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Services Agreement

About this Agreement

This Agreement, without modification by you, along with our Privacy Policy and Website Terms of Use (located at www.elementmobile.com) and the documents expressly referred to herein or therein (collectively, “Agreement”), make up the entire agreement between you and us regarding your Service and Device and supercede all prior and contemporaneous agreements and understandings, including without limitation anything said by any sales or customer service representative, related to the subject matter of this Agreement.

Who We Are

We are Wisconsin RSA #7 Limited Partnership, a Wisconsin limited partnership, d/b/a Element Mobile, its subsidiaries and affiliates (“Element Mobile”, “we”, “our” and “us”). You are the person or entity that subscribes to or uses the Service or purchases or leases Devices subject to this Agreement (“you” or “your”).

Your Service

Your “Service” means any services you have asked us to provide you through this Agreement, including but not limited to wireless products, features, and applications; it also includes your Plan and any Optional Services. Your “Plan” includes your monthly allowances and features, where you can use them (“Coverage Area”), and their monthly and pay-per-use charges. You can subscribe to several “Optional Services”, like text messaging packages. “Device” and “Devices” mean any communications device, equipment or accessories you purchase or lease from us or use in any manner in connection with your Service. “Service Order” is the form, whether paper or electronic, on which you apply for Service and includes certain additional terms and conditions for your Service.

How To Accept this Agreement

You accept this Agreement by:

  • Agreeing in writing, by email, over the phone, or in person;
  • Opening a package that says you are accepting by opening it;
  • Using or attempting to use the Service or Device, or both; or
  • Activating your Service.

When you accept, you’re representing that you are at least 18 years of age and are legally able to accept an agreement. If you’re accepting for an entity, you’re representing that you are authorized to bind that entity, and where the context requires, “you” means the entity. If you don’t want to accept, don’t do any of these things. If you do accept, you can cancel a line of Service within 30 days of accepting without having to pay an Early Termination Fee (“ETF”) as long as you return the Devices you purchased from us at the time you accepted (they must be in like-new condition and must include the all original parts and pieces, original sales receipt if purchased from a retail location or authorized agent or packing slip if purchased online, and the original packaging with UPC code intact), but you’ll still have to pay for your Service through that date and you’ll remain responsible for any activation fee unless you cancel within 3 days of accepting. We may charge a restocking fee. If you paid a security deposit, it may take up to 60 days to process its return, and the charges for any Service used on your account before your termination date may be applied against your security deposit. Prepaid Service and Devices are not eligible for refund.

Your Term Commitment

“Fixed Term.” If you’re signing up for Service for a Fixed Term, you’re agreeing to subscribe to a line of Service for the minimum contract term identified on your Service Order. (If your Service is suspended without billing, that time doesn’t count toward completing your contract term.) Once you’ve completed your contract term, you’ll automatically become a customer on a month-to-month basis for that line of Service. You’ll remain at all times subject to this Agreement.

“Month-to-Month Term.” If no minimum contract term is identified on the Service Order, then you’re agreeing to subscribe to a line of Service on a month-to-month basis.

“Prepaid Service.” If you agree to Prepaid Service, you’re agreeing to establish and fund an account (“Account”) with us for use of the Service, and you pay for the Service by deductions from your Account for monthly and pay-per-use charges, plus taxes, fees and other charges, as described in your Plan and elsewhere in this Agreement.

Your Privacy

We may collect personal information about you. We may also gather some information through our relationship with you, such as information about the quantity, technical configuration, type, destination and amount of your use of our telecommunications services. Information in our billing and customer care systems concerning your account and your use of Service belongs to us, and you have no expectation of privacy with respect to such information. You can find out how we use, protect and disclose the information we collect about you in the Element Mobile Privacy Policy, available at www.elementmobile.com. We may investigate your credit history at any time and share credit information about you with credit reporting agencies and other Element Mobile subsidiaries and affiliates, and you authorize us to do so. If you’d like the name and address of any credit agency that gives us a credit report about you, just ask.

