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 GOSMART 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 GOSMART 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.
Please read these Terms and Conditions of Service carefully. These Terms and Conditions of Service are a legally binding agreement (“Agreement”) between you and GoSmart Mobile. GoSmart Mobile is a brand of TracFone Wireless, Inc.
By purchasing, activating, and/or using any GoSmart Mobile product (“Product”) or the wireless service provided by GoSmart Mobile (the “Service”) you acknowledge and agree to these Terms and Conditions of Service. GoSmart Mobile reserves the right to change or modify these Terms and Conditions 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 gosmartmobile.com. Because these Terms and Conditions of Service are subject to change at any time you should always check our website for the most current version. For assistance or more information, please contact GoSmart Mobile Customer Care at 1-877-582-7788.
1. ACTIVATING AND USING YOUR SERVICE
To use GoSmart Mobile Service, you must first purchase and activate a GoSmart Mobile SIM Kit that can be used to activate a compatible phone that you already own. GoSmart Mobile does not currently sell wireless phones. To activate your GoSmart Mobile SIM Kit you must also purchase and redeem a GoSmart Mobile wireless plan (a “Plan”) and have a positive service balance in your account (e.g., minutes, data and/or service days).
You may activate your Service by visiting our website at gosmartmobile.com or by calling Customer Care from a phone other than the one you intend to activate. If you have purchased an 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.
GoSmart Service can only be activated where GoSmart Service is offered and supported by GoSmart. The wireless telecommunications networks used to transmit the voice, text, and data services that support the Service offered by GoSmart are owned and operated by licensed commercial mobile radio service providers (“Carriers”), and not GoSmart. 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 GoSmart 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 GoSmart 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, 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. Some functions and features referenced in the manufacturer’s manual provided with your phone may not be available when using the Service. 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 GoSmart Mobile 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:
(a) using or directing abusive, vulgar, derogatory, intimidating, or harassing language or conduct towards a GoSmart Mobile representative, officer, employee, agent, or authorized retailer;
(b) using your Service for any unlawful, fraudulent, or illegal purpose;
(c) using your Service in any way that adversely affects the Service or the Carrier’s network;
(d) violating any Term or Condition contained in this Agreement.
3. GOSMART MOBILE PLANS
Your Service will operate only after you have purchased and redeemed a Plan and so long as you have service days left on your Plan cycle. All Plans are on a 30-day cycle. Please visit our website at gosmartmobile.com for the latest information regarding our Plans.
GoSmart Plans provide unlimited nationwide and long distance calling and text messaging. For more information regarding international long distance calling please see Section 6 below. Some Plans include a fixed amount of data at 3G speeds for each Plan cycle depending on which Plan you select. Once you have reached the maximum amount of data usage allowed by your Plan, data services will no longer be available until your next Plan cycle begins, unless you purchase a new Plan prior to the start of your next Plan cycle. Your data allowance will automatically reset each time you start your new Plan cycle and your unused data will not rollover. Once you start a new Plan cycle, you will lose any unused data and service days remaining on your current Plan. You will not receive a refund or credit for any unused data or service days you lose once a new Plan cycle begins. Data transmitted over Wi-Fi does not count against your data usage.
GOSMART MOBILE AUTO-PAY: You may enroll in Auto-Pay to purchase your Plan each time your Plan cycle ends by registering your credit or debit card online the GoSmart Mobile website and selecting the Plan you want to purchase on a recurring basis. When you enroll in Auto-Pay, a new Plan will be automatically purchased and added to your Account each month at the end of your Plan cycle and your credit or debit card will be automatically charged for the cost of the Plan you elected to purchase on a recurring basis.
4. UNAUTHORIZED USE OF GOSMART MOBILE SERVICES
Your Service (i.e., voice, text, or data services) may only be used for the following purposes: (a) person to person voice calls, (b) text and picture messaging, and (c) web browsing, email, ordinary content downloads and uploads, and video and audio streaming without excessively contributing to network congestion.
