Here’s what’s in the Total Wireless contracts, and what that means for you as a Total Wireless customer.
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Total Wireless Contract
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 16 BELOW.
BY USING THE SERVICE PROVIDED BY TOTAL WIRELESS YOU AGREE TO RECEIVE COMMUNICATIONS CONCERNING YOUR SERVICE VIA E-MAIL AND/OR THROUGH TEXT MESSAGE. YOU ALSO EXPRESSLY CONSENT TO RECEIVE ADDITIONAL MARKETING OR CUSTOMER SERVICE RELATED COMMUNICATIONS TOTAL WIRELESS MAY SEND ITS CUSTOMERS FROM TIME TO TIME VIA E-MAIL AND/OR THROUGH TEXT MESSAGE. IF YOU WISH TO OPT-OUT FROM RECEIVING ANY OF THESE COMMUNICATIONS PLEASE CONTACT CUSTOMER CARE OR EMAIL US AT PRIVACY@TRACFONE.COM
I. WIRELESS SERVICE
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. d/b/a Total Wireless.
By purchasing, activating, and/or using any Total Wireless product (“Product”) or the wireless services provided by Total Wireless (“Service”), 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 of Service. For assistance or more information, please contact Total Wireless Customer Care at 1-866-663-3633.
1. ACTIVATING YOUR SERVICE
To use Total Wireless Service, you must first purchase a Total Wireless phone or a Total Wireless Bring Your Own Phone SIM Kit (“SIM Kit”) that can be used to activate a phone that is compatible with Total Wireless Service under the Bring Your Own Phone program. To activate your phone, you must also purchase and redeem a Total Wireless wireless plan (“Plan”). For more information about our Plans visit our website and see Section 3 below.
You may activate your Service by visiting our website at totalwireless.com or by calling our Customer Care from a phone other than the one you intend to activate. If you have purchased a SIM Kit to activate your own phone, follow the instructions that came with the SIM Kit to activate your Service. When you activate your Service, you will be provided with a telephone number unless you elect to transfer or “port-in” an existing telephone number you are using with another provider. In certain instances, you may not be able to transfer your existing telephone number for reasons outside of our control. 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.
When you activate the Service, you will have the option of registering with us and creating an account (“Account”) by providing your name, address, email address and alternative contact telephone number. If you elect not to register at the time of activation, you may not be able to obtain copies of your call detail records except upon service of a valid subpoena or a court order.
Total Wireless Service can only be activated where Total Wireless Service is offered and supported by Total Wireless. The wireless telecommunications networks used to transmit the voice, text, and data services that support the Service offered by Total Wireless are owned and operated by licensed commercial mobile radio service providers (“Carriers”), and not Total Wireless. Some Carriers differentiate the wireless service they sell by prioritizing the data traffic of their customers over the data traffic of customers on a non-Carrier brand at times and at locations where there are competing customer demands for network resources. Where the network is lightly loaded, a Total Wireless customer will notice little, if any, effect from having lower priority. This will be the case in the vast majority of times and locations. At times and at locations where the network is heavily loaded in relation to available capacity, however, a Total Wireless customer will experience increased latency during a data session, particularly, if the customer is engaged in a data-intensive activity. When network loading goes down or if a customer moves to a location that is less heavily loaded in relation to available capacity, the latency associated with a customer’s data connection will improve.
If you are activating your own compatible phone under the Bring Your Own Phone Program, you are responsible for ensuring that the phone is unlocked, compatible with the Service, does not interfere with the Service, and that it complies with all applicable laws, rules and regulations. You are also responsible for ensuring that your phone meets all federal laws and standards. You are further responsible for the purchase and maintenance of any additional hardware and/or software required to use the Service. Not all aspects of the Service are available on all Carrier networks or will function on all phones, including phones activated under the Bring Your Own Phone program. Some functions and features referenced in the manufacturer’s manual provided with your phone may not be available when using the Service. Some Plans may not work on Smartphones or on phones activated under the Bring Your Own Phone program. Except for Total Wireless Hotspots, devices capable only of using data service are strictly prohibited and your use of any such device is grounds for immediate deactivation and termination of your Service, without a refund.
