GoSmart Mobile Terms & Conditions
Terms & Conditions
Effective September 1, 2016.
By purchasing, activating, or using any GoSmart Mobile product (“Product”) or Rate Plan, including, but not limited to any wireless device (“Device”), SIM Kit, or accessory, you agree to be bound by this Agreement. TracFone reserves the right to change or modify this Agreement at any time and any changes or modifications will be effective when published online at www.gosmartmobile.com. Because the terms and conditions of this Agreement are subject to change you should always check our website for the most current terms and conditions. You represent that you are at least 18 years old (21 years old or legally emancipated if you are a Puerto Rico customer) and you are legally authorized to enter into this Agreement.
THIS AGREEMENT CONTAINS IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS AND REQUIRES THAT CERTAIN DISPUTES BE RESOLVED THROUGH ARBITRATION INSTEAD OF A COURT TRIAL. FOR MORE INFORMATION SEE SECTION 2 BELOW.
If you give someone your Account validation information, they can access and manage your Account. You, any individual you give your personal account validation information to, and any Authorized User on your account, will each have access to your Account information, and each will be able to:
- Make changes to your Account;
- Add or remove services or features to your Account; and
- Receive notices and disclosures on your behalf.
All of these activities may result in additional fees, payments due, or charges to your account, and/or a new agreement or payment terms that will apply to the account, or to the purchase of devices. You agree that you will be bound by all such notices, disclosures, changes and terms of agreement, and obligated to pay any resulting fees, payments, or charges. Authorized changes may require your agreement to a new minimum term and/or new terms and conditions.
1. *DISPUTE RESOLUTION AND ARBITRATION.
Most customer concerns can be resolved quickly and to the customer's satisfaction by contacting Customer Care at 1-877-760-8760. Before taking any formal action, you agree to first contact us in writing and provide a description of your dispute, all relevant documents, and your proposed resolution. If we are unable to resolve your dispute within 30 days of your notice to us, you agree to submit your dispute to binding arbitration or small claims court as set forth in this provision. Please forward your dispute to TracFone Wireless, Inc., Attn: Legal Department-Consumer Claims, 9700 NW 112 Avenue, Miami, FL 33178.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF ALL DISPUTES AND CLAIMS (INCLUDING ONES THAT ALREADY ARE THE SUBJECT OF LITIGATION) THROUGH BINDING ARBITRATION INSTEAD OF SUING IN COURT IN THE EVENT THAT THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE OR CLAIM. ARBITRATION IS BINDING AND SUBJECT TO ONLY A VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE TERMINATION OF TRACFONE'S AGREEMENT WITH YOU. YOU AGREE THAT YOU ARE AWARE THAT THERE IS NO JUDGE NOR JURY IN ARBITRATION BUT THAT AN ARBITRATOR MAY AWARD YOU THE SAME DAMAGES AND RELIEF THAT YOU MAY BE ABLE TO RECOVER IN A COURT OF LAW. YOU AND TRACFONE FURTHER AGREE THAT THE ARBITRATOR MUST HONOR THE TERMS OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY BRING A CLAIM IN SMALL CLAIMS COURT.
This provision is intended to encompass all disputes or claims arising out of your relationship with TracFone, arising out of or relating to the Service or any equipment used in connection with the Service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal or equitable theory). References to you and TracFone include our respective subsidiaries, affiliates, predecessors in interest, successors, and assigns.
All claims will be resolved by binding arbitration where permitted by law. You must first present any claim or dispute to TracFone by contacting our Legal Department, as set out above, to allow an opportunity to resolve the dispute prior to initiating arbitration. The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association ("AAA") under the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, the "AAA Rules"), as modified by this agreement. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting TracFone's Legal Department as set out above. You and TracFone agree that use of the Service evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. Additionally, for claims of $10,000 or less, you can choose to proceed with arbitration being decided on the documents submitted in an effort to minimize costs and the time it may take for an arbitrator to reach his or her decision.
You and TracFone agree that any arbitration will be conducted on an individual basis and not on a consolidated, class wide, or representative basis. Further, you and TracFone agree that the arbitrator may not consolidate proceedings or more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If the preclusion of consolidated, class wide, or representative proceedings is found to be unenforceable, then this entire arbitration clause shall be null and void.
