compatible wireless phone. All plan rates, features, functionality and other product specifications are subject to change without notice or obligation. Color of phones may vary. All talk and standby times are quoted in Digital Mode and are approximate.
If you are using your own compatible phone with a Simple Mobile SIM card, it must be compatible and not interfere with our services and it must comply with all applicable laws, rules and regulations. Unless you have purchased a Simple Mobile Wireless Broadband Plan, devices capable of only using data service are strictly prohibited and your use of such a device is grounds for immediate deactivation and termination of your Service without a refund. You are responsible for ensuring that any wireless phone that you use is compatible with Simple Mobile and that your phone meets all Federal laws and standards. You are further responsible for the purchase and maintenance of any additional hardware and/or software required to use the Simple Mobile Service. Simple Mobile Service will only work with wireless devices that are compatible with our network. Not all Services are available with all wireless devices or on all networks. We may remotely change your wireless phone’s software, applications or programming without notice. This could affect your stored data, your phone’s programming, and how you are able to use your wireless phone.
The wireless telecommunications networks used to transmit calls for the Simple Mobile Service are owned and operated by various licensed commercial mobile radio service providers (“Carriers”), not Simple Mobile. When you activate your Simple Mobile service, you will be provided with a telephone number or you may, in some circumstances, port-in a number from another carrier. Please note that you have no ownership rights to any telephone number, IP address or any other identifier associated with your wireless service and you acknowledge and agree that we may change any such number, IP address or other identifier associated with your Simple Mobile service at any time without prior notice to you.
2. TERMINATION OF SERVICE
Either party may terminate this Agreement (which will terminate the provision of Simple Mobile Service) at any time. Any unused Service at the time of termination cannot be refunded or transferred. Simple Mobile may terminate this Agreement at any time without notice if we cease to provide Service in your area. We may interrupt or terminate your Service without notice for any conduct that we believe violates this Agreement, including, if you behave in an abusive, derogatory or similarly unreasonable manner with any of our representatives, if we have reasonable cause to believe that you are using the Simple Mobile Service for an unlawful purpose or in a way that may adversely affect our Service, if you engage in any deceptive or unfair conduct with respect to your Simple Mobile Service. Any provision of this Agreement which by its context is intended to apply after termination of the Agreement will survive termination, including, but not limited to, any restrictions on the use of Simple Mobile Products.
Any promotional or bonus minutes that are included with a new Simple Mobile Phone or are issued upon activation of your Simple Mobile Phone are not transferable or refundable. Promotional minutes and bonus minutes have no cash value.
3. SIMPLE MOBILE SERVICE PLANS
Your Simple Mobile Service will operate only after you have purchased and redeemed a service plan (“Service Plan”) and so long as you have service days left on your 30-day Service Plan cycle. Please visit our website at simplemobile.com for the latest information regarding our Service Plans.
Simple Mobile Plans provide unlimited nationwide calling, text messaging, and international text messaging. Some Simple Mobile Service Plans also provide a fixed amount of high speed data at 4G** speeds for each 30-day plan cycle depending on which you Simple Mobile Plan you select. After your high speed data threshold is reached, your data speed will be reduced to as low as 64 kbps for the remainder of your 30-day plan cycle. Your high speed data will be restored once your next 30-day plan cycle begins unless you purchase a new Simple Mobile Service Plan prior to the start of your next 30-day plan cycle. If your data speed is reduced, the reduced speed may impact the functionality of some data applications, such as streaming audio or video or web browsing. Some Simple Mobile Service Plans also provide international calling depending on the destination. For more information regarding international calling please see section 6 below.
**4G/4G LTE networks are not available on all devices and in all locations. 4G/4G LTE networks require a capable device and SIM card. Actual availability, coverage, and speed may vary.
Data transmitted over Wi-Fi does not count against your data usage. To preserve your high speed data, you can sign into Wi-Fi whenever possible including at home, in the office, or free public locations such as coffee shops, restaurants, grocery stores, and universities – but recognize that public Wi-Fi locations may not be secure. Apps like Wi-Fi Finder, available from the Google Play Store, can help you find open networks. Additionally, Apps such as My Data Manager can help you keep track of your Wi-Fi and cellular data usage.
SIMPLE MOBILE STASH : With Simple Mobile Stash, you may purchase and add one or more Simple Mobile Service Plans to your Simple Mobile Stash and use them whenever you need. A Service Plan in your Simple Mobile Stash will be automatically applied on your Service End Date, however, you may redeem a Service Plan in your Simple Mobile Stash at any time by accessing your “My Account.” If you are an Auto Re-Up customer and add a Service Plan to your Simple Mobile Stash, the Service Plan in your Simple Mobile Stash will take precedence over Auto Re-Up and will be applied before your next Auto Re-Up purchase is processed.
SIMPLE MOBILE AUTO RE-UP : You may enroll in Auto Re-Up to purchase your Service Plan by registering your credit or debit card online the Simple Mobile website and selecting the Service Plan you want to purchase on a recurring basis. With Auto Re-Up, a new Service Plan will be automatically purchased and added to your Account each month on your Service End Date and your credit or debit card will automatically incur a monthly charge for the cost of the Service Plan you elect to purchase on a recurring basis. Please note that if you have a Service Plan in your Simple Mobile Stash, this Service Plan will be applied first before an Auto Re-Up purchase is processed. Once you have used all of the Service Plans in your Simple Mobile Stash, your Auto Re-Up purchases will resume.
