Effective Date: October 1, 2021.
Please read these T&Cs carefully. They cover important information about our services provided to you (“Service”); your phone, handset, device, SIM card, data card, or other equipment or third-party device used with our Service (“Device”); and a summary of access and usage charges, taxes, fees, assessments, and other charges we bill you or that were accepted or processed through your Device (“Charges”). The Charges described herein are not all-inclusive and you may incur additional costs, such as financing fees under certain Device purchase plans and other miscellaneous costs and fees. These T&Cs include terms regarding service plan changes and late payments, limitations of liability, privacy, and resolution of disputes by arbitration instead of in court.
You and any authorized users on your account will have access to account information and may be able to make changes to the account. If you give your personal account validation information to someone, they can access and make changes to your account. Those changes will be binding on you. Authorized changes may require your agreement to new T&Cs.
1. Acceptance.YOUR AGREEMENT WITH PROVIDER STARTS WHEN YOU ACCEPT. You represent that you are at least eighteen (18) years old (twenty-one (21) years old or legally emancipated if you are a Puerto Rico customer) and you are legally authorized to enter into this Agreement. You accept your Agreement by doing any of the following: (a) giving us a written or electronic signature, or telling us orally that you accept; (b) activating Service; (c) using your Service after you make a change or addition; or (d) paying for the Service or a Device (a Device purchased from EarthLink Mobile, powered by Ultra Mobile intended for use with the Service. IF YOU DO NOT WANT TO ACCEPT, DO NOT DO ANY OF THESE THINGS.
2. Dispute Resolution and Arbitration.PROVIDER AND YOU EACH AGREE THAT, EXCEPT AS PROVIDED BELOW (AND EXCEPT AS TO PUERTO RICO CUSTOMERS), ANY AND ALL CLAIMS OR DISPUTES IN ANY WAY RELATED TO OR CONCERNING THE AGREEMENT, OUR SERVICE, MARKETING PRACTICES, DEVICES OR PRODUCTS, WILL BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL, NON-REPRESENTATIVE, BASIS. This includes any claims against other parties relating to Service or Devices provided or billed to you (such as our suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding. This also includes any claims brought after your service agreement with Provider terminates. For the avoidance of doubt, claims under the Telephone Consumer Protection Act are subject to this Dispute Resolution and Arbitration Clause. Provider and you each also agree that the Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law apply (despite the choice of law provision in Section 22). THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR MUST FOLLOW THIS AGREEMENT AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS’ FEES).
For all disputes (except for Puerto Rico customers), you must first give us an opportunity to resolve your claim by sending a written description and supporting documentation of your claim to the address set forth in Section 12 below. Provider and you each agree to negotiate your claim in good faith. If Provider and you are unable to resolve the claim within sixty (60) days after Provider receives your claim description and supporting documentation, you may pursue your claim in arbitration.
As an alternative to arbitration, Provider may choose to resolve billing disputes in small claims court in the county of your most recent billing address. Provider and you each agree that if you fail to timely pay amounts due, Provider may assign your account for collection, and the collection agency may pursue, in small claims court, claims limited strictly to the collection of the past due amounts and any interest or cost of collection permitted by law or the Agreement.
Either you or we may start arbitration proceedings. You must send a letter requesting arbitration and describing your claim to our registered agent to begin arbitration, with copies to EarthLink Mobile powered by Ultra Mobile, 980 Hammond Drive NE, Suite 400 Atlanta, GA 30328 Legal Department. Our registered agent is the registered agent for EarthLink, LLC on behalf of the Provider: The Corporation Trust Company, 1209 Orange St., Wilmington, DE 19801, Phone: 302-658-7581. The American Arbitration Association (“AAA”) will arbitrate all disputes. For claims of less than Seventy-five Thousand Dollars ($75,000.00), the AAA’s Consumer Arbitration Rules will apply; for claims over Seventy-five Thousand Dollars ($75,000.00), the AAA’s Commercial Arbitration Rules will apply. The AAA rules are available at www.adr.org. Upon filing of the arbitration demand, Provider and you will share equally all filing, administration, and arbitrator fees for claims that total less than Seventy-five Thousand Dollars ($75,000.00). For claims that total more than Seventy-five Thousand Dollars ($75,000.00), the payment of filing, administration and arbitrator fees will be governed by the AAA Commercial Arbitration Rules. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. Puerto Rico customers: Refer to Section 11 for details of the Puerto Rico Telecommunications Dispute Procedure.
CLASS ACTION WAIVER. PROVIDER AND YOU EACH AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Neither you, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding against Provider.
JURY TRIAL WAIVER. If a claim proceeds in court rather than through arbitration, PROVIDER AND YOU EACH WAIVE ANY RIGHT TO A JURY TRIAL.
3. No Refunds for Your Cancellation of Service Plans.You may cancel any Service plan that you pay for in advance at any time; provided that, except as otherwise required by applicable law, you will not receive any refund of amounts paid to us in connection with such Service.