Absent a finding that your demand is frivolous, brought for an improper purpose, or malicious as set forth by the standards of Federal Rule of Civil Procedure 11(b), TracFone will pay the filing, administration, and arbitrator fees of an arbitration initiated in accordance with this Agreement. If, however, the arbitrator does deem that your demand was frivolous, was brought for an improper purpose, or was malicious under the same standard used in a court of law, payment of all fees will be divided between you and TracFone in accordance with AAA Rules. Additionally, TracFone hereby waives any right to seek its attorney's fees from you in the event that it prevails in the arbitration, except where your demand is deemed frivolous, brought for an improper purpose, or malicious under the standard set out above. Nothing in this section shall be construed by an arbitrator as barring an award of attorney's fees to you, the customer, where the law would so provide. If you initiate an arbitration in which You seek more than $50,000 in damages, the payment of fees will be governed by the AAA rules.
If TracFone makes you a settlement offer that you reject prior to entering arbitration and the arbitrator ultimately finds in your favor in any respect with an award that is greater than the last written offer made by TracFone, TracFone will pay you the amount of the award or a minimum of $5,000, whichever is greater. Additionally, TracFone will pay your attorney twice the reasonable expense of attorney's fees as well as reimbursing any expenses that your attorney reasonably incurs for investigating, preparing, and pursuing Your claim. If TracFone opts not to make you a written settlement offer, these same terms apply, meaning that you are guaranteed a minimum award of $5,000 if the arbitrator finds in your favor and a reimbursement of your reasonable attorney's fees twofold. The arbitrator will be the arbiter of what constitutes reasonable fees, and you and TracFone agree that the arbitrator may make any rulings as to the payment and reimbursement of fees and expenses for an additional 14 days after the arbitrator's ruling on the merits.
Unless you and TracFone agree otherwise and in an effort to reduce the burden of arbitration on you, the location of any arbitration shall be in the county of your, the customer's, residence for those customers located within the United States. For customers residing outside of the United States, the location of arbitration shall be Miami, Florida, unless You and TracFone agree otherwise. Both parties agree that disputes may be resolved by submission of documents and without in-person or telephonic hearings. Either party or both parties may participate in the arbitration proceeding by telephone. The arbitrator shall apply the law of the State in which you, the customer, reside to the dispute.
Class Action Waiver. If for any reason this arbitration provision is deemed inapplicable or invalid, or to the extent this arbitration provision allows for litigation of disputes in court, you and TracFone waive to the fullest extent permitted by law, any right to pursue any claims on a class or consolidated basis and (ii) your right to serve in a representative capacity in any class or consolidated basis. Neither you nor TracFone shall disclose the existence, contents, or results of any arbitration except to the extent required by law. Judgment on the award rendered may be entered by any court of competent jurisdiction.
Jury Trial Waiver. In the event that any claim proceeds in a court of law rather than through arbitration, you and TracFone agree that there will not be a jury trial. You and TracFone unconditionally waive any right to a trial by jury in any action, proceeding, or counterclaim arising out of or relating to this Agreement in any way. You and TracFone further agree that in the event of litigation, this section of the Agreement may be filed as an exhibit illustrating a knowing and written consent of any right to a trial by jury.
YOU HAVE THE RIGHT TO OPT OUT OF THIS PROVISION COVERING DISPUTE RESOLUTION BY BINDING ARBITRATION WITHIN 30 DAYS OF THE ACTIVATION OF YOUR SERVICE. IN THE EVENT YOU ACTIVATE SERVICE WITH TRACFONE AND DO NOT OPT OUT OF THIS PROVISION WITHIN 30 DAYS, YOUR INACTION SHALL BE DEEMED TO BE CONSENT TO THIS PROVISION COVERING DISPUTE RESOLUTION. YOU MAY OPT OF THIS PROVISION BY WRITING TO TRACFONE WIRELESS, INC., ATTN: LEGAL DEPARTMENT-CONSUMER CLAIMS, 9700 NW 112 AVENUE, MIAMI, FL 33178. ANY OPT-OUT NOTICE RECEIVED AFTER THE 30-DAY DEADLINE (OR, IN THE CASE OF THOSE MAILED, POSTMARKED AFTER THE OPT-OUT DEADLINE) WILL BE INVALID, AND YOU MUST PURSUE YOUR CLAIM IN ARBITRATION.