We 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 our sole discretion, including, your violation of these Terms and Conditions of Service. Further, we may remotely change your phone’s software, applications, or programming without notice. This could affect information stored on your phone, your phone’s programming, and how you are able to use your phone.
All aspects of the Service, including, Plan rates, offerings, features, functionality and other product specifications are subject to change without notice or obligation. All talk and standby times are quoted in digital mode and are approximate.
2. TERMINATION OF SERVICE
Either party may terminate this Agreement at any time. Termination of this Agreement will result in the immediate termination of your Service which may be reactivated if you elect to do so. Each time you activate your Service you agree that you are consenting to the latest Total Wireless Terms and Conditions of Service. Any Service which remains unused at the time of termination cannot be refunded or transferred to another person.
We may terminate this Agreement at any time without notice if we cease to provide Service in your area. We may interrupt, suspend, cancel, or terminate your Service without immediate notice to You for any conduct that we believe violates these Terms and Conditions including, but not limited to, the following:
using or directing abusive, vulgar, derogatory, intimidating, or harassing language or conduct towards a Tracfone representative, officer, employee, agent, or authorized retailer;
using your Service for any unlawful, fraudulent, or illegal purpose;
using your Service in any way that adversely affects the Service or the Carrier’s network;
violating any Term or Condition contained in this Agreement.
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.
4G/4G LTE networks are not available on all devices and in all locations. 4G/4G LTE networks require a capable device and SIM card. Actual availability, coverage, and speeds may vary. If your Service Plan comes with a fixed amount of high speed data, your data speed will be reduced to 2G speeds, as low as 64 kbps, for the remainder of your Service Plan cycle after you have reached your high speed data limit. Your data speed will be restored once your next Service Plan cycle begins unless you purchase a new Plan prior to the start of your next Service Plan cycle. If your data speed is reduced, the reduced speed may impact the functionality of some data applications, such as streaming audio or video or web browsing. Data transmitted over Wi-Fi does not count against your data usage.
Depending on the Carrier network, Plans that come with high speed data also come automatically enabled with a feature that optimizes all detectable video streaming to DVD-quality (typically 480p) through the Carrier’s network (“Data Optimizer”). Data Optimizer manages the amount of high speed data used when streaming video on your phone in order to improve your experience by reducing the chances of your video stalling or buffering. You may disable the Data Optimizer feature at any time by contacting Customer Care. Video streaming over a Wi-Fi connection will be delivered at the video’s native resolution.
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. Total Wireless reserves the right to 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. TEXT MESSAGING
Total Wireless does not generally participate in Premium SMS services or campaigns. Premium SMS services usually involve sending a text message to a designated “short code” or attempting to buy SMS services from anyone other than Total Wireless. Premium SMS campaigns include casting a vote, expressing your opinion, playing a game, or participating in interactive television programs through the use of a wireless phone.
You should not attempt to participate in Premium SMS services or campaigns other than those authorized by Total Wireless. Any text message you send to a “short code” not authorized by Total Wireless will likely not go through. Any charges you may incur as a result of your attempts to participate in Premium SMS services or campaigns not authorized by Total Wireless are not refundable.
5. 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.
6. DATA SERVICES
Some Total Wireless Plans also provide data services. Your use of data services (“Data Usage”) occurs whenever your phone is connected to the network and is engaged in any data transmission, including but not limited to, (i) opening or using an internet browser or app in any way, including, but not limited to app installations and updates, (ii) sending, receiving, or downloading any type of content, including, but not limited, emails, documents, pictures, MMS messages or any other content, or (iii) if data access or a data connection is initiated in any other way or for any other purpose.
