TERMS & CONDITIONS

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. They govern the relationship between you and VIVASM Prepaid 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.
Use of Premium SMS and Mobile Content.

c. Use of Premium SMS and Mobile Content. Locus Telecommunications, VIVASM Prepaid 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, VIVASM Prepaid 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 / VIVASM Prepaid 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, VIVASM Prepaid Wireless and its underlying carrier, and your sole remedy is to immediately stop accessing and using any service or product provided by Locus Telecommunications, VIVASM Prepaid 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.VIVA-Wireless.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.VIVA-Wireless.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 VIVASM Prepaid 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.VIVA-Wireless.com for more details. All rate change notices will be provided either through dealer, rate card or www.VIVA-Wireless.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.VIVA-Wireless.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.VIVA-Wireless.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 VIVASM Prepaid Wireless for its use, except for any rights federal law grants.

h. The supplier of Services to VIVASM Prepaid 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 VIVASM Prepaid Wireless and the underlying carrier.