4. Our Rights to Make Changes.This provision is subject to requirements and limitations imposed by applicable law and will not be enforced to the extent prohibited by law. Your Service is subject to our business policies, practices, and procedures, which we can change without notice. WE RESERVE THE RIGHT TO CHANGE OR MODIFY THESE T&Cs, OUR SERVICES, DISCOUNTS, TECHNOLOGIES (INCLUDING CHANGES TO OUR NETWORK THAT MAY IMPACT YOUR DEVICE’S COMPATIBILITY), COVERAGE, OR ANY OTHER TERMS IN THE AGREEMENT AT ANY TIME AND YOU AGREE TO BE BOUND BY ALL SUCH CHANGES OR MODIFICATIONS ON THE EARLIER OF WHEN WE (i) POST THEM ON OUR INTERNET WEBSITE, OR (ii) SEND THEM TO YOU (ELECTRONICALLY OR OTHERWISE). BECAUSE THESE T&Cs ARE SUBJECT TO CHANGE AT ANY TIME, YOU SHOULD ALWAYS CHECK OUR WEBSITE FOR THE MOST CURRENT VERSION. IF WE CHANGE THE SERVICE FEE APPLICABLE TO YOUR SERVICE PLAN, YOU WILL HAVE 5 DAYS FROM THE DATE WE POST OR NOTIFY YOU OF THE REVISED SERVICE FEE TO TERMINATE YOUR SERVICE PLAN BY (i) contacting our customer service department at earthlink.net/contact, (ii) calling 888-327-8454, or (iii) managing your account preferences on the Provider website. IF YOU FAIL TO CANCEL YOUR SERVICE PLAN WITHIN THE 5 DAY PERIOD, YOU WILL BE DEEMED TO HAVE ACCEPTED THE RATE INCREASE. ANY INCREASE IN TAXES, REGULATORY FEES OR ASSESSMENTS WILL NOT BE CONSIDERED AN INCREASE IN ANY SERVICE FEE AND WILL NOT ENTITLE YOU TO EXERCISE THE FOREGOING CANCELLATION RIGHT. WE ARE NOT LIABLE TO YOU FOR CHANGES IN OPERATION, EQUIPMENT, OR TECHNOLOGY (INCLUDING THE NETWORK) THAT CAUSE YOUR DEVICE TO BE RENDERED OBSOLETE OR REQUIRE MODIFICATION.
5. Compatible Devices.You must use a supported, compatible Device to access the Provider network. Only certain phones and tablet computers are supported Devices. Provider will provide you with a list of supported Devices upon your request. Modems, bypass, gateways, automated relay devices and any other Devices used for commercial or re-direction purposes are not supported Devices and violate our Acceptable Use Policy. Failure to use a supported, compatible Device when accessing our network will result in immediate termination of your Service.
6. Service Availability.Coverage maps only approximate our anticipated wireless coverage area outdoors; actual Service area, coverage and quality may vary and change without notice depending on a variety of factors including network capacity, terrain and weather. The availability and quality of Service may also be affected by the Service plan purchased, the Device, the operator of the mobile network, your monthly usage, network or Internet congestion, server speeds of websites, network management policies, buildings, foliage, actions of third parties, or other issues. Outages and interruptions in Service may occur, and speed of Service varies. Provider does not guarantee the availability of the mobile network or the service speeds. You agree we are not liable for problems relating to Service availability or quality.
7. Important Emergency and 9-1-1 Information and Emergency Alerts.When making a 9-1-1 call, always state the nature of your emergency and provide both your location and phone number, as the operator may not automatically receive this information. Provider is not responsible for failures to connect or complete 9-1-1 calls or if inaccurate location information is provided. 9-1-1 service may not be available or reliable and your ability to receive emergency services may be impeded.We or our network supplier may use a variety of information and methods to determine the location of a 9-1-1 call, including Global Positioning Satellites, our network supplier’s wireless network, the street address you have provided us as your primary use location (“Primary Address”), or other information. Even with this information, an emergency operator may not be able to locate you in order to provide emergency services. Other third-party entities are involved in connecting a 9-1-1 call and neither Provider nor its network supplier determines the public safety agency to which your 9-1-1 call is routed. If you are porting a phone number to or from us, we may not be able to provide you with some Services, such as 9-1-1 location services, while the port is being implemented. If you are porting a phone number to Provider, it is your obligation and responsibility to make certain that all information forwarded from the port-out carrier is accurate and complete. If you dial 9-1-1 while outside the U.S., 9-1-1 services may not be available.
8. Service Plans.
8.1 General. Your Service will operate only after you have purchased and redeemed a Provider Service plan. Please visit our website at earthlink.net/mobile for the latest information regarding our Service plans.
8.2 Charges. You agree to pay all charges we bill you or that were accepted or processed through your Device or on such other Devices connected with your account and as designated in your Service plan. For disputed charges, see Section 11. You agree to provide us with accurate and complete billing information and to immediately report to us all changes to your billing information. Depending on your Service plan, increased mobile Service data usage may increase your monthly charges or, impact your Service performance or quality after you reach certain download levels.
8.3 Voice Usage. Provider Service plans include a voice plan as part of your Service. We round up any fraction of a minute to the next full minute. Airtime usage is measured from the time the network provider begins to process a call (before the phone rings or the call is answered) through its termination of the call (after you hang up) and the network disconnects.
