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 SIM card or Plan with a compatible phone. To activate your Simple Mobile Service you must contact Customer Care from a landline phone or by visiting the Simple Mobile 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 SIM card can only be used with Simple Mobile wireless service and cannot be activated with any other wireless carrier or service. Simple Mobile provides Service at its discretion. 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 any one or more 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. All plan rates, features, functionality and other product specifications are subject to change without notice or obligation. 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 must comply with all applicable laws, rules and regulations. Unless you have purchased a Wireless Broadband Plan, devices capable only of using data service are strictly prohibited and your use of any such device is grounds for immediate deactivation and termination of your service without a refund. You are responsible for ensuring that any compatible wireless phone that you use is compatible with the Simple Mobile Service and that your phone meets all Federal laws and standards. You are further responsible for the purchase and maintenance of any additional hardware, software and/or internet access required in order 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 will not be refunded. 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, 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 SIM cards.
3. SIMPLE MOBILE SERVICE PLANS
Your Simple Mobile Service will operate after you have purchased and redeemed a service plan (“Service Plan”) and so long as you have service days left on your 30-day 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 Simple Mobile 30 Day Monthly Plans to your Simple Mobile Stash to be automatically applied on your Service End Date. You may access the Service Plans in your Simple Mobile Stash at any time through “My Account.” All 30 Day Monthly Plans you redeem are automatically added to your Simple Mobile Stash to be applied at your Service End Date. When purchasing and redeeming a 30 Day Monthly Plan, you will be prompted to select either to apply the Service Plan at that time or at their Service End Date. With Simple Mobile Stash, if you decide you might need a Service Plan prior to your Service End Date, you can visit “My Account” to apply a Service Plan or otherwise manage your Service Plans in Reserve. If you are an Auto-Refill customer and add a Service Plan or Service Card to your Simple Mobile Stash, the Plan in Reserve will take precedence over the Auto Refill and it will be applied before the next Auto Refill purchase is processed.
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
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.
Downloadable Third Party Web Content and Applications . You may download free and purchased Web Content and applications (“Web Content/Apps”) from third parties that are unrelated to Simple Mobile. If you are using Wi-Fi, data will not be deducted from your data balance. For such third party downloads, Simple Mobile is not responsible for the Web Content/Apps, including download, installation, use, transmission failure, interruption, or delay, or any content or website you may be able to access through the Web Content/Apps. Any support questions for these Web Content/Apps should be directed to the third party seller. When you use, download or install Web Content/Apps sold by a third party, you may be subject to license terms between you and the third party seller. Simple Mobile is not responsible for any third party content, advertisements, or websites you may access using your phone.
Non-Rated Data Service Content. Simple Mobile Data Service content is NOT rated or filtered. Although Simple Mobile strives to present and offer only generally acceptable content, it is impossible to proof all titles, news articles and other Data Services for appropriate content. Simple Mobile Data Service content may include content that is offensive or objectionable to you or to others. You are solely responsible for the use of Simple Mobile Data Service content 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.
Data Services are not intended for use by children. In the event that you, as a legal guardian allow your child to use your phone’s Data Services, you acknowledge that your child has the permission to access the Data Services available on your Phone, including, without limitation, email and web browsing capabilities. You further acknowledge that as a legal guardian, it is your responsibility to determine whether use of Data Service 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 SIM cards) with other Simple Mobile equipment. 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. All talk and standby times are quoted in Digital Mode and are approximate.
12. UNAUTHORIZED USAGE; TAMPERING
Simple Mobile SIM cards are sold exclusively for use by you, the end consumer. The Carriers, Simple Mobile and/or their respective service providers, may, from time to time, remotely update or change the encoded information on your SIM card. 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. In the event of suspension for this or any other unauthorized usage, you will not be entitled to receive any refund for your Simple Mobile Service. Simple Mobile may modify, cancel and/or deactivate Service or take corrective action at any time, without prior notice, for any reason, including but not limited to, your violation of this agreement. In the event of suspension or deactivation of your Service, you will not be entitled to receive any refunds for your Simple Service.
You 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. Any unauthorized use of your Simple Mobile SIM card constitutes a violation of your agreement with Simple Mobile. You agree not to engage in any unauthorized or illegal use of your Simple Mobile SIM card, or assist others in such acts, or to sell and/or export Simple Mobile SIM cards outside of the United States. These acts violate Simple Mobile’s rights and state and federal laws. Improper, illegal or unauthorized use of your Simple Mobile 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 Service shall entitle Simple Mobile to recover liquidated damages from you in the amount of not less than $5,000 per Simple Mobile SIM card purchased, sold, acquired or used in violation of this provision.
13. LIMITED WARRANTY
DISCLAIMER OF WARRANTIES. EXCEPT FOR ANY WRITTEN WARRANTY THAT MAY BE PROVIDED WITH A PRODUCT OR SERVICE YOU PURCHASE FROM US, AND TO THE EXTENT PERMITTED BY LAW, THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OF ANY KIND. WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING YOUR SERVICE OR YOUR DEVICE. WE CANNOT PROMISE UNINTERRUPTED OR ERROR-FREE SERVICE AND DO NOT AUTHORIZE ANYONE TO MAKE ANY WARRANTIES ON OUR BEHALF. WE DO NOT GUARANTEE THAT YOUR COMMUNICATIONS WILL BE PRIVATE OR SECURE; IT IS ILLEGAL FOR UNAUTHORIZED PERSONS TO INTERCEPT YOUR COMMUNICATIONS, BUT SUCH INTERCEPTIONS CAN OCCUR.
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 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 phone or which may remain on your 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 Mobile Web 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 OR PRODUCT, VOICE MAIL, ANY GPS MAPS, SOFTWARE, MOBILE WEB 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.