Terms of Service
THESE TERMS PROVIDE FOR THE SETTLEMENT OF DISPUTES BY MANDATORY ARBITRATION INSTEAD OF BY JURY TRIALS. SEE DISPUTE RESOLUTION SECTION.
DEFINITIONS USED IN THESE TERMS
Certain words in these Terms have specific meanings, regardless of whether such words are capitalized or not. For example, “we”, “us,” “our” and “ItsOn” means and refers to ItsOn, Inc. and all brands and trademarks owned and/or controlled by ItsOn including, but not limited to, Zact. “You”, “your,” “customer,” “subscriber” and “user” refer to end-users of the Zact Services. “Device(s)” means any phone, mobile broadband device, any other device, accessory, equipment, or other product we sell to you or that is active on your account with us and used in association with the Services. “Service(s)” means our wireless telephone, text and data services, rate plans, offers and options associated with your account with us. “Website” refers to zact.com.
USE OF DEVICE
In order to use the Services, you must purchase and use only Devices that are compatible with the Services. By using Devices, you are agreeing to comply with theEnd User License Agreement(“EULA”). You are responsible for the purchase and maintenance of Devices. Devices that are compatible with the Services are listed on the Website.
MANAGEMENT OF WIRELESS NETWORK AND USE OF OUR SERVICES
We reserve the right to manage our wireless systems and the use of our Services in our sole discretion. Therefore, any customer or potential customer may be denied a request to use our Services, or we may discontinue any customer’s service for any lawful reason or for any reason provided in these Terms or other policies in our sole discretion. We may, in our sole discretion and to the extent legally permitted, block or otherwise restrict access to any telephone number and/or certain categories of telephone numbers (e.g., 9XX numbers other than 911), certain websites, portals, or any messages or content or any telephone calls or services that stimulate or are intended to stimulate traffic in any fashion, including without limitation, free conference calling services, chat lines, call centers and help desks and similar calls.
SERVICE AVAILABILITY AND QUALITY
An official map of our service areas is available on the Website but Services may not be available everywhere or with certain rate plans, promotions, options or offers and you acknowledge that our coverage maps only approximate our anticipated wireless coverage area outdoors under optimal conditions. Moreover, the service areas may either increase or decrease from time to time. The actual service area, coverage and quality of service may fluctuate based on numerous factors, including without limitation, signal strength, network congestion or capacity, hardware, software, server speeds of the websites, portals or other locations on the Internet that you use with Devices and Services, the weather and any other factors that are beyond our control.
Any statements by ItsOn, its employees, agents, representatives or advertisers relating to the availability of our Services and/or the coverage of the wireless network used by our Services are only intended to describe the approximate coverage and availability of the Services. You should not interpret any such statements to mean that the Services will be available under all circumstances, at all times, or without interruption in your service area. You agree we are not liable for problems relating to Service availability.
The quality of the Services may be affected by conditions beyond our control, including issues related to Devices, problems with the network on which the Services are provided (which may be caused by problems that our service providers or roaming partners are having), signal strength, hardware, software, structures, geographic, topographic or atmospheric conditions, Force Majeure Events, and other conditions that are beyond our control. We do not warrant or guarantee that the Services will be available at any specific time or geographic location, or that the Services will be provided without interruption or at any particular quality level. Outages and interruptions in the Service may occur, and the speed of Service can vary based on a variety of conditions, including those listed above. Therefore, the Services, including calls or attempted calls to emergency services like 911 calls, may be interrupted or fail, and/or the quality of calls may be poor. Services that rely on location information, such as E911, GPS navigation, may depend on network coverage and may depend on the Devices’ ability to acquire satellite signals (typically not available indoors) or cell antenna sites. While Devices are installing a software update, users may be unable to use Devices for any purposes, including the placing of calls to emergency services operators, until the software update is installed. You agree we are not liable for problems relating to the quality of the Services.
Based upon the nature of wireless technologies, our network generally has information that can be used to determine the location of Devices when they are outdoors and/or turned on. These technologies allow us and/or third parties to provide emergency 911 services, as well as other location-based services. Network coverage or environmental factors (such as structures, buildings, weather, geography, landscape, topography and atmospheric conditions) can impact the ability to access Devices’ location information and use of location-based services. Thus, even if Devices and Services appear to be functioning properly, location data may not be automatically available at any given time.