2. *YOUR TERM OF SERVICE.
You are a month-to-month customer. If you terminate your Service, you are responsible for all Charges incurred through the end of your Service term. If we terminate your Service, we will determine the date of termination, and you will be responsible for all usage and Charges through the date of termination.
If you cancel your Service you remain responsible for all Charges incurred through the end of your Service term. GoSmart Mobile Prepaid Service is non-refundable (even if returned during the cancellation period), and no refunds or other compensation will be given for unused airtime balances, lost or stolen prepaid cards, or coupons.
4. OUR RIGHTS TO MAKE CHANGES.
We may change, limit, suspend or terminate your Service or this Agreement at any time if you engage in any of the prohibited uses described in Section 16, no longer reside in a T-Mobile-owned network coverage area, or subject to our business policies, practices, and procedures, which we can change without notice. Under certain limited circumstances, we may also block your device from working on our network.
5. DEVICE UNLOCKING AND COMPATIBILITY WITH OTHER NETWORKS.
GoSmart Mobile phones and other Devices are sold exclusively for use by you, the end consumer, with GoSmart Mobile Service available solely within the United States. The unauthorized unlocking or resale of your Device constitutes a violation of your agreement with TracFone and will invalidate the Limited Warranty associated with your Device. You agree not to unlock, reflash, tamper with or alter your Device in a manner which conflicts with our "Unlocking Policy" set forth in this Section 6. You may be eligible to have your Device unlocked to work with another carrier, but you must contact us to do so. If you purchased your Device from someone else, you may have to contact the original place of purchase for assistance. Not all Devices are capable of being unlocked. We reserve the right to prevent your Device from being used on our network.
For Customers with Devices Capable of Being Unlocked: TracFone will provide an unlocking code to customers who request unlocking, provided they meet the following conditions:
- (a) Customers must request handset unlocking. TracFone will unlock handsets of current and former GoSmart Mobile customers without charge. Non-former customers may request Device unlocking, but TracFone may charge a reasonable fee.
- (b) The Device must have been activated on GoSmart Mobile Service for no fewer than 12 months with Rate Plans redeemed in no fewer than 12 months.
- (c) Customers must possess a Device that has not been reported stolen, lost, or associated with fraudulent activity.
- (d) If a customer in good standing requesting unlocking of their Device is deployed as military personnel, upon provision of deployment papers, TracFone will honor that customer’s unlocking request.
TracFone may refuse any unlocking request that would result in an abuse of its unlocking policy at set forth in this Section 5 or is part of an effort to defraud TracFone or its customers. TracFone's unlocking policy is subject to change at any time without advance notice.
For Customers with Devices not Capable of Being Unlocked: TracFone will provide customers with a partial refund if they meet the following conditions:
- (a) Customers must request handset unlocking.
- (b) Customers must have had their locked device activated on GoSmart Mobile Service for no fewer than 12 months and not have had their telephone number recycled or ported.
- (c) Customers must request this interim unlocking solution while their Service is active or within 60 days after their Service expires. This 60-day grace period applies even if the customer's telephone number was recycled or ported.
- (d) Customers must possess a Device that is in working condition.
- (e) Customers must possess a Device that is not reported stolen, lost, or associated with fraudulent activity.
- (f) If a customer in good standing requesting handset unlocking is deployed as military personnel, upon provision of deployment papers, TracFone will honor that customer’s unlocking request by sending a refund for the trade-in value of the used, locked phone returned by the customer without regard to the 12 months of service eligibility requirement set forth above.
- (g) Customers are eligible for this program only once every twelve (12) months.
After an eligible customer contacts TracFone to request a partial refund of his or her unlockable Device, TracFone will provide a prepaid mailer for the customer to return the Device. Upon receipt of the Device, TracFone will send the customer a check using a predetermined formula reached through agreement between TracFone and the FCC.
Customers who would like to check if they are eligible or submit an unlocking request can do so by calling Customer Care at 1-877-760-8760.
6. *DEVICE ACCESS.
We may remotely change software, systems, applications, features or programming on your Device without notice. These changes will modify your Device and may affect or erase data you have stored on your Device, the way you have programmed your Device, or the way you use your Device. You will not be able to use your Device during the installation of the changes, even for emergencies.
