PLEASE READ
THESE TERMS AND CONDITIONS CAREFULLY. They govern the relationship
between you and H2O Wireless
(Locus Telecommunications, Inc.) and explain our respective legal
rights concerning all aspects of our relationship, including without
limitation:
• Rates
and charges
• Availability of the service and features
• Replenishment and expiration of balances
• Privacy and confidentiality
• Your rights related to Customer Proprietary Network Information
• Modifications to the agreement
• Limitations of liability and warranty
• Resolution
of past or future disputes by mandatory binding arbitration instead
of court trials and class actions.
IF YOU USE THE SERVICE OR THE WIRELESS DEVICE,
YOU CONSENT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT USE THE
SERVICE OR PHONE AND NOTIFY US IMMEDIATELY TO CANCEL SERVICE.
I. SERVICE
a. Availability/Interruption. Service is normally available to your
Device when it is within the operating range of our system, and
may be available outside of that area in other participating carrier
service areas. Service is subject to transmission limitation or
interruption caused by weather, terrain, obstructions such as trees
or buildings, and other conditions. Service may be limited in some
areas where coverage is not available or may be temporarily limited
or interrupted due to system capacity limitations and system repairs
or modifications or to combat potential fraud. Digital PCS features
require a compatible digital multi-network phone, are only available
in the Digital PCS features area, and may require local telephone
company support and message sender access to computer and modem.
Not all features or Service offerings are available.
b. Use of Service/Device/Number. Reproduction, retransmission, dissemination
or resale of Service is prohibited without prior written contractual
arrangements with us and any required regulatory approvals. You are
responsible for the purchase and maintenance of any additional hardware,
software and/or Internet access from your PC required to use the
Service. You consent to receiving advertising, alerts and other broadcast
messages from us or our authorized agents. You have no ownership
rights to the Number, any IP address, any e-mail address or any other
identifier provisioned by us, our agents or the manufacturer of your
Device to be used with the Service, and you agree we may change any
such Number, IP address, e-mail address or any other identifier at
any time with or without prior notice to you. By using Service, you
agree to abide by the terms and conditions of any applicable software
license.
c. Use of Premium SMS and Mobile Content. Locus Telecommunications,
H2O Wireless
and its underlying carrier, may provide you with access to a mobile
content delivery service (each, a "Service"),
together with a third-party content provider. This access will allow
you to download to your compatible mobile phone various third-party
mobile entertainment content, such as ringtones, wallpapers, games,
graphics, data, news, etc. (collectively, the "Content")
via the Internet, SMS, MMS, WAP, BREW and other means of mobile content
delivery through the use of Premium SMS messaging or other mobile
technologies. A surcharge of 50¢ will be assessed for Premium SMS
messaging. This surcharge is in addition to and independent from
any charges assessed by the third-party content provider. This surcharge,
plus all other charges assessed by the mobile content provider, will
be incurred when you consent to download the third party content
provider’s Content. By using these Content services you warrant and
represent that (i) you have read and understood this Agreement and
agree to be bound by its terms and conditions; (ii) you are at least
21 years of age; (iii) you are the owner of the Device whose phone
number you are using, or if you do not own the Device you have explicit
permission from the owner of the Device to use the Device and to
enter the phone number for such Device; and (iv) you are a resident
of the U.S. Please note, given the aforementioned herein, that the
downloading of mobile Content and use of Premium SMS messaging is
up to the discretion of the owner of the phone and whomever the owner
gives permission to utilize these services. You agree to hold Locus
Telecommunications, H2O Wireless and its underlying carrier harmless
for any and all Content that is downloaded to your phone. If you
do not agree (or cannot comply) with the terms and conditions of
this Agreement, Locus Telecommunications / H2O Wireless Privacy
Policy and any applicable Rules, you are not authorized to access
or use any services or products, register for or use any Service
provided by Locus Telecommunications, H2O Wireless and its underlying
carrier, and your sole remedy is to immediately stop accessing and
using any service or product provided by Locus Telecommunications,
H2O Wireless, and its underlying carrier.
d. Unauthorized Usage. You agree not to use the Device or Service
for any unlawful, unauthorized or abusive purpose or in any way that
damages our property or others' property, or interferes with, harms
or disrupts our system or other operators' systems or other users.
