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 PLEASE
READ THESE TERMS AND CONDITIONS CAREFULLY. They govern the
relationship between you and H2O Wireless (Locus Telecommunications,
Inc.) and explain our respective legal rights concerning all
aspects of our relationship, including without limitation:
• Rates and charges
• Availability of the service and features
• Replenishment and expiration of balances
• Privacy and confidentiality
• Your rights related to Customer Proprietary Network Information
• Modifications to the agreement
• Limitations of liability and warranty
• Resolution of past or future disputes by mandatory binding
arbitration
instead of court trials and class actions.
IF YOU USE THE SERVICE OR THE WIRELESS
DEVICE, YOU CONSENT TO THE TERMS AND CONDITIONS SET FORTH
IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS AND
CONDITIONS, DO NOT USE THE SERVICE OR PHONE AND NOTIFY US
IMMEDIATELY TO CANCEL SERVICE.
I. SERVICE
a. Availability/Interruption. Service
is normally available to your Device when it is within
the operating range of our system, and may be available
outside of that area in other participating carrier service
areas. Service is subject to transmission limitation or
interruption caused by weather, terrain, obstructions such
as trees or buildings, and other conditions. Service may
be limited in some areas where coverage is not available
or may be temporarily limited or interrupted due to system
capacity limitations and system repairs or modifications
or to combat potential fraud. Digital PCS features require
a compatible digital multi-network phone, are only available
in the Digital PCS features area, and may require local
telephone company support and message sender access to
computer and modem. Not all features or Service offerings
are available.
b. Use of Service/Device/Number. Reproduction,
retransmission, dissemination or resale of Service is prohibited
without prior written contractual arrangements with us and
any required regulatory approvals. You are responsible for
the purchase and maintenance of any additional hardware,
software and/or Internet access from your PC required to
use the Service. You consent to receiving advertising, alerts
and other broadcast messages from us or our authorized agents.
You have no ownership rights to the Number, any IP address,
any e-mail address or any other identifier provisioned by
us, our agents or the manufacturer of your Device to be used
with the Service, and you agree we may change any such Number,
IP address, e-mail address or any other identifier at any
time with or without prior notice to you. By using Service,
you agree to abide by the terms and conditions of any applicable
software license.
c. Use of Premium SMS and Mobile
Content. Locus Telecommunications, H2O Wireless
and its underlying carrier, may provide you with access
to a mobile content delivery service (each, a "Service"),
together with a third-party content provider. This access
will allow you to download to your compatible mobile phone
various third-party mobile entertainment content, such
as ringtones, wallpapers, games, graphics, data, news,
etc. (collectively, the "Content") via the Internet,
SMS, MMS, WAP, BREW and other means of mobile content delivery
through the use of Premium SMS messaging or other mobile
technologies. A surcharge of 50¢ will be assessed for Premium
SMS messaging. This surcharge is in addition to and independent
from any charges assessed by the third-party content provider.
This surcharge, plus all other charges assessed by the
mobile content provider, will be incurred when you consent
to download the third party content provider’s Content.
By using these Content services you warrant and represent
that (i) you have read and understood this Agreement and
agree to be bound by its terms and conditions; (ii) you
are at least 21 years of age; (iii) you are the owner of
the Device whose phone number you are using, or if you
do not own the Device you have explicit permission from
the owner of the Device to use the Device and to enter
the phone number for such Device; and (iv) you are a resident
of the U.S. Please note, given the aforementioned herein,
that the downloading of mobile Content and use of Premium
SMS messaging is up to the discretion of the owner of the
phone and whomever the owner gives permission to utilize
these services. You agree to hold Locus Telecommunications,
H2O Wireless and its underlying carrier harmless for any
and all Content that is downloaded to your phone. If you
do not agree (or cannot comply) with the terms and conditions
of this Agreement, Locus Telecommunications / H2O Wireless
Privacy Policy and any applicable Rules, you are not authorized
to access or use any services or products, register for
or use any Service provided by Locus Telecommunications,
H2O Wireless and its underlying carrier, and your sole
remedy is to immediately stop accessing and using any service
or product provided by Locus Telecommunications, H2O Wireless,
and its underlying carrier.
