Terms and Conditions | Total Wireless
TOTAL WIRELESS TERMS AND CONDITIONS
Please read and understand these Terms and Conditions of Service carefully. These Terms and Conditions of Service are a legally binding agreement ("Agreement") between you and Total Wireless ("Total Wireless"). Total Wireless is a brand of TracFone Wireless, Inc.
THESE TERMS AND CONDITIONS OF SERVICE CONTAIN IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS AND REQUIRE THAT CERTAIN DISPUTES BE RESOLVED THROUGH ARBITRATION INSTEAD OF A COURT TRIAL. FOR MORE INFORMATION SEE SECTION 14 BELOW.
By purchasing, activating, and/or using any Total Wireless product ("Product") or service ("Service"), including, but not limited to any Total Wireless phone, activation kit, service plan, or accessory, you acknowledge and agree to these Terms and Conditions of Service. Total Wireless reserves the right to change or modify these Terms and Conditions of Service at any time. Any changes or modifications to these Terms and Conditions of Service are effective and will be binding upon you when posted on our website at totalwireless.com. Because these Terms and Conditions are subject to change you should always check our website for the most current Terms and Conditions.
For assistance or more information, please contact Total Wireless Customer Care at 1-866-663-3633.
1. ACTIVATING AND USING YOUR SERVICE
To use Total Wireless Service, you must activate a Total Wireless phone or a CDMA compatible phone or wireless device (e.g., a wireless phone or tablet). To activate your own CDMA compatible phone or device you will need to purchase a Total Wireless Network Access code before you can establish and use Total Wireless Service. You may activate your Total Wireless Phone or wireless device by contacting Customer Care from a landline phone, by visiting the Total Wireless website, or by visiting an authorized retailer. When you activate your Service and establish an account (Account"), you will be required to provide us with your personal contact information and to register your wireless device(s). If you have purchased a shared plan you may register up to four wireless devices.
Total Wireless Service can only be activated where Total Wireless Service is offered and supported by Total Wireless. Total Wireless provides Service at its discretion. Some functions and features referenced in the Manufacturer's manual provided with your phone or wireless device may not be available with Total Wireless Service or their functionality may be limited. Some Total Wireless features are available only on Total Wireless phones and may not be available if you bring your own wireless phone or device.
Total Wireless may, at any time and without prior notice to you, modify, cancel and/or deactivate your Service and/or take other corrective action, for any reason in Total Wireless's sole discretion including for violating these Terms and Conditions of Service. All plans, rates, features, functionality and other product specifications are subject to change without notice or obligation.
If you are using your own compatible phone or wireless device, it must be compatible and not interfere with Total Wireless's Service, and it must comply with all applicable laws, rules and regulations. You are also responsible for the purchase and maintenance of any additional hardware or software required to use the Service. Service will only work with wireless devices that are compatible with our network. Not all services are available with all wireless devices or on all networks. We may remotely change your phone's software, applications or programming without notice. This could affect your stored data, your phone's programming and how you are able to use your wireless phone.
The wireless telecommunications networks used to transmit calls for the Total Wireless Service are owned and operated by various licensed commercial mobile radio service providers ("Carriers"), not Total Wireless. When you activate your Service, you will be provided with a telephone number or you may, in some circumstances, port-in a number from another Carrier. Please note that you have no ownership rights to any telephone number, IP address, or any other identifier associated with your wireless service and you acknowledge and agree that we may change any such number, IP address, or other identifier associated with your Service at any time without prior notice to you.
2. TERMINATION OF SERVICE
Either party may terminate this Agreement (which will terminate the provision of Service) at any time. Any unused service days or data at the time of termination will not be refunded. Total Wireless may terminate this Agreement at any time without notice if we cease to provide Service in your area. We may interrupt or terminate your Service without notice for any conduct that we believe violates this Agreement, if you behave in an abusive, derogatory or similarly unreasonable manner with any of our representatives, if we have reasonable cause to believe that you are using your phone or Service for an unlawful purpose or in a way that may adversely affect our Service, or if you engage in any deceptive or unfair conduct with respect to your phone or Service. Any provision of this Agreement which by its context is intended to apply after termination of the Agreement will survive termination, including, but not limited to, any restrictions on the use of Total Wireless Phones.
3. SERVICE PLANS
Your Service will only operate after you have purchased and redeemed a service plan ("Service Plan") and so long as you have service days left on your monthly plan cycle. Please visit our website at totalwireless.com for the latest information regarding our Service Plans, including the amount of data provided by each Service Plan.
