PLEASE READ
THESE TERMS AND CONDITIONS CAREFULLY. They govern the relationship
between you and POPSM (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.
This is an agreement ("Agreement") for wireless radio telecommunications
services and related services and/or features ("Service")
between you and the entity licensed by the Federal Communications
Commission to provide Service in the area associated with your assigned
telephone, data and/or messaging number(s) ("Number") that
is doing business as POPSM ("us" or "we"). The
term "Device" means wireless receiving and transmitting
equipment that we have authorized to be programmed with the Number.
I. SERVICE
a. Availability/Interruption. Domestic
U.S. Service only. POPSM will
not operate outside the U.S. and U.S. territories. 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.
GSM wireless features require a compatible GSM 850/1900 dual, tri,
or quad band phone, are only available in the GSM 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 from Locus Telecommunications, Inc. and any required
regulatory approvals. You are responsible for ensuring that your
Device is compatible with our Service and meets federal standards.
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 Locus Telecommunications, Inc. 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. Any Device purchased through our program has
been manufactured to operate exclusively with Service provided by
us. The Device cannot be activated with any other wireless carrier.
By using Service, you agree to abide by the terms and conditions
of any applicable software license.
c. 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.
d. 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.CallPlusPOP.com.
e. 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.
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 content,
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 (please refer to rate card)
for 800, 866, 877, 888, and other "toll free" calls.
Applicable international charges will always be billed for direct
dial calls placed from your wireless phone. A long distance provider
chosen by Locus Telecommunications, Inc. will provide your long
distance. For all calls, 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 begin a call 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 30 seconds.
Unanswered calls lasting 30 seconds or more will be charged standard
airtime and rounded up to the nearest minute. Call waiting, 3-way
calling, call forwarding, voicemail will incur applicable airtime
or roaming and wireless long distance charges. Please note you
may be charged a higher rate for calls made off-network. You will
be charged for any check or electronic bank draft returned for
non-payment. Please refer to your rate card for details.
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.
Amounts deposited to your account expire after 15 or 30 days depending
on card denomination. However, 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. Your account will be canceled if there
is no usage (billable or non-billable) or if the balance remains
as $0 for 30 consecutive days or more and you may be required to
pay a fee to resume service. Credit card replenishment is available;
limitations apply. 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.
c. Use of Service/Rates. Your Service rates and other charges and
conditions for each Number or Phone are described in the replenishment
card packaging, at our website at www.CallPlusPOP.com, and in the "Sales
Information" (the user guide and other printed materials provided
by us either in the Starter Kit you received when submitting your
Device for use with the Service or in the packaging of the Device
you purchased to be used with the Service) you received, each of
which is a part of this Agreement. The Unlimited Nights program is
valid for non-commercial use only by consumers using the service
in a typical calling pattern. If you do not meet the minimum billable
usage requirement of $1 per day, or if fraud or abuse is suspected,
Locus reserves the right to review call information and to take action
including but not limited to changing you to an appropriate rate
plan or disconnection of service. You will be notified of changed
rate plans or canceled service with a phone call, voicemail, text
message or direct hot-line connection to our Customer Care department.
This is a limited time offer ending within (90) days after the effective
date of the Rate Card. Locus reserves the right to extend this promotion
at any time. You can place domestic and international calls from
the U.S. to certain designated international locations. 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.CallPlusPOP.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 $3.00 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. Some locations require a credit card to
complete a call; these rates will be higher. When in these areas,
you will not be able to receive calls. Prepaid wireless service is
not available for purchase or use in all areas.
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. Attn: 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 upon advance notice to you
in the manner described below or by posting notices of changes
on our website or by printing notice of such changes in the replenishment
card packaging.
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 applicable law does not permit any of these
limitations, 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. Locus Telecommunications, Inc., 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. It is intended that this provision 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 notice 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. Oral and electronic
notices shall be deemed effective on the date reflected in our records.
Your notice must contain specific information adequate to identify
you and your Service.
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,
microfiche, 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 a state agency or the FCC regulates
the terms and conditions of our Service, 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. |
