Terms & Conditions
Effective April 2016
In this document: (1) "we," "us," "our," "BLACK WIRELESS" includes any and all services provided by Red Pocket Inc. and its affiliates; (2) "you," "your," "customer," and "user" mean an account holder or user with us; (3) "Device" means any phone, SIM card, mobile broadband device, any other device, accessory, or other product that we provide you, we sell to you, or is active on your account with us; and (4) "Service" means our offers, rate or service plans, options, wireless services, applications, programs, products, or Devices on your account with us. "Service(s)" also includes any other product or service that we offer or provide to you that references these General Terms and Conditions ("Ts&Cs").
You represent that you are at least 18 years old (21 years old or legally emancipated if you are a Puerto Rico customer). You agree to pay any access and usage charges, taxes, fees and other charges that were accepted or processed through your Device ("Charges"). You may designate others to manage or make changes to your account ("Authorized User"). You and Authorized Users will have access to all account information upon required validation process. If you give your personal account validation information to someone, they can access and make changes to your account just as you can. Those changes will be binding on you. You may request to switch to another Rate Plan, and if we authorize the change, any remaining balance on the account will be forfeited. Changes may increase or decrease the total cost of your service.
The Service Agreement
These Ts&Cs are part of your service agreement with us (the "Agreement") and constitute a contract under which we provide you Services under terms and conditions that you accept. THIS CONTRACT CONTAINS A MANDATORY ARBITRATION PROVISION THAT DISALLOWS CLASS ACTIONS, A CLASS ACTION WAIVER PROVISION, AND A JURY WAIVER PROVISION. In addition to these Ts&Cs, there are several parts of the Agreement, which includes but is not limited to the following: (i) the subscriber agreement or transaction materials that you sign or accept; (ii) the plan(s) that you chose as set forth in our written services and transaction materials that we provide or refer you to during the sales transaction (if your service plan is not specifically set forth in any printed materials, the requirements and terms set forth in the current written services and transaction materials apply, excluding the plan charges and number of minutes included in your service plan); (iii) any confirmation materials that we may provide to you; and (iv) the terms set forth in the coverage map brochures.
It is important that you carefully read all of the terms of the Agreement.
Additional terms will apply when you use certain applications, programs, Devices, and services, and these terms will be provided to you prior to your use of the items. Depending on who provides the items, the terms may come from Black Wireless or a third party. You are subject to any terms provided by the third party, and the terms are directly between you and that third party. Black Wireless is not responsible for these third-party items and associated terms.
Services are subject to our business policies, practices, and procedures ("Policies"). You agree to adhere to all of our Policies when you use our Services. Our Policies are subject to change at any time with or without notice.
When You Accept The Agreement
You must have the legal capacity to accept the Agreement. You accept the Agreement when you do any of the following: (a) accept the Agreement through any printed, oral, or electronic statement, for example, on the Web by electronically marking that you have reviewed and accepted; (b) attempt to or in any way use the Services; (c) pay for the Services; or (d) open any package or start any program that says you are accepting the Agreement when doing so. If you don’t want to accept the Agreement, don’t do any of these things.
To activate the Service, you must both activate your account and establish an appropriate account balance to pay for pay-per-minute charges and applicable monthly charges (defined in the "Types of Charges" section) based on the service plan you select. To establish an account balance, buy an airtime card or PIN, or make any other appropriate payments, follow the instructions provided with the equipment; at www.BlackWireless.com; or through BLACK WIRELESS Customer Care.
Our Right To Change The Agreement & Your Related Rights
We may change any part of the Agreement at any time, including, but not limited to, rates, charges, how we calculate charges, discounts, coverage, technologies used to provide services, or your terms of Service. We will provide you notice of material changes—and we may provide you notice of non-material changes—in a manner consistent with this Agreement (see "Providing Notice To Each Other Under The Agreement" section).
If you continue to access or use our Services or increase your account balance on or after the effective date of a change, you accept the change. Do not access or use our Services after the effective date of a change if you decide to reject the change and terminate Service. You will not be entitled to any credit for the unused portion of your account balance if you decide to terminate Service in response to a change to the Agreement.
Our Right To Suspend Or Terminate Services
We can, without notice, suspend or terminate any Service at any time for any reason.
UNLESS EXPRESSLY PROHIBITED BY LAW, WE CAN CHANGE PRICES, CHARGES AND ANY TERMS IN THE AGREEMENT AT ANY TIME. IF WE MATERIALLY MODIFY THESE TERMS IN A WAY THAT IS MATERIALLY ADVERSE TO YOU, WE WILL PROVIDE YOU WITH AT LEAST 30 DAYS NOTICE VIA TEXT MESSAGE AND YOU MAY TERMINATE YOUR SERVICE (WHICH IS YOUR ONLY REMEDY) BY NOTIFYING US WITHIN 30 DAYS AFTER YOU RECEIVE THE NOTICE. IF YOU FAIL TO TERMINATE WITHIN THOSE 30 DAYS, YOU ACCEPT THE CHANGES. Further, we can suspend or terminate any Service for the following: (a) failure to have or maintain an appropriate account balance for applicable charges; (b) harassing/threatening/abusing/offending our employees or agents; (c) providing false or inaccurate information; (d) interfering with our operations; (e) using/suspicion of using Services in any manner restricted by or inconsistent with the Agreement and Policies; (f) breaching, failing to follow, or abusing the Agreement or Policies; (g) modifying a Device from its manufacturer specifications (for example, rooting the device); or (h) if we believe the action protects our interests, any customer’s interests, or our networks.