d. Unauthorized Usage. You
agree not to use the Device or Service for any unlawful,
unauthorized or abusive purpose or in any way that damages
our property or others' property, or interferes with, harms
or disrupts our system or other operators' systems or other
users. You will comply with all laws while using the Service
and you will not transmit any communication or data that
would violate any laws, court order, or regulation, or would
likely be offensive to the recipient. You are responsible
for all content you transmit using the Service. You may not
install any amplifiers, enhancers, repeaters or other devices
that modify, disrupt or interfere in any way with the radio
frequency licensed to us to provide Service. If your Device,
user name or password is stolen or Service is fraudulently
used, you must immediately notify us and provide us with
such documentation and information as we may request (including
affidavits and police reports). Until you notify us, you
will remain responsible for all charges. We have the right
to interrupt or restrict Service to your Number, without
notice to you, if we suspect fraudulent, illegal, or abusive
activity. You agree to cooperate with us in any fraud investigation
and to use any fraud prevention measures we prescribe. Failure
to provide reasonable cooperation may result in your liability
for all fraudulent usage.
e. Release of Information. You
consent to our release of information about you when we believe
release is appropriate to comply with the law (e.g. a lawful
subpoena, E911 information); to enforce or apply our customer
agreements; to initiate, render, bill and collect for Services;
to protect our rights or property; to protect users of those
Services and other carriers from fraudulent, abusive, or
unlawful use of, or subscription to, such Services; or if
we reasonably believe that an emergency involving immediate
danger of death or serious physical injury to any person
requires disclosure of communications or justifies disclosure
of records without delay. You are deemed to have reviewed
and consented to our Privacy Policy posted on our website
at www.H2OWirelessCDMA.com.
f. Your Rights to End This Agreement. You
may terminate your Service at any time by notifying us of
your intention to terminate Service. There is no penalty
or termination fee; however, it may take up to 30 days to
process the termination request and the balance remaining
in your account is forfeited upon termination of Service.
Your Service will resume and the termination request will
be cancelled if you use your Service prior to our processing
your termination notification.
g. Number Portability. You
may be able to take your current wireless phone number to
another service provider. This is called "porting" and
will also terminate our service to you for that number. If
you request your new service provider to port a number from
us, and we receive your request from that new service provider,
we'll treat the request as notice from you to terminate our
service for that number upon successful completion of porting.
After the porting is completed, you won't be able to use
our service for that number even if you have unused airtime
on that account, and you won't be entitled to a refund for
any unused airtime. If you're porting a phone number to us
from another company, we may not be able to provide some
services, such as 911 location services, immediately.
II. CHARGES/PAYMENTS/DEFAULT
a. Generally. You are responsible for
paying all charges, including but not limited to: airtime,
access, features, voice mail access, voice mail delivery,
data usage, text messages, downloadable, alerts, roaming,
long distance, directory and operator assistance charges,
the price of Devices and accessories, charges for other
goods and services and shipping/handling fees. You will
be billed at domestic airtime or roaming rates for 800,
866, 877, 888, and other "toll free" calls. Applicable
international wireless long distance charges, if applicable,
will be charged for calls placed from your wireless phone.
For all incoming Service, the length of the call will be
measured during the time that you are connected to our
system, which is approximately from the time you press "Send" or
other key to answer a call until approximately the time
you press "End" or other keys to terminate the
call. For all outgoing Service, the length of the call
will be measured from when you are released by the automated
balance notification system until approximately the time
you press "END" or other key to terminate the
call. Airtime usage on each call is deducted in full minute
increments, with partial minutes of use rounded up to the
next full minute. For calls placed in the United States,
you will not be charged for busy or unconnected calls if
you press "End" or "No" within a reasonable
time. Call waiting, 3-way calling, call forwarding, voicemail
will incur applicable airtime or roaming and wireless long
distance charges.
b. Account Balance. All
charges incurred will be deducted automatically from your
account. Any amounts loaded into your account are not transferable
or refundable. You should take reasonable efforts to safeguard
your Phone and replenishment airtime cards. No refunds or
other compensations will be given for returned, expired,
lost, damaged, or stolen cards. Airtime expiration varies
by card denomination. If additional amounts are placed into
your account before the current account balance expires,
the existing balance will be carried over to the new expiration
date. If new amounts are not added to your account prior
to the expiration date any remaining amounts will be forfeited.
If your account balance remains zero for 30 days you may
lose your Number. In some instances you may be able to complete
a call when the billing functionality is interrupted. When
this occurs you will not receive correct balance information.
All calls, however, will be deducted from your account and
the balance updated when the billing functionality is operable.
You are responsible for all data usage sent through our network
and associated with the Device, regardless of whether the
Device actually receives the information. In some cases our
network will re-send certain packets to ensure complete delivery.
In these cases you will be responsible for paying for the
re-sent packets.
c. Use of Service/Rates. Your
Service rates and other charges and conditions for each Number
or Phone are described in the Rate Card or at our website
at www.H2OWirelessCDMA.com.