8.4 Data Usage and Messaging. Provider Service plans include a data plan (“Data Plan”) as part of your Service. Data usage is rounded up to the next full-kilobyte increment at the end of each data session. For all Provider Service plans, 1 gigabyte of data is equivalent to 1,000 megabytes. Your data usage includes, among other things, text, web browsing, instant or picture messages, and email whether read or unread, sent or received, solicited or unsolicited. We use filters to block spam messages, but we do not guarantee that you will not receive spam or other unsolicited messages, and we are not liable for such messages. All data purchased with a Provider Service plan (both data that comes with a particular Provider Service plan and any additional data you purchase as an add-on) will expire immediately upon termination of your Provider Service plan for any reason.
8.5 Permissible and Prohibited Uses. Your Data Plan is intended for Web browsing, messaging, and similar activities on your Device. Examples of prohibited uses can be found in Section 14 of these T&Cs and in our Acceptable Use Policy. The Service may only be used for lawful purposes. You will not use or allow others to use the Service in a manner that is in violation of any applicable federal, state, local or international laws or regulations or to promote, engage in, or enable illegal activity or conduct that violates or infringes upon the rights of any person. PROVIDER RESERVES THE RIGHT AT ITS SOLE DISCRETION TO IMMEDIATELY SUSPEND, TERMINATE, OR RESTRICT USE OF THE SERVICE WITHOUT NOTICE IF SUCH USE VIOLATES THE RESTRICTIONS IN THIS SECTION 8.5 AND SECTION 14.
8.6 Data Usage Level. Provider has set a monthly 4G data usage level (“Usage Level”) for each of its Service plans. For purposes of these T&Cs, “4G” means minimum data speeds equal to the lesser of (i) an average of 1.0 mbps over a monthly service term, or (ii) the average network speed in your market over a monthly service term as dictated by Provider’s network supplier (over which Provider has no control). Our network supplier measures your upload and download data usage (“Actual Usage”) to determine if your total Actual Usage, as aggregated over the applicable monthly period (“Usage Total”), exceeds the monthly 4G Usage Level for the Service plan you selected. Please note that “Actual Usage” includes all of your requests to upload or download data, whether or not such data is actually uploaded or downloaded, as well as network overhead. For example, if you request that an image be downloaded to your Device, but travel outside of your network coverage area before the download is complete, such request will be included in your Actual Usage even though the image was never downloaded to your Device. If you purchased a Service plan that includes a finite amount of data in a monthly Service period, your data will be suspended once you reach the monthly data limit and reset upon the commencement of the following monthly Service period. If you purchased a Service plan that includes unlimited data and you exceed your Service plan’s monthly Usage Level, Provider will reduce the speed at which you can send and receive data over the Provider network until the end of the applicable monthly period. The initial reduction in your data speed depends upon your Service plan and can be found in our FAQs. If you continue to send and/or receive a substantial amount of data (as determined by Provider in its sole discretion) after our initial reduction of your data speed, we may further reduce your data speed to 128 kbps. Once you begin a new monthly period in your Service plan, your Service plan Usage Level will be reset and your upload and download speeds will be restored. For example, if a customer purchases a Service plan that includes unlimited data service, but only includes up to 1 gigabyte of high-speed data at 4G speeds during a given monthly period, then the first gigabyte of data requested by that customer in that monthly period will be provided at up to 4G speeds (subject to 4G network availability and the actual network speeds of Provider’s network supplier). Any data uploaded or downloaded by that customer in excess of 1 gigabyte will be provided at reduced speeds not lower than 128 kbps. Please be aware that your Usage Level is much more likely to exceed your Service plan’s monthly Usage Level if you use streaming video, or if you download significant quantities of music files, movies, software applications, or engage in other high-bandwidth activities.
8.7 Protective Measures. To provide a good experience for the majority of our customers and minimize capacity issues and degradation in network performance, we may take measures including temporarily reducing data throughput for a subset of customers who use a disproportionate amount of bandwidth. If you use your Data Plan in a manner that could interfere with other customers’ service, affect our ability to allocate network capacity among customers, or degrade service quality for other customers, we may suspend, terminate, or restrict your data session, or switch you to a more appropriate Data Plan which may result in an increased cost. We also manage our network to facilitate the proper functioning of services that require consistent high speeds, such as video calling, which may, particularly at times and in areas of network congestion, result in reduced speeds for other services. Additionally, we may implement other network management practices, such as caching less data, using less capacity, sizing video more appropriately for a Device to transmit data files more efficiently, and deploying streaming video optimization technology, which may affect the performance and download times of data-heavy activities such as video-streaming on our unlimited plans. Streaming video optimization technology is intended to manage data usage on the network, reduce the risk of streaming video stalling and buffering, and reduce the amount of high-speed data consumption used for streaming video. Streaming video optimization improves streaming video reliability as well as makes room for other users to enjoy higher browsing speeds. Detectable video may typically stream at DVD quality or Standard Definition. The streaming video optimization process is agnostic as to the streaming video content itself and to the website that provides it. While most changes to streaming video files are likely to be indiscernible, the optimization process may minimally impact the appearance of the streaming video as displayed on your Device. These practices operate without regard to the content itself or the source of the content, and do not discriminate against offerings that might compete against those offered by us on the basis of such competition.