Many services and applications offered through the Device may be provided by third parties. Before you use, link to or download a service or application provided by a third party, you should review the terms of such service or application and applicable privacy policy. Personal information you submit may be read, collected or used by the service or application provider and/or other users of those forums. Element Mobile is not responsible for any third–party information, content, applications or services you access, download or use on the Device. You are responsible for maintaining virus and other Internet security protections when accessing these third-party products or services. For additional information, please visit www.elementmobile.com and check out our Acceptable Use Policy.

What Happens if You Cancel

If you cancel a line of Service, or if we cancel it for Good Cause, during its contract term, you’ll have to pay an ETF. The ETF is not a penalty, but rather a charge to compensate us for your failure to satisfy the contract term for the Service on which your Plan, including its rate, is based. If you’re a Fixed Term customer beginning or renewing on or after September 28, 2012, and your contract term results from your purchase of a Smartphone, your ETF will be an amount equal to $350 minus $10 for each full month of your contract term that you complete after the first three full months immediately following your acceptance of this Agreement, and after completion of your contract term for a line of Service, your ETF for such line of Service will become $0. If you’re a Fixed Term customer beginning or renewing on or after September 28, 2012, and your contract term results from your purchase of a Device other than a Smartphone, your ETF will be an amount equal to $175 minus $5 for each full month of your contract term that you complete after the first three full months immediately following your acceptance of this Agreement, and after completion of your contract term for a line of Service, your ETF for such line of Service will become $0. For all other customers who accepted this Agreement, your ETF will be an amount equal to $240 minus: (a) $10 for each full month of your contract term that you complete, if the line of Service was for a Fixed Term of two years, or (b) $20 for each full month of your contract term that you complete, if the line of Service was for a Fixed Term of one year. Cancellations will become effective on the last day of that month’s billing cycle, and you are responsible for all charges incurred until then as well as the Device you purchased. Also, if you bought the Device from an authorized agent or third-party vendor, you should check whether they charge a separate termination fee. If we offer an early upgrade to your Device and you accept a new one-year or two-year Fixed Term, (i) we may in our sole discretion waive any existing ETF on your old Device, and (ii) these terms will apply to your new Device over your new Fixed Term. “Smartphone” means the devices categorized as such on our website at www.elementmobile.com/categories/phone-&-devices/, as updated from time to time.

Taking Your Wireless Phone Number to Another Carrier

You may be able to take, or “port”, your wireless phone number to another carrier. If you port a number from us, we’ll treat it as though you asked us to cancel your Service for that number. After the porting is completed, you won’t be able to use our service for that number, but you’ll remain responsible for all fees and charges through the end of that billing cycle, just like any other cancellation. If you’re a Prepaid Service customer, you won’t be entitled to a refund of any balance on your Account. If you port a number to us, please be aware that we may not be able to provide some services right away, such as 911 location services. You don’t have any rights to your wireless phone number, except for any right you may have to port it.

Where and How Element Mobile Service Works

Wireless devices use radio transmissions, so unfortunately you can’t get Service if your Device isn’t in range of a transmission signal. And please be aware that even within your Coverage Area, many things can affect the availability and quality of your Service, including network availability and capacity, your Device, terrain, signal strength, buildings, foliage and weather. Maps on www.elementmobile.com are a general representation of coverage; they are for illustrative purposes only. We don’t guarantee coverage or Service availability. Service outside of our network, although depicted on our maps, is based on information from other carriers or publicly available information, so we cannot guarantee its accuracy.

How Element Mobile Can Change this Agreement or the Service

We may change or add prices, charges or fees, or any other term of your Service, your Plan or this Agreement, at any time, but we’ll provide notice first, including written notice (in your regular bill, a separate notice, text message to your Device, or otherwise) if you are a Fixed Term customer. We may make other changes, such as discontinuing programs and promotions, in our sole discretion at any time without giving you notice, as described elsewhere in this Agreement or in the disclosure terms associated with such program or promotion. If you lose eligibility for or cancel a particular rate plan and/or promotion, we may without notice change your rate Plan to one for which you qualify and/or remove such promotion. If you use your Service after the change or addition takes effect, that means you’re accepting the change or addition.