You can place domestic and international calls from the U.S.
to certain designated international locations. Weekday and
night & weekend rates may vary. Night & weekend hours
are 9:00 p.m. – 6:59 a.m. Monday - Friday, and all day Saturday
and Sunday. Per-minute rates include roaming in all H2O Wireless
network cities and domestic long distance charges. Off network
roaming calls and direct dialed international calls will
incur additional per minute charges on top of the standard
airtime rates. For off-network roaming and direct dial international
rates, please see store, contact service provider or visit www.H2OWirelessCDMA.com for
more details. All rate change notices will be provided either
through dealer, rate card or www.H2OWirelessCDMA.com. The prepaid
per minute rates are based on the card value purchased. International
rates vary and are subject to change. Call Customer Service
(at the number listed on our website or in your replenishment
card packaging) or visit www.H2OWirelessCDMA.com for international
rates and available countries. You cannot use the Service
to place calls to 500, 700, 855, 900 or 976 numbers; or to
place operator-assisted calls such as third-party-billed,
and collect calls. Rates for calls to directory assistance
are $1.25 per call plus airtime or roaming charges. You will
be billed at domestic rates for 800, 888, 877, and 866 number
calls. You are responsible for all taxes and surcharges associated
with your use of the Service. Other than calls to 911, you
can only make and receive calls when your account has a positive
balance. Special dialing patterns may be required when making
roaming calls. There may be surcharge for incoming calls
made from pay phones. Prepaid wireless service is not available
for purchase in all areas. Voicemail setup, deposits and
retrievals are billed at a regular airtime rates and will
deplete balance. If a caller reaches or leaves a message
on your Voicemail, it will deplete your minutes even if your
Voicemail box has not been activated. A Domestic text message
will be charged at 10¢ to receive or send. International
text messages will be charged at 20¢ to send and 10¢ to receive.
Please note that a 2-way text capable phone is required to
send and receive text messages. 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. Att: CPNI,
P.O. Box 376 Fort Lee, NJ 07024, providing your name, home
address, home telephone including area code, and personal
identification number. Removing consent will not affect your
current Service.
III. CHANGES TO
THIS AGREEMENT
We may amend the terms of this Agreement, including rate
changes, upon advance notice to you either through dealer,
replenishment package or www.H2OWirelessCDMA.com.
IV. LIMITATIONS
The parties intend that the limitations on liability, warranty
and damage awards provided for in this Agreement will apply
to the fullest extent allowed by law. Some jurisdictions
do not allow the exclusion of certain warranties or the
waiver, limitation or exclusion of liability for punitive,
incidental or consequential damages, or for intentional
or willful conduct in some circumstances. To the extent
that any of these limitations are not permitted by applicable
law, they will not apply to you.
a. Limitation of Liability. WE
ARE NOT LIABLE FOR ACTS OR OMISSIONS OF ANOTHER SERVICE PROVIDER
OR ANY THIRD PARTY PROVIDERS OF SERVICES RELATED TO USE OF
THE DEVICE OR SERVICE, FOR INFORMATION PROVIDED THROUGH YOUR
DEVICE, LACK OF PRIVACY OR SECURITY EXPERIENCED WHEN USING
THE DEVICE, EQUIPMENT FAILURE OR MODIFICATION, OR OTHER CAUSES
BEYOND OUR REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION
ANY REPRESENTATIONS THAT THE SERVICES WILL BE ERROR-FREE,
UNINTERRUPTED, OR FREE FROM UNAUTHORIZED ACCESS (INCLUDING
THIRD PARTY HACKERS OR DENIAL OF SERVICE ATTACKS). WE ARE
NOT LIABLE FOR SERVICE OUTAGES NOR FOR SERVICE LIMITATIONS
OR INTERRUPTIONS, AS DESCRIBED IN PARAGRAPH 1.C ABOVE. OUR
LIABILITY AND THE LIABILITY OF ANY UNDERLYING CARRIER FOR
ANY FAILURE OR MISTAKE SHALL IN NO EVENT EXCEED OUR SERVICE
CHARGES DURING THE AFFECTED PERIOD. WE AND ANY UNDERLYING
CARRIER ARE NOT LIABLE FOR ANY INCIDENTAL, PUNITIVE OR CONSEQUENTIAL
DAMAGES SUCH AS LOST PROFITS. YOU AND WE BOTH WAIVE TO THE
FULLEST EXTENT ALLOWED BY LAW, ANY CLAIMS TO RECOVER INCIDENTAL,
PUNITIVE AND CONSEQUENTIAL DAMAGES. WE AND ANY UNDERLYING
CARRIER ARE NOT LIABLE FOR (i) ECONOMIC LOSS OR INJURIES
TO PERSONS OR PROPERTY ARISING FROM USE OF THE SERVICE, THE
DEVICE OR ANY EQUIPMENT USED IN CONNECTION WITH THE DEVICE
UNLESS CAUSED BY OUR SOLE AND GROSS NEGLIGENCE, OR (ii) THE
INSTALLATION OR REPAIR OF THE DEVICE BY ANY PARTIES WHO ARE
NOT OUR EMPLOYEES. THIS PARAGRAPH SHALL SURVIVE TERMINATION
OF THIS AGREEMENT.