8.8 Wi-Fi Features. Provider, at its sole discretion, may make available Wi-Fi voice and text messaging services, i.e., the ability to originate and terminate calls and text messages over a Wi-Fi connection (“Wi-Fi Calling). If offered by Provider, Wi-Fi Calling will only be available for Provider customers that (i) have a Wi-Fi capable Device with Provider supported Wi-Fi calling capability, (ii) have Wi-Fi Calling service provisioned on their account, (iii) have a compatible SIM card, and (iv) are connected to functioning third-party internet service. Not all services available on Provider’s supplier’s network are available while using Wi-Fi Calling. For example, emergency alerts may not be available with Wi-Fi Calling. You acknowledge that calling 9-1-1 via Wi-Fi Calling uses the internet and operates differently than traditional 9-1-1 (see our complete 9-1-1 disclosure posted on our website at earthlink.net/tcs/mobile. For example, 9-1-1 may not work during power or internet outages or disruptions, or if internet or your Service is suspended. Location information when using Wi-Fi Calling may be limited or unavailable. If Provider makes Wi-Fi Calling available to you, you must provide us with your up-to-date, primary address. If the location at which you primarily use Wi-Fi Calling changes, either temporarily or permanently, you must promptly update your address with Provider. You may provide us with your primary address, or update your primary address, by contacting us at the email address, telephone number or mailing address specified in Section 12. If you do not provide us with your primary address and update it promptly as described above, we or our network supplier may block your usage of certain Wi-Fi Networks. When you call 9-1-1 over Wi-Fi away from your primary address, we and our network supplier may have no or very limited information about your location. Neither Provider nor its network supplier is responsible or liable for anything related to your use of or inability to use any Wi-Fi Calling MADE AVAILABLE TO you, including, without limitation, any failure of emergency calls (whether 9-1-1 calls or otherwise). Wi-Fi Calling may decrement Service plan minutes. Most Devices will not transition between Wi-Fi and the wireless network. Devices using wireless connections may be vulnerable to unauthorized attempts to access data and software stored on the Device.
PROVIDER IS NOT A PUBLISHER OF THIRD-PARTY INFORMATION, APPLICATIONS OR OTHER CONTENT AND IS NOT RESPONSIBLE FOR ANY OPINIONS, ADVICE, STATEMENTS OR OTHER INFORMATION, SERVICES OR GOODS PROVIDED BY THIRD PARTIES.
8.11 Roaming. Your Device may connect to another provider’s network (“Roaming”) even when you are within the Provider coverage area. Check your Device to determine if you are Roaming. There may be extra charges (including long distance, tolls, data usage) and higher rates for Roaming usage, and your quality and availability of service may vary significantly. Our Roaming charges and rates are subject to change at any time and any such changes are effective forty-five (45) days after the posting of same to the Provider web site. Please check our web site frequently so that you are aware of our Roaming charges and rates and any changes thereto.
8.12 Suspension and Cancellation. If your account is deactivated due to nonpayment, your account will be in a suspended status for 60 days. If your account is not reactivated within the 60-day period, it will be cancelled. If your account is cancelled, your remaining balance will be forfeited, and we may reassign the phone number associated with your account. If you wish to port to a different carrier, you must have an active account.
9. International Long Distance / Global Text.
9.1 General. All international long-distance services included in your Service are handled by PLD, LLC (“PLD”) and are delineated on your invoices separately from the services provided by Provider. PLD is not affiliated with Provider.
9.2 International roaming credits. Your Provider Service plan may include international roaming credits (“Credits”) that you can use for international roaming minutes or data without additional charge. The amount of Credits that you receive in connection with your Service plan may be determined by us in our sole discretion, and additional details are available on our website. Provider may allow you to store Credits in your account for use at a later time. When your balance of Credits is zero, unless you add Credits to your account, you will not be able to use international roaming Service. Please be aware that except as provided by these Terms and Conditions, Provider will be under no obligation to offer any refunds or reimbursements for Credits that you receive from Provider. Credits will be reclaimed by us should your account be terminated for any reason.
9.3 International texts. “Global Text” and “Unlimited Global Text” means text or unlimited text only to applicable mobile-to-mobile destinations, and excludes audio, picture, and video messaging. Data usage rates and charges may apply if you send audio, pictures, and/or video messages to an international mobile-to-mobile destination.
10. Taxes, Fees, and Surcharges. You are responsible for, and shall pay, the taxes, fees and surcharges set forth in Sections 10.1 – 10.5 below (“Taxes, Fees and Surcharges”) in connection with your Service account. Such Taxes, Fees and Surcharges will be included in your Service account charges (a) at the time you order the Service and (b) each time there are any further charges to your Service account. Payment of Taxes, Fees and Surcharges is in addition to payment for the Service and will be billed to your account. Provider reserves the right to increase or decrease any fee or charge associated with Provider Service.