7. SERVICE AVAILABILITY.
Your actual Service area, network availability, coverage and quality may vary based on a number of factors including network capacity, terrain and weather. Outages and interruptions in Service may occur, and speed of Service varies. Devices also have varying speed capabilities and may connect to different networks depending on technology. Even within coverage areas and with broadband-capable devices, network changes, traffic volume, outages, technical limitations, signal strength, obstructions, weather, and other conditions may impact speeds and service availability. Coverage specific to GoSmart Mobile Prepaid Service may be found at www.gosmartmobile.com.
8. EMERGENCY ALERTS.
TracFone has chosen to offer wireless emergency alerts, within portions of its coverage area, on wireless alert capable Devices. There is no additional charge for these wireless emergency alerts. For details, visit www.gosmartmobile.com.
You agree to pay all Charges that were accepted or processed through your Device. You will not have access to detailed usage records or receive monthly bills. For disputed Charges, see Section 14.
Usage: Airtime usage is measured from the time the network begins to process a call (before the phone rings or the call is answered) through its termination of the call (after you hang up). For voice calls, we round up any fraction of a minute to the next full minute. Depending upon your Rate Plan, data usage may be rounded at the end of each data session, at the end of your service cycle, and/or at the time you switch data plans. You may be charged for more than one call/message when you use certain features resulting in multiple inbound or outbound calls/messages (such as call forwarding, call waiting, voicemail, conference calling, and multi-party messaging). Usage and Charges incurred during a Service cycle will be deducted/included in that cycle. You will be charged for text, instant or picture messages, and email whether read or unread, sent or received, solicited or unsolicited. We use filters to block spam messages, but we do not guarantee that you will not receive spam or other unsolicited messages, and we are not liable for such messages. Additional blocking options are available at www.gosmartmobile.com. Unused Rate Plan Allotments expire at the end of the time period associated with your Rate Plan. You may incur additional Charges for certain features and services. Charges for Wi-Fi usage may differ; see your Rate Plan for more details.
Third-Party Service Provider Charges: Your Device can be used to purchase services and products from third parties, and Charges for these purchases may be deducted from your GoSmart Mobile prepaid Services account balance. If you are able to deduct third party provider charges from your GoSmart Mobile prepaid Services account balance, you can block the purchase of third-party products or services by visiting www.gosmartmobile.com or calling us.
10. *DATA PLANS AND OTHER FEATURES.
Your Device may not be able to access data, or you may be charged for data usage on a pay per use basis, unless data Service is included in your Rate Plan (collectively "Data Plan"). Additional important information about your Data Plan and internet services can be found at www.gosmartmobile.com. At times and at locations where there are competing demands for network resources, the data of a GoSmart Mobile customer may be prioritized below data of T-Mobile branded customers (resulting in relatively slower speeds), specifically if a GoSmart Mobile customer is engaged in a data intensive activity. Where the network is lightly loaded, a GoSmart Mobile customer will notice little, if any, effect from having lower priority. This will be the case in the vast majority of times and locations. TracFone constantly works with its network providers to improve network performance and capacity, but there are physical and technical limits on how much capacity is available, and at constrained locations, the frequency of heavy loading in relation to available capacity may be greater than at other locations. Such circumstances are beyond TracFone's control and TracFone will not be liable to you for any reduction in your data speeds under these circumstances. When network loading goes down or the GoSmart Mobile customer moves to a location that is less heavily loaded in relation to available capacity, the customer's data speeds will likely improve. See gosmartmobile.com/OpenInternet for details.
Protective Measures: To provide the best possible experience for the most possible customers and minimize capacity issues and degradation in network performance, we may take certain steps to manage our network. If you use your Data Plan in a manner that could interfere with other customers’ service, affect our ability to allocate network capacity among customers, or degrade service quality for other customers, we may suspend, terminate, or restrict your data sessions, or switch you to a more appropriate Data Plan. We also manage our network to facilitate the proper functioning of services that require consistent high speeds, such as video calling, which may, particularly at times and in areas of network congestion, result in reduced speeds for other services. Additionally, we may implement other network management practices, such as deploying streaming video optimization technology. This technology is intended to manage data usage on the network, reduce the risk of streaming video stalling and buffering, and reduce the amount of high-speed data consumption used for streaming video. Streaming video optimization improves streaming video reliability as well makes room for other users to enjoy higher browsing speeds. The streaming video optimization process is agnostic as to the streaming video content itself and to the website that provides it. While most changes to streaming video files are likely to be indiscernible, the optimization process may minimally impact the appearance of the streaming video as displayed on a user’s device. These practices operate without regard to the content itself or the source of the content, and do not discriminate against offerings that might compete against those offered by us on the basis of such competition.