SIMPLE MOBILE WIRELESS BROADBAND PLANS : Simple Mobile also offers data-only Wireless Broadband Plans. All Wireless Broadband Plans provide 30 days of access. Access is subject to network availability. Not all devices are 4G compatible. For more information about these plans or to purchase a Wireless Broadband Plan visit simplemobile.com.
4. SIMPLE MOBILE UNLIMITED PLANS INTENDED USE
Simple Mobile Unlimited Plans may only be used for the following purposes: (a) person to person voice calls (b) text and picture messaging and (c) internet browsing and ordinary content downloads. Simple Mobile’s Unlimited Plans may not be combined with any other discount or promotion. National roaming capability may be discontinued or changed at any time without notice. Simple Mobile reserves the right to terminate the Service of any Simple Mobile customer who is roaming for 50% or more of usage in any 3 billing cycles within a 12 month period.
Simple Mobile Unlimited Plans may not be used for certain unauthorized uses that adversely impact our service. Examples of unauthorized uses include, without limitation, the following: (i) continuous uninterrupted mobile to mobile or mobile to landline voice calls; (ii) automated text or picture messaging to another mobile device or e-mail address; (iii) uploading, downloading or streaming of uninterrupted continuous video; (iv) server devices or host computer applications, including, but not limited to, web camera posts or broadcasts, automatic data feeds, automated machine-to-machine connections or peer-to-peer (“P2P”) file sharing; or (v) as a substitute or backup for private lines or dedicated data connections. A customer engaged in any unauthorized use of Simple Mobile Service may have his/her Service throttled and/or terminated. Customers will be provided notice and an opportunity to take corrective action with respect to unauthorized uses before their service is terminated.
Unlimited voice services may not be used for monitoring services, data transmission, transmission of broadcasts, transmission of recorded material, interconnection to other networks, telemarketing activity, autodialed calls, or robocalls. Simple Mobile reserves the right to cancel or deactivate Service or reduce data throughput speeds in order to protect the Carrier’s network from harm due to any cause including, without limitation, the excessive and/or unauthorized use of Simple Mobile Service. Simple Mobile reserves the right to limit throughput or amount of data transferred and to deny or terminate Service to anyone Simple Mobile believes is using their Service in an unauthorized manner or whose usage, in Simple Mobile’s sole discretion, adversely impacts a Carrier’s network or customer service levels. Simple Mobile will presume you are engaging in an unauthorized use in violation of these Terms and Conditions, if in Simple Mobile’s sole discretion, you are placing an abnormally high number of calls, or repeatedly placing calls of unusually long duration, or if your talk, text or data usage is harmful or disruptive to the Carrier’s network or service levels. If we determine, in our sole discretion, that you are using your Service in violation of the Simple Mobile Terms and Conditions or in any other manner that we deem to be unreasonable or excessive, we may terminate individual calls or data connections, terminate or reduce data throughput or terminate your Service, decline to renew your Service, or offer you a different Service plan with no unlimited usage component.
Simple Mobile may discontinue providing Service to you, discontinue your account, terminate data connections and/or reduce data throughput speeds for customers whose usage, in the sole judgment of Simple Mobile: (1) appear likely to generate abnormally high call volumes or data usage and/or abnormally long average call lengths or data usage as compared to the usage of other Simple Mobile customers or (2) may be harmful, disruptive, or interfere with the Carrier’s network, Simple Mobile’s service or the ability to provide quality service to other customers. By initiating Service and placing or receiving calls, you acknowledge and agree to Simple Mobile’s right to terminate your Service under these circumstances.
Simple Mobile may modify or cancel any Service or take corrective action at any time without prior notice and for any reason, including but not limited to your violation of this agreement.
SIMPLE MOBILE UNLIMITED PLAN FEATURES CANNOT BE USED FOR: (1) access to the Internet, intranets, or other data networks except as the device’s native applications and capabilities permit (excluding all Hotspot applications), (2) any applications that tether your phone to a laptop or personal computer other than for the use of Wireless Sync, or (3) any applications that allow your phone to act as an internet access point or Wi-Fi for other devices and computers.
5. TEXT MESSAGING
Simple Mobile does not generally participate in Premium SMS services or campaigns. Premium SMS services usually involve sending a text message to a designated "short code" or attempting to buy SMS services from anyone other than Simple Mobile. Premium SMS campaigns include casting a vote, expressing your opinion, playing a game, or participating in interactive television programs through the use of a wireless phone.
You should not attempt to participate in Premium SMS services or campaigns other than those authorized by Simple Mobile. Any text message you send to a "short code" not authorized by Simple Mobile will likely not go through. Any charges you may incur as a result of your attempts to participate in Premium SMS services or campaigns not authorized by Simple Mobile are not refundable.
6. INTERNATIONAL LONG DISTANCE SERVICE FOR SIMPLE MOBILE
Simple Mobile offers its customers international long distance service (“ILD Service”) as an additional feature. These additional terms and conditions apply to customers who purchase and/or use a Simple Mobile Unlimited International Calling Plan or a Simple Mobile $10 Pay-As-You-Go International Calling Plan. By purchasing or using Simple Mobile ILD Service, You accept the additional terms and conditions set forth below as such terms may be updated from time to time on our website.