Your Right To Change Services & When Changes Are Effective
The account holder can typically change Services upon request. In some instances, changes may be conditioned on payment of certain charges. The effective date of any changes will depend on our Policies, the old Services, and the requested Services. We will not credit or refund any account balance, subscription or other charges as a result of a change in Services. We may—but are not obligated to—provide you the opportunity to authorize someone else to make changes to your Services. You are responsible for any changes to your Services made by a person you authorize, and those changes will be treated as modifications to this Agreement.
Restrictions On Using Services
Your Device, Number, & Email Address; Caller ID
We don’t manufacture any Device that we might sell to you or that is associated with our Services, and we aren’t responsible for any defects, acts, or omissions of the manufacturer. The only warranties on your Device are the limited warranties given to you by the manufacturer directly or that we pass through. Device performance may vary based on device specifications (for example, a device’s software, memory, and storage), and device performance may impact access to all of our Services. Any Device sold is exclusively for use with our Service and in other coverage areas that we may make available to you. As programmed, it will not accept wireless service from another carrier. Except for any legal right you may have to port/transfer your phone number to another carrier, you have no—and cannot gain any (for example, through publication, use, etc.)—proprietary, ownership, or other rights to any phone number, identification number, email address, or other identifier that we assign to you, your Device, or your account. We’ll notify you if we decide to change or reassign them.
Lost or Stolen Equipment
If your mobile phone or device is lost or stolen, you are responsible for charges incurred until you notify us of the loss of your mobile phone or device by visiting our website at www.BlackWireless.com or by calling BLACK WIRELESS Customer Service at 1-844-252-2532. Upon receiving notice that your mobile phone or device is lost or stolen, we will suspend your account. If you do not either activate a new mobile phone or device, or notify us that you have found your old mobile phone or device within 15 days of your account expiration, your account will be deactivated, we will assess you a termination charge equal to the balance in your account, which is not refundable, and, if applicable, you will lose your phone number.
Mobile Phone Number
The mobile phone number used on our service is and will remain our property. If you cancel your service or your account is deactivated, we may give the mobile phone number to another customer without notice (unless you transfer the mobile phone number to another telecommunications provider in accordance with applicable regulations). We may also change your mobile phone number at any time, although we will notify you prior to any change.
Porting/Transferring Phone Numbers
Porting In (Transferring Old Number to BLACK WIRELESS)
Depending on where you live, you may transfer an existing wireless or landline carrier telephone number to our service for use as your mobile phone number. To switch an existing phone number to us, contact BLACK WIRELESS Customer Care at 1-844-252-2532. Before you call, please have a bill from your existing wireless or landline carrier available. When you switch from another wireless carrier to BLACK WIRELESS, you may have to pay a termination penalty to your former carrier if you terminate your contract early. We will not reimburse you for any fees imposed by other carriers. BLACK WIRELESS cannot guarantee that number transfers to or from us will be successful.
You will not be able to switch your area code without receiving a new local number. For example, if you move from Los Angeles to New York City, and your Los Angeles number was 213-111-2222, you may keep 213-111-2222 as your number, but you may not switch your number to 212-111-2222. Although you may keep your old number and old area code, you should be aware that your New York friends may pay long distance charges when they call your Los Angeles number from the New York area.
Porting Out (Transferring BLACK WIRELESS Number away from Us)
BLACK WIRELESS cannot guarantee that number transfers to or from us will be successful. If you authorize another carrier to transfer a number away from us, then that is considered a request by you to us to terminate all of the Services associated with that number.
Your privacy and personal information are very important to BLACK WIRELESS. BLACK WIRELESS makes every effort to confirm identity of account holder prior to taking any actions on the account. Any person able to provide your SIM card number, account password and verify call details 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. This policy may change from time to time, so review it with regularity and care.
Coverage; Where Your Device Will Work; Service Speeds
Our coverage maps are available at our authorized retail locations or www.BlackWireless.com. The specific network coverage you get will depend on the radio transmissions your Device can pick up and Services you’ve chosen. Our coverage maps provide high level estimates of our coverage areas when using Services outdoors under optimal conditions. Coverage isn’t available everywhere. Coverage and Service speeds are not guaranteed. Coverage is subject to change without notice. Service speeds may depend on the Service purchased. Actual speeds will vary. Estimating wireless coverage, signal strength, and Service speed is not an exact science. There are gaps in coverage within our estimated coverage areas that—along with other factors both within and beyond our control (for example, network problems, network or Internet congestion, software, signal strength, your Device, structures, buildings, weather, geography, topography, server speeds of the websites you access, actions of third parties, etc.) —may result in dropped and/or blocked connections, slower Service speeds, or otherwise impact the quality of Service. Services that rely on location information, such as E911 and GPS navigation, depend on your Device’s ability to acquire satellite signals (typically not available indoors) and network coverage. While your Device is receiving a software update, you may be unable to use your Device in any manner until the software update is complete.