Our Services only work with our Devices and not all services are available with all Devices, on all networks or within all coverage areas. Devices will not have any service outside of our coverage area however we may choose to allow you to roam onto partner networks in our sole discretion. Service may be limited or interrupted by weather, obstructions, system capacity limitations, system repairs or modifications, or other conditions that are beyond our reasonable control, such as Force Majeure Events. ItsOn is not responsible for time lost due to interruption of Service and no credits or refunds will be issued for any reason. Except for 911 calls and any “roaming” services purchased by you, you will not be able to use your wireless Devices outside of your service area for any calls (including local and long distance) or any other service features including data services.
International roaming is not available. In the United States ItsOn may support roaming onto select networks in the United States (“Domestic Roaming”), and this roaming coverage is included as part of the coverage map. When Devices are connected to a Domestic Roaming network, we may choose to allow users to roam as part of your Monthly Plan or Specialized Plans in our sole discretion. Users’ ability to roam is dependent on a number of factors, including the radio transmissions that Devices can acquire. We make no guarantee that Domestic Roaming coverage will be available. Depending on Device settings, users may automatically roam if there is a gap or interruption in coverage within our network area and roaming coverage areas. Limits on the amount of minutes, number of texts, and amount or speed of data services used while roaming may be applied. Certain Services or Service features may not be available in roaming coverage areas, and call quality may be lower while roaming. ItsOn reserves the right to deny Domestic Roaming to any Device at any time.
Public Safety Officials advise that when making 911 or other emergency calls, users should always be prepared to provide location information. Unlike traditional wireline phones, depending on a number of factors (for example, whether Devices are GPS enabled, where users are placing emergency calls from, whether local emergency service providers have upgraded their equipment, etc.), 911 operators may not know the emergency caller’s phone number, location, nor the location of the caller’s Device. In certain circumstances, an emergency call may be routed to a state patrol dispatcher or alternative location set by local emergency service providers. Enhanced 911 services (“E911”), where enabled by local emergency authorities, use GPS technology to provide location information or other methods to automatically determine callers’ locations. Even when available, however, E911 does not always provide accurate location information. If your Device is indoors or for some other reason cannot acquire a satellite signal, or cannot obtain other information used to determine callers’ locations, your location information may not be automatically delivered to emergency call takers. Some Devices have a safety feature that prevents use of the keypad after dialing 911 - you should follow voice prompts when interacting with emergency service providers employing IVR systems to screen calls.
VOICEMAIL SERVICES PROVIDED BY A THIRD PARTY -- YOUMAIL, INC.
Collection and Use of Users’ Information by YouMail, Inc.
Sharing of Users’ Information with between ItsOn and YouMail, Inc.
SPECIFIC TERMS REGARDING CHARGES AND SERVICES
Monthly Plan and Account in Good Standing Required to Use Services
All of Zact’s service offerings, voice, text and data, require you to have an active Monthly Plan and your account must be in good standing. If your Monthly Plan is suspended, you will be unable to upgrade or downgrade your Monthly Plan and you will not be able to make any purchases including any Specialized Services. An account is in good standing when all Services are prepaid in full and the default payment method associated with your account is valid.
Fair Usage Policy
ItsOn is committed to offering customers the best value at the lowest possible price. In order to do so, ItsOn has adopted this Fair Usage Policy designed to insure that its offerings are not abused. When ItsOn refers to qualitative based offerings (e.g. time-based, application based) in connection with voice, text or data offerings, ItsOn means reasonable usage as determined by it in its sole discretion. ItsOn may choose to publish fair usage limits for specific offerings. ItsOn has developed internal processes to detect excessive usage.
Voice minutes are deducted from your selected voice allowance in full-minute increments, measured from the time the call is initiated (“Send” key pressed) until the call is terminated by you, i.e., pressing the “End” key, or the call is terminated by the called party and the network disconnects the call.