10.1 Recovery Fee. The Recovery Fee is assessed to help recover Provider’s costs to comply with various federal and state programs, taxes and fees including, but not limited to, (i) state and federal Telecommunications Relay Service Programs, (ii) Federal Universal Service Fund Program, (iii) international, federal, state, municipal, local and/or other governmental franchise, excise, public utility and other telecommunications taxes, fees and charges now in force or enacted in the future, and (iv) other costs we incur to comply with government regulations and programs, which are not taxes or fees that local, state or federal governments require Provider to collect. For all Provider Service, the Recovery Fee is calculated as a flat per transaction fee of $0.50 for service charges of $10.00 or less, and $1.00 for service charges of $10.01 or more. A flat fee per transaction of 2.5% will also be applied to the purchase of pre-funded SIM cards at earthlink.net/tcs/mobile to help recover other administrative fees.
Although added to the overall charge, the Recovery Fee is separate from the cost of Service and the Recovery Fee shall not result in the purchase of any additional Service time. We set the Recovery Fee, and the amount and what the Recovery Fee includes may change without notice.
10.2 Federal Universal Service Fund Fee. The Federal Universal Service Fund Fee is designed to recover Provider’s contribution to the Federal Universal Service Fund program. The Federal Universal Service Fund Fee is used to fund programs to increase access to advanced telecommunications services for consumers in rural areas at reasonable rates and provides federal program funding. Rate may change as determined by the Federal Communications Commission. The Universal Service Administrative Company (“USAC”) establishes a quarterly contribution factor, and Provider charges its customers the then-applicable rate charged to Provider by USAC.
10.3 State Universal Service Fund Fees. The State Universal Service Fund Fee is designed to recover Provider’s contribution to various state universal service fund programs. The State Universal Service Fund Fee is assessed as a percentage of intrastate revenues, gross revenues, or as a flat rate per line as set forth by the various state, county, or municipal jurisdiction. Certain state agencies establish a quarterly, semi-annual, or annual contribution factor, and Provider may choose to charge its customers to recoup the state universal service fund fees charged to Provider.
10.4 Sales and Use Taxes. Sales and use taxes are assessed to allow Provider to recover the cost of all federal, state, municipal, local, or other governmental sales and use taxes now in force or enacted in the future, that arise as a result of your subscription to, use of, or payment for Provider Service. To determine sales and use taxes, we will use the street address you identified as your Place of Primary Use (“PPU”). The PPU for Puerto Rico must be in Puerto Rico. If you did not identify the correct PPU, or if you provided an address (such as a PO box) that is not a recognized street address, does not identify the applicable taxing jurisdictions or does not reflect the Service area associated with your telephone number, you may be assigned a default location for tax purposes. In the event of a disputed tax jurisdiction location being assigned, any tax refund must be requested within sixty (60) days of our notification to you that the tax has been assessed.
10.5 9-1-1 Fees. Each state, city, municipality, or county has specific charges that are levied for access to 9-1-1. Determination of the applicable 9-1-1 charges depends on where you purchase Provider Service. Provider may bill its customers for 9-1-1 charges. Any such 9-1-1 charges are a monthly recurring charge assessed on a per line basis and will appear on your monthly invoice.
11. Your Right to Dispute Charges.
11.1 Unless otherwise provided by law, you agree to notify us of any dispute regarding your bill or charges to your account within sixty (60) days (twenty (20) days for Puerto Rico customers) after the date you first receive the disputed bill or charge. If you do not notify us of your dispute in writing with supporting documentation within this time period, you may not pursue a claim in arbitration or in court. Except for Puerto Rico customers and unless otherwise provided by law, you must pay disputed charges until the dispute is resolved. If you accept a credit, refund or other compensation or benefit to resolve a disputed bill or charge, you agree that the issue is fully and finally resolved. For unresolved disputes see Section 2 above. To contact or notify us, see Section 12. This paragraph is notice to Puerto Rico customers that payment of undisputed charges is due when stated on your bill, regardless of any dispute.
11.2 Puerto Rico Customers. We will provide you with a determination regarding any dispute that is presented to us in accordance with this Section 11 within fifteen (15) days after we receive it. You may appeal our determination to the Telecommunications Board of the Commonwealth of Puerto Rico (“Telecommunications Board”) by filing a petition for review up to thirty (30) days after the date of our determination. Your petition for review shall be made through the filing of a document containing the following information: (i) your name and address; (ii) our company name; (iii) the pertinent facts; (iv) any applicable legal provisions that you are aware of; and (v) the remedy you are requesting. The document may be filed handwritten or typewritten and must be signed by you. You must send us a copy of your document to our customer service center at the following address: EarthLink Mobile powered by Ultra Mobile, 980 Hammond Drive NE, Suite 400 Atlanta, GA 30328 Attn: Customer Service. You must send your petition for review to the Telecommunications Board at the following address: 500 Ave. Roberto H. Todd (Pda. 18 – Santurce), San Juan, Puerto Rico 00907-3941. The Telecommunications Board will review our determination only on appeal. You are advised of the provisions regarding suspension of Service that appear in Law 33 of July 7, 1985, Law 213 of September 12, 1996 and Regulation 5940 promulgated by the Telecommunications Board. You are also advised of Regulation 5939 of March 12, 1999, promulgated by the Telecommunications Board regarding the procedures for resolution of customer disputes.