The term "Roaming" typically refers to coverage on another carrier’s network that we may make available to you based on our agreements with other carriers. These agreements may change from time to time, and roaming coverage is subject to change without notice. Your ability to receive roaming coverage depends on the radio transmissions your Device can pick up and the availability of roaming coverage. We make no guarantee that roaming coverage will be available. Roaming coverage may exist both within and outside our network coverage areas. Your Device will generally indicate when you’re roaming. Depending on your Services, separate charges or limits on the amount of minutes used while roaming may apply. Certain Services may not be available or work the same when roaming (for example, Data Services, Voicemail, Call Waiting, etc.).
About Data Services & Content
Our data Services and your Device may allow you to access the Internet, text, pictures, video, games, graphics, music, email, applications, sound, and other materials ("Data Content") or send Data Content elsewhere. Some Data Content is available from us or our vendors, while other Data Content can be accessed from others (for example, third party websites, games, ringers, applications, etc.). We make absolutely no guarantees about the Data Content that you access on your Device. Data Content may be: (1) unsuitable for children/minors; (2) unreliable or inaccurate; or (3) offensive, indecent, or objectionable. You’re solely responsible for evaluating the Data Content accessed by you or anyone through your Services. We strongly recommend that you monitor data usage by children/minors. Data Content from third parties may also harm your Device or its software. We are not responsible for any Data Content. We are not responsible for any damage caused by any Data Content that you access through your Services, that you load on your Device, or that you request that our representatives access or load on your Device. To protect our networks and Services or for other reasons, we may place restrictions on accessing certain Data Content (such as certain websites, applications, etc.); impose separate charges; limit throughput or the amount of data that you can transfer; or otherwise limit or terminate Services. If we provide you storage for Data Content that you have purchased, then we may delete the Data Content without notice or place restrictions/limits on the use of storage areas. Data Content stored on a Device, transmitted over our networks, or stored by Black Wireless may be deleted, modified, or damaged. You may not be able to make or receive voice calls while using data Services. Data Content provided by our vendors or third parties is subject to cancellation or termination at any time without notice to you, and you may not receive a refund for any unused portion of the Data Content.
Specific Terms & Restrictions On Using Data Services
In addition to the rules for using all of our other Services, unless we identify the Service or Device that you have selected as specifically intended for that purpose (for example, wireless routers, Data Link, etc.), you can’t use our data Services: (1) with server devices or host computer applications, or other systems that drive continuous, heavy traffic or data sessions; (2) as a substitute or backup for private lines or frame relay connections; or (3) for any other unintended use as we determine in our sole discretion. We reserve the right to limit, suspend, or constrain any heavy, continuous data usage that adversely impacts our networks’ performance or hinders access to our networks. If your Services include Web or data access, you also can’t use your Device as a modem for computers or other equipment, unless we identify the Service or Device you have selected as specifically intended for that purpose (for example, with "phone as modem" plans, mobile broadband card plans, wireless router plans, etc.).
If Black Wireless provides you software as part of the Service and there are not software license terms provided with the software (by Black Wireless or by a third party), then Black Wireless grants you a limited, revocable, non-exclusive, non-transferable license to use the software to access the Services for your own individual use. You will not sell, resell, transfer, copy, translate, publish, create derivative works of, make any commercial use of, modify, reverse engineer, decompile, or disassemble the software. Black Wireless may revoke this license at any time.
Activation & Miscellaneous Charges
Black Wireless does NOT charge or impose extra fees for activation, prepayment, reactivation, program, or other fees. However, authorized distributor, dealer, agent or anyone conducting business as BLACK WIRELESS or offering BLACK WIRELESS services may charge or impose extra fees to establish or maintain Services. Certain transactions may also be subject to a charge (for example, convenience payment, changing phone numbers, handset upgrades, etc.). These charges are NOT monitored by Black Wireless and Black Wireless is not responsible for any of the above charges.
The types of charges that you incur will vary depending on the Service used and your service plan. You are responsible for the Services on your account and associated charges, including charges made by a person you may or may not permit to have direct or indirect access to your device even if you did not authorize its use. Charges may include, but are not limited to, prepayment for service charges and charges for additional services. For the actual usage charges applicable to your Service, see the detailed plan or other information we provide or refer you to during the sales transaction or on our website. Depending on your Services, charges for additional services may include operator and directory assistance, voicemail, call forwarding, data calls, texts, and Web access. If you (the account holder) allow others to access or use your Device, you authorize others to access, download, and use Services. You will generally be charged for use of Services before or at the time of use in accordance with your service plan. In certain instances, we may charge at some point after you use the Service. Charges are generally deducted from your account balance (for example, pay-per-minute charges, Monthly charges, etc.), though in some instances you may be able to pay for certain Services through a credit card, debit card, or other payment method. If you have incurred charges or fees that were not charged prior to your account balance reaching a zero balance, we may deduct these outstanding, unpaid charges and fees from any subsequent amounts you add to your account balance.