30-Day Service Plans . Total Wireless offers both "Individual" and "Shared" 30-Day Plans. Individual Plans support a single phone or wireless device (collectively "Devices"). Shared Plans can support up to four (4) approved devices depending on the type of Service Plan you purchase. You may choose to use only one device with a Shared Plan and you may choose to add or remove additional devices provided you have purchased a Shared Plan capable of supporting the number of devices you wish to use with your Service. To establish Service for more than one approved device, you must first purchase a Shared Plan and then register each device you wish to use with your Shared Plan. Service will only work with devices that are compatible with our network. The person who established and controls the Account is the only person who may add or remove a device from a Shared Plan. Once you have purchased a Shared Plan that supports a specific number of devices and have registered the maximum number of devices for your selected Shared Plan, you may not add an additional device to your Account unless you remove a previously registered device from your Service Plan or upgrade to a Service Plan that supports additional devices.
All Total Wireless Service Plans provide unlimited voice and text messaging services. Some Service Plans include a fixed amount of high speed data for each monthly plan cycle depending on the plan you purchase. High speed data means data at up to 4G LTE speeds. Actual data speeds are subject to your wireless device's capabilities, coverage available in your area at the time of use, and existing and changing network conditions. Data transmitted over Wi-Fi does not count against your data usage. To preserve your access to data, you may sign into Wi-Fi whenever possible, but recognize that some Wi-Fi locations may not be secure. You may use certain mobile apps to help find open networks and to keep track of your data usage. Actual availability, coverage, and data speeds may vary.
If your Service Plan does not come with a fixed amount of data you may purchase a data card ("Add-On Data Plan") or you may upgrade to a Service Plan that includes data. If you purchased a Shared Service Plan, your data allotment may be used by a single device or shared by up to four devices until the maximum amount of data usage allowed by your Service Plan is reached. The amount of data you can access during your monthly cycle depends on the Service Plan or any applicable Add-On Data Plans you have purchased. Once you have reached the maximum amount of data usage allowed by your Service Plan, data services will no longer be available until your next plan cycle begins, unless you purchase a new Service Plan prior to the start of your next plan cycle or you purchase an Add-On Data Plan. Your data allowance will automatically reset once you start your new plan cycle. Once you start a new plan cycle or if you redeem a Service Plan prior to the end of your plan cycle, you will lose any unused data services and service days remaining on your current Service Plan (except for any data obtained by purchasing an Add On Data Service Plan). You will not receive a refund or credit for any data or service days you lose once a new plan cycle begins.
Service End Date : The Service End Date on your Service Plan is the last day of your 30-Day plan cycle. Your Service End Date is determined by the date on which you activate your Total Wireless Service. If you have a Service Plan and multiple approved devices, your Service End Date is determined by the date on which the first approved device was activated to use Total Wireless Service. Thus, any devices that are activated subsequent to the day on which your first device was activated to use Total Wireless service may have less service days available depending on the circumstances. If you fail to purchase a new Service Plan prior to your Service End Date, your Service will be deactivated on the Service End Date and, if applicable, you may lose your phone number(s). To prevent this from occurring, please keep your Total Wireless Service active by purchasing a Service Plan before your Service End Date. When you purchase a Service Plan, you will be prompted to redeem the Service Plan at the time of purchase or on your Service End Date. If you choose to apply the Service Plan at the time of purchase you will lose any unused data remaining on your Service Plan. Notwithstanding your Service End Date, Total Wireless reserves the right to discontinue your Service and deactivate any Total Wireless account for which there is no voice, text or data usage for a period of twelve (12) consecutive months. If your Total Wireless Service is deactivated, your Service can be reactivated by purchasing and redeeming any Service Plan. Once reactivated, however, your device may be assigned a new phone number.
Add-On Data Plans: Total Wireless provides you the option of purchasing additional data to supplement the data allotment provided by your monthly Service Plan. Data provided by an Add-On Data will increase the total amount of data available under your Account and may be shared by multiple devices if you have a Shared Service Plan. Any data you have purchased through an Add-On Data Plan will not be used until you have completely exhausted the data allotment provided by your Service Plan. Data purchased through an Add-On Data Plan is not forfeited at the end of your monthly plan cycle and may continue to accrue or rollover until it is completely used or your Account is inactive for more than thirty (30) days and deactivated.
Total Wireless Reserve : With Total Wireless Reserve, you may purchase and add one or more Service Plans to your Total Wireless Reserve and use them whenever you need. Any Service Plans in your Total Wireless reserve will be automatically applied on your Service End Date. You may redeem the Service Plans in your Total Wireless Reserve at any time by accessing your Account. If you are an Auto-Refill customer and add a Service Plan to your Total Wireless Reserve, the Service Plan in your Total Wireless Reserve will take precedence over Auto-Refill and will be applied before your next Auto-Refill purchase is processed.