Downloadable Content and Applications: You can download and use content or applications (“Content & Apps”) on your Device that are not provided by TracFone, at your own risk. Third party Content & Apps may require your agreement to a license or other terms with the third party. Some Devices or Content & Apps may contact our network without your knowledge, which may result in additional Charges (e.g., while roaming internationally).
11. *ROAMING AND INTERNATIONAL CALLING.
Roaming: Your Device may only be used within the T-Mobile owned domestic network coverage area (and not off-network or roaming on affiliate networks).
International Roaming & Dialing: Availability and features offered for international roaming and dialing vary depending on your Rate Plan and Device and may require an additional feature on your account. Whether roaming internationally or making and sending international calls and messages while in the U.S. (or Puerto Rico), you may be charged international rates (including for voicemails left for you and for data usage). This includes per minute rates for calls and per minute rates for calls transferred to your voicemail and the relevant data rates for data usage. You may be charged for more than one call for unanswered calls that are forwarded to voicemail regardless of whether the calls result in an actual voicemail message being left for you and regardless of whether your Device is on or off. Some Devices and applications may incur usage and Charges while roaming. You may be able to disable these applications and features through your Device settings. Different rates and rounding increments apply in different countries. See www.gosmartmobile.com for information on international access, rates, Services and coverage. While roaming internationally, your data throughput may be reduced and your Service may be otherwise limited or terminated at any time without notice. You are responsible for complying with U.S. Export Control laws and regulations, and the import laws and regulations of foreign countries when traveling internationally with your Device.
12. *TAXES, FEES, AND SURCHARGES.
You agree to pay all taxes and fees imposed by governments or governmental entities. We may not give advance notice of changes to taxes & fees. To determine taxes & fees, we will use the street address you identified as your Place of Primary Use (“PPU”). The PPU for Puerto Rico customers must be in Puerto Rico. If you did not provide the correct PPU, or if you provided an address (such as a PO box) that is not a recognized street address, does not allow us to identify the applicable taxing jurisdiction(s), or does not reflect the Service area associated with your telephone number, you may be assigned a default location for tax purposes. In the event you dispute your PPU or the location we assigned you and the resulting taxes or fees applied to your Service, you must request a refund of the disputed tax or fee within 60 days of our notification to you that the tax or fee has been assessed. Regardless of any rate plan guarantee, taxes and fees may change from time to time without notice.
Surcharges: You agree to pay all Surcharges. Surcharges are not mandated by law, they are our Charges that are determined, collected and retained by us. The components and amounts of these Charges are subject to change without notice. Surcharges include charges, costs, fees and certain taxes we incur to provide Services (and are not government taxes or fees imposed directly on our customers that we must collect by law). Examples include general and administrative fees (such as certain costs we incur to provide Service) as well as governmental-related Surcharges (such as Federal or State Universal Service fees, regulatory or public safety charges, and gross receipts taxes). Surcharges assessed to you may vary depending on the type of Service you have. Surcharges will apply whether or not you benefit from the programs, activities or services included in the Surcharge. Surcharges are included in the price of your selected Rate Plan or prepaid refill.
Your GoSmart Mobile Service account balance, if sufficient, or your active Service plan gives you access to our Service for a limited amount of time; you must use your Service during the designated period of availability. To use GoSmart Mobile you must purchase Service in advance; Service will be suspended when your purchased Service is fully depleted; and/or you are at the end of the time period associated with your GoSmart Mobile Service plan. Monthly plan features are available for 30 days, however, depending on the time of day that you activate your Service or that your Service expires, your Service cycle may not equal 30 full 24 hour days. Your monthly plan will automatically renew at the end of 30 days if you have a sufficient GoSmart Mobile Service account balance to cover your GoSmart Mobile Service plan before the first day after your Service cycle. If you do not have a sufficient GoSmart Mobile Service account balance, your Service will be suspended. If you do not reinstate Service within the required period based upon your Service plan, your phone number will be reallocated. The Charges for Service and the amount of time that Service is available following activation of your GoSmart Mobile Service account balance may vary; see www.gosmartmobile.com for more information.