Types of Charges
We typically assess the following types of charges: (1) "pay-per-minute charges," which are charges assessed each time a Service is used; (2) "subscription charges," which are charges that allow you access to a Service or provide you a certain amount of use of a Service for a defined period of time. Subscription charges for Services for mobile phone end at 11:59 p.m., in the Central Time Zone regardless of your location or the area your account number is associated with, on the last day of your subscription period; Subscription charges for Services for mobile broadband end at 11:59 p.m., in the Eastern Time Zone regardless of your location or the area your account is associated with, on the last day of your subscription period; Subscription charges for Services for 4G Unlimited Internet end at the exact time of when you added airtime on the account, on the last day of your subscription period. Also, depending on your Service, certain types of subscription charges may be assessed automatically upon activation and automatically assessed for subsequent subscription periods.
How We Calculate Your Charges
Standard Voice Calls: We round up partial minutes of use to the next full minute. Time starts when you press "Talk" or your Device connects to the network and stops when you press "End" or the network connection otherwise breaks. You’re charged for all calls that connect unanswered calls if the time starts counting, even to answering machines, voicemail, or voice transcription services. For incoming calls answered, you’re charged from the time shortly before the Device starts ringing until you press "End" or the network connection otherwise breaks. You’re charged for the entire call based on the rate that applies to the time period in which the call starts. However, the types of charges actually deducted from your account balance will vary depending on your Service.
Standard Text Messages: Charges for text messages apply both when received and sent. Depending on your Services, 1) you may incur an extra charge for the first message received or sent that given day, 2) prior to use of Services for a designated period (for example, daily or monthly), or 3) text message may be charged on a pay-per-use basis at a set rate per message. For the actual usage charges applicable to your Service, see the detailed plan or other information we provide or refer you to during the sales transaction (also available at www.BlackWireless.com).
Depending on your Service, you may be charged for data usage. Unless we specifically tell you otherwise, data usage is measured in bytes, kilobytes, megabytes, and gigabytes—not in minutes/time. 1024 bytes equals 1 kilobyte ("KB"), 1024 KB equals 1 megabyte, and 1024 megabytes equals 1 gigabyte. Bytes are rounded up to KB, so you will be charged at least 1 KB for each data usage session ("data session"). Rounding occurs at the end of each data session and sometimes during a data session. Depending on your data Services, usage may be charged against an allowance or on a fixed price per MB, and you may be subject to limitations on the amount of data usage. If you are charged on a fixed price per MB, any fractional cents will be rounded up to the next cent. You are charged for all data directed to your Device’s Internet address, including data sessions you did not initiate and for incomplete transfers. As long as your Device is connected to our data networks, you may incur data charges. Examples of data for which you will be charged includes the size of a requested file or Data Content (game, ringtone, etc.); Web page graphics (logos, pictures, banners, advertisement, etc.); additional data used in accessing, transporting, and routing the file on our network; data from partial or interrupted downloads; re-sent data; and data associated with unsuccessful attempts to reach websites or use applications. These data charges are in addition to any charges for the Data Content itself (game, ringtone, etc.). Data used and charged to you will vary widely, even between identical actions or data sessions. Estimates of data usage—for example, the size of downloadable files—are not reliable predictors of actual usage.
About Call and Charge Details
You may review your call and charge details on our website upon logging in. We do not guarantee that you will not receive spam or other unsolicited messages, and you agree that we are not liable for such messages. Wireless devices can be used to purchase goods, content and services (including subscription plans) such as ringtones, graphics, games and alerts from BLACK WIRELESS or other companies. You are responsible for all Charges associated with such purchases from any Device assigned to your account. Mobile content may not be transferable from one Device to another Device.
About Account Balances
To ensure continued access to the Service, you must maintain a positive account balance at all times or pay any applicable subscription charges depending on your service plan. Account balances are not transferable, redeemable for cash, or refundable; that is, once you make payment on your account, you are provided a credit on your account that can only be used to pay for our Services during the effective period, which varies depending on your service plan. Positive account balances are forfeited if they are not used within the expiration period specified in your service plan (if you properly replenish your account balance before the expiration period or within the grace period, the expiration period restarts). If you do not use your account balance during the expiration period, your account balance will expire and you will not be entitled to a refund or service credit. Your Service will be interrupted if you fail to maintain a positive account balance or timely pay applicable subscription charges for each expiration period. When this service interruption occurs, you will be given a period of time (which varies depending on your service plan) to make any appropriate payments on your account. If you do not make such payments within this time period, your account will be cancelled. If your account balance remains $0 for 30 consecutive days, you will lose any phone number, identification number, or any information associated with your account. There may be limits over which your account balance may not exceed. See the detailed plan or other information we provide or refer you to during the sales transaction (also available at www.BlackWireless.com) for the expiration period and cancellation period that applies to your Service.