Simple Mobile’s ILD Service allows you to place calls to select destinations internationally depending on whether you have purchased an Unlimited International Calling Plan or the $10 Global International Card. To determine if your destination of choice is available please check our website at simplemobile.com/internationalcalling. Please be advised that the destinations which are available may change without notice at any time. Simple Mobile ILD Service is not a substitute for regular international calling services. It will not allow you to place calls to all destinations or to all countries. Simple Mobile ILD Service excludes calls to certain high cost wireless and landline, non-geographic and premium numbers.
Simple Mobile Unlimited International Calling Plans . If you have purchased a Simple Mobile Unlimited International Calling Plan, your phone will be allowed to call up to 10 unique destination numbers per 30-day period. The 10 unique destination numbers automatically resets when your next plan cycle begins unless you purchase a new Unlimited International Calling Plan prior to the start of your next plan cycle. If you want to call a destination or telephone number which is not available through Simple Mobile’s Unlimited International Calling Plan, you may purchase Simple Mobile’s $10 Pay-As-You-Go International Calling Plan. Please visit our website to learn more about the specific features and offerings of Simple Mobile’s Unlimited International Calling Plans. If you have purchased a Simple Mobile Unlimited International Calling Plan, your ILD Service will only work if you have Service Days left in your plan cycle. If your plan cycle has ended, you will need to purchase and redeem a new Simple Mobile Unlimited International Calling Plan to renew your unlimited ILD Service.
Simple Mobile $10 Pay-As-You-Go International Calling Plan . Simple Mobile also offers a $10 Pay-As-You-Go International Calling Plan that must be used with another Simple Mobile Service Plan in order for it to work. You may add or refill your ILD Service balance in $10 increments by purchasing a $10 Pay-As-You-Go International Calling Plan from Simple Mobile by calling Customer Care or visiting our website. Your ILD Service will only work when your Simple Mobile Service is active and when you have a positive balance in your Account. If you have purchased a $10 Pay-As-You-Go International Calling Plan, you will not be limited in the number of destination numbers you may call. However, the Simple Mobile phone number you provide when purchasing a $10 Pay-As-You-Go International Calling Plan will be the only number that is permitted to dial internationally. You will not be able to transfer your ILD Service to another phone number.
The applicable rates to specific countries, regions or cities for customers who have purchased a $10 Pay-As-You-Go International Calling Plan are available online at simplemobile.com/internationalcalling. All rates are subject to change at any time without prior notice. Calls are billed in one-minute increments. Simple Mobile’s $10 Pay-As-You-Go International Calling Plan expires 180 days after last use or 30 days after your Simple Mobile Service is suspended. You are responsible for preventing the unauthorized use of your Account and the Service, and You are responsible for any reduction in value of your Account arising out of authorized and unauthorized use.
Simple Mobile ILD Service may be provided by other carriers, many of whom may not have a direct contractual relationship or service level agreements with Simple Mobile. ILD Service provided by these third parties may not be the same as service provided in the United States or by other international long distance carriers. Events beyond our control may affect the availability and/or quality of service. No representation or warranty, express or implied, is made regarding the number of minutes available for calls to a particular country or, after having placed a call, the remaining number of minutes available for calls to any particular country.
Simple Mobile ILD Service is intended for live dialogue between and initiated by two individuals for personal use and not for commercial use or resale. Personal use is defined as a call originated or received by a Simple Mobile customer to initiate conversation between two individuals one of which is talking from a landline or wireless international destination. It may not be used for any other purpose including, but not limited to, conference calling, monitoring services, data transmissions, transmission of broadcasts, transmission of recorded material, interconnection to other networks, telemarketing, autodialed calls, other commercial uses, or other connections that do not consist of uninterrupted live dialogue between two individuals. The service is not for commercial use or resale. Loaning or renting your handset (mobile phone or cell phone) or service to other persons for their use or calling, hosting, establishing or maintaining a chat line is not considered personal use. We will presume a customer is engaged in non-personal use in violation of our terms and conditions if their international long distance calling usage exceeds three times the average usage of our ILD Service subscriber base, and we reserve the right to suspend, terminate or restrict your services with no prior notice.
Simple Mobile will presume certain usage, dialing or calling patterns to indicate that you are using the ILD Service in violation of these Terms and Conditions and we reserve the right to suspend, terminate or restrict your Simple Mobile Service without prior notice. If you believe that we are in error, please contact Customer Care at 1-877-878-7908 and depending on the circumstances, we may reactivate your ILD Service. If, however, your usage, dialing or calling patterns continue to violate these Terms and Conditions, we reserve the right to suspend, terminate or restrict your Simple Mobile Service with no prior notice. You will not receive a refund if your service is terminated for violating these terms and conditions.
You agree not to use Simple Mobile’s ILD Service for any unlawful, abusive, or fraudulent purpose, including, for example, using the Service in a way that (a) interferes with our ability to provide the ILD Service to you or to other customers; (b) violates applicable law or this Agreement; (c) avoids your obligation to pay for the Service; or (d) is not for consumer use. You agree not to resell your Simple Mobile ILD Service or to use your ILD Service for any unlawful or abusive purpose or in such a way as to create damage or risk to our business, reputation, employees, facilities, third parties or to the public generally.
Simple Mobile ILD Service is not intended for intrastate dialing in the US, to place calls to area codes 500, 700, 800, 888, 877, 866, 855, 900, 976, 411 or 555, nor to place certain toll-free, operator-assisted, third-party billed, directory assistance or collect calls.
