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Terms and Conditions |
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PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
They govern the relationship between you and O2SM Wireless GSM
(Locus Telecommunications, Inc.) and explain our respective legal rights concerning
all aspects of our relationship, including without limitation:
• Rates and
charges
• Availability of the service and
features
• Replenishment and expiration of balances
• Privacy and confidentiality
• Your rights related to Customer Proprietary Network Information
• Modifications to the agreement
• Limitations of liability and warranty
• Resolution of past or future disputes by mandatory binding
arbitration
instead of court trials and class actions.
IF YOU USE THE SERVICE OR THE WIRELESS DEVICE, YOU CONSENT TO THE TERMS AND CONDITIONS
SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS,
DO NOT USE THE SERVICE OR PHONE AND NOTIFY US IMMEDIATELY TO CANCEL SERVICE.
This is an agreement ("Agreement") for wireless radio telecommunications
services and related services and/or features ("Service") between you
and the entity licensed by the Federal Communications Commission to provide Service
in the area associated with your assigned telephone, data and/or messaging number(s)
("Number") that is doing business as O2SM Wireless
GSM,
("us" or "we"). The term "Device" means wireless
receiving and transmitting equipment that we have authorized to be programmed
with the Number.
I. SERVICE
a. Availability/Interruption. Service is normally
available to your Device when it is within the operating range
of our system, and may be available outside of that area in other
participating carrier service areas. Service is subject to transmission
limitation or interruption caused by weather, terrain, obstructions
such as trees or buildings, and other conditions. Service may
be limited in some areas where coverage is not available or may
be temporarily limited or interrupted due to system capacity
limitations and system repairs or modifications or to combat
potential fraud. GSM wireless features require a compatible GSM
850/1900 dual, tri, or quad band phone, are only available in
the GSM features area, and may require local telephone company
support and message sender access to computer and modem. Not
all features or Service offerings are available.
b. Use of Service/Device/Number. Reproduction, retransmission, dissemination
or resale of Service is prohibited without prior written contractual arrangements
from Locus Telecommunications, Inc. and any required regulatory approvals. You
are responsible for ensuring that your Device is compatible with our Service
and meets federal standards. You are responsible for the purchase and maintenance
of any additional hardware, software and/or Internet access from your PC required
to use the Service. You consent to receiving advertising, alerts and other broadcast
messages from Locus Telecommunications, Inc. or our authorized agents. You have
no ownership rights to the Number, any IP address, any e-mail address or any
other identifier provisioned by us, our agents or the manufacturer of your Device
to be used with the Service, and you agree we may change any such Number, IP
address, e-mail address or any other identifier at any time with or without prior
notice to you. Any Device purchased through our program has been manufactured
to operate exclusively with Service provided by us. The Device cannot be activated
with any other wireless carrier. By using Service, you agree to abide by the
terms and conditions of any applicable software license.
c. Unauthorized Usage. You agree not to use the Device
or Service for any unlawful, unauthorized or abusive purpose or in any way that
damages our property or others' property, or interferes with, harms or disrupts
our system or other operators' systems or other users. You will comply with all
laws while using the Service and you will not transmit any communication or data
that would violate any laws, court order, or regulation, or would likely be offensive
to the recipient. You are responsible for all content you transmit using the
Service. You may not install any amplifiers, enhancers, repeaters or other devices
that modify, disrupt or interfere in any way with the radio frequency licensed
to us to provide Service. If your Device, user name or password is stolen or
Service is fraudulently used, you must immediately notify us and provide us with
such documentation and information as we may request (including affidavits and
police reports). Until you notify us, you will remain responsible for all charges.