Establishing or Replenishing Account Balances
Information on how you can establish and maintain an account balance will be provided at activation and is also available at www.BlackWireless.com or through BLACK WIRELESS Customer Care. The replenishment methods available to you will depend on the terms of your Services. A fee may apply to certain replenishment methods. Some service plans may provide for automatic account balance replenishment through, for example, automatic billing to a credit card or debit card or automatic debit from an eligible account with a financial institution. Payment through these methods may be subject to limitations, including, but not limited to, the number of times an account may be debited or charged in a particular time period; the amount that may be debited or charged from an account; or other limitations imposed by us or the financial institution that holds the account.
Protecting Our Networks & Services
To ensure the quality of our Services and for other lawful purposes, we may monitor or record calls between us (for example, your conversations with our customer service or sales departments).
Authentication and Contact
You (the account holder) may password protect your account information by establishing a personal identification number ("PIN"). You may also set a backup security question and answer in the event you forget your PIN. You agree to protect your PIN, passwords, and other account access credentials like your backup security question from loss or disclosure. You further agree that Black Wireless may, in our sole discretion, treat any person who presents your credentials that we deem sufficient for account access as you or an authorized user on the account for disclosure of information or changes in Service. You agree that we may contact you for Service-related reasons through the contact information that you provide, through the Services or Devices to which you subscribe, or through other available means, including text message, email, fax, recorded message, mobile, residential or business phone, or mail.
CPNI and/or CDR
As we provide telecommunications products and Services to you (the account holder), we develop information about the quantity, technical configuration, type, location, and destination of telecommunications products and Services you use, as well as some other information found on your bill ("CPNI" and/or "CDR"). Under federal law, you have the right, and we have a duty, to protect the confidentiality of your CPNI and/or CDR. For example, we implement safeguards that are designed to protect your CPNI and/or CDR, including authentication procedures when you contact us. For some accounts with a dedicated Black Wireless representative, we may rely on contacting your pre-established point of contact as the standard authentication measure.
Information on Devices
Your Device may contain sensitive or personal information (for example, pictures, videos, passwords, or stored credit card numbers). Black Wireless is not responsible for any information on your Device, including sensitive or personal information. If possible, you should remove or otherwise safeguard any sensitive or personal information when your Device is out of your possession or control, for example, when you relinquish, exchange, return, or recycle your Device. By submitting your Device to us, you agree that our employees, contractors, or vendors may access all of the information on your Device.
911 Or Other Emergency Calls
Public safety officials advise that when making 911 or other emergency calls, you should always be prepared to provide your location information. Unlike traditional wire line phones, depending on a number of factors (for example, whether your Device is GPS-enabled, where you are, whether local emergency service providers have upgraded their equipment, etc.), 911 operators may not know your phone number, your location, or the location of your Device. In certain circumstances, an emergency call may be routed to a state patrol dispatcher or alternative location set by local emergency service providers. Enhanced 911 services ("E911")—where enabled by local emergency authorities—uses GPS technology to provide location information. Even when available, however, E911 does not always provide accurate location information. If your Device is indoors or for some other reason cannot acquire a satellite signal, you may not be located. Some Devices have a safety feature that prevents use of the keypad after dialing 911—you should follow voice prompts when interacting with emergency service providers employing interactive voice response systems to screen calls.
If Your Device Is Lost or Stolen
Call us immediately if your Device is lost or stolen because you may be responsible for usage charges before you notify us of the alleged loss or theft. You agree to cooperate if we choose to investigate the matter (provide facts, sworn statements, etc.). We will not credit or refund any account balance if you choose to terminate Services as a result of loss or theft of your Device.
DISCLAIMER OF WARRANTIES
UNLESS EXPRESSLY PROVIDED IN WRITING OTHERWISE, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (TO THE EXTENT ALLOWED BY LAW) ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING YOUR SERVICES (INCLUDING YOUR DEVICE). WE DON’T PROMISE UNINTERRUPTED OR ERROR-FREE SERVICES AND DON’T AUTHORIZE ANYONE TO MAKE WARRANTIES ON OUR BEHALF.
You Agree That We Are Not Responsible For Certain Problems
You agree that neither we nor our subsidiaries, affiliates, parent companies, vendors, suppliers, or licensors are responsible for any damages resulting from: (a) anything done or not done by someone else; (b) providing or failing to provide Services, including, but not limited to, deficiencies or problems with a Device or network coverage (for example, dropped, blocked, interrupted Services, etc.); (c) traffic or other accidents, or any health-related claims relating to our Services; (d) Data Content or information accessed while using our Services; (e) an interruption or failure in accessing or attempting to access emergency services from a Device, including through 911, Enhanced 911 or otherwise; (f) interrupted, failed, or inaccurate location information services; (g) information or communication that is blocked by a spam filter; (h) damage to your Device or any computer or equipment connected to your Device, or damage to or loss of any information stored on your Device, computer, equipment, or Black Wireless storage space from your use of the Services or from viruses, worms, or downloads of malicious content, materials, data, text, images, video, or audio; or (i) 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 Device, computer, or equipment and to backup your information stored on each
YOU AGREE OUR LIABILITY IS LIMITED - NO CONSEQUENTIAL DAMAGES
TO THE EXTENT ALLOWED BY LAW, OUR LIABILITY FOR MONETARY DAMAGES FOR ANY CLAIMS THAT YOU MAY HAVE AGAINST US IS LIMITED TO NO MORE THAN THE PROPORTIONATE AMOUNT OF THE SERVICE CHARGES ATTRIBUTABLE TO THE AFFECTED PERIOD. UNDER NO CIRCUMSTANCES ARE WE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, MULTIPLE, OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER ARISING OUT OF OR RELATED TO PROVIDING OR FAILING TO PROVIDE SERVICES IN CONNECTION WITH A DEVICE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS, OR COST OF REPLACEMENT PRODUCTS AND SERVICES.