Other Details in Terms of Service

Your Service, Plan, Optional Services, Coverage Area and Device are subject to the terms and conditions in the Additional Terms (find it at www.elementmobile.com) as applicable, which terms and conditions are part of and subject to this Agreement.

Your Wireless Device

Your Device must comply with Federal Communications Commission regulations, be certified for use on our network, and be compatible with your Service. Please be aware that the software, applications or programming on your Device may change remotely at any time without notice. This could affect your stored data, or how you’ve programmed or use your Device. By activating Service that uses a SIM (Subscriber Identity Module) card, you agree we own the intellectual property and software in the SIM card, that we may change the software or other data in the SIM card remotely and without notice, and we may utilize any capacity in the SIM card for administrative, network, business and/or commercial purposes. Certain features may not be available in all areas or accessible to all Devices. Your Device may not work with another wireless network, or another wireless carrier may not accept your Device on its network.

If Your Wireless Device is Lost or Stolen

We are here to help. It’s important that you notify us right away, so we can suspend your Service to keep someone else from using it. If you’re a Fixed Term, Month-to-Month Term, or Prepaid Service customer and your Device is used after the loss or theft but before you report it, you will be responsible for the charges. If you want a credit for any charges for that usage, we’re happy to review your account activity and any other information you’d like us to consider. Keep in mind that you may be held responsible for the charges if you delayed reporting the loss or theft without good reason. While your phone is suspended you will remain responsible for complying with all other obligations under this Agreement, including, but not limited to, your recurring monthly charges. You agree to cooperate with any investigation of fraud or theft and to provide us with such information and documentation as we may request.

Location-Based Services on your Device

We may collect information about the approximate location of your Device in relation to our cell towers and the Global Positioning System (GPS), and may use that information, as well as other usage and performance information also obtained from our network and your Device, to provide you with Service, and to maintain and improve our network and the quality of your wireless experience. We may also use location information to create aggregate data from which your personally identifiable information has been removed or obscured. Such aggregate data may be used for a variety of purposes such as scientific and marketing research and services such as vehicle traffic volume monitoring. Directory assistance services may also use the location of a Device to delivery relevant customized information based on your request for a listing or other assistance. It is your responsibility to notify other people who use the Service on your account that we may collect and use location information from a Device. Your Device is also capable of using optional content at your request or the request of a user on your account, offered by us or third parties that make use of a Device’s location information (“Location-Based Services”). Please review the terms and conditions and the associated privacy policy for each Location-Based Service to learn how the location information will be used and protected. For more information on Location-Based Services, please check out our Privacy Policy at www.elementmobile.com.

Government Taxes, Fees and Surcharges

You must pay all taxes, fees and surcharges set by federal, state and local governments. Please note that we may not always be able to notify you in advance of changes to these charges. Federal law requires us to get your street address to determine the taxes, fees and surcharges applicable to your Service, and you promise that the address information you gave us is totally accurate, complete and current, and you guarantee your promise and agree that we can rely on that address information to determine the taxes, fees and surcharges on your Service. You agree to notify us right away if your address changes. You will bear the responsibility for additional charges if the address information isn’t totally accurate, complete or current.

About Roaming

You’re “roaming” whenever your Device uses a transmission site outside your Coverage Area or uses another company’s wireless network. Sometimes roaming happens even when you’re within your Coverage Area. You agree that it’s our right to select and change the carrier you will use while roaming at any time without notice. There may be higher rates and extra charges (including charges for long distance, tolls, calls that don’t connect, or data usage) for calls, messaging, and data usage while roaming, depending on your Plan. Use of your Service when roaming is dependent upon roaming carrier’s support of applicable network technology and functionality, and your use may be subject to roaming carrier’s network capacity, usage policies, network management and optimization, throttling, and/or compression of text, image, and video files. Display on your Device may not indicate whether you are roaming or if you will incur roaming charges.

