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 PLEASE
READ THESE TERMS AND CONDITIONS CAREFULLY. They govern the
relationship between you and O2 Wireless GSM (Locus Telecommunications,
Inc.) and explain our respective legal rights concerning all
aspects of our relationship, including without limitation:
• Rates and charges
• Availability of the service and features
• Replenishment and expiration of balances
• Privacy and confidentiality
• Your rights related to Customer Proprietary Network Information
• Modifications to the agreement
• Limitations of liability and warranty
• Resolution of past or future disputes by mandatory binding
arbitration instead of court trials and class actions.
IF YOU USE THE SERVICE OR THE WIRELESS
DEVICE, YOU CONSENT TO THE TERMS AND CONDITIONS SET FORTH
IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS AND
CONDITIONS, DO NOT USE THE SERVICE OR PHONE AND NOTIFY US
IMMEDIATELY TO CANCEL SERVICE.
This is an agreement ("Agreement") for wireless
radio telecommunications services and related services and/or
features ("Service") between you and the entity
licensed by the Federal Communications Commission to provide
Service in the area associated with your assigned telephone,
data and/or messaging number(s) ("Number") that
is doing business as O2 Wireless GSM, ("us" or "we").
The term "Device" means wireless receiving and
transmitting equipment that we have authorized to be programmed
with the Number.
I. SERVICE
a. Availability/Interruption. Service
is normally available to your Device when it is within
the operating range of our system, and may be available
outside of that area in other participating carrier service
areas. Service is subject to transmission limitation or
interruption caused by weather, terrain, obstructions such
as trees or buildings, and other conditions. Service may
be limited in some areas where coverage is not available
or may be temporarily limited or interrupted due to system
capacity limitations and system repairs or modifications
or to combat potential fraud. GSM wireless features require
a compatible GSM 850/900/1900 dual, tri, or quad band phone,
are only available in the GSM features area, and may require
local telephone company support and message sender access
to computer and modem. Not all features or Service offerings
are available.
b. Use of Service/Device/Number. Reproduction,
retransmission, dissemination or resale of Service is prohibited
without prior written contractual arrangements from Locus
Telecommunications, Inc. and any required regulatory approvals.
You are responsible for ensuring that your Device is compatible
with our Service and meets federal standards. You are responsible
for the purchase and maintenance of any additional hardware,
software and/or Internet access from your PC required to
use the Service. You consent to receiving advertising,
alerts and other broadcast messages from Locus Telecommunications,
Inc. or our authorized agents. You have no ownership rights
to the Number, any IP address, any e-mail address or any
other identifier provisioned by us, our agents or the manufacturer
of your Device to be used with the Service, and you agree
we may change any such Number, IP address, e-mail address
or any other identifier at any time with or without prior
notice to you. Any Device purchased through our program
has been manufactured to operate exclusively with Service
provided by us. The Device cannot be activated with any
other wireless carrier. By using Service, you agree to
abide by the terms and conditions of any applicable software
license.
c. Unauthorized Usage. You agree not to
use the Device or Service for any unlawful, unauthorized
or abusive purpose or in any way that damages our property
or others' property, or interferes with, harms or disrupts
our system or other operators' systems or other users. You
will comply with all laws while using the Service and you
will not transmit any communication or data that would violate
any laws, court order, or regulation, or would likely be
offensive to the recipient. You are responsible for all content
you transmit using the Service. You may not install any amplifiers,
enhancers, repeaters or other devices that modify, disrupt
or interfere in any way with the radio frequency licensed
to us to provide Service. If your Device, user name or password
is stolen or Service is fraudulently used, you must immediately
notify us and provide us with such documentation and information
as we may request (including affidavits and police reports).
Until you notify us, you will remain responsible for all
charges. We have the right to interrupt or restrict Service
to your Number, without notice to you, if we suspect fraudulent,
illegal, or abusive activity. You agree to cooperate with
us in any fraud investigation and to use any fraud prevention
measures we prescribe. Failure to provide reasonable cooperation
may result in your liability for all fraudulent usage.
d. Release of Information. You consent to our release
of information about you when we believe release is appropriate to
comply with the law (e.g. a lawful subpoena, E911 information); to
enforce or apply our customer agreements; to initiate, render, bill
and collect for Services; to protect our rights or property; to protect
users of those Services and other carriers from fraudulent, abusive,
or unlawful use of, or subscription to, such Services; or if we reasonably
believe that an emergency involving immediate danger of death or
serious physical injury to any person requires disclosure of communications
or justifies disclosure of records without delay. You are deemed
to have reviewed and consented to our Privacy Policy posted on our
website at www.O2WirelessService.com.
e. Your Rights to End This Agreement. You may terminate
your Service at any time by notifying us of your intention to terminate
Service. There is no penalty or termination fee; however, it may
take up to 30 days to process the termination request and the balance
remaining in your account is forfeited upon termination of Service.