Call times for each call are rounded up to the next whole minute and billed in full minute increments. Per call charges are rounded up to the next whole penny. You will be charged for calls based upon the rates that are effective as of the date and time you place the call.
You are responsible for safeguarding your ILD Service and Account information. Simple Mobile is not responsible for and will not issue credit for unauthorized use.
7. DATA SERVICES
Simple Mobile Service Plans provide you with data services (“Data Services”) to access the internet and other online content available on websites and mobile apps. Unless you are using Wi-Fi, any data you access by using your Simple Mobile Phone or other approved wireless device will count against your data balance (“Data Usage”) until you reach the maximum amount of data usage allowed within your Service plan. Data Usage begins when your Simple Mobile Phone or other approved wireless device makes a data connection. This could occur by opening an internet browser window or an application installed on your device, sending or receiving a multi-media message (a photo or video), initiating a content download, or if internet access is initiated in any other way or for any other purpose. Data Usage ends when your data connection terminates. The duration of your data connection and the associated Date Usage are not determined from the exact moment you press a button on your Simple Mobile Phone or other wireless device. Data Usage depends on the size of the content and the actual time it takes to download or transmit the content or multimedia message.
In addition to Data Usage which counts against your data balance, there is a charge each time you purchase content to download online (“Content Charge”). Content Charges vary depending on the type of content you purchase and download. You will be advised of any Content Charges prior to finalizing any content you purchase. Any web content or application you purchase and download may only be used and/or viewed on the Simple Mobile Phone or wireless device used to purchase and download the content and cannot be transferred to another device, including a new or replacement Simple Mobile Phone. Web content and application purchases are non-refundable and non-transferable.
Availability, Interruptions and Discontinuation of Data Service . Simple Mobile does not guarantee the availability of Data Services in your home area at any time and reserves the right to modify, suspend, interrupt, discontinue, reduce the data throughput speed or the amount of data transferred, or permanently cancel Data Services, or portions thereof, without notice. Data Services are not available in analog service areas or outside of your network coverage area. Simple Mobile is not responsible and will not be liable for any modifications, interruptions or discontinuation of the Data Services or for any failure to receive web content purchased using Data Services. If your Data Services are modified, interrupted, discontinued or canceled, Simple Mobile will NOT refund any remaining used or unused services. If you cancel or attempt to cancel a Data Service download or a multi-media message in progress, or if the process is otherwise interrupted through no action on your part, you may incur a charge in accordance with these Terms and Conditions.
Data Services are provided on an “AS IS” and “AS AVAILABLE” basis. Simple Mobile does not warrant that Data Services will be uninterrupted or error or virus-free. No warranty of any kind, either express or implied, including but not limited to warranties of title or non-infringement or implied warranties of merchantability or fitness for a particular purpose, is made in relation to the availability, accuracy, reliability, information or content of Simple Mobile’s Data Service. You expressly agree and acknowledge that use of Data Services is at your sole risk and that you may be exposed to content from various sources that may be harmful or malicious.
Non-Rated Content. The content available or accessible by using your Data Services is NOT rated or filtered. Although Simple Mobile strives to present and offer only generally acceptable content, it is impossible to proof all online content available to one using Data Services. Simple Mobile Data Services may provide access to content that is offensive or objectionable to you or to others. You are solely responsible for the use of your Simple Mobile Data Service and you assume all risk and liability in doing so. Simple Mobile is not liable for any content that you and/or others may find offensive or objectionable. For more information on Data Services, please consult the material included in your Simple Mobile Welcome Kit and/or User’s Guide. Additional information can also be found at simplemobile.com.
Not all of the online content which is accessible to one using Simple Mobile Data Services is intended for children. In the event that you, as a legal guardian allow your child to use Simple Mobile’s Data Services, you acknowledge that your child has the permission to use the Data Services available on your Simple Mobile Phone, including, without limitation, email and web browsing capabilities. You further acknowledge that as a legal guardian, it is your responsibility to determine whether using Data Services is appropriate for your child. If you browse the internet using Data Services, you agree that you are of the minimum legal age to visit certain sites and you agree not to visit any illegal sites.
8. COVERAGE MAPS
You will find coverage maps on our website. These maps are for general informational purposes only and depict the general coverage area of Simple Mobile. Simple Mobile does not guarantee coverage or Service availability and the coverage maps are not a guarantee of coverage. Coverage is not available everywhere. The coverage maps display only the predicted and approximate optimal wireless coverage for voice calls, while outdoors, of the network on which your phone may be activated including the coverage area of the network’s roaming partners, if applicable. The coverage areas shown do not guarantee service availability and may include locations with limited or no coverage. Within coverage areas, there may be significant limitations or interruptions in coverage that may impact service and result in dropped and blocked connections, slower data speeds or no data connectivity and call interference. This could occur due to many factors including your device, network changes, network traffic volume, network outages, technical limitations, signal strength, the terrain and your proximity to buildings, foliage and other obstructions, weather and other conditions. You will not be able to operate your phone or make 911 calls if service is not available. Some features on your device may not operate when roaming on the network of a network roaming partner. If you travel outside of your coverage area, your phone will not work. The coverage depicted on the Simple Mobile’s coverage maps is based on the information provided by other carriers and public sources and we cannot guarantee their accuracy. Coverage maps for your network may also vary based on your home location so please refer to our website for the most up-to-date coverage map applicable to your device and geographic area. Your coverage will also vary based upon the Simple Mobile plan you select. Simple Mobile is not responsible for any Service outages, interruptions in service or decline in the quality of service regardless of the cause.