Your Service may not be used in connection with certain unauthorized uses that may adversely impact other customers using our Service or the Carrier’s network. Examples of some unauthorized uses include, but are not limited to, the following:
(i) 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;
(ii) automated text or picture messaging to another mobile device or e-mail address;
(iii) uninterrupted and continuous uploading, downloading, or streaming of audio or video;
(iv) server devices or 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 (“P2P”) file sharing;
(v) as a substitute or backup for private lines or dedicated data connections;
(vi) 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 the 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 their Service 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 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.
5. TEXT MESSAGING
GoSmart Mobile 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 GoSmart Mobile. 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 GoSmart Mobile. Any text message you send to a “short code” not authorized by GoSmart Mobile 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 GoSmart Mobile are not refundable.
6. INTERNATIONAL LONG DISTANCE SERVICE FOR GOSMART MOBILE
GoSmart Mobile Plans provide international long distance service (“ILD Service”). Customers who want to add additional ILD Services may purchase a GoSmart Mobile $10 Global Card. GoSmart Mobile’s ILD Service allows you to place calls to select international destinations. To determine if your destination of choice is available please check our website at gosmartmobile.com . Please be advised that available destinations are subject to change without notice at any time. GoSmart Mobile ILD Service is not a substitute for regular international calling services. It will not allow you to place calls to all destinations or to all countries. GoSmart Mobile ILD Service excludes calls to certain high cost wireless and landline, non-geographic and premium numbers.
GoSmart Mobile Plans with Unlimited International Calling. If you have purchased a GoSmart Mobile Plan that includes Unlimited International Calling, you will be allowed to call up to 20 unique international numbers during each Plan cycle. The 20 unique international numbers you may call will automatically reset once your next Plan cycle begins unless you purchase a new Plan prior to the start of your next Plan cycle. If you have purchased a GoSmart Mobile Plan that includes Unlimited International Calling, your ILD Service will only work if you have Service Days left in your Plan cycle. If your Plan cycle has ended (i.e., your Service End Date has passed), you will need to purchase and redeem a new Plan that includes International Calling in order to have access to ILD Service. Please visit our website to learn more about the specific features and offerings of GoSmart Mobile Plans that include International Calling.
GoSmart Mobile $10 Global Card. If you want to dial an international number in a destination that is not available through Plan with Unlimited International Calling, you may purchase GoSmart Mobile’s $10 Global Card. GoSmart Mobile also offers a $10 Global Card that must be used with another Plan for it to work. You may add or refill your ILD Service balance in $10 increments by purchasing a $10 Global Card from GoSmart Mobile by calling Customer Care or visiting our website. Your ILD Service will only work when your Service is active and when you have a positive balance in your Account. If you have purchased a $10 Global Card, you will not be limited in the number of destination numbers you may call. However, the GoSmart Mobile phone number you provide when purchasing a $10 Global 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.
The applicable rates to specific countries, regions or cities for customers who have purchased a $10 Global Card are available online at gosmartmobile.com. All rates are subject to change at any time without prior notice. Calls are billed in one-minute increments. GoSmart Mobile’s $10 Global Card expires 180 days after last use or 30 days after your GoSmart Mobile 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.
GoSmart Mobile ILD Service may be provided by other carriers, many of whom may not have a direct contractual relationship or service level agreements with GoSmart Mobile. 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.
GoSmart Mobile ILD Service is intended for live dialogue between and initiated by two individuals for personal use and not for commercial use or resale. Personal use is defined as a call originated or received by a GoSmart Mobile customer to initiate conversation between two individuals one of which is talking from a landline or wireless international destination. It may not be used for any other purpose including, but not limited to, conference calling, monitoring services, data transmissions, transmission of broadcasts, transmission of recorded material, interconnection to other networks, telemarketing, autodialed calls, other commercial uses, or other connections that do not consist of uninterrupted live dialogue between two individuals. The service is not for commercial use or resale. Loaning or renting your handset (mobile phone or cell phone) or service to other persons for their use or calling, hosting, establishing or maintaining a chat line is not considered personal use. We will presume a customer is engaged in non-personal use in violation of our terms and conditions if their international long distance calling usage exceeds three times the average usage of our ILD Service subscriber base, and we reserve the right to suspend, terminate or restrict your services with no prior notice.