We have the right to interrupt or restrict Service to your Number, without notice
to you, if we suspect fraudulent, illegal, or abusive activity. You agree to
cooperate with us in any fraud investigation and to use any fraud prevention
measures we prescribe. Failure to provide reasonable cooperation may result in
your liability for all fraudulent usage.
d. Release of Information. You consent to our
release of information about you when we believe release is appropriate
to comply with the law (e.g. a lawful subpoena, E911 information);
to enforce or apply our customer agreements; to initiate, render,
bill and collect for Services; to protect our rights or property;
to protect users of those Services and other carriers from fraudulent,
abusive, or unlawful use of, or subscription to, such Services;
or if we reasonably believe that an emergency involving immediate
danger of death or serious physical injury to any person requires
disclosure of communications or justifies disclosure of records
without delay. You are deemed to have reviewed and consented
to our Privacy Policy posted on our website at www.O2WirelessService.com.
e. Your Rights to End This Agreement. You may terminate your Service
at any time by notifying us of your intention to terminate Service. There is
no penalty or termination fee; however, it may take up to 30 days to process
the termination request and the balance remaining in your account is forfeited
upon termination of Service. Your Service will resume and the termination request
will be cancelled if you use your Service prior to our processing your termination
notification.II.
CHARGES/PAYMENTS/DEFAULT
a. Generally. You are responsible
for paying all charges, including but not limited to: airtime,
access, features, voice mail access, voice mail delivery, data
usage, text messages, downloadable content, alerts, roaming,
long distance, directory and operator assistance charges, the
price of Devices and accessories, charges for other goods and
services and shipping/handling fees. You will be billed at domestic
airtime or roaming rates (please refer to rate card) for 800,
866, 877, 888, and other "toll free" calls. Applicable
international charges will always be billed for direct dial calls
placed from your wireless phone. A long distance provider chosen
by Locus Telecommunications, Inc. will provide your long distance.
For all calls, the length of the call will be measured during
the time that you are connected to our system, which is approximately
from the time you press "Send" or other key to begin
a call until approximately the time you press "End," or
other key to terminate the call. Airtime usage on each call is
deducted in full minute increments, with partial minutes of use
rounded up to the next full minute. For calls placed in the United
States, you will not be charged for busy or unconnected calls
if you press "End" or "No" within 30 seconds.
Unanswered calls lasting 30 seconds or more will be charged standard
airtime and rounded up to the nearest minute. Call waiting, 3-way
calling, call forwarding, voicemail will incur applicable airtime
or roaming and wireless long distance charges. Please note you
may be charged a higher rate for calls made off-network. You
will be charged for any check or electronic bank draft returned
for non-payment. Please refer to your rate card for details.
b. Account Balance. All charges incurred will be deducted
automatically from your account. Any amounts loaded into your account are not
transferable or refundable. You should take reasonable efforts to safeguard your
Phone and replenishment airtime cards. No refunds or other compensations will
be given for returned, expired, lost, damaged, or stolen cards. Amounts deposited
to your account expire between 30 to 90 days depending on card denomination.
However, if additional amounts are placed into your account before the current
account balance expires, the existing balance will be carried over to the new
expiration date. If new amounts are not added to your account prior to the expiration
date any remaining amounts will be forfeited. Your account will be canceled if
there is no usage (billable or non-billable) or if the balance remains as $0
for 30 consecutive days or more and you may be required to pay a fee to resume
service. Credit card replenishment is available; limitations apply. In some instances
you may be able to complete a call when the billing functionality is interrupted.
When this occurs you will not receive correct balance information. All calls,
however, will be deducted from your account and the balance updated when the
billing functionality is operable. You are responsible for all data usage sent
through our network and associated with the Device, regardless of whether the
Device actually receives the information.
c. Use
of Service/Rates. Your Service rates and other charges and conditions
for each Number or Phone are described in the replenishment card packaging, at
our website at www.O2WirelessService.com,
and in the "Sales Information" (the user guide and other printed materials
provided by us either in the Starter Kit you received when submitting your Device
for use with the Service or in the packaging of the Device you purchased to be
used with the Service) you received, each of which is a part of this Agreement.
You can place domestic and international calls from the U.S. to certain designated
international locations. The prepaid per minute rates are based on the card value
purchased. International rates vary and are subject to change. Call Customer
Care (at the number listed on our website or in your replenishment card packaging)
or visit www.O2WirelessService.com for
international rates and available countries. You cannot use the Service to place
calls to 500, 700, 855, 900 or 976 numbers; or to place operator-assisted calls
such as third-party-billed, and collect calls. Rates for calls to directory assistance
are $3.00 per call plus airtime or roaming charges. You will be billed at domestic
rates for 800, 888, 877, and 866 number calls. You are responsible for all taxes
and surcharges associated with your use of the Service. Other than calls to 911,
you can only make and receive calls when your account has a positive balance.