Your Service will resume and the termination request will be cancelled
if you use your Service prior to our processing your termination
notification.II.
II. CHARGES/PAYMENTS/DEFAULT
a. Generally. You are responsible for
paying all charges, including but not limited to: airtime,
access, features, voice mail access, voice mail delivery,
data usage, text messages, downloadable content, alerts,
roaming, long distance, directory and operator assistance
charges, the price of Devices and accessories, charges
for other goods and services and shipping/handling fees.
You will be billed at domestic airtime or roaming rates
(please refer to rate card) for 800, 866, 877, 888, and
other "toll free" calls. Applicable international
charges will always be billed for direct dial calls placed
from your wireless phone. A long distance provider chosen
by Locus Telecommunications, Inc. will provide your long
distance. For all calls, the length of the call will be
measured during the time that you are connected to our
system, which is approximately from the time you press "Send" or
other key to begin a call until approximately the time
you press "End," or other key to terminate the
call. Airtime usage on each call is deducted in full minute
increments, with partial minutes of use rounded up to the
next full minute. For calls placed in the United States,
you will not be charged for busy or unconnected calls if
you press "End" or "No" within 30 seconds.
Unanswered calls lasting 30 seconds or more will be charged
standard airtime and rounded up to the nearest minute.
Call waiting, 3-way calling, call forwarding, voicemail
will incur applicable airtime or roaming and wireless long
distance charges. Please note you may be charged a higher
rate for calls made off-network. You will be charged for
any check or electronic bank draft returned for non-payment.
Please refer to your rate card for details.
b. Account Balance. All charges incurred
will be deducted automatically from your account. Any amounts
loaded into your account are not transferable or refundable.
You should take reasonable efforts to safeguard your Phone
and replenishment airtime cards. No refunds or other compensations
will be given for returned, expired, lost, damaged, or stolen
cards. Amounts deposited to your account expire between 30
to 180 days depending on card denomination. However, if additional
amounts are placed into your account before the current account
balance expires, the existing balance will be carried over
to the new expiration date. If new amounts are not added
to your account prior to the expiration date any remaining
amounts will be forfeited. Your account will be canceled
if there is no usage (billable or non-billable) or if the
balance remains as $0 for 30 consecutive days or more and
you may be required to pay a fee to resume service. Credit
card replenishment is available; limitations apply. In some
instances you may be able to complete a call when the billing
functionality is interrupted. When this occurs you will not
receive correct balance information. All calls, however,
will be deducted from your account and the balance updated
when the billing functionality is operable. You are responsible
for all data usage sent through our network and associated
with the Device, regardless of whether the Device actually
receives the information.
c. Use of Service/Rates. Your Service rates and
other charges and conditions for each Number or Phone are described
in the replenishment card packaging, at our website at www.O2WirelessService.com,
and in the "Sales Information" (the user guide and other
printed materials provided by us either in the Starter Kit you received
when submitting your Device for use with the Service or in the packaging
of the Device you purchased to be used with the Service) you received,
each of which is a part of this Agreement. You can place domestic
and international calls from the U.S. to certain designated international
locations. The prepaid per minute rates are based on the card value
purchased. International rates vary and are subject to change. Call
Customer Care (at the number listed on our website or in your replenishment
card packaging) or visit www.O2WirelessService.com for
international rates and available countries. You cannot use the Service
to place calls to 500, 700, 855, 900 or 976 numbers; or to place
operator-assisted calls such as third-party-billed, and collect calls.