Total Wireless Auto-Refill : You may enroll in Auto-Refill to purchase your monthly Service Plan by registering your credit or debit card online at the Total Wireless website and selecting a Service Plan. With Auto-Refill, a new Service Plan will be automatically purchased and added to your Account each month on your Service End Date and your credit or debit card will automatically incur a monthly charge for the cost of the Service Plan you elect to purchase on a recurring basis. Please note that if you have any Service Plans in your Total Wireless Reserve, these Service Plans will be applied first before an Auto-Refill purchase is processed. Once you have used all of the Service Plans in your Total Wireless Reserve, your Auto-Refill purchases will resume.
Service Plans have no cash value and are non-refundable. Service Plans cannot be transferred or redistributed to another Total Wireless Account nor can they be used with or transferred to any other wireless or cellular service.
4. INTERNATIONAL LONG DISTANCE
Total Wireless offers its customers international long distance service ("ILD Service") as an additional feature for customers who purchase the Total Wireless $10 Global Calling Card, which must be used with another Total Wireless Service Plan in order for it to work. You may add or refill your ILD Service balance in $10 increments by purchasing a $10 Global Calling Card from Total Wireless directly by calling Customer Care or visiting our website. Your ILD Service will only work when Total Wireless Service is active and when you have a positive balance in your Account. If you have purchased a $10 Global Calling Card, you will not be limited in the number of destination numbers you may call. However, the Total Wireless phone number you provide when purchasing a $10 Global Calling Card will be the only number that is permitted to dial internationally. You will not be able to transfer your ILD Service to another phone number. Refunds for the $10 Global Calling Cards are subject to Customer Care review and only the remaining balance on the Account can be refunded.
The applicable rates to specific countries, regions or cities for customers who have purchased a $10 Global Calling Card are available online by clicking here. All rates are subject to change at any time without prior notice. Calls are billed in one-minute increments. Total Wireless $10 Global Calling Card expires 180 days after last use or 30 days after your Total Wireless Service is suspended. You are responsible for preventing the unauthorized use of your Account and the Service, and You are responsible for any reduction in value of your Account arising out of authorized and unauthorized use.
Total Wireless ILD Service may be provided by other carriers, many of whom may not have a direct contractual relationship or service level agreements with Total Wireless. ILD Service provided by these third parties may not be the same as service provided in the United States or by other international long distance carriers. Events beyond our control may affect the availability and/or quality of service. No representation or warranty, express or implied, is made regarding the number of minutes available for calls to a particular country or, after having placed a call, the remaining number of minutes available for calls to any particular country.
Total Wireless ILD Service is not intended for intrastate dialing in the US, to place calls to area codes 500, 700, 800, 888, 877, 866, 855, 900, 976, 411 or 555, nor to place certain toll-free, operator-assisted, third-party billed, directory assistance or collect calls.
Call times for each call are rounded up to the next whole minute and billed in full minute increments. Per call charges are rounded up to the next whole penny. You will be charged for calls based upon the rates that are effective as of the date and time you place the call.
You are responsible for safeguarding your ILD Service and Account information. Total Wireless is not responsible for and will not issue credit for unauthorized use.
5. DATA SERVICES
With certain Total Wireless phone models, you can access the internet to purchase and download online content from websites affiliated with Total Wireless or from other third-party websites (collectively, "Data Services"). Unless you are using Wi-Fi, any data you access by using your Total Wireless phone or other approved wireless device will count against your data balance ("Data Usage") until you reach the maximum amount of data usage allowed within your monthly plan. Data Usage begins when your Total Wireless Phone or other approved wireless device makes a data connection. This could occurs for example, by opening an internet browser window or an application installed on your device, sending or receiving a multi-media message (a photo or video), initiating a content download, or if internet access is somehow initiated for any other purpose. Data Usage ends when your data connection terminates. The duration of your data connection and the related Date Usage are not determined from the exact moment you press a button on your Total Wireless Phone. Data Usage depends on the size of the content and the actual time it takes to download or transmit the content or multimedia message.
In addition to Data Usage which counts against your data balance, there is a charge each time you purchase content to download online ("Content Charge"). Content Charges vary depending on the type of content you purchase and download. You will be advised of any Content Charges prior to finalizing any content you purchase. Any web content or application you purchase and download may only be used and/or viewed on the Total Wireless Phone used to purchase and download the content and cannot be transferred to another device, including a new or replacement Total Wireless Phone. Web content and application purchases are non-refundable and non-transferable.