Special dialing patterns may be required when making roaming calls. Some locations
require a credit card to complete a call; these rates will be higher. When in
these areas, you will not be able to receive calls. Prepaid wireless service
is not available for purchase or use in all areas. When using Call Waiting or
Three-Way Calling, you will incur two simultaneous airtime charges and if you
disconnect from a conference call while the other two parties remain connected,
you will continue to incur airtime charges for all calls.
d. Default/Termination. If you breach any representation
to us or fail to perform any of the promises you made in the Agreement, you will
be in default and we may, without notice to you, suspend Service and/or terminate
this Agreement, in addition to all other remedies available to us.
e. Account Information. Any
person able to provide your Number and personal identification
number is authorized by you to make changes to your account.
You consent to disclosure of any information about you to any
person as permitted by law if any Device programmed with your
Number calls an emergency service number such as 911 or, if
we reasonably believe that an emergency involving immediate
danger of death or serious physical injury to any person requires
disclosure of communications or justifies disclosure of records
without delay
f. CPNI Consent. Under federal law, you have a right,
and we have a duty, to protect the confidentiality of information about the amount,
type, and destination of your wireless service usage (CPNI). You consent to us
sharing your CPNI with Locus Telecommunications, Inc., its affiliates and its
contractors, to develop or bring to your attention any products and services.
This consent survives the termination of your Service and is valid until you
remove it. To remove this consent at any time, notify us in writing at Locus
Telecommunications, Inc. Attn: CPNI, P.O. Box 376 Fort Lee, NJ 07024, providing
your name, home address, home telephone including area code, and personal identification
number. Removing consent will not affect your current Service.
III. CHANGES TO
THIS AGREEMENT
We may amend the terms of this Agreement upon advance notice to you in the manner
described below or by posting notices of changes on our website or by printing
notice of such changes in the replenishment card packaging.
IV. LIMITATIONS
The parties intend that the limitations on liability, warranty and damage awards
provided for in this Agreement will apply to the fullest extent allowed by law.
Some jurisdictions do not allow the exclusion of certain warranties or the waiver,
limitation or exclusion of liability for punitive, incidental or consequential
damages, or for intentional or willful conduct in some circumstances. To the
extent that applicable law does not permit any of these limitations, they will
not apply to you.
a. Limitation of Liability. WE ARE NOT LIABLE FOR ACTS OR OMISSIONS
OF ANOTHER SERVICE PROVIDER OR ANY THIRD PARTY PROVIDERS OF SERVICES RELATED
TO USE OF THE DEVICE OR SERVICE, FOR INFORMATION PROVIDED THROUGH YOUR DEVICE,
LACK OF PRIVACY OR SECURITY EXPERIENCED WHEN USING THE DEVICE, EQUIPMENT FAILURE
OR MODIFICATION, OR OTHER CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING WITHOUT
LIMITATION ANY REPRESENTATIONS THAT THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED,
OR FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD PARTY HACKERS OR DENIAL OF
SERVICE ATTACKS). WE ARE NOT LIABLE FOR SERVICE OUTAGES, NOR FOR SERVICE LIMITATIONS
OR INTERRUPTIONS, AS DESCRIBED IN PARAGRAPH 1.C ABOVE. OUR LIABILITY AND THE
LIABILITY OF ANY UNDERLYING CARRIER FOR ANY FAILURE OR MISTAKE SHALL IN NO EVENT
EXCEED OUR SERVICE CHARGES DURING THE AFFECTED PERIOD. Locus Telecommunications,
Inc., AND ANY UNDERLYING CARRIER ARE NOT LIABLE FOR ANY INCIDENTAL, PUNITIVE
OR CONSEQUENTIAL DAMAGES SUCH AS LOST PROFITS. YOU AND WE BOTH WAIVE TO THE FULLEST
EXTENT ALLOWED BY LAW, ANY CLAIMS TO RECOVER INCIDENTAL, PUNITIVE AND CONSEQUENTIAL
DAMAGES. WE AND ANY UNDERLYING CARRIER ARE NOT LIABLE FOR (i) ECONOMIC LOSS OR
INJURIES TO PERSONS OR PROPERTY ARISING FROM USE OF THE SERVICE, THE DEVICE OR
ANY EQUIPMENT USED IN CONNECTION WITH THE DEVICE UNLESS CAUSED BY OUR SOLE AND
GROSS NEGLIGENCE, OR (ii) THE INSTALLATION OR REPAIR OF THE DEVICE BY ANY PARTIES
WHO ARE NOT OUR EMPLOYEES. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
b. Indemnification. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US, OUR
AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER, HARMLESS FROM CLAIMS OR
DAMAGES RELATING TO THIS AGREEMENT OR YOUR PROMISES OR STATEMENTS MADE IN IT
AND USE OF THE DEVICE OR SERVICE UNLESS DUE TO OUR SOLE AND GROSS NEGLIGENCE.