We Each Agree To First Contact Each Other With Any Disputes
We each agree to first contact each other with any Disputes (defined below) and provide a written description of the problem, relevant documents and supporting information, and the proposed resolution. We agree to contact each other as described in the "Providing Notice To Each Other Under The Agreement" section.
Instead Of Suing In Court, We Each Agree To Arbitrate Disputes
We each agree to arbitrate all Disputes between us, on an individual basis, not on a class-wide or consolidated basis. This agreement to arbitrate is intended to be broadly interpreted. In arbitration, there’s no judge or jury. However, just as a court would, the arbitrator must honor the terms and limitations in the Agreement and can award damages and relief, including any attorneys’ fees authorized by law. The arbitrator’s decision and award is final and binding, with some exceptions under the Federal Arbitration Act ("FAA"), and judgment on the award may be entered in any court with jurisdiction. We each also agree as follows:
(1) "Disputes" are any claims or controversies against each other related in any way to or arising out of in any way our Services or the Agreement, including, but not limited to, coverage, Devices, billing services and practices, policies, contract practices (including enforceability), service claims, privacy, or advertising, even if it arises after Services have terminated. Disputes include claims that you bring against our employees, agents, affiliates, or other representatives or that we bring against you. It also includes but is not limited to claims related in any way to or arising out of in any way any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory.
(2) If either of us wants to initiate a claim to arbitrate a Dispute, we each agree to send written notice to the other providing a description of the dispute, a description of previous efforts to resolve the dispute, relevant documents and supporting information, and the proposed resolution. Notice to you will be sent as described in the "Providing Notice To Each Other Under The Agreement" section. We each agree to make attempts to resolve the dispute prior to filing a claim for arbitration. If we each cannot resolve the dispute within forty-five (45) days of receipt of the notice to arbitrate, then we each may submit the dispute to formal arbitration.
(3)The FAA applies to this Agreement and arbitration provision. We each agree that the FAA’s provisions—not state law—govern all questions of whether a dispute is subject to arbitration.
(4)Unless we each agree otherwise, the Arbitration will be conducted by a single neutral arbitrator and will take place in the county of the last billing address of the Service.
(5) The arbitration will be governed and conducted by (a) a neutral third party arbitrator selected by each of us and based upon rules mutually agreed to by each of us or (b) JAMS. The JAMS rules, including rules about the selection of an arbitrator, filing, administration, discovery, and arbitrator fees, will be conducted under JAMS Comprehensive Arbitration Rules & Procedures. The JAMS rules are available on its website at www.jamsadr.com. To the extent that this "Dispute Resolution" section conflicts with JAMS’s minimum standards for procedural fairness, the JAMS’s rules or minimum standards for arbitration procedures in that regard will apply. However, nothing in this paragraph will require or allow us or you to arbitrate on a class-wide or consolidated basis.
(6) WE EACH AGREE THAT WE WILL ONLY PURSUE ARBITRATION ON AN INDIVIDUAL BASIS AND WILL NOT PURSUE ARBITRATION ON A CLASS-WIDE OR CONSOLIDATED BASIS. We each agree not to pursue arbitration on a class wide basis. We each agree that any arbitration will be solely between you and Black Wireless (not brought on behalf of or together with another individual’s claim). If for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate doesn’t apply and the dispute must be brought in court.
(7)We each are responsible for our respective costs relating to counsel, experts, and witnesses, as well as any other costs relating to the arbitration. However, we will pay for the arbitration administrative or filing fees, including the arbitrator fees. Otherwise the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses, Minimum Standards of Procedural Fairness regarding costs and payment apply.
Exceptions To Our Agreement To Arbitrate Disputes
Either of us may bring qualifying claims in small claims court. In addition, this arbitration provision does not prevent you from bringing your dispute to the attention of any federal, state, or local government agency that can, if the law allows, seek relief against us on your behalf.
NO CLASS ACTIONS
TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.
NO TRIAL BY JURY
TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.
You agree to indemnify, defend, and hold Black Wireless and our subsidiaries, affiliates, parent companies harmless from any claims arising out of or relating to your actions, including, but not limited to, your use of the Service and any information you submit, post, transmit, or make available via the Service; failing to provide appropriate notices regarding location-enabled services (see "Location-Enabled Services" section); failure to safeguard your passwords, backup question to your shared secret question, or other account information; or violating this Agreement or any policy referenced in this Agreement, any applicable law or regulation, or the rights of any third party.
Providing Notice To Each Other Under The Agreement
Except as the Agreement specifically provides otherwise, you must deliver written notice to us by mail to Black Wireless 1091 Yonkers Avenue Yonkers, NY 10704 or email to email@example.com. When needed, we will provide you notice by text message on your Device, or any other phone number you’ve provided us which we have on file.