14. *YOUR RIGHT TO DISPUTE CHARGES.
If you have any questions about your Service Charges, contact us by visiting www.gosmartmobile.com, by calling 1 877-582-7788 or 611 from your Device, or by writing us at the address set forth below in Section 14. Unless otherwise provided by law, you must notify us in writing of any dispute regarding your Charges to your account within 30 days (20 days for Puerto Rico customers) after the date you first receive the disputed Charge. If you do not notify us of your dispute in writing within this time period (Puerto Rico customers may also notify us by phone at 1 877-582-7788 or 611 from your Device, or by personal delivery at our stores of the written objection), you may not pursue a claim in arbitration or in court (or before the Telecommunications Regulatory Board for Puerto Rico customers). Except for Puerto Rico customers and unless otherwise required by law, you must pay disputed Charges until the dispute is resolved. If you accept a credit, refund or other compensation or benefit to resolve a disputed Charge, you agree that the issue is fully and finally resolved. For unresolved disputes see Section 2 above. To contact or notify us, see Section 15.
Puerto Rico. We will provide you with a determination regarding any dispute you present to us in accordance with this Section 14 within 15 days after we receive it. You will have 20 days from the mailing date of the notification to request reconsideration of our determination. You may appeal our determination to the Telecommunications Board of the Commonwealth of Puerto Rico ("Telecommunications Board") by filing a petition for review up to 30 days after the date of our determination. Your petition for review shall be made through the filing of a document containing the following information: (a) your name and address; (b) our company name; (c) the pertinent facts; (d) any applicable legal provisions that you are aware of; and (e) the remedy you are requesting. The document may be filed handwritten or typewritten, and must be signed by you. You must send us a copy of your document to the following address: GoSmart Mobile Customer Relations, P.O. Box 3220, Albuquerque, NM 87190, Attn.: Customer Service Manager. You must send your petition for review to the Puerto Rico Telecommunications Regulatory Board at the following address: 500 Ave. Roberto H. Todd (Pda. 18 - Santurce), San Juan, Puerto Rico 00907-3941. The Telecommunications Board will review our determination only on appeal. You are advised of the provisions regarding suspension of Service that appear in Law 33 of July 7, 1985, Law 213 of September 12, 1996 and Regulation 8065 promulgated on August 31, 2011 by the Telecommunications Board regarding the procedures for customer's dispute resolution and suspension of Services.
15. *NOTICES AND CUSTOMER COMMUNICATIONS.
We may contact you without charge, on any wireless telephone number assigned to your account for any purpose, including marketing messages, and in any manner permitted by law. You expressly consent to be contacted, by us or anyone contacting you on our behalf, for any purpose, including account or service related purposes, at any telephone number, or physical or electronic address where you may be reached, including any wireless telephone number. You agree that we, and anyone contacting you on our behalf, may communicate with you in any manner, including using a pre-recorded or artificial voice, or using an automatic telephone dialing system to place calls or send messages, alerts, or an automatic e-mailing system. If a contact number you have provided to us is no longer your number, you agree to notify us promptly that you can no longer be reached at that number. You represent that you have received, and are authorized to convey to us, the consent of any authorized users on your account to be contacted by us as described in this Section. You agree that all consents provided in this Section will survive cancellation of your Service and account.
You may contact us at www.gosmartmobile.com, by calling 1 877-582-7788 or 611 from your Device, or by writing to: Customer Relations, P.O. Box 3220, Albuquerque, NM 87190. Electronic notices are considered delivered when sent. Mail notices are considered delivered 3 days after mailing.
16. *LOST OR STOLEN DEVICES.