You will comply with all laws while using the Service and you will
not transmit any communication or data that would violate any laws,
court order, or regulation, or would likely be offensive to the recipient.
You are responsible for all content you transmit using the Service.
You may not install any amplifiers, enhancers, repeaters or other
devices that modify, disrupt or interfere in any way with the radio
frequency licensed to us to provide Service. If your Device, user
name or password is stolen or Service is fraudulently used, you must
immediately notify us and provide us with such documentation and
information as we may request (including affidavits and police reports).
Until you notify us, you will remain responsible for all charges.
We have the right to interrupt or restrict Service to your Number,
without notice to you, if we suspect fraudulent, illegal, or abusive
activity. You agree to cooperate with us in any fraud investigation
and to use any fraud prevention measures we prescribe. Failure to
provide reasonable cooperation may result in your liability for all
fraudulent usage.
e. Release of Information. You consent to our release of
information about you when we believe release is appropriate to comply
with the law (e.g. a lawful subpoena, E911 information); to enforce
or apply our customer agreements; to initiate, render, bill and collect
for Services; to protect our rights or property; to protect users
of those Services and other carriers from fraudulent, abusive, or
unlawful use of, or subscription to, such Services; or if we reasonably
believe that an emergency involving immediate danger of death or
serious physical injury to any person requires disclosure of communications
or justifies disclosure of records without delay. You are deemed
to have reviewed and consented to our Privacy Policy posted on our
website at www.H2OWirelessCDMA.com.
f. Your Rights to End This Agreement. You may terminate your Service
at any time by notifying us of your intention to terminate Service.
There is no penalty or termination fee; however, it may take up to
30 days to process the termination request and the balance remaining
in your account is forfeited upon termination of Service. Your Service
will resume and the termination request will be cancelled if you
use your Service prior to our processing your termination notification.
g. Number Portability. You may be able to take your current wireless
phone number to another service provider. This is called "porting" and
will also terminate our service to you for that number. If you request
your new service provider to port a number from us, and we receive
your request from that new service provider, we'll treat the request
as notice from you to terminate our service for that number upon
successful completion of porting. After the porting is completed,
you won't be able to use our service for that number even if you
have unused airtime on that account, and you won't be entitled to
a refund for any unused airtime. If you're porting a phone number
to us from another company, we may not be able to provide some services,
such as 911 location services, immediately.
II. CHARGES/PAYMENTS/DEFAULT
a. Generally. You are responsible for paying all charges, including
but not limited to: airtime, access, features, voice mail access,
voice mail delivery, data usage, text messages, downloadable, alerts,
roaming, long distance, directory and operator assistance charges,
the price of Devices and accessories, charges for other goods and
services and shipping/handling fees. You will be billed at domestic
airtime or roaming rates for 800, 866, 877, 888, and other "toll
free" calls. Applicable international wireless long distance
charges, if applicable, will be charged for calls placed from your
wireless phone. For all incoming Service, the length of the call
will be measured during the time that you are connected to our
system, which is approximately from the time you press "Send" or
other key to answer a call until approximately the time you press "End" or
other keys to terminate the call. For all outgoing Service, the
length of the call will be measured from when you are released
by the automated balance notification system until approximately
the time you press "END" or other key to terminate the
call. Airtime usage on each call is deducted in full minute increments,
with partial minutes of use rounded up to the next full minute.