Some apps, content, programs, and software that you download or that come pre-loaded on your phone automatically and regularly send and receive data transmissions in order to function properly, without you affirmatively initiating the request and without your knowledge. For example, apps that provide real-time information and location-based applications connect to our network, and send and receive updated information so that it is available to you when you want to access it. We will deduct all Data Usage from the amount of high speed data provided by the Plan you purchased whenever your phone is engaged in a data connection, including, any type of connection which you affirmatively initiate or those that run automatically in the background without your knowledge whether they are successful or not. The duration of your data connection and the associated Data Usage is not determined from the exact moment you press a button on your phone. Data Usage may depend on the amount of data or content transmitted during a data connection and the amount of time it takes to send or receive the data or content being transmitted. If you cancel or attempt to cancel a data or content transmission in progress, or if the process is otherwise interrupted through no action on your part, you will still incur Data Usage. Unless you are using Wi-Fi, any Data Usage on your phone, will count against your data balance.
Not all of the online content which is accessible to one using Total Wireless Data Services is intended for children. In the event that you, as a legal guardian allow your child to use Total Wireless’s Data Services, you acknowledge that your child has the permission to use the Data Services including, without limitation, email and web browsing capabilities. You further acknowledge that as a legal guardian, it is your responsibility to determine whether using Data Services 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.
Availability, Interruptions, and Discontinuation to Data Services . Total Wireless does not guarantee the availability of Data Services and reserves the right to modify, suspend, cancel, interrupt, discontinue, terminate or reduce your data throughput speed without notice. Total Wireless is not responsible and will not be liable for any modifications, interruptions or discontinuation of the Data Services or for any failure to receive content you purchased using Data Services. If your Data Services are modified, suspended, canceled, interrupted, discontinued or terminated, Total Wireless will not provide you with a refund for any remaining used or unused Data Services.
7. UNAUTHORIZED USE OF SERVICE
Your Service (i.e., voice, text, or data services) and any phone using Total Wireless Service may only be used for the following purposes: (a) person to person voice calls, text, and picture messaging and (b) personal web browsing, email, ordinary content downloads and uploads, video and audio streaming without excessively contributing to network congestion.
Your Service and any phone using Total Wireless Service may not be used for any unauthorized uses that may adversely impact other customers using our Service or the Carriers’ networks. Examples of some unauthorized uses include, but are not limited to, the following:
continuous uninterrupted voice calls or otherwise using your voice service to provide monitoring services, data transmission, transmission of broadcasts, transmission of recorded material, interconnection to other networks, telemarketing activity, autodialed calls, or robocalls;
automated text or picture messaging;
uninterrupted and continuous uploading, downloading, or streaming of audio or video;
as a server device or to host computer applications, including, but not limited to, web camera posts or broadcasts, automatic data feeds, automated machine-to-machine connections or peer-to-peer file sharing;
as a substitute or backup for private lines or dedicated data connections;
any applications that allow your phone to act as an internet access point or Wi-Fi for other devices and computers unless such use is allowed under your Plan.
A customer engaged in any unauthorized use may have their Service suspended or terminated in our sole discretion. We reserve the right to interrupt, suspend, cancel, or terminate your Service to protect a Carrier’s network from harm due to any cause including, without limitation, the excessive and/or unauthorized use of the Service. We further reserve the right to limit, deny, or terminate Service to anyone we believe is using it in an unauthorized manner or whose usage, in our sole discretion, adversely impacts a Carrier’s network or customer service levels. We will presume you are engaging in an unauthorized use in violation of these Terms and Conditions, if in our sole discretion, you are placing an abnormally high number of calls, or repeatedly placing calls of unusually long duration, if your voice minute total exceeds 43,200 minutes during a 30-day period, or if your talk, text or data usage is abnormally high, or harmful, or disruptive to the Carrier’s network or to our customer 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 interrupt, suspend, cancel, or terminate your Service.
8. COVERAGE MAPS
A coverage map may be available on our website. Coverage 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.
It is possible that under certain circumstances your phone may roam if you are outside of your network coverage area and within the United States. Roaming occurs when a subscriber of one wireless service provider uses the facilities of another wireless service provider. Although there are no additional charges for using the Service while roaming domestically, Total Wireless does not guarantee your ability to roam nor the availability and/or the quality of Service. Domestic roaming may be discontinued or changed at any time without notice. Due to Carrier restrictions, Total Wireless reserves the right to terminate the Service of any customer whose roaming usage exceeds 50% of their total usage in any three (3) Plan cycles within a 12 month period. International roaming is not offered by Total Wireless and is strictly prohibited.