YOU ALSO AGREE TO PAY OUR REASONABLE ATTORNEYS' AND EXPERT WITNESS FEES AND COSTS
INCURRED IN ENFORCING THIS AGREEMENT THROUGH APPEAL EXCEPT AS PROVIDED IN PARAGRAPH
5, BELOW. USE OF YOUR DEVICE WHILE OPERATING A MOTOR VEHICLE OR IN ANOTHER DISTRACTED
OR NEGLIGENT MANNER MAY BE PROHIBITED, OR RESTRICTED BY LAW IN SOME AREAS. IT
IS YOUR RESPONSIBILITY TO CONFORM TO ALL SUCH LAWS OR REGULATIONS AND YOU SHALL
INDEMNIFY US FROM CLAIMS ARISING FROM ANY SUCH UNLAWFUL OR NEGLIGENT USE. THIS
PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
c. No Warranties. WE MAKE NO EXPRESS WARRANTY REGARDING THE SERVICE OR THE DEVICE
OR ANY SERVICES PROVIDED BY ANY THIRD PARTIES, AND DISCLAIM ANY IMPLIED WARRANTY,
INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
WE DO NOT AUTHORIZE ANYONE TO MAKE ANY WARRANTY ON OUR BEHALF AND YOU SHOULD
NOT RELY ON ANY SUCH STATEMENT. WE ARE NOT THE MANUFACTURER OF THE DEVICE AND
ANY STATEMENT REGARDING IT SHOULD NOT BE INTERPRETED AS A WARRANTY. THIS PARAGRAPH
SHALL SURVIVE TERMINATION OF THIS AGREEMENT.V. RESOLUTION OF DISPUTES
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE
HAVE. IT PROVIDES FOR RESOLUTION OF MOST DISPUTES THROUGH ARBITRATION INSTEAD
OF COURT TRIALS AND CLASS ACTIONS. ARBITRATION IS FINAL AND BINDING AND SUBJECT
TO ONLY VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE
TERMINATION OF THIS AGREEMENT.
a. Binding Arbitration. It is intended that this provision
be interpreted broadly to encompass all disputes or claims arising out of our
relationship. Any dispute or claim, including those against any of our subsidiary,
parent or affiliate companies, arising out of or relating to this Agreement,
our Privacy Policy or the Service or any equipment used in connection with the
Service (whether based in contract, tort, statute, fraud, misrepresentation or
any other legal theory) will be resolved by binding arbitration except that (1)
you may take claims to small claims court if they qualify for hearing by such
a court, or (2) you or we may choose to pursue claims in court if the claims
relate solely to the collection of any debts you owe to us.
b. Arbitration Procedures. You must first present any claim or dispute
to us by contacting Customer Care to allow us an opportunity to resolve the dispute.
You may request arbitration if your claim or dispute has not been resolved within
90 days. The arbitration of any dispute or claim shall be conducted in accordance
with the American Arbitration Association ("AAA") under the Wireless
Industry Arbitration Rules ("WIA Rules"), as modified by this Agreement.
The WIA Rules and information about arbitration and fees are available upon request
from the AAA online at www.adr.org. You and we agree that this Agreement evidences
a transaction in interstate commerce and this arbitration provision will be interpreted
and enforced in accordance with the Federal Arbitration Act and federal arbitration
law. Unless you and we agree otherwise, any arbitration will take place in the
county seat for the county in which your billing address is located. At either
party's election, the arbitration shall be held telephonically. An arbitrator
may award any relief or damages (including injunctive or declaratory relief)
that a court could award, except an arbitrator may not award relief in excess
of or contrary to what this Agreement provides and may not order relief on a
consolidated, class wide or representative basis. In any arbitration applying
the WIA Rules applicable to large/complex cases, the Arbitrators must also apply
the Federal Rules of Evidence, and the losing party may have the award reviewed
in accordance with the review procedures set forth in the WIA Rules. Judgment
on any arbitration award may be entered in any court having proper jurisdiction.