For calls placed in the United States, you will not be charged
for busy or unconnected calls if you press "End" or "No" within
a reasonable time. Call waiting, 3-way calling, call forwarding,
voicemail will incur applicable airtime or roaming and wireless
long distance charges.
b. Account Balance. All charges incurred will be deducted automatically
from your account. Any amounts loaded into your account are not transferable
or refundable. You should take reasonable efforts to safeguard your
Phone and replenishment airtime cards. No refunds or other compensations
will be given for returned, expired, lost, damaged, or stolen cards.
Airtime expiration varies by card denomination. If additional amounts
are placed into your account before the current account balance expires,
the existing balance will be carried over to the new expiration date.
If new amounts are not added to your account prior to the expiration
date any remaining amounts will be forfeited. If your account balance
remains zero for 30 days you may lose your Number. In some instances
you may be able to complete a call when the billing functionality
is interrupted. When this occurs you will not receive correct balance
information. All calls, however, will be deducted from your account
and the balance updated when the billing functionality is operable.
You are responsible for all data usage sent through our network and
associated with the Device, regardless of whether the Device actually
receives the information. In some cases our network will re-send
certain packets to ensure complete delivery. In these cases you will
be responsible for paying for the re-sent packets.
c. Use of Service/Rates. Your Service rates and other charges
and conditions for each Number or Phone are described in the Rate
Card or at our website at www.H2OWirelessCDMA.com.
You can place domestic and international calls from the U.S. to certain
designated international locations. Weekday and night & weekend
rates may vary. Night & weekend
hours are 9:00 p.m. – 6:59 a.m. Monday - Friday, and all day Saturday
and Sunday. Per-minute rates include roaming in all H2OSM Wireless
network cities and domestic long distance charges. Off network roaming
calls and direct dialed international calls will incur additional
per minute charges on top of the standard airtime rates. For off-network
roaming and direct dial international rates, please see store, contact
service provider or visit www.H2OWirelessCDMA.com for
more details. All rate change notices will be provided either through
dealer, rate card or www.H2OWirelessCDMA.com.
The prepaid per minute rates are based on the card value purchased.
International rates vary and are subject to change. Call Customer
Care (at the number listed on our website or in your replenishment
card packaging) or visit www.H2OWirelessCDMA.com for
international rates and available countries. You cannot use the Service
to place calls to 500, 700, 855, 900 or 976 numbers; or to place
operator-assisted calls such as third-party-billed, and collect calls.
Rates for calls to directory assistance are $1.25 per call plus airtime
or roaming charges. You will be billed at domestic rates for 800,
888, 877, and 866 number calls. You are responsible for all taxes
and surcharges associated with your use of the Service. Other than
calls to 911, you can only make and receive calls when your account
has a positive balance. Special dialing patterns may be required
when making roaming calls. There may be surcharge for incoming calls
made from pay phones. Prepaid wireless service is not available for
purchase in all areas. Voicemail setup, deposits and retrievals are
billed at a regular airtime rates and will deplete balance. If a
caller reaches or leaves a message on your Voicemail, it will deplete
your minutes even if your Voicemail box has not been activated. A
Domestic text message will be charged at 10¢ to receive or send.
International text messages will be charged at 20¢ to send and 10¢
to receive. Please note that a 2-way text capable phone is required
to send and receive text messages.
d. Default/Termination. If you breach any representation to us or
fail to perform any of the promises you made in the Agreement, you
will be in default and we may, without notice to you, suspend Service
and/or terminate this Agreement, in addition to all other remedies
available to us.
e. Account Information. Any person able to provide your Number and
personal identification number is authorized by you to make changes
to your account. You consent to disclosure of any information about
you to any person as permitted by law if any Device programmed with
your Number calls an emergency service number such as 911 or, if
we reasonably believe that an emergency involving immediate danger
of death or serious physical injury to any person requires disclosure
of communications or justifies disclosure of records without delay
f. CPNI Consent. Under federal law, you have a right, and we have
a duty, to protect the confidentiality of information about the amount,
type, and destination of your wireless service usage (CPNI). You
consent to us sharing your CPNI with Locus Telecommunications, Inc.,
its affiliates and its contractors, to develop or bring to your attention
any products and services. This consent survives the termination
of your Service and is valid until you remove it. To remove this
consent at any time, notify us in writing at Locus Telecommunications,
Inc. Att: CPNI, P.O. Box 376 Fort Lee, NJ 07024, providing your name,
home address, home telephone including area code, and personal identification
number. Removing consent will not affect your current Service.