11.3 To begin arbitration or other legal proceedings, you must serve our registered agent. Our registered agent is the registered agent for EarthLink, LLC on behalf of the Provider: The Corporation Trust Company, 1209 Orange St., Wilmington, DE 19801, Phone: 302-658-7581.
12 Notices and Customer Communications.
12.1 Receipt of Communications. You expressly consent to receive all communications, agreements, documents, notices, and disclosures (“Notices”) from us, at the telephone number associated with your Device, or physical or electronic address you provide to us. Notices from us to you are considered delivered when we deliver them to your Device by text message or voice, or by email to any email address you provide to us, or three (3) days after mailing to your billing address.
12.2 Autodialed or Prerecorded Messages. We may at times contact you using autodialed or prerecorded message calls or text messages at the telephone number associated with your Device. We may place such calls or texts to (i) provide notices regarding your Provider account or account activity, (ii) investigate or prevent fraud, or collect a debt owed to us. You agree that we and our service providers may contact you using autodialed or prerecorded message calls and text messages to carry out the purposes we have identified above. We may also share your phone number with service providers with whom we contract to assist us in pursuing these interests, but only to the extent that such service providers are intended to facilitate sending the messages. Standard telephone minute and text charges may apply. Contact preference updates and changes may be made through My Account or by contacting our customer service department at 888-327-8454.
12.3 Revocation of Consent. By activating the Service, you consent to receive autodialed or prerecorded message calls or texts in order to use Provider Service. Where Provider is required to obtain your consent for such communications, you may choose to revoke your consent by any reasonable means, including by (i) writing to EarthLink Mobile powered by Ultra Mobile, 980 Hammond Drive NE, Suite 400 Atlanta, GA 30328 Legal Department or (iv) managing your account preferences on the Mobile website. Written notices from you to us are considered delivered when you send an email or three (3) days after mailing to the address above.
12.4 Registered Agent. To commence arbitration, you must contact our registered agent, with copies to EarthLink Mobile powered by Ultra Mobile, 980 Hammond Drive NE, Suite 400 Atlanta, GA 30328 Legal Department. Our registered agent is the registered agent for EarthLink, LLC on behalf of the Provider: The Corporation Trust Company, 1209 Orange St., Wilmington, DE 19801, Phone: 302-658-7581.
12.5 Lost or Stolen Devices. You agree to notify us if your Device is lost or stolen. Once you notify us, we will suspend your Service. After your Service is suspended, you will not be responsible for additional usage charges incurred in excess of your Service plan charges, and applicable Taxes and Surcharges. If you request that we not suspend your Service, you will remain responsible for all usage and charges incurred and applicable Taxes and Surcharges. We may prevent a lost or stolen Device from registering on any network. California customers: For charges incurred before you notify us, you are not liable for charges you did not authorize, but the fact that your Device or account was used is some evidence of authorization. You may request that we investigate charges you believe were unauthorized. We may ask you to provide information and you may submit information to support your request. If we determine the charges were unauthorized, we will credit your account. If we determine the charges were authorized, we will inform you within thirty (30) days and you will remain responsible for the charges.
14. Misuse of Service or Device.By activating or renewing Service with Provider, you agree that you do so because you want Service from Provider and not for any other purposes. Provider Service plans may only be used for the following purposes (and your use of Provider Service must be initiated from your supported, compatible Device): (i) voice calls between two individuals or more subject to the conference call limitations of the applicable Device or Plan; (ii) text and picture messaging; and (iii) Internet browsing and ordinary content downloads. You agree not to misuse the Service or Device, including but not limited to: (a) reselling or rebilling our Service; (b) using the Service or Device to engage in unlawful activity, or in conduct that adversely affects our customers, employees, business, or any other person(s), or that interferes with our operations, network, reputation, or ability to provide quality service, including but not limited to the generation or dissemination of viruses, malware or “denial of service” attacks; (c) using the Service as a substitute or backup for private lines or dedicated data connections; (d) using the Service for continuous, mobile to mobile or mobile to landline voice calls; (e) using the Service for automated text or picture messaging to another mobile device or email address; (f) uploading, downloading or streaming of continuous video or audio inconsistent with individual consumer use, in the sole discretion of Provider; (g) tampering with or modifying your Device; (h) “spamming” or engaging in other abusive or unsolicited communications, or any other mass, automated voice or data communication for commercial or marketing purposes; (i) reselling Devices for profit, or tampering with, reprogramming or altering Devices for the purpose of reselling the Device; (j) using the Service in connection with server devices or host computer applications, including continuous Web camera posts or broadcasts, automatic data feeds, automated machine-to-machine connections, voice or SMS relay, or peer-to-peer (P2P) file-sharing; (k) accessing, or attempting to access without authority, the information, accounts or devices of others, or to penetrate, or attempt to penetrate, Provider’s or another entity’s network or systems; (l) running software or other devices that maintain continuously active Internet connections when a computer’s connection would otherwise be idle, or “keep alive” functions (e.g., using a Service plan for Web broadcasting, operating servers, telemetry devices and/or supervisory control and data acquisition devices); (m) using the Service to relay voice calls or text and picture messages not originated from the Device; or (n) assisting or facilitating anyone else in any of the above activities. You agree that you will not install, deploy, or use any regeneration equipment or similar mechanism (for example, a repeater or signal booster) to originate, amplify, enhance, retransmit, or regenerate a transmitted RF signal. Voice services may not be used for monitoring services, data transmission, transmission of broadcasts, transmission of recorded material, relay services, interconnection to other networks, telemarketing activity, autodialed calls or robocalls.