Roaming occurs when a subscriber of one wireless service provider uses the facilities of another wireless service provider. Roaming most often occurs when you make and receive calls outside of the network coverage area of your wireless service provider. When your phone is roaming, an indicator light on your phone may display the word “Roam” or “RM” on the screen while the phone is not in use. There are no additional charges for roaming calls with your Simple Mobile Service. Simple Mobile does not guarantee the availability and/or quality of Services (voice, text and/or data) while roaming.
10. EMERGENCY CALLS
If you are in an area where your Simple Mobile Service is searching for a wireless signal or there is no wireless signal or wireless service, it is highly probable that a call to 911 will not go through. Do not rely solely on your Simple Mobile Service in an emergency situation. In an emergency, locate the nearest landline phone and call for help.
11. LIMITATIONS OF SERVICE AND USE OF EQUIPMENT
Your Service may be unavailable, interrupted, delayed or limited for a variety of reasons outside of Simple Mobile’s control. Not all plans or Services are available for purchase or use in all sales channels, in all areas or with all devices. Service is subject to transmission limitations caused by certain equipment and compatibility issues, atmospheric, topographical and other conditions. Further, Service may be temporarily refused, limited, interrupted or curtailed due to system capacity limitations, technology migration or limitations imposed by the Carrier, or because of equipment modifications, upgrades, repairs or relocations or other similar activities necessary or proper for the operation or improvement of the Carrier's radio telephone system. At any time, Simple Mobile reserves the right to substitute and/or replace any Simple Mobile equipment (including Simple Mobile Phones and SIM cards) with other Simple Mobile equipment of comparable quality. Simple Mobile does not warrant or guarantee the availability of network Services or of any other services at any specific time or in any specific geographic location or that Services will be provided without interruption. Neither Simple Mobile, nor any Carrier, shall have any liability for Service failures, outages or limitations of Service. Because of the risk of being struck by lightning, you should not use your phone outside during a lightning storm. You should also unplug your phone’s power cord and charger to avoid electrical shock and/or fire during a lightning storm. Certain mobile phone features may not be available throughout the entire network or their functionality may be limited. All plan rates, features, functionality and other product specifications are subject to change without notice or obligation.
12. UNAUTHORIZED USAGE; TAMPERING
Simple Mobile Phones are sold exclusively for use by you, the end consumer. Your Simple Mobile Service is restricted from operating when you are located anywhere outside of the United States, Puerto Rico or the U.S. Virgin Islands, including offshore or in international waters. Any such usage is considered unauthorized usage by Simple Mobile for which your Service will be immediately suspended.
Any other use of your Simple Mobile Phones, including without limitation, any resale, unlocking and/or reflashing of the Simple Mobile Phone is unauthorized and constitutes a violation of your agreement with Simple Mobile. You agree not to unlock, reflash, tamper with or alter your Simple Mobile Phone or its software, enter unauthorized PIN numbers, engage in any other unauthorized or illegal use of your Simple Mobile Phone or the Service, or assist others in such acts, or to sell and/or export Simple Mobile Phones outside of the United States. You further agree to safeguard your SIM card and not to allow any unauthorized person to use your SIM card. You agree not to, directly or indirectly, alter, bypass, copy, deactivate, remove, reverse-engineer or otherwise circumvent or reproduce the encoded information stored on, or the encryption mechanisms of, your SIM card.
These acts violate Simple Mobile’s rights as well as state and federal laws. Improper, illegal or unauthorized use of your Simple Mobile Phone or Service is a violation of this agreement and may result in immediate discontinuation of Service and legal action. Simple Mobile will prosecute violators to the full extent of the law. You agree that any violation of this provision of the agreement through your improper, illegal or unauthorized use or sale of your Simple Mobile Phone shall entitle Simple Mobile to recover liquidated damages from you in the amount of not less than $5,000 per Simple Mobile Phone purchased, sold, acquired or used in violation of this provision. In the event your Service is suspended or deactivated for any unauthorized usage, you will not be entitled to receive any refund for your Simple Mobile Product or unused airtime. Simple Mobile may modify, cancel and/or deactivate your Service or take other corrective action at any time, without prior notice, for any reason, including but not limited to, your violation of this Agreement.
13. LIMITED WARRANTY
A new or reconditioned Simple Mobile Phone is covered by a one year limited warranty administered by TracFone Wireless, Inc. Simple Mobile accessories have a ninety (90) day limited warranty against defects in materials and workmanship under normal use by the purchaser. You may obtain warranty service directly from Simple Mobile. A phone registered with Simple Mobile under the “Bring Your Own Device” program is not covered by Simple Mobile.
How To Obtain Warranty Service . To obtain warranty service from Simple Mobile on a new or reconditioned Simple Mobile phone or accessory purchased from Simple Mobile, please contact Customer Care at 1-877-878-7908. If your problem cannot be resolved over the phone, our Simple Mobile technicians will provide you with a Return Authorization Number, which you will use to send your phone and/or accessories to the designated Service Center for repair or replacement, at Simple Mobile’s option.