If any portion of this arbitration clause is determined by a court to be inapplicable
or invalid, then the remainder shall still be given full force and effect.
c. Costs of Arbitration. For claims of less than $1,000,
you will be obligated to pay $25 and we will pay all other administrative costs
and fees. For claims over $1,000 but under $75,000, you will be obligated to
pay your share of the arbitration fees, but no more than the equivalent court
filing fee for a court action filed in the jurisdiction where your billing address
is located. For arbitrations in excess of $75,000, all administrative fees and
expenses of arbitration will be divided equally between you and us. In all arbitrations,
each party will bear the expense of its own counsel, experts, witnesses and preparation
and presentation of evidence at the arbitration.
d. Waiver of Class Actions. By this Agreement, both you and we are waiving
certain rights to litigate disputes in court. You and we both agree that any
arbitration will be conducted on an individual basis and not on a consolidated,
class wide or representative basis. If for any reason this arbitration clause
is deemed inapplicable or invalid, or to the extent this arbitration clause allows
for litigation of disputes in court, you and we both waive, to the fullest extent
allowed by law, any right to pursue any claims on a class or consolidated basis
or in a representative capacity.
e. Limitations Period. Any arbitration or legal action with respect
to any and all claims or causes of action related to or arising out of this Agreement
must be brought within two years after the cause of action arises, or within
the applicable statutory period of time, whichever is shorter. This limitations
period does not apply to any given cause of action when the statutory limitations
period for that cause of action cannot be waived, restricted or otherwise limited
by you.
VI. MISCELLANEOUS
a. Privacy. We are not liable for any lack of
privacy, which may be experienced with regard to the Service. You
authorize our monitoring and recording of calls to us concerning
your account or the Service and consent to our use of automatic
dialing equipment to contact you. We have the right to intercept
and disclose any transmission over our facilities in order to protect
our rights or property.
b. Assignment. We may assign all or part of
this Agreement without such assignment being considered a change
to the Agreement, and without notice to you. We are then released
from all liability. You may not assign this Agreement without
our prior written consent.
c. Notices. We may send you notice by mail or electronic
means, in our sole discretion. Notices to you shall be effective 1) 3 days following
the date deposited in the U.S. Mail or delivered to a nationally recognized courier
or delivery service, postage prepaid and addressed to your address as kept in
our files and/or 2) immediately upon our transmission using an electronic means
such as e-mail or text messaging service. You are responsible for notifying us
of any changes in your mailing or e-mail address. Written notice to us shall
be effective when directed to our Customer Care Department (at the mailing address
listed on our website) and received by us. Oral and electronic notices shall
be deemed effective on the date reflected in our records. Your notice must contain
specific information adequate to identify you and your Service.
d. Entire Agreement. These Terms and Conditions,
together with the Sales Information, represent the entire agreement
between you and us, which may only be amended as described in
this Agreement. This Agreement supersedes any inconsistent or
additional representations made to you by any of our representatives,
agents or dealers. If any part of this Agreement is found invalid,
the balance of the Agreement remains enforceable. If, at any
time, we do not enforce any right or remedy available under this
Agreement, that failure is not a waiver of our right to enforce
the right or remedy at a later time. Copied, microfiche, scanned
or other duplicate or electronic images of this Agreement are
admissible for all purposes.
e. Governing Laws. This Agreement is subject to applicable
federal laws, federal or state tariffs, if any, and the laws of the state associated
with the Number. Where a state agency or the FCC regulates the terms and conditions
of our Service, the regulations are available for your inspection; if there is
any inconsistency between this Agreement and those regulations, this Agreement
shall be deemed amended as necessary to conform to such regulations.
f. Capacity. You represent that you are legally competent to enter into this
Agreement, and that you are not aware of any disability that would prevent you
from entering into this Agreement. |
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