Availability, Interruptions and Discontinuation of Data Service : Total Wireless does not guarantee the availability of Data Services in your coverage area and reserves the right to modify, suspend, interrupt, discontinue or permanently cancel Data Services, or portions thereof, without notice. Data Services are not available outside of your coverage area. Total Wireless is not responsible and will not be liable for any modifications, interruptions or discontinuation of Data Services or for your failure to receive any purchased web content or application. If Data Services are modified, interrupted, discontinued or cancelled, Total Wireless will not issue any refunds or reimburse you for any unused Services. If you cancel or attempt to cancel a download, the purchase of web content or a application, or the transfer of a multi-media message in progress, or if either of these or any other similar processes are otherwise interrupted through no action on your part, it is possible that you still incur a charge in accordance with these Terms and Conditions.
TOTAL WIRELESS OFFERS DATA SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS. TOTAL WIRELESS DOES NOT WARRANT THAT DATA SERVICES WILL BE UNINTERRUPTED OR ERROR OR VIRUS-FREE. NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE IN RELATION TO THE AVAILABILITY, ACCURACY, RELIABILITY, INFORMATION OR CONTENT OF TOTAL WIRELESS'S DATA SERVICE. YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT USE OF DATA SERVICES IS AT YOUR SOLE RISK AND THAT YOU MAY BE EXPOSED TO CONTENT FROM VARIOUS SOURCES THAT MAY BE HARMFUL OR MALICIOUS.
Non-Rated Content: Content that can be accessed or viewed by using your Data Services is not rated or filtered by Total Wireless and you are solely responsible for the use of such material, which may be offensive or objectionable to you or to others. Anytime you use Data Services, you agree not to hold Total Wireless liable for any offensive or objectionable content. Data Services are not intended for use by children. In the event that you, as a legal guardian allow your child to use your phone's Data Services, you acknowledge that your child has the permission to access the Data Services available on your Total Wireless Phone, including, without limitation, email and web browsing capabilities. You further acknowledge that as a legal guardian, it is your responsibility to determine whether use of Data Service is appropriate for your child. If you browse the internet using Data Services, you agree that you are of the minimum legal age to visit certain sites and you agree not to visit any illegal sites. Not all websites will be available with Total Wireless Data Service. Access to certain websites may be blocked or unavailable due to carrier or other restrictions.
Total Wireless Data Service is for individual use only and may not be offered for resale. Total Wireless reserves the right to take measures to protect the Carrier's networks and other users from harm, compromised capacity or degradation in performance. These measures may impact your Data Service, and we reserve the right to deny, modify or terminate Data Service, with or without notice, to anyone we believe is using the Total Wireless Data Service in a manner that adversely impacts the Carrier's network. We may monitor the compliance of subscribers, with these Terms and Conditions, but we will not monitor the content of your communications except as otherwise expressly permitted or required by law.
6. INTENDED USE OF TOTAL WIRELESS SERVICE
Total Wireless Plans may not be used for certain unauthorized uses that adversely impact our service. Examples of unauthorized uses include, continuous uninterrupted voice calls or automated text or picture messaging. Unlimited voice services may not be used for monitoring services, data transmission, transmission of broadcasts, transmission of recorded material, interconnection to other networks, telemarketing activity, autodialed calls, traffic pumping, or robocalls. Total Wireless reserves the right to cancel or deactivate Service in order to protect the Carrier's network from harm due to any cause including, without limitation, the excessive and/or unauthorized use of Total Wireless Service. Total Wireless reserves the right to deny or terminate Service to anyone Total Wireless believes is using their Service in an unauthorized manner or whose usage, in Total Wireless's sole discretion, adversely impacts a Carrier's network or customer service levels. Total Wireless will presume you are engaging in an unauthorized use in violation of these Terms and Conditions, if in Total Wireless's sole discretion, you are placing an abnormally high number of calls, repeatedly placing calls of unusually long duration, if your minute total exceeds 43,200 during a 30-day period, or if your talk, text or data usage is harmful or disruptive to the Carrier's network or service levels. If we determine, in our sole discretion, that you are using your Service in violation of these Terms and Conditions or in any other manner that we deem to be unreasonable or excessive, we may terminate individual calls or data connections or terminate your Service. Customers will be provided notice and an opportunity to take corrective action with respect to unauthorized uses before their service is terminated. By initiating Service and placing or receiving calls, you acknowledge and agree to Total Wireless's right to terminate your Service under these circumstances. Total Wireless may modify or cancel any Service or take corrective action at any time without prior notice and for any reason, including but not limited to your violation of this agreement.