Terms of Limited Warranty . Simple Mobile warrants that your Simple Mobile phone or accessory (“Product”) is free from defects in material and workmanship that result in Product failure during normal usage, according to the following terms and conditions:
1. The limited warranty for a new or reconditioned Simple Mobile Phone extends for one (1) year beginning on the date of the purchase of your new or reconditioned Simple Mobile Phone. The limited warranty on a Simple Mobile accessory extends for ninety (90) days beginning on the date of the purchase of your Simple Mobile accessory.
2. The limited warranty offered by Simple Mobile extends only to the original purchaser (“Consumer”) of the Product and is not assignable or transferable to any subsequent purchaser/end-user. The limited warranty extends only to Consumers who purchase the Product in its original packaging from an authorized dealer. Upon request from Simple Mobile, the Consumer must prove the date of the original purchase of the Product by a dated bill of sale or dated itemized receipt.
3. During the limited warranty period, Simple Mobile will replace or repair, at Simple Mobile’s sole option, any defective Products or parts (except as excluded below), or any Products or parts that will not properly operate for their intended use (except as excluded below) with new or refurbished Products or parts if such replacement or repair is needed because of Product malfunction or failure during normal usage. The limited warranty does not cover loss of personal information, passwords, contacts, music, ringtones, pictures, videos, applications or other content, memory cards, software, defects in appearance, cosmetic, decorative or structural items, including framing, and any non-operative parts. Simple Mobile’s limit of liability under this limited warranty is the actual cash value of the Product at the time the Consumer returns the Product to Simple Mobile for repair, determined by the price paid by the Consumer for the Product less a reasonable amount for usage. Simple Mobile shall not be liable for any other losses or damages. These remedies are the Consumer’s exclusive remedies for breach of warranty.
4. The Consumer shall have no coverage or benefits under this limited warranty if any of the following conditions are applicable:
(a) The Product has been subjected to abnormal use, abnormal conditions, improper storage, exposure to moisture or dampness, unauthorized modifications, unauthorized connections, unauthorized repair, misuse, neglect, abuse, accident, alteration, improper installation, or other acts which are not the fault of Simple Mobile, including damage caused by shipping.
(b) The Product has been damaged from external causes such as collision with an object, or from fire, flooding, sand, dirt, windstorm, lightning, earthquake or damage from exposure to weather conditions, an act of God, or battery leakage, theft, blown fuse, or improper use of any electrical source, damage caused by computer or internet viruses, bugs, worms, Trojan Horses, cancelbots or damage caused by the connection to other products not recommended for interconnection by Simple Mobile.
(c) Simple Mobile was not advised in writing of the alleged defect or malfunction of the Product within fourteen (14) days after the expiration of the applicable limited warranty period.
(d) The Product serial number plate or the enhancement data code has been removed, defaced or altered.
(e) The defect or damage was caused by the defective function of the cellular system or by inadequate signal reception by the external antenna, or viruses or other software problems introduced into the Product.
(f) The Product is outside of the one (1) year Limited Warranty period.
5. Simple Mobile does not warrant uninterrupted or error-free operation of the Product or service. Simple Mobile cannot and does not guarantee that your communications will be private or secure; it is illegal for unauthorized people to intercept your communications, but such interceptions can occur. If a problem develops during the limited warranty period, the Consumer shall contact Simple Mobile Customer Care for repair or replacement processing of the Product. Simple Mobile shall, at its discretion, provide a replacement product that may consist of a refurbished phone of the same model if available, or of a comparable model.
6. You (the Consumer) understand that the product may consist of refurbished equipment that contains used components, some of which have been reprocessed. The used components comply with Product performance and reliability specifications.
7. SIMPLE MOBILE EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE. THE LIMITED WARRANTY SET FORTH HEREIN IS THE CONSUMER’S SOLE AND EXCLUSIVE REMEDY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. SIMPLE MOBILE SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS, SAVINGS OR REVENUE, LOSS OF DATA OR USE OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL OR SUBSTITUTE EQUIPMENT OR FACILITIES, INJURTY TO PROPERTY DOWNTIME, OR THE CLAIMS OF ANY THIRD PARTIES, INCLUDING CUSTOMERS, RESULTING FROM THE PURCHASE OR USE OF THE PRODUCT AND/OR SERVICE OR ARISING FROM BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF SIMPLE MOBILE KNEW OF THE LIKELIHOOD OF SUCH DAMAGES. SIMPLE MOBILE SHALL NOT BE LIABLE FOR DELAY IN RENDERING SERVICE UNDER THE LIMITED WARRANTY, LOSS OF USE DURING THE PERIOD THAT THE PRODUCT IS RETURNED FOR REPLACEMENT OR WARRANTY SERVICE OR FOR THE LOSS OR UNAUTHORIZED USE OF CUSTOMER PASSWORDS, PERSONAL INFORMATION, CONTACTS, PICTURES, VIDEOS, APPLICATIONS, MUSIC, RINGTONES AND OTHER CONTENT.
8. Some states do not allow the exclusion or limitation of incidental and consequential damages, so certain of the above limitations or exclusions may not apply to you (the Consumer). This limited warranty gives the Consumer specific legal rights and the Consumer may also have other rights which vary from state to state.
9. Simple Mobile neither assumes nor authorizes any authorized service center or any other person or entity to assume for it any other obligation or liability beyond that which is expressly provided for in this limited warranty including the provider or seller of any extended warranty or service agreement.
10. This is the entire warranty between Simple Mobile and the Consumer, and supersedes all prior and contemporaneous agreements or understandings, oral or written, relating to the Product, and no representation, promise or condition not contained herein shall modify these terms.