Rates for calls to directory assistance are $3.00 per call plus airtime
or roaming charges. You will be billed at domestic rates for 800,
888, 877, and 866 number calls. You are responsible for all taxes
and surcharges associated with your use of the Service. Other than
calls to 911, you can only make and receive calls when your account
has a positive balance. Special dialing patterns may be required
when making roaming calls. Some locations require a credit card to
complete a call; these rates will be higher. When in these areas,
you will not be able to receive calls. Prepaid wireless service is
not available for purchase or use in all areas. When using Call Waiting
or Three-Way Calling, you will incur two simultaneous airtime charges
and if you disconnect from a conference call while the other two
parties remain connected, you will continue to incur airtime charges
for all calls. For Unlimited Plan only: You agree
that the O2 Unlimited Nights & Weekends Service is to be used
for voice and SMS messaging only between two individuals. You agree
that the Service is not to be used for any type of monitoring service,
data transmission, transmission of recorded material or broadcasts,
call forwarding, conference calling or other use that does not consist
of uninterrupted live voice or SMS messaging between two individuals.
LOCUS may terminate or suspend Service or change your plan to one
that does not offer unlimited Service if Locus determines that you
are using the unlimited Service offer in an unauthorized manner as
described in this section. LOCUS will make best efforts to give prior
notice before taking any above action and you may terminate the unlimited
Service.
d. Default/Termination. If you breach any representation
to us or fail to perform any of the promises you made in the Agreement,
you will be in default and we may, without notice to you, suspend
Service and/or terminate this Agreement, in addition to all other
remedies available to us.
e. Account Information. Any person able to provide
your Number and personal identification number is authorized by you
to make changes to your account. You consent to disclosure of any
information about you to any person as permitted by law if any Device
programmed with your Number calls an emergency service number such
as 911 or, if we reasonably believe that an emergency involving immediate
danger of death or serious physical injury to any person requires
disclosure of communications or justifies disclosure of records without
delay
f. CPNI Consent. Under federal law, you have a right,
and we have a duty, to protect the confidentiality of information
about the amount, type, and destination of your wireless service
usage (CPNI). You consent to us sharing your CPNI with Locus Telecommunications,
Inc., its affiliates and its contractors, to develop or bring to
your attention any products and services. This consent survives the
termination of your Service and is valid until you remove it. To
remove this consent at any time, notify us in writing at Locus Telecommunications,
Inc. Attn: CPNI, P.O. Box 376 Fort Lee, NJ 07024, providing your
name, home address, home telephone including area code, and personal
identification number. Removing consent will not affect your current
Service.
III. CHANGES TO
THIS AGREEMENT
We may amend the terms of this Agreement upon advance notice
to you in the manner described below or by posting notices
of changes on our website or by printing notice of such changes
in the replenishment card packaging.
IV. LIMITATIONS
The parties intend that the limitations on liability, warranty
and damage awards provided for in this Agreement will apply
to the fullest extent allowed by law. Some jurisdictions
do not allow the exclusion of certain warranties or the
waiver, limitation or exclusion of liability for punitive,
incidental or consequential damages, or for intentional
or willful conduct in some circumstances. To the extent
that applicable law does not permit any of these limitations,
they will not apply to you.
a. Limitation of Liability. WE
ARE NOT LIABLE FOR ACTS OR OMISSIONS OF ANOTHER SERVICE PROVIDER
OR ANY THIRD PARTY PROVIDERS OF SERVICES RELATED TO USE OF
THE DEVICE OR SERVICE, FOR INFORMATION PROVIDED THROUGH YOUR
DEVICE, LACK OF PRIVACY OR SECURITY EXPERIENCED WHEN USING
THE DEVICE, EQUIPMENT FAILURE OR MODIFICATION, OR OTHER CAUSES
BEYOND OUR REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION
ANY REPRESENTATIONS THAT THE SERVICES WILL BE ERROR-FREE,
UNINTERRUPTED, OR FREE FROM UNAUTHORIZED ACCESS (INCLUDING
THIRD PARTY HACKERS OR DENIAL OF SERVICE ATTACKS). WE ARE
NOT LIABLE FOR SERVICE OUTAGES, NOR FOR SERVICE LIMITATIONS
OR INTERRUPTIONS, AS DESCRIBED IN PARAGRAPH 1.C ABOVE. OUR
LIABILITY AND THE LIABILITY OF ANY UNDERLYING CARRIER FOR
ANY FAILURE OR MISTAKE SHALL IN NO EVENT EXCEED OUR SERVICE
CHARGES DURING THE AFFECTED PERIOD. Locus Telecommunications,
Inc., AND ANY UNDERLYING CARRIER ARE NOT LIABLE FOR ANY INCIDENTAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES SUCH AS LOST PROFITS. YOU
AND WE BOTH WAIVE TO THE FULLEST EXTENT ALLOWED BY LAW, ANY
CLAIMS TO RECOVER INCIDENTAL, PUNITIVE AND CONSEQUENTIAL
DAMAGES. WE AND ANY UNDERLYING CARRIER ARE NOT LIABLE FOR
(i) ECONOMIC LOSS OR INJURIES TO PERSONS OR PROPERTY ARISING
FROM USE OF THE SERVICE, THE DEVICE OR ANY EQUIPMENT USED
IN CONNECTION WITH THE DEVICE UNLESS CAUSED BY OUR SOLE AND
GROSS NEGLIGENCE, OR (ii) THE INSTALLATION OR REPAIR OF THE
DEVICE BY ANY PARTIES WHO ARE NOT OUR EMPLOYEES. THIS PARAGRAPH
SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
b. Indemnification. YOU AGREE TO DEFEND, INDEMNIFY,
AND HOLD US, OUR AFFILIATES AND AGENTS AND ANY OTHER SERVICE
PROVIDER, HARMLESS FROM CLAIMS OR DAMAGES RELATING TO THIS
AGREEMENT OR YOUR PROMISES OR STATEMENTS MADE IN IT AND USE
OF THE DEVICE OR SERVICE UNLESS DUE TO OUR SOLE AND GROSS NEGLIGENCE.