Short message texts (“SMS”) are deducted from your selected text allowance for both inbound and outbound text messages. For messages sent to multiple recipients, your selected text allowance will be deducted for each recipient. A single SMS consists of up to 140 characters. If a message is longer than 140 characters, your selected text allowance will be deducted an additional message for each additional 140 characters beyond the single SMS limit. Multimedia messaging (“MMS”) is not included as part of text service allowance; instead it is counted as part of your data usage (see Data Usage below).
Data usage includes web browsing, application usage, multimedia messaging (“MMS”), downloading content (like applications, games, etc.), ringtones and similar activities. Your selected data allowance will be deducted in one megabyte (“MB”) increments and each session will be rounded up to the nearest MB. Note that applications may continue to use your data connection if they are running in background and such usage will count towards your selected data allowance.
Use of third-party applications or services is subject to the third party’s terms and conditions and any other policies relevant to such applications or services. Third-party applications or services may access, collect, use or disclose your personal information or require ItsOn to disclose your information, including location information, as result of your agreement to the installation and use of those applications on users Devices. If users access, utilize, or authorize third-party applications or services, you agree and authorize ItsOn to provide such information to the relevant third-party providers.
Internet Browsing and Text Messaging to a Device through the Internet
When you use a Device to browse the Internet, make use of mobile applications, or otherwise access the Internet, the Mobile Directory Number (“MDN”) assigned to the Device and/or other Device-specific information may be transmitted over the Internet. Similarly, when you use the Device to send text messages through the Internet, e.g., sending a text message to another user’s wireless device by using the user’s wireless telephone number in the form of an email address, the MDN and/or other Device-specific information may be transmitted over the Internet. The MDN and other information can be used to identify Devices used in connection with the Services by us or third parties. The MDN and other Device-specific information can be used for fraudulent or other illegal purposes as well as allow third parties to associate Internet usage with your Device. By agreeing to these Terms and using Internet-enabled services, you acknowledge and agree to allow for the transmission of the MDN and/or other Device-specific information and acknowledge that you understand the risks associated with the transmission of such Device-specific information.
Directory Assistance, Operator-Assisted and other Charges
Calls made to directory assistance, operator-assisted calls, or pay-per-call services are not allowed. Likewise, premium messaging (such as donations via text message or paid premium content) is not allowed.
PURCHASING AND CHANGING YOUR SERVICE PLANS
Available plans, prices, and allowances may change at any time. If a plan that you have is changed, the change will be effective at the next cycle, and you will receive notification of the pending change.
A “Monthly Plan” consists of any combination of Monthly Domestic Voice Service, Monthly Domestic Data Service or Monthly Domestic Text Service (the “Monthly Services”) and is charged for on a recurring monthly basis.
Monthly Plan Purchases: You will initially select your Monthly Plan (if any) when you sign up for a Zact account. When you first establish your account and select your combination of voice, text, and data services, you will approve your initial Monthly Plan purchase and authorize automatic monthly charges via a credit card transaction checkout. Your Monthly Plan billing cycle for all subsequent months will commence on the day that you activate the first Device on your account (the “Cycle Start Day”). If the activation of the first Device on your account occurs on the last day of any month, your Cycle Start Day will be the last day of all subsequent months. For example, if the activation of the first Device on your account is on March 31, your second Cycle Start Day will be April 30 and thereafter the last day of all subsequent months. Subsequent monthly billing cycles will automatically renew on the Cycle Start Day of each subsequent month and may be charged up to 48 hours prior to the Cycle Start Day. All Monthly Plan purchases are prepaid and cover your Monthly Services in the upcoming month.
Monthly Plan Upgrades and Downgrades: You may elect to upgrade or downgrade your Monthly Plan by selecting larger or smaller allowances at any time via the Zact Device(s) or the Zact website. Your upgrade or downgrade will be effective immediately. Upon the change, you will receive account credit (for a downgrade), or pay the price difference (for an upgrade) between the former and new selected allowance.. If your Monthly Plan is suspended for any reason, you will not be able to upgrade or downgrade your Monthly Plan, nor will you be able to purchase any Specialized Plans until your account is back in good standing.