III. CHANGES TO THIS AGREEMENT
We
may amend the terms of this Agreement, including rate changes, upon
advance notice to you either through dealer, replenishment package
or www.H2OWirelessCDMA.com.
IV. LIMITATIONS
The parties
intend that the limitations on liability, warranty and damage awards
provided for in this Agreement will apply to the fullest extent allowed
by law. Some jurisdictions do not allow the exclusion of certain
warranties or the waiver, limitation or exclusion of liability for
punitive, incidental or consequential damages, or for intentional
or willful conduct in some circumstances. To the extent that any
of these limitations are not permitted by applicable law, they will
not apply to you.
a. Limitation of Liability. WE ARE NOT LIABLE FOR ACTS OR OMISSIONS
OF ANOTHER SERVICE PROVIDER OR ANY THIRD PARTY PROVIDERS OF SERVICES
RELATED TO USE OF THE DEVICE OR SERVICE, FOR INFORMATION PROVIDED
THROUGH YOUR DEVICE, LACK OF PRIVACY OR SECURITY EXPERIENCED WHEN
USING THE DEVICE, EQUIPMENT FAILURE OR MODIFICATION, OR OTHER CAUSES
BEYOND OUR REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS
THAT THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, OR FREE FROM
UNAUTHORIZED ACCESS (INCLUDING THIRD PARTY HACKERS OR DENIAL OF SERVICE
ATTACKS). WE ARE NOT LIABLE FOR SERVICE OUTAGES NOR FOR SERVICE LIMITATIONS
OR INTERRUPTIONS, AS DESCRIBED IN PARAGRAPH 1.C ABOVE. OUR LIABILITY
AND THE LIABILITY OF ANY UNDERLYING CARRIER FOR ANY FAILURE OR MISTAKE
SHALL IN NO EVENT EXCEED OUR SERVICE CHARGES DURING THE AFFECTED
PERIOD. WE AND ANY UNDERLYING CARRIER ARE NOT LIABLE FOR ANY INCIDENTAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES SUCH AS LOST PROFITS. YOU AND WE
BOTH WAIVE TO THE FULLEST EXTENT ALLOWED BY LAW, ANY CLAIMS TO RECOVER
INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES. WE AND ANY UNDERLYING
CARRIER ARE NOT LIABLE FOR (i) ECONOMIC LOSS OR INJURIES TO PERSONS
OR PROPERTY ARISING FROM USE OF THE SERVICE, THE DEVICE OR ANY EQUIPMENT
USED IN CONNECTION WITH THE DEVICE UNLESS CAUSED BY OUR SOLE AND
GROSS NEGLIGENCE, OR (ii) THE INSTALLATION OR REPAIR OF THE DEVICE
BY ANY PARTIES WHO ARE NOT OUR EMPLOYEES. THIS PARAGRAPH SHALL SURVIVE
TERMINATION OF THIS AGREEMENT.