15. Our Rights to Limit or End Service or the Agreement.
15.1 WE MAY LIMIT, THROTTLE, SUSPEND OR TERMINATE YOUR SERVICE OR AGREEMENT WITHOUT NOTICE AT ANY TIME AND FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, if you, any user of your Device, or any user on your account: (a) breaches the Agreement; (b) transfer(s) Service to another person without our consent; (c) becomes insolvent, goes bankrupt or threatens bankruptcy (except as prohibited by law); (d) misuses your Service or Device as described in Section 14 above; (e) uses your Service or Device in a manner that is excessive, unusually burdensome, or unprofitable to us; or (f) are on a Service plan that we determine is no longer available to you. We may impose credit, usage or other limits to your Service, suspend your Service, or block certain types of calls, messages or sessions (such as international, 10XXX, 0+/0-, chat services, 900 or 976 calls), in our sole discretion and without notice. “Unlimited data” single month plan subscribers will experience reduced speeds and increased latency after using 50GB of data within a given monthly period. “Unlimited data” Multi-Month plan subscribers will experience reduced speeds and increased latency after using 32GB of data within a given monthly period.
Provider reserves the right to cancel or deactivate Service or reduce data throughput speeds in order to protect its supplier’s network from harm or to protect itself from financial or other harm due to any cause including, without limitation, the excessive and/or unauthorized use of Provider Service. Provider reserves the right to limit throughput, or the amount of data transferred and to deny or terminate Service to anyone Provider believes is using their Service in an unauthorized manner or whose usage, in Provider’s sole discretion, adversely impacts its supplier’s network or customer service levels. Provider will presume you are engaging in an unauthorized use in violation of these T&Cs, if in our sole discretion, you are placing an abnormally high number of calls, or repeatedly placing calls of unusually long duration, or if your talk, text or data usage is harmful or disruptive to Provider’s supplier’s network or service levels or to Provider’s financial or other interests. If we determine, in our sole discretion, that you are using your Service in violation of these T&Cs or in any other manner that we deem to be unreasonable or excessive, we may terminate individual calls or data connections, terminate or reduce data throughput or terminate your Service, decline to renew your Service, or offer you a different Service plan without an unlimited usage component which may result in an increased cost to you.
Provider may discontinue providing Service to you, discontinue your account, terminate data connections and/or reduce data throughput speeds if your usage, in the sole judgment of Provider: (i) appears likely to generate abnormally high call volumes or data usage and/or abnormally long average call lengths or data usage as compared to the usage of other Provider customers; or (ii) may be harmful or disruptive to, or interfere with, Provider’s supplier’s network, Provider’s service or the ability to provide quality service to other customers. By initiating Service and placing or receiving calls, you acknowledge and agree to Provider’s right to terminate your Service under these circumstances.
If we limit, suspend, or terminate your Service and later reinstate your Service, you may be charged a reinstatement fee. Provider’s rights under this section are in addition to any specific rights that Provider reserves in other provisions of this Agreement or in other Terms & Conditions to interrupt, suspend, modify, or cancel your Service and to terminate your Agreement.
This paragraph constitutes notice to Puerto Rico customers that your Service may be suspended or cancelled if you engage in any of the foregoing actions in Sections 14 and 15 in accordance with the Puerto Rico Suspension Regulation 5940 of March 12, 1999, promulgated by the Telecommunications Board where applicable, or in Provider’s sole discretion. If your Service or account is limited, suspended, or terminated and then reinstated, you may be charged a reactivation fee.
15.2 Refund Policy. If we terminate or suspend your Service for any reason specified in Section 15.1 or otherwise, you will not receive any refund of amounts paid to us in connection with such Service plan.
15.3 Device Refunds and Restocking Fees. For Provider-provided Devices, SIM Kits and accessory returns and exchanges, see the applicable return policy, which is available in the Device, SIM Kit or accessory box or packaging. Some Provider-provided Devices and accessories may not be refunded or exchanged, and you may be required to pay a restocking fee. Devices offered to Provider customers, if any, will comply with the FCC’s regulations concerning hearing aid compatibility.
15.4 No Future Service. In the event Provider terminates your Service for any reason specified in Section 15.1 or otherwise, we reserve the right to prohibit you from using any Provider Service plan in the future by blocking your Device from our network, prohibiting you from using a new Provider Service account that you purchase, or through other means.