“Specialized Plans” are offered in addition to your Monthly Plan (if you have one) to provide you the convenience of access to single event or one-time purchase of specific Services. The specialized Services may be specified and charged for on a basis of usage and/or time consistent with ItsOn’s “Fair Usage Policy”. Specialized Plans are charged in addition to the Monthly Plan (if you have one) and are billed to your account at the time of purchase. Specialized Plans will expire when the specified usage is used up, or when the specified time has elapsed.
Another form of Specialized Plan is the “International Calling Plan”. International Calling Plans are offered to provide you the ability to make calls to international locations. For international calling, your selected allowance will be deducted for outbound calls as specified in the International Calling Plan selected. Calls will be rounded up to the nearest minute. Incoming calls from international locations to your phone will be deducted from your existing (domestic) voice allowance. For purpose of clarity, using your Device from International locations is not supported.
Monthly Zact Credit
Accounts in good standing are eligible for a monthly Zact credit at the end of each billing cycle. At the end of each cycle and for each service allowance in your Monthly Plan, we will credit your account an amount equal to the difference in price between the service allowance you selected and the service allowance closest to your actual usage without going under your actual usage.
Upon the activation (or reactivation) of your account, you may be charged an account activation fee.
Adding Additional Lines to Your Account
You will be charged a monthly line fee for each Device on your account. When a Device is added, the line fee amount may be prorated based on the time remaining in your current cycle. If a Device is removed from the account, there will be no credit applied for that month’s billing cycle.
Monthly Plan, fees and taxes will be automatically charged to your default payment method up to 48 hours before the Cycle Start Day. Purchase of Specialized Plans may occasionally not trigger an immediate charge to your default payment method. In these cases, your account may show an outstanding balance due until the automatic payment is made to set your account balance to zero. You do not need to take any action unless the payment fails. If payment for your Monthly Plan fails, those plans may be suspended until successful payment is made. All purchases and changes to your plan, like upgrades or downgrades, require your account to be in good standing and without failed payments pending. You will be required to update your payment information in order to purchase new plans or modify your Monthly Services.
SUSPENSION AND TERMINATION OF SERVICES
Suspension: In certain situations, like billing disputes, fraud investigation, etc., we may suspend your Monthly Plan or account until resolution occurs. If your Monthly Plan or account is suspended for any reason, you cannot make use of Services for any purpose except for placing calls to emergency operators.
Monthly Plan Suspension: Your Monthly Plan may be suspended if the charge to your payment method for your monthly plan fails. The suspended Monthly Plan will remain on your account but be unavailable for use until successful payment is made. Your Cycle Start Day will not be modified if your Monthly Plan is suspended. In order to bring your account back into good standing, you will be required to pay all outstanding amounts due for all selected Services that are unpaid.
Account Termination: If a successful payment has not been made within 30 days of when your Monthly Plan was suspended, your account will be terminated and all active plans (including any that were still valid, like Specialized Plans will be removed from your account and any unused Services will be forfeited.
When your account is terminated, you may incur an account reactivation fee in addition to a new Monthly Plan selection in order to return your account to good standing. If your account is terminated, all Devices will be disassociated from your account and may permanently lose the current telephone numbers associated with such Devices. Even if you later bring your account into good standing after an Account Termination, we will likely not be able to provide you with the telephone numbers that were associated with your Devices prior to when your account was terminated.
Suspension for Fraud Detection: In certain circumstances, the network provider on which we rely may terminate your Services immediately if the network provider detects fraud. In such circumstances, we do not have control over the termination but will work with you to restore Services if you believe it was done in error.
If we suspect fraudulent activity with any of the Devices on your account (e.g., software removed or hacked), we will flag the suspect Device and notify you of the potential fraud at your account email address. We will allow the Device to continue operating under the following process:
The suspect Device will not be able to use allowances from the existing Monthly Plan or Specialized Plans, and we will automatically assign the suspect Device a set of custom plans, each charged immediately at a rate that is 15% above its current Monthly Plan rate (each a “Custom Plan”). The set of custom plans are Voice 400, Text 3500 and Data 1.5GB.
Any Domestic Roaming will be disabled.