Coverage maps are available on our website. These maps are for general informational purposes only and depict the general coverage area of Total Wireless. Total Wireless does not guarantee coverage or Service availability and the coverage maps are not a guarantee of coverage. Coverage is not available everywhere. The coverage maps display only the predicted and approximate optimal wireless coverage for voice calls, while outdoors, of the network on which your phone may be activated including the coverage area of the network's roaming partners, if applicable. The coverage areas shown do not guarantee Service availability, and may include locations with limited or no coverage. Within coverage areas, there may be significant limitations or interruptions in coverage that may impact Service and result in dropped and blocked connections, slower Data Service and data speeds or no Data Service or data connectivity and call interference. This could occur due to many factors including your device, network changes, network traffic volume, network outages, technical limitations, signal strength, the terrain and your proximity to buildings, foliage and other obstructions, weather and other conditions. You will not be able to operate your phone or make 911 calls if Service is not available. Some features on your device may not operate when roaming on the network of a network roaming partner. If you travel outside of your coverage area, your phone will not work. The coverage depicted on the Total Wireless coverage maps is based on the information provided by other Carriers and public sources and we cannot guarantee their accuracy. Coverage maps for your network may also vary or change based on your home location so please refer to our website for the most up-to-date coverage map applicable to your device and geographic area. Total Wireless is not responsible for any Service outages, interruptions in Service or decline in the quality of Service regardless of the cause.
8. EMERGENCY CALLS
If you are in an area where your Total Wireless Phone is searching for a wireless signal or there is no wireless signal or wireless service, it is highly probable that a call to 911 will not go through. Do not rely solely on your Total Wireless Service in an emergency situation. In an emergency, locate the nearest landline phone and call for help.
9. LIMITATIONS OF SERVICE AND USE OF EQUIPMENT
Your Service may be unavailable, interrupted, delayed or limited for a variety of reasons outside of Total Wireless's control. Not all Service Plans or services may be available for purchase or use in all areas or with all devices. Service is subject to transmission limitations caused by certain equipment and compatibility issues, atmospheric, topographical and other conditions. Further, Service may be temporarily refused, limited, interrupted or curtailed due to system capacity limitations, technology migration or limitations imposed by the Carrier, or because of equipment modifications, upgrades, repairs or relocations or other similar activities necessary or proper for the operation or improvement of the Carrier's radio telephone system. At any time, Total Wireless reserves the right to substitute and/or replace any Total Wireless equipment (including phones) with other Total Wireless equipment including phones of comparable quality. Some functions and features referenced in the Manufacturer's manual for a particular phone model may not be available on your phone. Total Wireless does not warrant or guarantee the availability of Services at any specific time or in any specific geographic location or that Services will be provided without interruption. Neither Total Wireless, nor any Carrier, shall have any liability for Service failures, outages or limitations of Service. Because of the risk of being struck by lightning, you should not use your Total Wireless Phone outside during a lightning storm. You should also unplug the Total Wireless power cord and charger to avoid electrical shock and/or fire during a lightning storm. Certain mobile phone features may not be available throughout the entire network or their functionality may be limited.
10. UNAUTHORIZED USE
Total Wireless Products and Service are sold exclusively for use by you, the end consumer. The unauthorized unlocking or resale of your Total Wireless Product constitutes a violation of your agreement with Total Wireless and will invalidate the Limited Warranty associated with your Product. You agree not to unlock, root, re-flash, jailbreak, tamper with or alter the build state of your Total Wireless Product in a manner which conflicts with Total Wireless's Unlocking Policy referenced in Section 16 below. You also agree not to enter unauthorized Service Plan PINs or engage in any other unauthorized or illegal use of your Total Wireless Product or the Service, or assist others in such acts, or to sell and/or export Total Wireless Products outside of the United States. Attempts to unlock your Total Wireless Product in an unauthorized matter or to root, re-flash, jailbreak or otherwise tamper with or alter the build state of your Total Wireless Product may result in the inability to unlock your device, maintain the device's unlocked state, or otherwise cause the device to malfunction. Such use along with any other illegal or unauthorized use of your Total Wireless Product may result in the immediate suspension or termination of your Total Wireless Service without notice and legal action. Total Wireless will strictly enforce its rights under this provision and will prosecute violators to the full extent of the law.
If your Total Wireless Product has a SIM card, then you agree to safeguard your SIM card and not to allow any unauthorized person to use your SIM card. You agree not to, and not to allow any other person to, directly or indirectly alter, bypass, copy, deactivate, remove, reverse-engineer or otherwise circumvent or reproduce the encoded information stored on, or the encryption mechanisms of, your SIM card. Any violation of the restrictions on the use of your SIM card that are contained in this section may result in the immediate termination of your service without notice. The Carriers, TracFone Wireless, or its service providers, may, from time to time, remotely update or change the encoded information on your SIM card.