b. Indemnification. YOU
AGREE TO DEFEND, INDEMNIFY, AND HOLD US, OUR AFFILIATES AND
AGENTS AND ANY OTHER SERVICE PROVIDER, HARMLESS FROM CLAIMS
OR DAMAGES RELATING TO THIS AGREEMENT OR YOUR PROMISES OR
STATEMENTS MADE IN IT AND USE OF THE DEVICE OR SERVICE UNLESS
DUE TO OUR SOLE AND GROSS NEGLIGENCE. YOU ALSO AGREE TO PAY
OUR REASONABLE ATTORNEYS' AND EXPERT WITNESS FEES AND COSTS
INCURRED IN ENFORCING THIS AGREEMENT THROUGH APPEAL EXCEPT
AS PROVIDED IN PARAGRAPH 5, BELOW. USE OF YOUR DEVICE WHILE
OPERATING A MOTOR VEHICLE OR IN ANOTHER DISTRACTED OR NEGLIGENT
MANNER MAY BE PROHIBITED OR RESTRICTED BY LAW IN SOME AREAS.
IT IS YOUR RESPONSIBILITY TO CONFORM TO ALL SUCH LAWS OR
REGULATIONS AND YOU SHALL INDEMNIFY US FROM CLAIMS ARISING
FROM ANY SUCH UNLAWFUL OR NEGLIGENT USE. THIS PARAGRAPH SHALL
SURVIVE TERMINATION OF THIS AGREEMENT.
c. No Warranties. WE MAKE NO EXPRESS WARRANTY REGARDING THE
SERVICE OR THE DEVICE OR ANY SERVICES PROVIDED BY ANY THIRD
PARTIES, AND DISCLAIM ANY IMPLIED WARRANTY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
WE DO NOT AUTHORIZE ANYONE TO MAKE ANY WARRANTY ON OUR BEHALF
AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. WE ARE NOT
THE MANUFACTURER OF THE DEVICE AND ANY STATEMENT REGARDING
IT SHOULD NOT BE INTERPRETED AS A WARRANTY. THIS PARAGRAPH
SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
V. RESOLUTION OF DISPUTES
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT
YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF MOST
DISPUTES THROUGH ARBITRATION INSTEAD OF COURT TRIALS AND
CLASS ACTIONS. ARBITRATION IS FINAL AND BINDING AND SUBJECT
TO ONLY VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION
CLAUSE SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
a. Binding Arbitration. This
provision is intended to be interpreted broadly to encompass
all disputes or claims arising out of our relationship. Any
dispute or claim, including those against any of our subsidiary,
parent or affiliate companies, arising out of or relating
to this Agreement, our Privacy Policy or the Service or any
equipment used in connection with the Service (whether based
in contract, tort, statute, fraud, misrepresentation or any
other legal theory) will be resolved by binding arbitration
except that (1) you may take claims to small claims court
if they qualify for hearing by such a court, or (2) you or
we may choose to pursue claims in court if the claims relate
solely to the collection of any debts you owe to us.
b. Arbitration Procedures. You
must first present any claim or dispute to us by contacting
Customer Service to allow us an opportunity to resolve the
dispute. You may request arbitration if your claim or dispute
has not been resolved within 90 days. The arbitration of
any dispute or claim shall be conducted in accordance with
the American Arbitration Association ("AAA") under
the Wireless Industry Arbitration Rules ("WIA Rules"),
as modified by this Agreement. The WIA Rules and information
about arbitration and fees are available upon request from
the AAA online at www.adr.org. You and we agree that this
Agreement evidences a transaction in interstate commerce
and this arbitration provision will be interpreted and enforced
in accordance with the Federal Arbitration Act and federal
arbitration law. Unless you and we agree otherwise, any arbitration
will take place in the county seat for the county in which
your billing address is located. At either party's election,
the arbitration shall be held telephonically. An arbitrator
may award any relief or damages (including injunctive or
declaratory relief) that a court could award, except an arbitrator
may not award relief in excess of or contrary to what this
Agreement provides and may not order relief on a consolidated,
class wide or representative basis. In any arbitration applying
the WIA Rules applicable to large/complex cases, the Arbitrators
must also apply the Federal Rules of Evidence, and the losing
party may have the award reviewed in accordance with the
review procedures set forth in the WIA Rules. Judgment on
any arbitration award may be entered in any court having
proper jurisdiction. If any portion of this arbitration clause
is determined by a court to be inapplicable or invalid, then
the remainder shall still be given full force and effect.
c. Costs of Arbitration. For
claims of less than $1,000, you will be obligated to pay
$25 and we will pay all other administrative costs and fees.