If the suspect activity has not been resolved, we will charge you for another Custom Plan when the current one’s usage reaches 60% of the service allowance.
In order to resolve, you must respond to the original fraud notice provided to you. When you respond to the fraud notice, and if we suspect there is a problem with the Device, you may be required to return the Device in order to restore it to good operating condition. In this case you may incur a restoration fee.
If we determine that the detected fraud was in error, we will credit the 15% premium that you paid and any applicable restoration fee.
RESTRICTIONS ON USE OF SERVICE
TERMINATION OF SERVICE
Either party may terminate these Terms at any time. ItsOn reserves the right to terminate these Terms at any time without notice or liability for any reason, including, but not limited to: (1) if ItsOn ceases to provide Services in your area; (2) for any conduct believed to violate these Terms, the EULA and/or the Return and Exchange Policies; or (3) if fraudulent, illegal or abusive activity is suspected, including, but not limited to traffic pumping, spam messaging or interfering with ItsOn’s operations or other customers in any way. No refunds will be issued for unused Service under any circumstances. To cancel Service, you must email a written request with verification that you are the account holder to email@example.com. No refunds or credits will be issued for unused account balances.
ItsOn requires you to provide an email address, account password and an answer to a security question associated with your account prior to providing account-related information in order to prevent unauthorized access. Additional verification may be required by customer service depending on the information sought by the inquiry.
LOST OR STOLEN EQUIPMENT
Notify us immediately if your Device is lost or stolen. You will remain liable for all charges and fees incurred by your Device until you have notified us of the alleged loss or theft and until such time as we can deactivate the Device. You agree to cooperate if we choose to investigate the matter (provide facts, sworn statements, etc.).
TAXES AND SURCHARGES
Stated rates do not include applicable taxes, fees and surcharges. Taxes, fees and surcharges will be specified at the time of each purchase transaction based on the address of the primary account holder and are subject to change without notice.
ItsOn does not guarantee that numbers will be successfully ported to or from another carrier. You acknowledge that any Device that has its number ported out will no longer be able to use the Services, until such time that the Device is reprogrammed for Zact Services. Any request to transfer the number for the last Device on your account to another carrier may be treated as a request for termination and all remaining account balances may be forfeited.
DISPUTE RESOLUTION/BINDING ARBITRATION
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 ARBITRATION INSTEAD OF SUING IN COURT IN THE EVENT THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE. ARBITRATION IS BINDING AND SUBJECT TO ONLY A VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE TERMINATION OF THESE TERMS.
In the event of a dispute with ItsOn, before taking any legal action, you agree to first contact ItsOn and provide a written description of the nature of the dispute, all relevant documents and other information concerning the dispute and your proposed resolution. We agree to contact each other as described in the “Providing Notice to Each Other Under the Terms” section. If we are unable to reach a resolution of your dispute within sixty (60) days of your notice to ItsOn, you agree that instead of filing a lawsuit in a court of law, you will submit the dispute to binding arbitration as set forth below.
This provision is intended to encompass all disputes or claims arising out of your relationship with ItsOn arising out of or relating to the Services or any Device or equipment used in connection with the Services (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory). Nothing contained in this arbitration provision shall preclude ItsOn from bringing claims concerning the unauthorized resale, export, alteration, and/or tampering of your Device, its software, the Service and/or PIN numbers in state or federal court. References to you and ItsOn include, where applicable, any respective subsidiaries, affiliates, predecessors in interest, successors, and assigns. All claims will be resolved by binding arbitration where permitted by law.
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 these Terms. You and ItsOn agree that use of the Services 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. All issues are for the arbitrator to decide, including the scope of this arbitration clause, but the arbitrator is bound by these Terms. You and ItsOn agree that any arbitration will be conducted on an individual basis and not on a consolidated, class wide or representative basis. Further, you 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.