b. Indemnification. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US,
OUR AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER, HARMLESS
FROM CLAIMS OR DAMAGES RELATING TO THIS AGREEMENT OR YOUR PROMISES
OR STATEMENTS MADE IN IT AND USE OF THE DEVICE OR SERVICE UNLESS
DUE TO OUR SOLE AND GROSS NEGLIGENCE. YOU ALSO AGREE TO PAY OUR REASONABLE
ATTORNEYS' AND EXPERT WITNESS FEES AND COSTS INCURRED IN ENFORCING
THIS AGREEMENT THROUGH APPEAL EXCEPT AS PROVIDED IN PARAGRAPH 5,
BELOW. USE OF YOUR DEVICE WHILE OPERATING A MOTOR VEHICLE OR IN ANOTHER
DISTRACTED OR NEGLIGENT MANNER MAY BE PROHIBITED OR RESTRICTED BY
LAW IN SOME AREAS. IT IS YOUR RESPONSIBILITY TO CONFORM TO ALL SUCH
LAWS OR REGULATIONS AND YOU SHALL INDEMNIFY US FROM CLAIMS ARISING
FROM ANY SUCH UNLAWFUL OR NEGLIGENT USE. THIS PARAGRAPH SHALL SURVIVE
TERMINATION OF THIS AGREEMENT.
c. No Warranties. WE MAKE NO EXPRESS WARRANTY REGARDING THE SERVICE
OR THE DEVICE OR ANY SERVICES PROVIDED BY ANY THIRD PARTIES, AND
DISCLAIM ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT AUTHORIZE ANYONE TO
MAKE ANY WARRANTY ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH
STATEMENT. WE ARE NOT THE MANUFACTURER OF THE DEVICE AND ANY STATEMENT
REGARDING IT SHOULD NOT BE INTERPRETED AS A WARRANTY. THIS PARAGRAPH
SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
V. RESOLUTION OF DISPUTES
PLEASE READ THIS SECTION CAREFULLY. IT
AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION
OF MOST DISPUTES THROUGH ARBITRATION INSTEAD OF COURT TRIALS AND
CLASS ACTIONS. ARBITRATION IS FINAL AND BINDING AND SUBJECT TO ONLY
VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE
TERMINATION OF THIS AGREEMENT.
a. Binding Arbitration. This provision is intended to be interpreted
broadly to encompass all disputes or claims arising out of our relationship.
Any dispute or claim, including those against any of our subsidiary,
parent or affiliate companies, arising out of or relating to this
Agreement, our Privacy Policy or the Service or any equipment used
in connection with the Service (whether based in contract, tort,
statute, fraud, misrepresentation or any other legal theory) will
be resolved by binding arbitration except that (1) you may take claims
to small claims court if they qualify for hearing by such a court,
or (2) you or we may choose to pursue claims in court if the claims
relate solely to the collection of any debts you owe to us.
b. Arbitration Procedures. You must first present any claim or dispute
to us by contacting Customer Care to allow us an opportunity to
resolve the dispute. You may request arbitration if your claim or
dispute has not been resolved within 90 days. The arbitration of
any dispute or claim shall be conducted in accordance with the American
Arbitration Association ("AAA") under the Wireless Industry
Arbitration Rules ("WIA Rules"), as modified by this Agreement.
The WIA Rules and information about arbitration and fees are available
upon request from the AAA online at www.adr.org. You and we agree
that this Agreement 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. Unless you and we agree otherwise, any arbitration will take
place in the county seat for the county in which your billing address
is located. At either party's election, the arbitration shall be
held telephonically. An arbitrator may award any relief or damages
(including injunctive or declaratory relief) that a court could award,
except an arbitrator may not award relief in excess of or contrary
to what this Agreement provides and may not order relief on a consolidated,
class wide or representative basis. In any arbitration applying the
WIA Rules applicable to large/complex cases, the Arbitrators must
also apply the Federal Rules of Evidence, and the losing party may
have the award reviewed in accordance with the review procedures
set forth in the WIA Rules. Judgment on any arbitration award may
be entered in any court having proper jurisdiction. If any portion
of this arbitration clause is determined by a court to be inapplicable
or invalid, then the remainder shall still be given full force and
effect.
c. Costs of Arbitration. For claims of less than $1,000, you will
be obligated to pay $25 and we will pay all other administrative
costs and fees. For claims over $1,000 but under $75,000, you will
be obligated to pay your share of the arbitration fees, but no more
than the equivalent court filing fee for a court action filed in
the jurisdiction where your billing address is located. For arbitrations
in excess of $75,000, all administrative fees and expenses of arbitration
will be divided equally between you and us. In all arbitrations,
each party will bear the expense of its own counsel, experts, witnesses
and preparation and presentation of evidence at the arbitration.
d. Waiver of Class Actions. By this Agreement, both you and we are
waiving certain rights to litigate disputes in court. You and we
both agree that any arbitration will be conducted on an individual
basis and not on a consolidated, class wide or representative basis.