YOU ALSO AGREE TO PAY OUR REASONABLE ATTORNEYS' AND EXPERT
WITNESS FEES AND COSTS INCURRED IN ENFORCING THIS AGREEMENT
THROUGH APPEAL EXCEPT AS PROVIDED IN PARAGRAPH 5, BELOW. USE
OF YOUR DEVICE WHILE OPERATING A MOTOR VEHICLE OR IN ANOTHER
DISTRACTED OR NEGLIGENT MANNER MAY BE PROHIBITED, OR RESTRICTED
BY LAW IN SOME AREAS. IT IS YOUR RESPONSIBILITY TO CONFORM
TO ALL SUCH LAWS OR REGULATIONS AND YOU SHALL INDEMNIFY US
FROM CLAIMS ARISING FROM ANY SUCH UNLAWFUL OR NEGLIGENT USE.
THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
c. No Warranties. WE MAKE NO EXPRESS WARRANTY REGARDING THE
SERVICE OR THE DEVICE OR ANY SERVICES PROVIDED BY ANY THIRD
PARTIES, AND DISCLAIM ANY IMPLIED WARRANTY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
WE DO NOT AUTHORIZE ANYONE TO MAKE ANY WARRANTY ON OUR BEHALF
AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. WE ARE NOT
THE MANUFACTURER OF THE DEVICE AND ANY STATEMENT REGARDING
IT SHOULD NOT BE INTERPRETED AS A WARRANTY. THIS PARAGRAPH
SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
V. RESOLUTION OF
DISPUTES
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT
YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF MOST
DISPUTES THROUGH ARBITRATION INSTEAD OF COURT TRIALS AND
CLASS ACTIONS. ARBITRATION IS FINAL AND BINDING AND SUBJECT
TO ONLY VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION
CLAUSE SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
a. Binding Arbitration. It
is intended that this provision be interpreted broadly to
encompass all disputes or claims arising out of our relationship.
Any dispute or claim, including those against any of our
subsidiary, parent or affiliate companies, arising out of
or relating to this Agreement, our Privacy Policy or the
Service or any equipment used in connection with the Service
(whether based in contract, tort, statute, fraud, misrepresentation
or any other legal theory) will be resolved by binding arbitration
except that (1) you may take claims to small claims court
if they qualify for hearing by such a court, or (2) you or
we may choose to pursue claims in court if the claims relate
solely to the collection of any debts you owe to us.
b. Arbitration Procedures. You must first
present any claim or dispute to us by contacting Customer Care
to allow us an opportunity to resolve the dispute. You may
request arbitration if your claim or dispute has not been resolved
within 90 days. The arbitration of any dispute or claim shall
be conducted in accordance with the American Arbitration Association
("AAA") under the Wireless Industry Arbitration Rules
("WIA Rules"), as modified by this Agreement. The
WIA Rules and information about arbitration and fees are available
upon request from the AAA online at www.adr.org. You and we
agree that this Agreement evidences a transaction in interstate
commerce and this arbitration provision will be interpreted
and enforced in accordance with the Federal Arbitration Act
and federal arbitration law. Unless you and we agree otherwise,
any arbitration will take place in the county seat for the
county in which your billing address is located. At either
party's election, the arbitration shall be held telephonically.