In the event of termination for any other unauthorized usage, You will forfeit unused airtime and service and you will not be entitled to receive a refund for your Total Wireless Product or for any unused airtime and service.
11. LIMITED WARRANTY
A new or reconditioned Total Wireless Phone is covered by a one year limited warranty administered by TracFone Wireless, Inc.
Total Wireless accessories have a ninety (90) day limited warranty against defects in materials and workmanship under normal use by the purchaser. You may obtain warranty service directly from Total Wireless.
Certified pre-owned phones are not covered by a limited warranty but may be returned for a refund within 30 days of purchase. A phone registered with Total Wireless under the "Bring Your Own Device" program is also not covered by Total Wireless.
How To Obtain Warranty Service . To obtain warranty service from Total Wireless on a new or reconditioned Total Wireless phone or accessory purchased from Total Wireless, please contact Customer Care at 1-866-663-3633. If your problem cannot be resolved over the phone, our Total Wireless technicians will provide you with a Return Authorization Number, which you will use to send your phone and/or accessories to the designated Service Center for repair or replacement, at Total Wireless's option.
Terms of Limited Warranty . Total Wireless warrants that your Total Wireless phone or accessory ("Product") is free from defects in material and workmanship that result in Product failure during normal usage, according to the following terms and conditions:
1. The limited warranty for a new or reconditioned Total Wireless Phone extends for one (1) year beginning on the date of the purchase of your new or reconditioned Total Wireless Phone. The limited warranty on a Total Wireless accessory extends for ninety (90) days beginning on the date of the purchase of your Total Wireless accessory.
2. The limited warranty offered by Total Wireless extends only to the original purchaser ("Consumer") of the Product and is not assignable or transferable to any subsequent purchaser/end-user. The limited warranty extends only to Consumers who purchase the Product in its original packaging from an authorized dealer. Upon request from Total Wireless, the Consumer must prove the date of the original purchase of the Product by a dated bill of sale or dated itemized receipt.
3. During the limited warranty period, Total Wireless will replace or repair, at Total Wireless's sole option, any defective Products or parts (except as excluded below), or any Products or parts that will not properly operate for their intended use (except as excluded below) with new or refurbished Products or parts if such replacement or repair is needed because of Product malfunction or failure during normal usage. The limited warranty does not cover loss of personal information, passwords, contacts, music, ringtones, pictures, videos, applications or other content, memory cards, software, defects in appearance, cosmetic, decorative or structural items, including framing, and any non-operative parts. Total Wireless's limit of liability under this limited warranty is the actual cash value of the Product at the time the Consumer returns the Product to Total Wireless for repair, determined by the price paid by the Consumer for the Product less a reasonable amount for usage. Total Wireless shall not be liable for any other losses or damages. These remedies are the Consumer's exclusive remedies for breach of warranty.
4. The Consumer shall have no coverage or benefits under this limited warranty if any of the following conditions are applicable:
(a) The Product has been subjected to abnormal use, abnormal conditions, improper storage, exposure to moisture or dampness, unauthorized modifications, unauthorized connections, unauthorized repair, misuse, neglect, abuse, accident, alteration, improper installation, or other acts which are not the fault of Total Wireless, including damage caused by shipping.
(b) The Product has been damaged from external causes such as collision with an object, or from fire, flooding, sand, dirt, windstorm, lightning, earthquake or damage from exposure to weather conditions, an act of God, or battery leakage, theft, blown fuse, or improper use of any electrical source, damage caused by computer or internet viruses, bugs, worms, Trojan Horses, cancelbots or damage caused by the connection to other products not recommended for interconnection by Total Wireless.
(c) Total Wireless was not advised in writing of the alleged defect or malfunction of the Product within fourteen (14) days after the expiration of the applicable limited warranty period.
(d) The Product serial number plate or the enhancement data code has been removed, defaced or altered.
(e) The defect or damage was caused by the defective function of the cellular system or by inadequate signal reception by the external antenna, or viruses or other software problems introduced into the Product.
(f) The Product is outside of the one (1) year Limited Warranty period.
5. Total Wireless does not warrant uninterrupted or error-free operation of the Product or service. Total Wireless cannot and does 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. If a problem develops during the limited warranty period, the Consumer shall contact Total Wireless Customer Care for repair or replacement processing of the Product. Total Wireless shall, at its discretion, provide a replacement product that may consist of a refurbished phone of the same model if available, or of a comparable model.