11. This limited warranty allocates the risk of failure of the Product between the Consumer and Simple Mobile. The allocation is recognized by the Consumer and is reflected in the purchase price.
14. LIMITATION OF LIABILITY
Simple Mobile is not liable to you, other users of your Simple Mobile Service, or any third party for any failure to post, receive, process or credit a payment for your Simple Mobile Service including, without limitation, any failure to add or credit any airtime or due date information to your Simple Mobile Service or for any other claim arising out of or in any way related to your Simple Mobile Service.
Simple Mobile will not be liable to you for any actual, direct, indirect, special, incidental, consequential, exemplary or punitive damages of any kind, including lost profits (regardless of whether it has been notified such loss may occur) by reason of any act or omission in its provision of equipment and/or Services to You. Simple Mobile will not be liable for any act or omission of any other company furnishing a part of our Services or any equipment or for any damages that result from any Service or equipment provided by or manufactured by third parties. If you return your Simple Mobile Phone for any reason, Simple Mobile is not responsible and shall not be liable to you or anyone else for any personal information, such as user names, passwords, contacts, pictures, SMS, MMS and/or additional downloads, you may have stored on your Simple Mobile phone or which may remain on your Simple Mobile phone when it is returned.
You agree that neither we nor our vendors, suppliers or licensors are responsible for any damages you may suffer or incur resulting from: (a) anything done or not done by another person; (b) providing or failing to provide Data Services, including, but not limited to, deficiencies or problems with a phone or network coverage (for example, dropped, blocked, interrupted service, etc.); (c) traffic or other accidents, or any health-related claims relating to our service; (d) web content or information accessed while using our service; (e) an interruption or failure in accessing or attempting to access emergency services from a phone, 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 phone or any computer or equipment connected to your phone, or damage to or loss of any information stored on your phone, computer or equipment 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 phone, computer or equipment and to back-up your information stored on each.
IN NO EVENT SHALL SIMPLE MOBILE, ITS EMPLOYEES, LICENSORS OR AFFILIATES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE, SALES, OR DATA; ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, OR LOSS OF BUSINESS INFORMATION; OR FOR ANY OTHER SPECIAL, DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, COVER, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE SIMPLE MOBILE SERVICE, VOICE MAIL, ANY GPS MAPS, SOFTWARE, DATA SERVICES OR OTHER WEB CONTENT, EVEN IF SIMPLE MOBILE, OR ITS RESPECTIVE LICENSORS OR AFFILIATES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITH RESPECT TO JURISDICTIONS THAT MAY NOT ALLOW THE EXCLUSION OF LIABILITY, BUT MAY ALLOW LIABILITY TO BE LIMITED IN SOME CASES, SIMPLE MOBILE, ITS EMPLOYEES, LICENSORS AND AFFILIATES' LIABILITY SHALL BE LIMITED TO U.S. $50.
You agree to indemnify and hold harmless Simple Mobile and TracFone Wireless, Inc. from any and all liabilities, penalties, claims, causes of action, and demands brought by third parties including the costs, expenses, and attorneys' fees on account thereof resulting from your use of a Simple Mobile Service, whether based in contract or tort (including strict liability) and regardless of the form of action.
16. DISPUTE RESOLUTION
Most customer concerns can be resolved quickly and to the customer’s satisfaction by contacting Customer Care at 1-877-878-7908. Before taking any formal action, You agree to first contact us in writing and provide a description of your dispute, all relevant documents, and your proposed resolution. If we are unable to resolve your dispute within 30 days of your notice to us, You agree to submit your dispute to binding arbitration or small claims court as set forth in this provision. Please forward your dispute to TracFone Wireless, Inc., Attn: Legal Department-Consumer Claims, 9700 NW 112 Avenue, Miami, FL 33178.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF ALL DISPUTES AND CLAIMS (INCLUDING ONES THAT ALREADY ARE THE SUBJECT OF LITIGATION) THROUGH BINDING ARBITRATION INSTEAD OF SUING IN COURT IN THE EVENT THAT THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE OR CLAIM. ARBITRATION IS BINDING AND SUBJECT TO ONLY A VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE TERMINATION OF TRACFONE’S AGREEMENT WITH YOU. YOU AGREE THAT YOU ARE AWARE THAT THERE IS NO JUDGE NOR JURY IN ARBITRATION BUT THAT AN ARBITRATOR MAY AWARD YOU THE SAME DAMAGES AND RELIEF THAT YOU MAY BE ABLE TO RECOVER IN A COURT OF LAW. YOU AND TRACFONE FURTHER AGREE THAT THE ARBITRATOR MUST HONOR THE TERMS OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY BRING A CLAIM IN SMALL CLAIMS COURT.
This provision is intended to encompass all disputes or claims arising out of your relationship with TracFone, arising out of or relating to the Service or any equipment used in connection with the Service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal or equitable theory). References to You and TracFone include our respective subsidiaries, affiliates, predecessors in interest, successors, and assigns.
All claims will be resolved by binding arbitration where permitted by law. You must first present any claim or dispute to TracFone by contacting our Executive Resolution Department, as set out above, to allow an opportunity to resolve the dispute prior to initiating arbitration. The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association (“AAA”) under the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, the “AAA Rules”), as modified by this agreement. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting TracFone’s Legal Department as set out above. You and TracFone agree that use of the Service evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. Additionally, for claims of $10,000 or less, You can choose to proceed with arbitration being decided on the documents submitted in an effort to minimize costs and the time it may take for an arbitrator to reach his or her decision.