10. WI-FI CALLING
Wi-Fi Calling is available only on phones that are Wi-Fi Calling capable. Wi-Fi Calling provides you the ability to make and receive phone calls and text messages over a Wi-Fi connection. Wi-Fi Calling enhances your coverage in buildings and other locations. If you use a Wi-Fi network for making or receiving calls and text messages or for any other reason, you acknowledge and agree that your use of such Wi-Fi network is permissible and that you are solely responsible for such use. Using your Wi-Fi Calling feature may provide you with access to an unsecured Wi-Fi network which could impact your data security. You can disable Wi-Fi Calling by toggling it off in your device settings menu.
Although we recommend that you use your wireless service as your primary method of contacting 911, you may be able to use Wi-Fi Calling for dialing 911 if your phone is equipped with this feature and you have access to the internet through your phone’s W-Fi connection. To dial 911 using Wi-Fi Calling, you must provide us with an address for your primary use of Wi-Fi (“Primary Address”) at the time of activation. If the location at which you primarily use Wi-Fi changes, either temporarily or permanently, you must register the new address online at e911-reg.tracfone.com or by contacting Customer Care at 1-866-663-3633. It may take 24 hours or more to update your address information. If you do not give us your Primary Address, we will block your ability to use Wi-Fi calling. When you use Wi-Fi Calling to dial 911 and you are away from your Primary Address, we will have no information about your location. As such, always be prepared to report your precise location to emergency responders.
Please be aware that dialing 911 via Wi-Fi Calling requires access to the internet and operates differently than traditional 911 calling services. For example, 911 service via Wi-Fi Calling may be limited or not available due to various circumstances, including, relocation of equipment, loss or disruption of power, internet or wireless service, internet congestion or a connection failure, delays in availability of registered location information, and/or other technical problems.
TTY Limitations for 911 Calls : Due to technical limitations, Wi-Fi Calling cannot be used with TTY devices and will not support 911 calls over TTY devices. Persons with communications disabilities can still reach 911 services by either (1) calling 911 directly using a TTY over the cellular network or from a landline telephone, (2) sending a text message to 911 directly (in areas where text-to-911 is available) from a wireless device, (3) using relay services to place a TTY or captioned telephone service (CTS) call from a wireless phone over the cellular network or from a landline telephone, or (4) using relay services to place a IP Relay or IP CTS call over a cellular data or other IP network.
11. 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.
12. DISCLAIMER OF WARRANTIES
TOTAL WIRELESS PRODUCTS AND SERVICE ARE PROVIDED ON AN “AS IS” AND “WHERE IS” BASIS AND BY USING ANY PRODUCT OR SERVICE YOU AGREE THAT TRACFONE WIRELESS, INC. D/B/A TOTAL WIRELESS WILL HAVE NO LIABILITY EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT FOR ANY FAILURE, DEFECTS, MALFUNCTIONS, OR ERRORS IN THE PRODUCTS OR SERVICE. EXCEPT AS SET FORTH IN SECTION III (LIMITED WARRANTY), TOTAL WIRELESS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, REGARDING TITLE, MERCHANTABILITY, SUITABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE IN RELATION TO ANY PRODUCT OR SERVICE.
You acknowledge and agree that use of any Product or Service is at your sole risk and that your Service may be unavailable, interrupted, delayed or limited for a variety of reasons outside of Total Wireless’s control. Not all Products or Services (including Plans) are available for purchase or use in all sales channels, 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, suspended, 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. Total Wireless does not warrant or guarantee the availability of the Service or of any other 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, interruptions, delays, or limitations of Service. All aspects of the Service, including, Plan rates, offerings, features, functionality and other product specifications are subject to change without notice or obligation. At any time, Total Wireless reserves the right to substitute and/or replace any Product or Service with another Product or Service of comparable quality.