You agree to notify us if your Device is lost or stolen. Once you notify us, we will suspend your Service. After your Service is suspended, you will not be responsible for additional usage charges incurred in excess of your Rate Plan Charges, applicable taxes, fees, and Surcharges. If Charges are incurred before you notify us, you are not liable for Charges you did not authorize. However, the fact that your Device or Account was used is some evidence of authorization. You may request us to investigate Charges you believe were unauthorized. We may ask you to provide information and you may submit information to support your request. If we determine the Charges were unauthorized, we will credit your account. If we determine the Charges were authorized, we will inform you within 30 days and you will remain responsible for the Charges. If you request that we not suspend your Service, you will remain responsible for Charges incurred. We may prevent a lost or stolen Device from registering on our and other networks.
17. *PERMITTED AND PROHIBITED USES.
Your Data Plan is intended for Web browsing, messaging, and similar activities. Unless explicitly permitted by your Rate Plan or Data Plan, Certain activities and uses of our Services and your Device are permitted and others are not. If you buy a Device manufactured for use on our network, you agree, and we rely on your agreement, that you intend it to be activated on our Service and will not resell or modify the Device, or assist any doing so.
Permitted uses include (a) Voice calls; (b) Web browsing; (c) Messaging; (d) Email; (e) Streaming music; (f) Uploading and downloading applications and content to and from the Internet or third party stores; (g) Using applications and content without excessively contributing to network congestion; and (h) Tethering your Device to other non-harmful devices pursuant to the terms and conditions and allotments of your Data Plan.
Unless explicitly permitted by your Rate Plan or Data Plan, you are not permitted to use your Service or Device, or attempt, assist or facilitate anyone else to use the Service or Device in a way that we determine: (1) Uses a repeater or signal booster other than one we provide to you; (2) Compromises network security or capacity, degrades network performance, uses malicious software or “malware”, hinders other customers’ access to the network, or otherwise adversely impacts network service levels or legitimate data flows; (3) Uses applications which automatically consume unreasonable amounts of available network capacity; (4) Uses applications which are designed for unattended use, automatic data feeds, automated machine-to-machine connections, or applications that are used in a way that degrades network capacity or functionality; (5) Misuses the Service, including "spamming" or sending abusive, unsolicited, or other mass automated communications; (6) Accesses the accounts of others without authority; (7) Resells the Service, either alone or as part of any other good or service; (8) Tampers with, reprograms, alters, or otherwise modifies your Device to circumvent any of our policies or violate anyone’s intellectual property rights; (9) Causes harm or adversely affects us, the network, our customers, employees, business, or any other person; (10) Conflicts with applicable law; or (11) Is not in accordance with these T&Cs.
18. OUR RIGHTS TO LIMIT OR END SERVICE OR THE AGREEMENT.
We may change, limit, suspend or terminate your Service or this Agreement at any time, including if you engage in any of the prohibited uses described in Section 17 or no longer reside in an area where we provide Service. Under certain limited circumstances, we may also block your device from working on our network.
Your Device's Software is licensed, not sold, to you by us and/or other licensors for your personal, lawful, non-commercial use on your Device only. You may only use the Software as authorized by its license. Your Device's "Software" includes its software, interfaces, documentation, data, and Content & Apps, as each may be updated or replaced by feature enhancements or other updates.
Except as permitted by applicable law, you may not assign, transfer, sublicense, copy, reproduce, redistribute, resell, modify, decompile, attempt to derive the source code of, or reverse engineer all or any part of the Software, or alter, disable or circumvent any digital rights management security features embedded in the Software. The Software may not be transferable from one Device to another Device. You may not create derivative works of all or any part of the Software. You agree the Software contains proprietary content and information owned by us, our licensors, and/or other third parties. We, our licensors, and such other third parties reserve the right to change, suspend, terminate, remove, impose limits on the use or access to, or disable access to, the Software at any time without notice and will have no liability for doing so. You agree that your violation of the Software license harms us, our licensors, and/or other third parties, which cannot be fully redressed by money damages, and that we, our licensors, and such other third parties shall be entitled to immediate injunctive relief in addition to all other remedies available.
20. *PRIVACY INFORMATION.
21. *DISCLAIMER OF WARRANTIES.