6. You (the Consumer) understand that the product may consist of refurbished equipment that contains used components, some of which have been reprocessed. The used components comply with Product performance and reliability specifications.
7. TOTAL WIRELESS EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE. THE LIMITED WARRANTY SET FORTH HEREIN IS THE CONSUMER'S SOLE AND EXCLUSIVE REMEDY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. TOTAL WIRELESS SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS, SAVINGS OR REVENUE, LOSS OF DATA OR USE OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL OR SUBSTITUTE EQUIPMENT OR FACILITIES, INJURTY TO PROPERTY DOWNTIME, OR THE CLAIMS OF ANY THIRD PARTIES, INCLUDING CUSTOMERS, RESULTING FROM THE PURCHASE OR USE OF THE PRODUCT AND/OR SERVICE OR ARISING FROM BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF TOTAL WIRELESS KNEW OF THE LIKELIHOOD OF SUCH DAMAGES. TOTAL WIRELESS SHALL NOT BE LIABLE FOR DELAY IN RENDERING SERVICE UNDER THE LIMITED WARRANTY, LOSS OF USE DURING THE PERIOD THAT THE PRODUCT IS RETURNED FOR REPLACEMENT OR WARRANTY SERVICE OR FOR THE LOSS OR UNAUTHORIZED USE OF CUSTOMER PASSWORDS, PERSONAL INFORMATION, CONTACTS, PICTURES, VIDEOS, APPLICATIONS, MUSIC, RINGTONES AND OTHER CONTENT.
8. Some states do not allow the exclusion or limitation of incidental and consequential damages, so certain of the above limitations or exclusions may not apply to you (the Consumer). This limited warranty gives the Consumer specific legal rights and the Consumer may also have other rights which vary from state to state.
9. Total Wireless neither assumes nor authorizes any authorized service center or any other person or entity to assume for it any other obligation or liability beyond that which is expressly provided for in this limited warranty including the provider or seller of any extended warranty or service agreement.
10. This is the entire warranty between Total Wireless and the Consumer, and supersedes all prior and contemporaneous agreements or understandings, oral or written, relating to the Product, and no representation, promise or condition not contained herein shall modify these terms.
11. This limited warranty allocates the risk of failure of the Product between the Consumer and Total Wireless. The allocation is recognized by the Consumer and is reflected in the purchase price.
12. LIMITATION OF LIABILITY
Total Wireless is not liable to you, other users of your Total Wireless Service, or any third party for any failure to post, receive, process or credit a payment for your Total Wireless Service including, without limitation, any failure to add or credit any airtime or due date information to your Total Wireless Phone or for any other claim arising out of or in any way related to your Total Wireless Service.
Total Wireless will not be liable for any act or omission of any other person or company furnishing a part of our Services or any equipment or for any damages that result from any Service or equipment provided by or manufactured by third parties. In the event a Total Wireless phone is returned to Total Wireless for replacement or repair under warranty or returned for any other reason, Total Wireless is not liable nor responsible for any unauthorized use and/or loss of voice mail, personal information, user names, passwords, contacts, emails, messages, music, ringtones, pictures, videos, applications or other content on your Total Wireless Phone.
You agree that neither we nor our vendors, suppliers or licensors are responsible for any damages you may suffer or incur resulting from: (a) anything done or not done by another person; (b) providing or failing to provide Data Services, including, but not limited to, deficiencies or problems with a phone or network coverage (for example, dropped, blocked, interrupted service, etc.); (c) traffic or other accidents, or any health-related claims relating to our service; (d) web content or information accessed while using our service; (e) an interruption or failure in accessing or attempting to access emergency services from a phone, 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 Total Wireless Phone or any computer or equipment connected to your phone, or damage to or loss of any information stored on your phone, 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; 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. You should implement appropriate safeguards to secure your phone, computer or equipment and to back-up your information stored on each.
IN NO EVENT SHALL TOTAL WIRELESS, ITS EMPLOYEES, LICENSORS OR AFFILIATES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE, SALES OR DATA; ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, OR LOSS OF BUSINESS INFORMATION; OR FOR ANY OTHER SPECIAL, DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, COVER, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE ANY TOTAL WIRELESS PRODUCT AND/OR SERVICE INCLUDING, WITHOUT LIMITATION, VOICE SERVICE, VOICE MAIL, ANY GPS MAPS, SOFTWARE, DATA SERVICES, MOBILE WEB SERVICES OR OTHER WEB CONTENT, EVEN IF TOTAL WIRELESS, ITS LICENSORS OR AFFILIATES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITH RESPECT TO JURISDICTIONS THAT MAY NOT ALLOW THE EXCLUSION OF LIABILITY, BUT MAY ALLOW LIABILITY TO BE LIMITED IN SOME CASES, TOTAL WIRELESS, ITS EMPLOYEES, LICENSORS AND AFFILIATES' LIABILITY SHALL BE LIMITED TO U.S. $50.