If for any reason this arbitration clause is deemed inapplicable
or invalid, or to the extent this arbitration clause allows for litigation
of disputes in court, you and we both waive, to the fullest extent
allowed by law, any right to pursue any claims on a class or consolidated
basis or in a representative capacity.
e. Limitations Period. Any arbitration or legal action with respect
to any and all claims or causes of action related to or arising out
of this Agreement must be brought within two years after the cause
of action arises, or within the applicable statutory period of time,
whichever is shorter. This limitations period does not apply to any
given cause of action when the statutory limitations period for that
cause of action cannot be waived, restricted or otherwise limited
by you.
VI. MISCELLANEOUS
a. Privacy. We are not liable for any lack of privacy which may be
experienced with regard to the Service. You authorize our monitoring
and recording of calls to us concerning your account or the Service
and consent to our use of automatic dialing equipment to contact
you. We have the right to intercept and disclose any transmission
over our facilities in order to protect our rights or property.
b. Assignment. We may assign all or part of this Agreement without
such assignment being considered a change to the Agreement, and without
notice to you. We are then released from all liability. You may not
assign this Agreement without our prior written consent.
c. Notices. We may send you notices by mail or electronic means,
in our sole discretion. Notices to you shall be effective 1) 3 days
following the date deposited in the U.S. Mail or delivered to a nationally
recognized courier or delivery service, postage prepaid and addressed
to your address as kept in our files and/or 2) immediately upon our
transmission using an electronic means such as e-mail or text messaging
service. You are responsible for notifying us of any changes in your
mailing or e-mail address. Written notice to us shall be effective
when directed to our Customer Care Department (at the mailing
address listed on our website) and received by us. Your notice must
contain specific information adequate to identify you and your Service.
Oral and electronic notices shall be deemed effective on the date
reflected in our records.
d. Entire Agreement. These Terms and Conditions, together with the
Sales Information, represent the entire agreement between you and
us, which may only be amended as described in this Agreement. This
Agreement supersedes any inconsistent or additional representations
made to you by any of our representatives, agents or dealers. If
any part of this Agreement is found invalid, the balance of the Agreement
remains enforceable. If, at any time, we do not enforce any right
or remedy available under this Agreement, that failure is not a waiver
of our right to enforce the right or remedy at a later time. Copied,
microfiched, scanned or other duplicate or electronic images of this
Agreement are admissible for all purposes.
e. Governing Laws. This Agreement is subject to applicable federal
laws, federal or state tariffs, if any, and the laws of the state
associated with the Number. Where our Service terms and conditions
are regulated by a state agency or the FCC, the regulations are available
for your inspection; if there is any inconsistency between this Agreement
and those regulations, this Agreement shall be deemed amended as
necessary to conform to such regulations.
f. Capacity. You represent that you are legally competent to enter
into this Agreement, and that you are not aware of any disability
that would prevent you from entering into this Agreement.
g. You shall acquire no proprietary interest in the Number
assigned by H2O Wireless for its use,
except for any rights federal law grants.
h. The supplier of Services to H2O Wireless
shall have no liability whatsoever for the losses, claims or damages
for any cause whatsoever, including but not limited to any failure
or disruption of Services provided hereunder, regardless of the form
of action, whether in contract or in tort or otherwise, You shall
not be deemed a third-party beneficiary of any contract between H2O Wireless and the underlying carrier. |