An arbitrator may award any relief or damages (including injunctive
or declaratory relief) that a court could award, except an
arbitrator may not award relief in excess of or contrary to
what this Agreement provides and may not order relief on a
consolidated, class wide or representative basis. In any arbitration
applying the WIA Rules applicable to large/complex cases, the
Arbitrators must also apply the Federal Rules of Evidence,
and the losing party may have the award reviewed in accordance
with the review procedures set forth in the WIA Rules. Judgment
on any arbitration award may be entered in any court having
proper jurisdiction. If any portion of this arbitration clause
is determined by a court to be inapplicable or invalid, then
the remainder shall still be given full force and effect.
c. Costs of Arbitration. For claims of less than
$1,000, you will be obligated to pay $25 and we will pay all other
administrative costs and fees. For claims over $1,000 but under $75,000,
you will be obligated to pay your share of the arbitration fees,
but no more than the equivalent court filing fee for a court action
filed in the jurisdiction where your billing address is located.
For arbitrations in excess of $75,000, all administrative fees and
expenses of arbitration will be divided equally between you and us.
In all arbitrations, each party will bear the expense of its own
counsel, experts, witnesses and preparation and presentation of evidence
at the arbitration.
d. Waiver of Class Actions. By
this Agreement, both you and we are waiving certain rights
to litigate disputes in court. You and we both agree that
any arbitration will be conducted on an individual basis
and not on a consolidated, class wide or representative basis.
If for any reason this arbitration clause is deemed inapplicable
or invalid, or to the extent this arbitration clause allows
for litigation of disputes in court, you and we both waive,
to the fullest extent allowed by law, any right to pursue
any claims on a class or consolidated basis or in a representative
capacity.
e. Limitations Period. Any arbitration or
legal action with respect to any and all claims or causes of
action related to or arising out of this Agreement must be
brought within two years after the cause of action arises,
or within the applicable statutory period of time, whichever
is shorter. This limitations period does not apply to any given
cause of action when the statutory limitations period for that
cause of action cannot be waived, restricted or otherwise limited
by you.
VI. MISCELLANEOUS
a. Privacy. We are not liable for any
lack of privacy, which may be experienced with regard to
the Service. You authorize our monitoring and recording
of calls to us concerning your account or the Service and
consent to our use of automatic dialing equipment to contact
you. We have the right to intercept and disclose any transmission
over our facilities in order to protect our rights or property.
b. Assignment. We may assign all or part
of this Agreement without such assignment being considered
a change to the Agreement, and without notice to you. We
are then released from all liability. You may not assign
this Agreement without our prior written consent.
c. Notices. We may send you notice by mail or electronic
means, in our sole discretion. Notices to you shall be effective
1) 3 days following the date deposited in the U.S. Mail or delivered
to a nationally recognized courier or delivery service, postage prepaid
and addressed to your address as kept in our files and/or 2) immediately
upon our transmission using an electronic means such as e-mail or
text messaging service. You are responsible for notifying us of any
changes in your mailing or e-mail address. Written notice to us shall
be effective when directed to our Customer Care Department (at the
mailing address listed on our website) and received by us. Oral and
electronic notices shall be deemed effective on the date reflected
in our records. Your notice must contain specific information adequate
to identify you and your Service.
d. Entire Agreement. These Terms and Conditions,
together with the Sales Information, represent the entire agreement
between you and us, which may only be amended as described in this
Agreement. This Agreement supersedes any inconsistent or additional
representations made to you by any of our representatives, agents
or dealers. If any part of this Agreement is found invalid, the balance
of the Agreement remains enforceable. If, at any time, we do not
enforce any right or remedy available under this Agreement, that
failure is not a waiver of our right to enforce the right or remedy
at a later time. Copied, microfiche, scanned or other duplicate or
electronic images of this Agreement are admissible for all purposes.
e. Governing Laws. This Agreement is subject to
applicable federal laws, federal or state tariffs, if any, and the
laws of the state associated with the Number. Where a state agency
or the FCC regulates the terms and conditions of our Service, the
regulations are available for your inspection; if there is any inconsistency
between this Agreement and those regulations, this Agreement shall
be deemed amended as necessary to conform to such regulations.
f. Capacity. You represent that you are legally
competent to enter into this Agreement, and that you are not aware
of any disability that would prevent you from entering into this
Agreement.
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