You agree to indemnify and hold harmless Total Wireless and TracFone Wireless, Inc. from any and all liabilities, penalties, claims, causes of action, and demands brought by third parties including the costs, expenses, and attorneys' fees on account thereof resulting from your use of a Total Wireless Phone and/or Total Wireless Services, whether based in contract or tort (including strict liability) and regardless of the form of action.
14. DISPUTE RESOLUTION
Most customer concerns can be resolved quickly and to the customer's satisfaction by contacting Customer Care at 1-866-663-3633. 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 thirty (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 a 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 made You a settlement offer that You rejected 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 to You 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 opted 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 that TracFone will reimburse 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. Either or both parties may participate in the proceedings by telephone. The arbitrator shall apply the law of the State in which You, the customer, reside to the dispute.
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, (i) 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.
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 CALLING US AT 1-866-663-3633 OR BY WRITING TO TRACFONE WIRELESS, INC., ATTN: LEGAL DEPARTMENT-CONSUMER CLAIMS, 9700 NW 112 AVENUE, MIAMI, FL 33178 . ANY OPT-OUT RECEIVED AFTER THE OPT-OUT 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.
16. CHOICE OF LAW
This Agreement shall be construed under the laws of the law of the State in which you reside without regard to its choice of law rules, except for the arbitration provision contained herein, which will be governed by the Federal Arbitration Act. If you reside outside of the United States, then this Agreement will be governed by the laws of the state of Florida.
17. TOTAL WIRELESS UNLOCKING POLICY
For Customers with Total Wireless Handsets Capable of Being Unlocked : Total Wireless will provide an unlocking code to customers who request unlocking, provided they meet the following conditions:
(a) Customers must request handset unlocking. Total Wireless will unlock handsets of current and former Total Wireless customers without charge. Non-former customers may request unlocking, but Total Wireless may charge a reasonable fee.
(b) The Total Wireless Handset must have been activated on Total Wireless Service for no fewer than 12 months with Service Plans redeemed in no fewer than 12 months.
(c) Customers must possess a Total Wireless Handset that is not reported stolen, lost, or associated with fraudulent activity.
(d) If a customer in good standing requesting handset unlocking is deployed as military personnel, upon provision of deployment papers, Total Wireless will honor that customer's unlocking request.
Total Wireless may refuse any unlocking request that would result in an abuse of its Unlocking Policy or is part of an effort to defraud Total Wireless or its customers. Total Wireless's Unlocking Policy is subject to change at any time without advance notice.
For Customers with Total Wireless Handsets not Capable of Being Unlocked : Beginning September 1, 2015, Total Wireless will provide customers with a partial refund or credit against the purchase of a new Total Wireless Handset if they meet the following conditions:
(a) Customers must request handset unlocking.
(b) Customers must have had their locked device activated on Total Wireless Service for no fewer than 12 months, redeemed air time cards in 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 Total Wireless 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 currently own a Total Wireless Handset model launched on Total Wireless's Service after February 11, 2014 or activated with Total Wireless's Service after February 11, 2015.
(e) Customers must possess a Total Wireless Handset that is in working condition.
(f) Customers must possess a Total Wireless Handset that is not reported stolen, lost, or associated with fraudulent activity.
(g) If a customer in good standing requesting handset unlocking is deployed as military personnel, upon provision of deployment papers, Total Wireless 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 activation and Service Plan redemption eligibility requirements. However, all other eligibility criteria apply to Total Wireless's customers who are deployed military personnel.
(h) Customers are eligible for this program only once every twelve (12) months.
After an eligible customer contacts Total Wireless to request the trade-in value of his or her handset, Total Wireless will provide a prepaid mailer for the customer to return the used, locked handset. Upon receipt of the device, Total Wireless will send the customer a check for the trade-in value of the handset. The trade-in value is determined by a formula reached through agreement with the FCC. Next year, after handsets capable of being unlocked have been launched by Total Wireless, an eligible customer may elect to have the trade-in value of their handset applied to the cost of a new Total Wireless Handset that is capable of being unlocked.
Customers who would like to check if they are eligible or submit an unlocking request can do so through an online portal at the Total Wireless website or by calling 1-888-442-5102.
18. ENTIRE AGREEMENT
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