13. LIMITATION OF LIABILITY
IN NO EVENT SHALL TRACFONE WIRELESS, INC. D/B/A TOTAL WIRELESS OR ITS EMPLOYEES, VENDORS, SUPPLIERS, OR LICENSORS WILL BE LIABLE TO YOU OR OTHER USERS OF YOUR SERVICE FOR ANY ACTUAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE OR ENHANCED DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION ANY DAMAGES CLAIMED FOR LOSS OF PROFITS, REVENUE, INCOME, SALES, BUSINESS, GOODWILL, DATA OR INFORMATION) HOWEVER CAUSED, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE (REGARDLESS OF WHETHER NOTICE THAT SUCH LOSS MAY OCCUR WAS PROVIDED). 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,VENDORS, SUPPLIERS, AND LICENSORS LIABILITY SHALL BE LIMITED TO U.S. $50.
You agree that neither we nor our employees, vendors, suppliers, or licensors are responsible for any damages you may suffer or incur resulting from: (a) any Product or Service provided to you by or manufactured by a third party; (b) any act or omission by another party; (c) providing or failing to provide a Service, including, but not limited to, deficiencies or problems with a phone or Service coverage (for example, dropped, blocked, interrupted Service, etc.); (d) accidents or any health-related claims arising from or related to our Products or Service; (e) content or information accessed on your phone while using our Products or Service; (f) an interruption or failure in accessing or attempting to access emergency services from a phone, including through 911, enhanced 911 or otherwise; (g) interrupted, failed, or inaccurate location information services, (h) content or information that is blocked by a spam filter, (i) damage to your 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 (j) 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.
14. UNAUTHORIZED USE OF PRODUCTS
Total Wireless Products and Service are sold exclusively for use by you, the end consumer. The unauthorized unlocking or resale of your Total Wireless phone constitutes a violation of your agreement with Total Wireless and will invalidate the Limited Warranty associated with your phone. You agree not to unlock, root, re-flash, jailbreak, tamper with or alter the build state of your Total Wireless phone in a manner which conflicts with Total Wireless’s Unlocking Policy referenced in Section IV below. You also agree not to use unauthorized PINs associated with Total Wireless Plans 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. Any attempt to unlock your Total Wireless phone in an unauthorized manner or to root, re-flash, jailbreak, tamper with or alter the build state of your Total Wireless phone may result in the inability to unlock your device, maintain your device’s unlocked state, or otherwise cause your device to malfunction. Such use along with any other 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. Tracfone will strictly enforce its rights under this provision and will prosecute violators to the full extent of the law. You agree that any violation of this provision through your improper, illegal, or unauthorized use or sale of your Total Wireless phone shall entitle Total Wireless to recover liquidated damages from you in the amount of not less than $5,000 per Total Wireless phone purchased, sold, acquired or used in violation of this provision. For more information about the unauthorized use of Total Wireless phones refer to www.stopcellphonetrafficking.com .
If your Total Wireless phone has a SIM card or if you have purchased a SIM Kit, then you agree to safeguard your SIM card and not to allow any unauthorized person to use your SIM card. You agree not 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 or to allow any other person to do so. 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. Total Wireless and its Carriers or other 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 Service and you will not be entitled to receive a refund for your Total Wireless phone or for any unused Service.
You agree to indemnify and hold harmless TracFone Wireless, Inc., d/b/a Total Wireless and its parent, subsidiaries, affiliates, vendors, suppliers, and licensors and their former, current and future officers, directors, employees, insurers, contractors, successors and assigns from any and all liabilities, penalties, claims, causes of action, and demands brought by a third party including the costs, expenses, and attorneys’ fees on account thereof arising from or related to your use of a Total Wireless Product or Service, whether based in contract or tort (including strict liability) and regardless of the form of action.
16. 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 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 THIS AGREEMENT. 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 OUT 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.
18. 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.
19. ENTIRE AGREEMENT
II. RETURN POLICY
To see the return policy (“Return Policy”) applicable for your phone, please refer to the section below based on how you made your purchase. Total Wireless does not allow returns or provide refunds for any Activation Kits or Plans you may have purchased.