All fees and expenses of arbitration will be divided between you and ItsOn in accordance with the WIA Rules, except that ItsOn will reimburse you for the amount of the filing fee in the event you prevail in the arbitration. Each party will bear the expenses of its own counsel, experts, witnesses, and preparation and presentation of evidence. 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 waive to the fullest extent permitted by law, (i) the right to a trial by jury and (ii) any claims for punitive or exemplary damages. Unless ItsOn and you agree otherwise, the location of any arbitration shall be Santa Clara County, California. Except where prohibited by law, ItsOn and you agree that no arbitrator has the authority to award punitive damages or any other damages not measured by the prevailing party’s actual damages. Neither you nor ItsOn 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 having jurisdiction.
CHOICE OF LAW
These Terms shall be construed under the laws of California, without regard to its choice of law rules, except for the arbitration provision contained in these Terms, which will be governed by the Federal Arbitration Act. This governing law provision applies no matter where you reside, or where you use or pay for the Services.
DISCLAIMER OF WARRANTIES
WIRELESS DEVICES AND RELATED EQUIPMENT: ITSON DOES NOT MANUFACTURE THE DEVICES OR RELATED ACCESSORY EQUIPMENT THAT YOU MAY PURCHASE FROM US. YOUR DEVICE AND RELATED ACCESSORY EQUIPMENT COME WITH A SEPARATE WRITTEN WARRANTY FROM THE MANUFACTURER. STATEMENTS BY ITSON OR ITS EMPLOYEES, REPRESENTATIVES AND/OR AGENTS REGARDING THE DEVICE OR RELATED ACCESSORY EQUIPMENT SHOULD NOT BE INTERPRETED AS A WARRANTY BY ITSON. ITSON MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, ABOUT THE SERVICE(S), COMPATIBILITY, APPLICATIONS, YOUR DEVICE OR ANY RELATED EQUIPMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL ITSON BE LIABLE FOR ACTUAL, INCIDENTAL, INDIRECT, SPECIAL, TREBLE, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES (INCLUDING LOST REVENUES, LOST PROFITS, OR OTHER LOSS BY YOU) ARISING FROM THE MANUFACTURE OR WARRANTY OF THE DEVICE OR RELATED ACCESSORY EQUIPMENT. THIS DISCLAIMER DOES NOT DEPRIVE YOU OF ANY RIGHTS YOU MAY HAVE AGAINST THE MANUFACTURER. WITHOUT LIMITATION, ITSON WILL NOT BE LIABLE TO YOU IN CONNECTION WITH (1) THE MANUFACTURER'S WARRANTY, (2) ANY ACTIONS OR OMISSIONS OF THE MANUFACTURER, OR (3) ANY MALFUNCTION OR FAILURE OF THE DEVICE OR RELATED ACCESSORY EQUIPMENT OR SERVICES. ITSON AND ITS AGENTS, EMPLOYEES, REPRESENTATIVES, VENDORS AND SUPPLIERS (“ITSON PARTIES”) MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, (TO THE EXTENT ALLOWED BY LAW) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO YOU IN CONNECTION WITH YOUR USE OF THE SERVICES. THE ITSON PARTIES SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, TREBLE, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES (INCLUDING LOST REVENUES, LOST PROFITS, OR OTHER LOSS BY YOU) TO THE FULL EXTENT THE SAME MAY BE DISCLAIMED BY LAW. YOU ACKNOWLEDGE THAT SERVICE INTERRUPTIONS WILL OCCUR FROM TIME TO TIME AND AGREE TO HOLD ALL WIRELESS PARTIES INVOLVED IN PROVIDING SERVICES HARMLESS FOR ALL SUCH INTERRUPTIONS. IN NO EVENT (TO THE EXTENT ALLOWED BY LAW) SHALL ANY WIRELESS PARTIES BE LIABLE FOR ECONOMIC LOSS, PERSONAL INJURIES, OR PROPERTY DAMAGE SUSTAINED BY YOU OR ANY THIRD PARTY ARISING FROM USE OF THE SERVICE OR THIS AGREEMENT.