You and TracFone agree that any arbitration will be conducted on an individual basis and not on a consolidated, class wide, or representative basis. Further, You and TracFone agree that the arbitrator may not consolidate proceedings or more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If the preclusion of consolidated, class wide, or representative proceedings is found to be unenforceable, then this entire arbitration clause shall be null and void.
Absent a finding that your demand is frivolous, brought for an improper purpose, or malicious as set forth by the standards of Federal Rule of Civil Procedure 11(b), TracFone will pay the filing, administration, and arbitrator fees of an arbitration initiated in accordance with this Agreement. If, however, the arbitrator does deem that your demand was frivolous, was brought for an improper purpose, or was malicious under the same standard used in a court of law, payment of all fees will be divided between You and TracFone in accordance with AAA Rules. Additionally, TracFone hereby waives any right to seek its attorney’s fees from You in the event that it prevails in the arbitration, except where your demand is deemed frivolous, brought for an improper purpose, or malicious under the standard set out above. Nothing in this section shall be construed by an arbitrator as barring an award of attorney’s fees to You, the customer, where the law would so provide. If You initiate an arbitration in which You seek more than $50,000 in damages, the payment of fees will be governed by the AAA rules.
If TracFone made You a settlement offer that You rejected prior to entering arbitration and the arbitrator ultimately finds in your favor in any respect with an award that is greater than the last written offer made to You by TracFone, TracFone will pay You the amount of the award or a minimum of $5,000, whichever is greater. Additionally, TracFone will pay your attorney twice the reasonable expense of attorney’s fees as well as reimbursing any expenses that your attorney reasonably incurs for investigating, preparing, and pursuing Your claim. If TracFone opted not to make You a written settlement offer, these same terms apply, meaning that You are guaranteed a minimum award of $5,000 if the arbitrator finds in your favor and that TracFone will reimburse your reasonable attorney’s fees twofold. The arbitrator will be the arbiter of what constitutes reasonable fees, and You and TracFone agree that the arbitrator may make any rulings as to the payment and reimbursement of fees and expenses for an additional 14 days after the arbitrator’s ruling on the merits.
Unless You and TracFone agree otherwise and in an effort to reduce the burden of arbitration on You, the location of any arbitration shall be in the county of your, the customer’s, residence for those customers located within the United States. For customers residing outside of the United States, the location of arbitration shall be Miami, Florida, unless You and TracFone agree otherwise. Either or both parties may participate in the proceedings by telephone. The arbitrator shall apply the law of the State in which You, the customer, reside to the dispute.
If for any reason this arbitration provision is deemed inapplicable or invalid, or to the extent this arbitration provision allows for litigation of disputes in court, You and TracFone waive to the fullest extent permitted by law, (i) any right to pursue any claims on a class or consolidated basis and (ii) your right to serve in a representative capacity in any class or consolidated basis. Neither You nor TracFone shall disclose the existence, contents, or results of any arbitration except to the extent required by law. Judgment on the award rendered may be entered by any court of competent jurisdiction.
In the event that any claim proceeds in a court of law rather than through arbitration, You and TracFone agree that there will not be a jury trial. You and TracFone unconditionally waive any right to a trial by jury in any action, proceeding, or counterclaim arising out of or relating to this Agreement in any way. You and TracFone further agree that in the event of litigation, this section of the Agreement may be filed as an exhibit illustrating a knowing and written consent of any right to a trial by jury.
YOU HAVE THE RIGHT TO OPT OUT OF THIS PROVISION COVERING DISPUTE RESOLUTION BY BINDING ARBITRATION WITHIN 30 DAYS OF THE ACTIVATION OF YOUR SERVICE. IN THE EVENT YOU ACTIVATE SERVICE WITH TRACFONE AND DO NOT OPT OUT OF THIS PROVISION WITHIN 30 DAYS, YOUR INACTION SHALL BE DEEMED TO BE CONSENT TO THIS PROVISION COVERING DISPUTE RESOLUTION. YOU MAY OPT OF THIS PROVISION BY CALLING US AT 1-877-878-7908 OR BY WRITING TO TRACFONE WIRELESS, INC., ATTN: LEGAL DEPARMENT-CONSUMER CLAIMS, 9700 NW 112 AVENUE, MIAMI, FL 33178. ANY OPT-OUT RECEIVED AFTER THE OPT-OUT DEADLINE (OR, IN THE CASE OF THOSE MAILED, POSTMARKED AFTER THE OPT-OUT DEADLINE) WILL BE INVALID, AND YOU MUST PURSUE YOUR CLAIM IN ARBITRATION.
18. CHOICE OF LAW
This Agreement shall be construed under the laws of the law of the State in which you reside without regard to its choice of law rules, except for the arbitration provision contained herein, which will be governed by the Federal Arbitration Act. If you reside outside of the United States, then this Agreement will be governed by the laws of the state of Florida.
19. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between You and TracFone Wireless, Inc. with respect to any Simple Mobile Product or Service. The failure of either party to enforce at any time any of the terms set forth herein shall not be construed to be a waiver of any such terms nor in any way affect the validity and enforceability of these Terms. No waiver of a breach of any term shall be deemed a waiver of any other or subsequent breach of a term. In the event any provision contained in this Agreement is deemed unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.
© 2015 TracFone Wireless, Inc.