For claims over $1,000 but under $75,000, you will be obligated
to pay your share of the arbitration fees, but no more than
the equivalent court filing fee for a court action filed
in the jurisdiction where your billing address is located.
For arbitrations in excess of $75,000, all administrative
fees and expenses of arbitration will be divided equally
between you and us. In all arbitrations, each party will
bear the expense of its own counsel, experts, witnesses and
preparation and presentation of evidence at the arbitration.
d. Waiver of Class Actions. By
this Agreement, both you and we are waiving certain rights
to litigate disputes in court. You and we both agree that
any arbitration will be conducted on an individual basis
and not on a consolidated, class wide or representative basis.
If for any reason this arbitration clause is deemed inapplicable
or invalid, or to the extent this arbitration clause allows
for litigation of disputes in court, you and we both waive,
to the fullest extent allowed by law, any right to pursue
any claims on a class or consolidated basis or in a representative
capacity.
e. Limitations Period. Any
arbitration or legal action with respect to any and all claims
or causes of action related to or arising out of this Agreement
must be brought within two years after the cause of action
arises, or within the applicable statutory period of time,
whichever is shorter. This limitations period does not apply
to any given cause of action when the statutory limitations
period for that cause of action cannot be waived, restricted
or otherwise limited by you.
VI. MISCELLANEOUS
a. Privacy. We are not liable for any
lack of privacy which may be experienced with regard to
the Service. You authorize our monitoring and recording
of calls to us concerning your account or the Service and
consent to our use of automatic dialing equipment to contact
you. We have the right to intercept and disclose any transmission
over our facilities in order to protect our rights or property.
b. Assignment. We may
assign all or part of this Agreement without such assignment
being considered a change to the Agreement, and without notice
to you. We are then released from all liability. You may
not assign this Agreement without our prior written consent.
c. Notices. We may send
you notices by mail or electronic means, in our sole discretion.
Notices to you shall be effective 1) 3 days following the
date deposited in the U.S. Mail or delivered to a nationally
recognized courier or delivery service, postage prepaid and
addressed to your address as kept in our files and/or 2)
immediately upon our transmission using an electronic means
such as e-mail or text messaging service. You are responsible
for notifying us of any changes in your mailing or e-mail
address. Written notice to us shall be effective when directed
to our Customer Service Department (at the mailing address
listed on our website) and received by us. Your notice must
contain specific information adequate to identify you and
your Service. Oral and electronic notices shall be deemed
effective on the date reflected in our records.
d. Entire Agreement. These
Terms and Conditions, together with the Sales Information,
represent the entire agreement between you and us, which
may only be amended as described in this Agreement. This
Agreement supersedes any inconsistent or additional representations
made to you by any of our representatives, agents or dealers.
If any part of this Agreement is found invalid, the balance
of the Agreement remains enforceable. If, at any time, we
do not enforce any right or remedy available under this Agreement,
that failure is not a waiver of our right to enforce the
right or remedy at a later time. Copied, microfiched, scanned
or other duplicate or electronic images of this Agreement
are admissible for all purposes.
e. Governing Laws. This
Agreement is subject to applicable federal laws, federal
or state tariffs, if any, and the laws of the state associated
with the Number. Where our Service terms and conditions are
regulated by a state agency or the FCC, the regulations are
available for your inspection; if there is any inconsistency
between this Agreement and those regulations, this Agreement
shall be deemed amended as necessary to conform to such regulations.
f. Capacity. You represent
that you are legally competent to enter into this Agreement,
and that you are not aware of any disability that would prevent
you from entering into this Agreement.
g. You shall acquire
no proprietary interest in the Number assigned by H2O Wireless
for its use, except for any rights federal law grants.
h. The supplier of Services
to H2O Wireless shall have no liability whatsoever for the
losses, claims or damages for any cause whatsoever, including
but not limited to any failure or disruption of Services
provided hereunder, regardless of the form of action, whether
in contract or in tort or otherwise, You shall not be deemed
a third-party beneficiary of any contract between H2O Wireless
and the underlying carrier.
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