Appointing Someone Else to Manage Your Account

You can appoint another person to manage your account by telling us by phone, in person, or in writing. You may only appoint a person who is at least 18 years of age and legally able to accept an agreement, or, if you are an entity, a person who is authorized to bind that entity. The person you appoint will be able to make any changes to your account that you can, including adding lines of Service, changing your Plan, adding or removing Optional Services, buying new wireless devices, upgrading your Device(s), canceling your Service, and renewing or extending your contract term. The person can also access your account, make payments, and view all the account and personal information that you can. You will still be responsible for your obligations under this Agreement. Any changes that person makes will be treated as modifications to this Agreement. The authority of the person you appoint will last until you tell us otherwise.

What Charges Are Set by Us

You agree to pay all access, usage and other charges that you or the user of your Device incur. Our charges also include Federal Universal Service, Regulatory and Administrative Charges, and we may also include other charges related to our governmental costs. We set these charges; they aren’t taxes, they aren’t required by law, they are kept by us in whole or in part, and the amounts and what they pay for may change.

How We Calculate Your Charges

For charges based on the amount of time used or data sent or received, we’ll round up any fraction to the next full minute or, depending on how you’re billed for data usage, the next full kilobyte, megabyte or gigabyte. Unused minutes and data kilobytes will not be carried over to subsequent Plan cycles. For outgoing calls, usage time starts when you first press “SEND” or the call connects to a network, and for incoming calls, it starts when the call connects to a network (which may be before it rings). Usage time may end several seconds after you press “END” or after the call disconnects. For calls made on our network, we only charge for calls that are answered, including by machines. Usage cannot always be processed right away and may be included in a later bill, but the usage will still count towards your allowance for the month when the Service was used.

How and When Can You Dispute Charges

If you’re a Fixed Term or Month-to-Month Term customer, you can dispute charges on your bill within 45 days of receiving it, but unless otherwise provided by law or unless you’re disputing charges because your wireless device was lost or stolen, you still have to pay all charges until the dispute is resolved. If you’re a Prepaid Service customer, you can dispute a charge within 45 days of the date the disputed charge was incurred. Charges include, without limitation, ETF(s); airtime, roaming, recurring monthly service, activation, administrative, and late payment charges; regulatory cost recovery and other surcharges; optional feature charges; toll, collect call and directory assistance charges; restoral and reactivation charges; any other charges or calls billed to your phone number; and applicable taxes and governmental fees, whether assessed directly upon you or upon Element Mobile YOU MAY CALL US TO DISPUTE CHARGES ON YOUR BILL OR ANY SERVICE FOR WHICH YOU WERE BILLED, BUT IF YOU WISH TO PRESERVE YOUR RIGHT TO BRING OR PARTICIPATE IN ANY LEGAL ACTION REGARDING SUCH DISPUTE, YOU MUST WRITE TO US AT THE CUSTOMER SERVICE ADDRESS ON YOUR BILL WITHIN THE 45-DAY PERIOD MENTIONED ABOVE. IF YOU DO NOT NOTIFY US IN WRITING OF SUCH DISPUTE WITHIN THE 45-DAY PERIOD, YOU WILL HAVE WAIVED YOUR RIGHT TO DISPUTE SUCH CHARGES OR SERVICES AND TO BRING OR PARTICIPATE IN ANY LEGAL ACTION, INCLUDING AN ARBITRATION OR SMALL CLAIMS CASE, REGARDING ANY SUCH DISPUTE. We may modify or discontinue the program described in this paragraph in our sole discretion at any time without notice.