Store Purchases . If you purchased a Total Wireless phone from a retailer or wireless dealer (and not from Total Wireless directly either by phone or online), your phone purchase is subject to that retailer’s return policy. To determine whether your purchase is eligible for return, please contact the store where you originally made your purchase. Tracfone will not process the return of any Total Wireless phone sold to you by a retailer or wireless dealer.
Online Purchases from Total Wireless . If you purchased your Total Wireless phone from Total Wireless’s official website, you have thirty (30) days from the date your phone was delivered to you to return it to us for either an exchange or a refund. To process a return, you must follow the return instructions that came with your phone and pay for the shipping cost to send it back to us.
To be eligible for a return you must meet the following requirements:
If anything is missing or device is not in like-new condition, your shipment may not be accepted. If a device has physical or liquid damage it cannot be returned and a credit will not be issued. Total Wireless will return ineligible devices to you at the same address shown on the shipping label. No restocking, handling, or shipping fees will be charged to you for this device return.
If your return meets the above requirements and you have requested an exchange for a device that costs more, you will have to pay the difference in price between the phone you are returning and the new phone you are seeking to purchase. If your return meets the above requirements and you have requested a refund, please be advised that it takes up to thirty (30) business days to process the return and credit your account. Credit for returned phones will appear on your credit card statement between 1-2 billing cycles. Your credit for a returned phone will not include any shipping or delivery costs you were charged or incurred for purchasing or returning the phone.
III. LIMITED WARRANTY
All new Total Wireless phones (except iPhones) are covered by a one (1) year limited warranty administered by Tracfone as set forth below.
All reconditioned or refurbished phones sold by Total Wireless (except iPhones) have a ninety (90) day limited warranty as do all wireless accessories sold by Total Wireless.
New Apple iPhones are covered by a one-year limited warranty offered and administered by Apple. Please visit apple.com for more information.
To the extent available for purchase, refurbished iPhones and 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 that you own which was not purchased from Total Wireless but that is registered with Total Wireless under the Bring Your Own Phone program is not covered by this limited warranty.
How To Obtain Warranty Service . To obtain warranty service for your Total Wireless phone, please contact Customer Care at 1-866-663-3633. If your problem cannot be resolved over the phone, our technicians will provide you with a Return Authorization Number, which you will use to send your phone and/or accessories (“Product”) to the designated Service Center for repair or replacement, at our option.
Terms of Limited Warranty :
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.
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.
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.
The Product serial number plate or the enhancement data code has been removed, defaced or altered.
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.
The Product is outside of the limited warranty period.
IV. UNLOCKING POLICY
For Customers with Total Wireless Phones Capable of Being Unlocked : Total Wireless will provide an unlocking code to customers who request unlocking, provided they meet the following conditions:
Customers must request phone unlocking. Total Wireless will unlock phones of current and former Total Wireless customers without charge. Non-former customers may request unlocking, but Total Wireless may charge a reasonable fee.
The Total Wireless phone must have been activated on Total Wireless Service for no fewer than 12 months with Service Plans redeemed in no fewer than 12 months.
Customers must possess a Total Wireless phone that is not reported stolen, lost, or associated with fraudulent activity.
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.
For Customers with Total Wireless Phones not Capable of Being Unlocked : Total Wireless will provide customers with a partial refund or credit against the purchase of a new Total Wireless phone if they meet the following conditions:
Customers must request phone unlocking.
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.
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.
Customers must currently own a Total Wireless phone model launched on Total Wireless’s Service after February 11, 2014 or activated with Total Wireless’s Service after February 11, 2015.
Customers must possess a Total Wireless phone that is in working condition.
Customers must possess a Total Wireless phone that is not reported stolen, lost, or associated with fraudulent activity.
If a customer in good standing requesting phone 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.
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 phone, Total Wireless will provide a prepaid mailer for the customer to return the used, locked phone. Upon receipt of the device, Total Wireless will send the customer a check for the trade-in value of the phone. The trade-in value is determined by a formula reached through agreement with the FCC. Eligible customers may elect to have the trade-in value of their handset applied to the cost of a new Total Wireless phone 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.
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.
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