GoSmart Mobile will presume certain usage, dialing or calling patterns to indicate that you are using the ILD Service in violation of these Terms and Conditions and we reserve the right to suspend, terminate or restrict your GoSmart Mobile Service without prior notice. If you believe that we are in error, please contact Customer Care at 1-877-582-7788 and depending on the circumstances, we may reactivate your ILD Service. If, however, your usage, dialing or calling patterns continue to violate these Terms and Conditions, we reserve the right to suspend, terminate or restrict your GoSmart Mobile Service with no prior notice. You will not receive a refund if your service is terminated for violating these terms and conditions.
You agree not to use GoSmart Mobile’s ILD Service for any unlawful, abusive, or fraudulent purpose, including, for example, using the Service in a way that (a) interferes with our ability to provide the ILD Service to you or to other customers; (b) violates applicable law or this Agreement; (c) avoids your obligation to pay for the Service; or (d) is not for consumer use. You agree not to resell your GoSmart Mobile ILD Service or to use your ILD Service for any unlawful or abusive purpose or in such a way as to create damage or risk to our business, reputation, employees, facilities, third parties or to the public generally.
GoSmart Mobile 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. GoSmart Mobile is not responsible for and will not issue credit for unauthorized use.
7. DATA SERVICES
Some GoSmart Mobile 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 GoSmart Mobile Data Services is intended for children. In the event that you, as a legal guardian allow your child to use GoSmart Mobile’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. GoSmart Mobile 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. GoSmart Mobile 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, GoSmart Mobile will not provide you with a refund for any remaining used or unused Data Services.
8. COVERAGE MAPS
You will find coverage maps on our website. These maps are for general informational purposes only and depict the general coverage area of GoSmart Mobile. GoSmart Mobile 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 speeds or no 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 GoSmart Mobile’s 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 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. Your coverage will also vary based upon the GoSmart Mobile plan you select. GoSmart Mobile is not responsible for any Service outages, interruptions in service or decline in the quality of service regardless of the cause.
Domestic Roaming. Domestic roaming is available under all plans subject to certain limitations. 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 roaming domestically, GoSmart Mobile does not guarantee your ability to roam nor the availability and/or quality of services. Domestic roaming may be discontinued or changed at any time without notice. Further, use of Data Services while roaming domestically is limited to 500 MB and counts towards your allotment of high speed data. Please be advised that due to Carrier restrictions, GoSmart Mobile reserves the right to terminate the Service of any GoSmart Mobile customer whose roaming usage exceeds 50% of their total usage in any three (3) Plan cycles within a 12 month period.
International Roaming. International roaming is available under all plans in select countries which are listed on our website. Subject to the foregoing exception, you will not be able to use your phone while traveling outside of the United States (including Puerto Rico). Countries where international roaming is available are subject to change without prior notice. Please visit our website for more information about the list of countries where international roaming is available. Data used while roaming internationally counts towards your allotment of high speed data.
10. WI-FI CALLING
Wi-Fi Calling is available only on phones that are Wi-Fi Calling capable and that have a Wi-Fi Calling enabled SIM Card. 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 1-877-582-7788. 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 GoSmart Mobile Service 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 GoSmart Mobile Service in an emergency situation. In an emergency, locate the nearest landline phone and call for help.