EXCEPT FOR ANY WRITTEN WARRANTY THAT MAY BE PROVIDED WITH A GOSMART MOBILE DEVICE YOU PURCHASE FROM US, AND TO THE EXTENT PERMITTED BY LAW, THE SERVICES AND DEVICES ARE PROVIDED ON AN "AS IS" AND "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OF ANY KIND. WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING YOUR SERVICE OR YOUR DEVICE. WE CAN'T AND DON'T PROMISE UNINTERRUPTED OR ERROR-FREE SERVICE AND DON'T AUTHORIZE ANYONE TO MAKE ANY WARRANTIES ON OUR BEHALF. THIS DOESN'T DEPRIVE YOU OF ANY WARRANTY RIGHTS YOU MAY HAVE AGAINST ANYONE ELSE. WE DO NOT GUARANTEE THAT YOUR COMMUNICATIONS WILL BE PRIVATE OR SECURE; IT IS ILLEGAL FOR UNAUTHORIZED PEOPLE TO INTERCEPT YOUR COMMUNICATIONS, BUT SUCH INTERCEPTIONS CAN OCCUR.
22. *WAIVERS AND LIMITATIONS OF LIABILITY.
UNLESS PROHIBITED BY LAW, WE EACH AGREE TO LIMIT CLAIMS FOR DAMAGES OR OTHER MONETARY RELIEF AGAINST EACH OTHER TO DIRECT AND ACTUAL DAMAGES REGARDLESS OF THE THEORY OF LIABILITY. THIS MEANS THAT NEITHER OF US WILL SEEK ANY INDIRECT, SPECIAL, CONSEQUENTIAL, TREBLE, OR PUNITIVE DAMAGES FROM THE OTHER. THIS LIMITATION AND WAIVER ALSO APPLIES TO ANY CLAIMS YOU MAY BRING AGAINST ANY OTHER PARTY TO THE EXTENT THAT WE WOULD BE REQUIRED TO INDEMNIFY THAT PARTY FOR SUCH CLAIM. YOU AGREE WE ARE NOT LIABLE FOR PROBLEMS CAUSED BY YOU OR A THIRD PARTY, OR BY ANY ACT OF GOD. YOU ALSO AGREE WE ARE NOT LIABLE FOR MISSED OR DELETED VOICE MAILS OR OTHER MESSAGES, FOR ANY INFORMATION (LIKE PICTURES) THAT GETS LOST OR DELETED IF WE WORK ON YOUR DEVICE, OR THE FAILURE OR DELAY IIN CONNECTING A CALL OR TEXT TO 911 OR ANY OTHER EMERGENCY SERVICE. EXCEPT TO THE EXTENT PROHIBITED BY LAW, ALL CLAIMS MUST BE BROUGHT WITHIN 2 YEARS OF THE DATE THE CLAIM ARISES.
You agree to defend, indemnify, and hold TracFone and our directors, officers, and employees harmless from any claims arising out of use of the Service or Devices, breach of the Agreement, or violation of any laws or regulations or the rights of any third party by you, any person on your account, or that you allow to use your Service or your Device.
24. *ENFORCEABILITY AND ASSIGNMENT.
A waiver of any part of the Agreement in one instance is not a waiver of any other part or any other instance and must be expressly provided in writing. If we don't enforce our rights under any provisions of the Agreement, we may still require strict compliance in the future. Except as provided in Section 2, if any part of the Agreement is held invalid that part may be severed from the Agreement. You can't assign or transfer the Agreement or any of your rights or duties under it without our written consent. We may assign all or part of the Agreement, or your debts to us, without notice. You understand that the assignment or transfer of all or any part of this Agreement or your debt will not change or relieve your obligations under this Agreement. The Agreement is the entire agreement between you and us regarding the rights you have with respect to your Service or Device, except as provided by law, and you cannot rely on any other documents or statements by any sales, service representatives or other agents. If you purchase a Device, services or content from a third party, you may have a separate agreement with the third party; we are not a party to that agreement. The original version of the Agreement is in English. To the extent there are conflicts between the English version and any other language version, the English version will control. Any determination made by us pursuant to this Agreement, shall be in our sole reasonable discretion. Paragraphs marked "*" continue after termination of our Agreement with you.
25. *CHOICE OF L AW.
This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state in which our records indicate your telephone number is located, without regard to the conflicts of laws rules of that state. Foreign laws (except for Puerto Rico) do not apply. Arbitration or court proceedings must be in: (a) the county and state in which our records indicate your telephone number is located, but not outside the U.S; or (b) in Puerto Rico if our records indicate your telephone number is located in Puerto Rico. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction.
© 2016 TracFone Wireless, Inc.