LIMITATION OF LIABILITY
You agree that neither we nor our agents, employees, representatives, vendors, suppliers or licensors are responsible for any damages resulting from: (a) anything done or not done by someone else: (b) providing or failing to provide Services, including, but not limited to, deficiencies or problems with a Device or network coverage (for example, dropped, blocked, interrupted Services, etc.); (c) traffic or other accidents, or any health-related claims relating to our Services; (d) data content or information accessed while using our Services; (e) an interruption or failure in accessing or attempting to access emergency services from a Device, 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 Device or any computer or equipment connected to your Device, or damage to or loss of any information stored on your Device, 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; (i) incompatibilities with services, applications or accessories; 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 (collectively, “Force Majeure Events”). You should implement appropriate safeguards to secure your Device, computer or equipment and to back-up your information stored on each.
TO THE EXTENT ALLOWED BY LAW, OUR LIABILITY FOR MONETARY DAMAGES FOR ANY CLAIMS YOU MAY HAVE AGAINST US IS LIMITED TO NO MORE THAN THE PROPORTIONATE AMOUNT OF THE SERVICE CHARGES ATTRIBUTABLE TO THE AFFECTED PERIOD. UNDER NO CIRCUMSTANCES ARE WE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER ARISING OUT OF OR RELATED TO PROVIDING OR FAILING TO PROVIDE SERVICES IN CONNECTION WITH A DEVICE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS, OR COST OF REPLACEMENT PRODUCTS AND SERVICES.
You agree to indemnify, defend and hold us harmless from any claims arising out of your actions, including, but not limited to, your use of the Services and any information you submit, post, transmit or make available via the Services, failing to provide appropriate notices regarding location-sensitive services (see the “Location Based Services” section), failure to safeguard your passwords, backup question to your shared secret question or other account information, or violating these Terms or any policy referenced in these Terms, any applicable law or regulation or the rights of any third party.
CUSTOMER PROPRIETARY NETWORK INFORMATION (“CPNI”)
PROVIDING NOTICE TO EACH OTHER UNDER THE TERMS
OUR RIGHT TO CHANGE THE TERMS & YOUR RELATED RIGHTS
We may change any part of these Terms (including your Rate Plan) at any time, including, but not limited to, rates, charges, how we calculate charges, or other provisions of the Terms. We will provide you with notice of material changes, and may provide you notice of non-material changes, in a manner consistent with these Terms (see the “Providing Notice to Each Other Under the Terms” section). If a change we make to the Terms is material and has a material adverse impact on your Services, you may terminate each line of Service materially affected and obtain a pro-rated refund of your monthly Service charges if you: (a) notify us via email at firstname.lastname@example.org within thirty (30) days after the effective date of the material adverse change; (b) specifically advise us as to how the change impacts you in a materially adverse manner; and (c) that you wish to cancel Services because of a material adverse change to these Terms. If you do not cancel Service within thirty (30) days of the material adverse change, you will not be eligible for a pro-rated refund of your monthly Service charges and our standard Terms governing “Termination of Service,” defined above in these Terms, will apply.
We may assign all or part of our rights under these Terms without such assignment being considered a change to these Terms and without notice to you, except to the extent provided by law. We are then released from all liability. You may not assign these Terms without our prior written consent. Subject to these restrictions, these Terms will bind the heirs, successors, subcontractors, and assigns of the respective parties, who will receive its benefits.
All parts and provisions of these Terms are independent of each other. If any part or any provision of these Terms is or becomes illegal, invalid, inapplicable, or unenforceable, then: (a) that part or provision shall be construed, with as little modification as possible, to be a legal, valid, applicable, or enforceable part of these Terms, and so as to reflect as nearly as possible the original intent of the part or provision; or (b) the part or provision shall be ineffective only to the extent of such illegality, invalidity, inapplicability, or unenforceability, without in any way affecting the remaining portions of the part or provision, and without in any way affecting the other parts or provisions of these Terms.
OTHER MISCELLANEOUS TERMS
(a) If either of us waives or does not enforce a requirement under these Terms in an instance, we do not waive our right to later enforce that requirement.
(b) These Terms and the documents it incorporates make up the entire agreement between us and replace all prior written or spoken agreements - you cannot rely on any contradictory documents or statements by sales or service representatives.
(c) The rights, obligations and commitments in these Terms that, by their nature, would logically continue beyond the termination of Services (including, but not limited to, those relating to billing, payment, 911, dispute resolution, no class action, no jury trial), survive termination of Services.