12. DISCLAIMER OF WARRANTIES
GOSMART MOBILE PRODUCTS AND SERVICE ARE PROVIDED ON AN “AS IS” AND “WHERE IS” BASIS AND BY USING ANY GOSMART MOBILE PRODUCT OR SERVICE YOU AGREE THAT TRACFONE WIRELESS, INC. D/B/A GOSMART MOBILE 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 IV (LIMITED WARRANTY), TRACFONE WIRELESS, INC. D/B/A GOSMART MOBILE 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 GoSmart Mobile 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 our 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, network prioritization, 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 network. GoSmart Mobile does not warrant or guarantee the availability of the Service at any specific time or in any specific geographic location or that Services will be provided without interruption. Neither GoSmart Mobile, nor any Carrier, shall have any liability for Service failures, outages, interruptions, delays, or limitations of Service. Because of the risk of being struck by lightning, you should not use your phone outside during a lightning storm. You should also unplug the phone’s power cord and charger to avoid electrical shock and/or fire during a lightning storm. Certain phone features may not be available with the Service or their functionality may be limited. 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, GoSmart Mobile 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 GOSMART MOBILE OR ITS EMPLOYEES, VENDORS, SUPPLIERS, OR LICENSORS WILL BE LIABLE TO YOU OR OTHER USERS OF YOUR GOSMART MOBILE PRODUCT OR 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 LOST PROFITS, REVENUE, INCOME, SALES, BUSINESS, GOODWILL, DATA OR INFORMATION, HOWEVER CAUSED AND WHETHER ARISING UNDER THEORY OF CONTRACT, TORT, OR OTHER THEORY OF LIABILITY AND REGARDLESS OF WHETHER NOTICE THAT SUCH LOSS MAY OCCUR WAS PROVIDED OR WHETHER GOSMART MOBILE KNEW OF THE LIKELIHOOD 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, GOSMART MOBILE, 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
You agree to safeguard your GoSmart 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. The Carriers, TracFone Wireless, Inc., 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 GoSmart Mobile Product or for any unused airtime and service.
You agree to indemnify and hold harmless TracFone Wireless, Inc., d/b/a GoSmart Mobile 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 GoSmart Mobile 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 1-877-582-7788. 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 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 N.W. 112th Avenue, Miami, Florida 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 at 1-800-778-7879, or by contacting Tracfone’s Legal Department as set out above. You and Tracfone agree that use of the Service evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. Additionally, for claims of $10,000 or less, you can choose to proceed with arbitration being decided on the documents submitted in an effort to minimize costs and the time it may take for an arbitrator to reach his or her decision.
You and Tracfone agree that any arbitration will be conducted on an individual basis and not on a consolidated, class wide, or representative basis. Further, you and Tracfone agree that the arbitrator may not consolidate proceedings or more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If the preclusion of consolidated, class wide, or representative proceedings is found to be unenforceable, then this entire arbitration clause shall be null and void.
Absent a finding that your demand is frivolous, brought for an improper purpose, or malicious as set forth by the standards of Federal Rule of Civil Procedure 11(b), Tracfone will pay the filing, administration, and arbitrator fees of an arbitration initiated in accordance with this Agreement. If, however, the arbitrator does deem that your demand was frivolous, was brought for an improper purpose, or was malicious under the same standard used in a court of law, payment of all fees will be divided between you and Tracfone in accordance with AAA Rules. Additionally, Tracfone hereby waives any right to seek its attorney’s fees from you in the event that it prevails in the arbitration, except where your demand is deemed frivolous, brought for an improper purpose, or malicious under the standard set out above. Nothing in this section shall be construed by an arbitrator as barring an award of attorney’s fees to you, the customer, where the law would so provide. If you initiate an arbitration in which you seek more than $50,000 in damages, the payment of fees will be governed by the AAA rules.
If Tracfone 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 reside.
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 1-877-582-7788 OR BY WRITING TO TRACFONE WIRELESS, INC., ATTN: LEGAL DEPARMENT-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.
GoSmart Mobile does not allow returns or provide refunds for any SIM Kits or Plans you may have purchased. If you purchased a GoSmart SIM Kit from a retailer or wireless dealer (and not from Tracfone either by phone or online), your purchase is subject to that store’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 GoSmart Mobile SIM Kit or Plan sold to you by a retailer or wireless dealer.
20. ENTIRE AGREEMENT
© 2019 TracFone Wireless, Inc.