16. Intellectual Property.You agree not to infringe, misappropriate, dilute, or otherwise violate the intellectual property rights of Provider or any third-party. Except for a limited license to use the Services, your purchase of Services and Devices does not grant you any license to copy, modify, reverse engineer, download, redistribute, or resell the intellectual property of Provider or others related to the Services and Devices; this intellectual property may be used only with Provider Service unless expressly authorized by Provider. You agree that a violation of this section harms Provider, which cannot be fully redressed by money damages, and that Provider shall be entitled to seek immediate injunctive relief in addition to all other remedies available.
18. Disclaimer of Warranties. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN WRITING, AND TO THE EXTENT PERMITTED BY LAW, THE SERVICES AND DEVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OF ANY KIND. WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES, OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING YOUR SERVICE OR YOUR DEVICE. WE DO NOT PROMISE UNINTERRUPTED OR ERROR-FREE SERVICE AND WE DO NOT AUTHORIZE ANYONE TO MAKE ANY REPRESENTATIONS OR WARRANTIES ON OUR BEHALF. WE DO NOT GUARANTEE THAT YOUR COMMUNICATIONS WILL BE PRIVATE OR SECURE.
19. Waivers and Limitations of Liability. UNLESS PROHIBITED BY LAW, OUR LIABILITY FOR DAMAGES OR OTHER MONETARY RELIEF FOR ANY CLAIMS YOU MAY HAVE AGAINST US IS STRICTLY LIMITED TO NO MORE THAN THE AMOUNTS ACTUALLY PAID BY YOU TO US FOR THE SERVICE FROM WHICH THE DAMAGES OR OTHER LIABILITY AROSE IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. YOU EXPRESSLY AGREE THAT UNDER NO CIRCUMSTANCES ARE WE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, TREBLE, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OUR SERVICE (INCLUDING THE PROVISION OF OR FAILURE TO PROVIDE SAME), ANY DEVICE, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT WE HAVE BEEN INFORMED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED, THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION AND WAIVER ALSO APPLIES TO ANY CLAIMS YOU MAY BRING AGAINST ANY OTHER PARTY TO THE EXTENT THAT WE WOULD BE REQUIRED TO INDEMNIFY THAT PARTY FOR SUCH CLAIM. YOU AGREE WE ARE NOT LIABLE FOR PROBLEMS CAUSED BY YOU OR A THIRD PARTY. EXCEPT TO THE EXTENT PROHIBITED BY LAW, ALL CLAIMS MUST BE BROUGHT WITHIN TWO (2) YEARS OF THE DATE THE CLAIM ARISES.
20. Indemnification.You agree to defend, indemnify, and hold us harmless from and against any and all losses, claims, liabilities, costs and expenses (including taxes, fees, fines, penalties, interest, expenses of investigation and attorneys’ fees and disbursements) as incurred, arising out of or relating to use of the Service or Devices, breach of the Agreement, or violation of any laws or regulations or the rights of any third-party by you or any person on your account or that you allow to use your Service or Device.
21. Enforceability and Assignment.A waiver of any part of the Agreement in one instance is not a waiver of any other part or any other instance and must be expressly provided in writing. If we do not enforce our rights under any provisions of the Agreement, we may still require strict compliance in the future. Except as provided in Section 2, if any part of the Agreement is held invalid that part may be severed from the Agreement. You cannot assign the Agreement or any of your rights or duties under it without our written consent. We may assign all or part of the Agreement or your debts to us without notice. The Agreement is the entire agreement between Provider and you and defines all of the rights you have with respect to your Service or Provider Device, except as provided by law, and you cannot rely on any other documents or statements by any sales or service representatives or other agents. If you purchase a Device, services, or content from a third-party, you may have a separate agreement with the third-party; Provider is not a party to that agreement. Any determination made by us pursuant to this Agreement, shall be in our sole reasonable discretion. Sections 2-3, 5, 8-14, and 16-22 of this Agreement continue after termination of our Agreement with you.
22. Choice of Law.This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state in which your billing address in our records is located, without regard to the conflicts of laws rules of that state. Foreign laws (except for Puerto Rico) do not apply. Arbitration or court proceedings must be in: (a) the county and state in which your billing address in our records is located, but not outside the U.S.; or (b) in Puerto Rico if your billing address is in Puerto Rico. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction.
23. CPNI.Customer Proprietary Network Information (“CPNI”) is information that Provider and other telecommunications carriers obtain when providing your telecommunications services to you. CPNI includes the types of telecommunications services you currently purchase, how you use them, and the billing information related to those services, including items such as the types of local, long distance and wireless telecommunications services that you have purchased and your calling details. Your telephone number, name and address are not considered CPNI.
We may use CPNI to offer you additional services of the type you have already purchased from Provider. We may also use your CPNI to offer you products and services, packages, discounts, and promotions from our affiliates, which may be different from the types of services you already purchase.
If you wish to restrict our use of your CPNI for marketing purposes, you may contact a customer service representative at the customer service phone number located on your Provider telephone bill or in Section 12 of these T&Cs.
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