Other Important Terms
Subject to federal law or unless the Agreement specifically provides otherwise, this Agreement is governed solely by the laws of the state encompassing the area code assigned to your Device, without regard to the conflicts of law rules of that state. If either of us waives or doesn’t enforce a requirement under this Agreement in an instance, we don’t waive our right to later enforce that requirement. Except as the Agreement specifically provides otherwise, if any part of the Agreement is held invalid or unenforceable, the rest of this Agreement remains in full force and effect. This Agreement isn’t for the benefit of any third party except our corporate parents, affiliates, subsidiaries, agents, and predecessors and successors in interest. You can’t assign the Agreement or any of your rights or duties under it. We can assign the Agreement without notice. You cannot in any manner resell Devices or Services to another party. You cannot export any Device. The Agreement and the documents it incorporates make up the entire agreement between us and replaces all prior written or spoken agreements—you can’t rely on any contradictory documents or statements by sales or service representatives. The rights, obligations, and commitments in the Agreement that—by their nature—would logically continue beyond the termination of Services (for example, those relating to billing, payment, 911, dispute resolution, no class action, no jury trial) survive termination of Services.
AUTHORIZED USE POLICY
The following terms apply to the use of services, products, and websites provided by BLACK WIRELESS™ and its subsidiaries, affiliates, agents, and licensors (collectively "BLACK WIRELESS™"). BY USING THE SERVICE, OR ANY EQUIPMENT PURCHASED BY YOU FROM BLACK WIRELESS™ (the "Equipment"), YOU AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS OF THIS Authorized Use Policy (AUP).
COVERAGE OF THIS POLICY AND AGREEMENT
In addition to other agreements between you and BLACK WIRELESS™, these terms explain the policies that govern your access to and use of our Website and Network. By accessing or using our Website or Network, you agree to these terms (collectively the "Policy"), as BLACK WIRELESS™ may modify it from time to time. Modifications to this Policy are effective upon its posting on our Website. If you do not agree to accept and comply with the Policy, then do not access or use our Website or Network.
ILLEGAL OR HARMFUL USE
Any and all BLACK WIRELESS™ services are intended for your personal use only, our services are NOT for commercial use and we reserve the right to modify, extend, or cancel this service at any time without notice. Commercial resale of the Equipment is strictly prohibited except by authorized distributors and dealers of BLACK WIRELESS™. Exporting of Equipment outside the U.S. is strictly prohibited. You may NOT alter any of the hardware or software in this Equipment. Any and all BLACK WIRELESS™ services are intended for use only within the 50 United States wherever the coverage is available.
UNLAWFUL, UNAUTHORIZED USAGE
Equipment or Service may NOT be used for any unlawful, unauthorized 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 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. All laws must be complied with while using the Service and 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 solely responsible for all data activity from and to your Equipment, regardless of who initiates the activity.
Junk E-mail You may not use the Service to transmit or facilitate any unsolicited or unauthorized advertising, telemarketing, promotional materials, "junk mail", unsolicited bulk e-mail, unsolicited duplicative e-mail, unsolicited commercial e-mail, fax broadcasting, or fax blasting (collectively, "Spam"). Violation of the CAN-SPAM Act of 2003, or any other applicable laws regulating e-mail services, constitutes a violation of this Authorized Use Policy ("AUP"). We consider any unsolicited commercial mail to be Spam, regardless of the amount of mail sent, unless the recipient has specifically requested the information. An e-mail may be "unsolicited" for purposes of this AUP if (1) the recipients' e-mail addresses were not obtained through a personal or customer relationship between recipient and sender, (2) recipients did not affirmatively consent to receive communications from the sender, or (3) recipients have opted out of receiving communications from sender when given the opportunity to do so.
Impersonation You may not use the Service to impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity, or to create a false identity for the purpose of misleading others. Without limiting the foregoing, you may not use invalid or forged headers, invalid or non-existent domain names or other means of deceptive addressing.
Software Viruses You may not use the Service to upload files or transmit any material that contains viruses, worms, Trojan Horses time bombs, auto-responders, cancel bots, corrupted files, or other code that manifests contaminating or destructive properties. To protect our customers, we monitor Internet ports that are considered to be security risks as determined by us in its sole discretion.
Storage or Hosting You may not use the Service to store or host any material or information. The Service is provided merely as a conduit to allow you to access the Internet, to send and receive messages and files using third party email service providers, and to upload and download files on and from third party websites or servers at your sole discretion and control.
Collecting Information You may not use the Service to store or collect, or attempt to store or collect, non-public personal information about third parties without their prior knowledge and consent.
STOLEN FRAUDULENT ACTIVITIES
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. BLACK WIRELESS™ has the right to interrupt or restrict Service to your Number, without notice to you, if we suspect fraudulent, illegal, or abusive activity, including, but not limited to: (a) conducting business operations and practices; (b) offering or disseminating fraudulent goods, services, schemes, or promotions (e.g., make-money-fast schemes, chain letters, and pyramid schemes); and (c) individual or business representation as an authorized 3rd party affiliation or agent for a business entity (e.g., BLACK WIRELESS™) without the business' prior consent. 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. You may not use the Service to make fraudulent offers to sell or buy products, items, or services or to advance any type of financial scams. You may not use techniques to hide or obscure the source of any e-mail or other communication. You are responsible for all data activity from and to your Equipment, regardless of who initiates the activity.