About Your Payments

Payment will be due at activation for all charges associated with your Device. We may charge you up to $50 (depending on applicable law) for any check or other instrument (including credit card charge backs) returned unpaid for any reason. The Automatic Bill Payment and Authorization Enrollment Form, if you entered into one with us, is part of and subject to this Agreement. If we use a third party to collect from you, we may charge you for any fees the third party charges us, if allowed by law in the state of your billing address when we first send your account to the third party. You expressly authorize, and specifically consent to allowing, us and/or our outside collection agencies, outside counsel, or other agents to contact you in connection with any and all matters relating to unpaid past due charges billed to you by us. We may require a deposit at the time of activation or afterward, or an increased deposit. We may apply deposits or payments in any order to any amounts you owe us on any account. If your final credit balance is less than $1, we will refund it only if you ask. You may have to pay a fee to activate Service or to reconnect Service if it is interrupted for non-payment or suspended for any reason. If you’re a Fixed Term or Month-to-Month Term customer and we don’t get your payment on time, we will charge you a late fee of up to 1.5 percent per month (18 percent per year) on the unpaid balance, or a flat $5 per month, whichever is greater, if allowed by law in the state of your billing address. (If you choose another company to bill you for our Service, late fees are set by that company or by its tariffs and may be higher than our late fees.)

About Prepaid Service Payments

This section applies only to Prepaid Service customers.

After your initial Account setup, or refilling of your existing Account, the Service will be provided until your Account balance is depleted. You may only access Service through the telephone number assigned to you while your Account is active. You are responsible for paying all charges applicable to your Account and Service according to your Plan, including but not limited to: access charges, airtime, features, text and multi-media messaging, roaming, refills, toll, long distance, downloadable applications, voicemail usage and directory assistance; plus any taxes, surcharges, fees, and assessments imposed by us or a governmental authority from time to time in connection with your Services or Device. All charges will be deducted automatically from your Account at the applicable rate, depending on your Plan and choice of features.

Your Account must have sufficient funds to accommodate any charges assessed on your assigned cycle date depending on your Plan and choice of features to avoid Service interruption. If at any time the balance in your Account becomes zero or negative, you will not receive further Service until you refill the Account. If you have authorized payment for your Service or Device by credit card or by debiting a bank account, no additional notice or consent is required before we invoice the credit card or debit the bank account for all amounts due to us for any reason. If your Account is not refilled and/or maintains a zero or negative balance for a period of 120 consecutive days, your Account may be closed. If your Account is closed, you may ask us to reinstate the Service by activating a new Account by calling 1-800-236-1461 or visiting www.elementmobile.com. If we reinstate the Service, we may assign you a new telephone number and a reactivation fee may apply.

You may replenish your Account at any time before the expiration date by providing us with another payment. Your Account balance may not exceed $1,000 and you may be prevented from replenishing if your balance reaches $1,000. We will suspend Service when your Account reaches the expiration date and any unused balance will be forfeited.

Pay-Per-Minute: If you subscribed to a Pay-Per Minute Plan, your subscription fee and applicable charges will be deducted from your Account as used. Monetary expiration date varies based on the replenishment amount. See replenishment card or www.elementmobile.com for details.

Pay-Per-Day: If you subscribed to a Pay-Per-Day Plan, your subscription fee and applicable charges will be deducted from your Account daily.

Pay-Per-Month: If you subscribed to a Pay-Per-Month Plan, you must pay your Plan amount in full every 30 days in order to keep your Account active and receive the full benefits associated with your Plan. Any unused dollars and minutes will expire at the end of each 30-day period, and dollars remaining on your Account at the end of a 30-day period cannot be used to purchase the next month’s subscription. Upon depletion of your Plan minutes, additional minutes will be charged at the pay-as-you-go rate applicable for your Plan. Payments toward a Pay-Per-Month Plan are non-refundable and non-transferable. If you subscribe to optional additional monthly features, your Account will be charged each month on the same day (day varies by feature). If your Account does not have sufficient funds to cover the monthly charge, the optional feature will not be awarded.

Airtime: All airtime sales are final and non-refundable.