UNLIMITED PLAN ABUSE
For any Service that includes unlimited features, "unlimited" does not mean unreasonable use. BLACK WIRELESS’s unlimited voice features are provided solely for dialogue between two individuals and for non-commercial use. Other uses have a disproportionate impact on network resources and are therefore considered unreasonable. Unreasonable voice use includes, but is not limited to, the following: monitoring services, transmission of broadcasts, telemarketing, call center services, autodialed calls, an abnormally high number of conference calling (if applicable), calls, or messages, and/or calls of abnormally long duration. BLACK WIRELESS™ ’s unlimited data or messaging features are provided solely for purposes of non-commercial messaging, Internet browsing, e-mail access, and the non-continuous streaming of data (e.g. downloading files). While most common uses are permitted by our data and messaging features, there are certain uses that cause extreme network capacity issues and are therefore prohibited. Our data and messaging services may not be used: (a) to generate excessive amounts of Internet traffic through the continuous, unattended streaming, downloading, or uploading of videos or other files, (b) to operate hosting services, (c) to maintain continuous active network connections to the Internet such as through a web camera or automated machine-to-machine connection or peer-to-peer (P2P) file sharing, (d) to disrupt e-mail use by others using automated or manual routines, including, but not limited to "auto-responders," cancel bots, or other similar routines, (e) to transmit or facilitate any unsolicited or unauthorized advertising, promotional materials, "spam," unsolicited commercial or bulk e-mail or messaging, (f) for activities adversely affecting the ability of other people or systems to use either BLACK WIRELESS's wireless services or other parties' Internet-based resources, including, but not limited to, "denial of service" (DOS) attacks against another network host or individual user, (g) for an activity that tethers or connects any device to personal computers or other equipment for the purpose of transmitting wireless data over the network (unless customer is using a plan designated for such usage), (h) as a dedicated data connection, (i) for abnormally long data transmissions, or (j) for any other reason that, in our sole discretion, violates our policy of providing "unlimited" Services for non-commercial use.
BLACK WIRELESS™ makes absolutely no representations, warranties or guarantees about the Data Content you access through the Equipment. Data Content may be: unsuitable for children/minors; unreliable or inaccurate; or offensive, indecent or objectionable. You are solely responsible for evaluating the Data Content accessed by you or anyone using your Equipment. We strongly recommend that you monitor content access by children or minors. Prior to accessing certain content which may be inappropriate for children/minors, we may require you to provide certain personal information in order to verify that you are at least 18 years of age. Data Content from third parties may also harm your Equipment or its software. To protect our network or services, or for any other reason, we may place restrictions on accessing certain Data Content, impose separate charges, limit the amount of data you can access or transfer, or otherwise limit or terminate services.
INVESTIGATION AND ENFORCEMENT OF THIS POLICY
We have the right, but are not obligated, to strictly enforce this Policy through self-help, active investigation, litigation, and prosecution.
BLACK WIRELESS™ reserves the right to act immediately and without notice to restrict, suspend, or terminate your use of the Network if it reasonably determines that your conduct may: (1) expose BLACK WIRELESS™ to sanctions, prosecution, civil action, or other liability; (2) cause harm to or interfere with the integrity or normal operations of BLACK WIRELESS's Network or networks with which BLACK WIRELESS™ is interconnected; (3) interfere with another BLACK WIRELESS™ customer's use of the Network; (4) violate any applicable law, rule, or regulation; or (5) otherwise present an imminent risk of harm to BLACK WIRELESS™ or its customers.
BLACK WIRELESS™ has the right, but not the obligation, to monitor or restrict any uses of the Network that BLACK WIRELESS™ reasonably believes in its sole discretion violates this AUP. You are solely responsible for all content that you transmit or receive utilizing the Network, and you are responsible for abuse of your account by others. We may also access and disclose any information (including transactional information) related to your access and use of our Network for any lawful reason, including but not limited to: (1) responding to emergencies; (2) complying with the law (e.g., a lawful subpoena); (3) protecting our rights or property and those of our customers; or (4) protecting users of those services and other carriers from fraudulent, abusive, or unlawful use of or subscription to such services. INDIRECT OR ATTEMPTED BREACHES OF THIS POLICY AND ACTUAL OR ATTEMPTED BREACHES BY A THIRD PARTY ON BEHALF OF A COMPANY, CUSTOMER, OR USER MAY BE CONSIDERED BREACHES OF THIS POLICYBY SUCH COMPANY, CUSTOMER, OR USER.
Any failure to insist upon or enforce performance of any provision in this Policy will not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice will act to modify any provision in this Policy. BLACK WIRELESS™ may assign its rights and duties under these terms to any party at any time without notice to you. If any provision of this Policy is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these terms and conditions so that it does not affect the validity and enforceability of any remaining provisions.