Element Mobile’s Rights to Limit or End Service or End this Agreement

WE CAN, WITHOUT NOTICE, LIMIT, SUSPEND OR END YOUR SERVICE, THIS AGREEMENT OR ANY AGREEMENT WITH YOU FOR ANY GOOD CAUSE (“Good Cause”), including, but not limited to: (1) if you: (a) breach this Agreement; (b) resell your Service; (c) use your Service for any illegal purpose, including use that violates trade and economic sanctions and prohibitions promulgated by any U.S. governmental agency; (d) install, deploy or use any regeneration equipment or similar mechanism (e.g. a repeater) to originate, amplify, enhance, retransmit or regenerate an RF signal without our permission; (e) steal from or lie to us; (f) pay late more than once in any 12 months; (g) incur charges larger than a required deposit or billing limit, or materially in excess of your monthly access charges (even if we haven’t yet billed the charges); (h) provide credit information we can’t verify; (i) are unable to pay us or go bankrupt; (j) change your service address or the location to which the Service is provided; or (k) request to port your number to another wireless carrier; or (l) use the majority of the Service roaming on a network not owned or operated by us; or (2) if you, any user of your device or any account manager on your account: (a) threaten, harass, or use vulgar and/or inappropriate language toward our representatives; (b) interfere with our operations; (c) “spam”, or engage in other abusive messaging or calling; (d) modify your Device, or any software residing thereon, from the manufacturer’s specifications; or (e) use your Service in a way that negatively affects our network or other customers. We may terminate this Agreement at any time without notice if we cease to provide Services in your area. We can also temporarily limit your Service for any operational or governmental reason. We may restore limited, suspended, or terminated Service, in our sole discretion, following your correction of the violation and payment of any amounts due, including any restoration charge we assess for restoring the Service.

About Data Service and Data Plans

This section only applies to customers who accept or renew on or after September 28, 2012.

Permissible and Prohibited Uses. Our data Services are intended to be used solely for the following permitted activities: (a) web browsing; (b) email; (c) messaging; (d) uploading and downloading applications and content to and from the Internet or third-party application stores, and (e) using applications and content without excessively contributing to network congestion. Unless explicitly permitted by your data Plan, other uses are prohibited. Prohibited uses include any use that: (a) conflicts with applicable law, (b) hinders other customers’ access to the network, (c) compromises network security or capacity, (d) excessively and disproportionately contributes to network congestion, (e) adversely impacts network service levels or legitimate data flows, (f) degrades network performance, (g) causes harm to the network or other customers, (h) is resold either alone or as part of any other good or service, (i) tethers a wireless device to a computing device (like a computer, Smartphone, eBook or eReader, media player, laptop, or other devices with similar functions) through use of connection kits, applications, devices or accessories (using wired or wireless technology) and you have not subscribed to a specific data plan designed for this purpose, (j) violates Element Mobile’s Acceptable Use Policy, available at www.elementmobile.com, or (k) there is a specific data plan required for a particular use and you have not subscribed to that plan. We may modify, without advance notice, the permissible and prohibited activities, and the optimization requirements for wireless data Services.

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. In addition, if your total usage exceeds 2 GB upstream or 5 GB downstream (amounts are subject to change without notice other than posting an updated amounts here and/or on your bill) during a billing cycle, we may reduce your throughput data speed at any time or place for the remainder of that billing cycle. If you use your data Plan for any prohibited use and/or 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 plan. We may reasonably 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. We may use reasonable methods to monitor and collect customer usage information to better optimize the operation of the network. Details concerning the information we collect, and how we use and protect that information, are addressed in our Privacy Policy, available at www.elementmobile.com. Additionally, we may implement other network management practices, such as caching less data, using less capacity, and sizing video more appropriately for a Device to transmit data files more efficiently. These practices are agnostic to the content itself and to the websites that provide it. While we invest much effort to avoid changing text, image, and video files in the compression process when practical and while any change to the file is likely to be indiscernible, the process may minimally impact the appearance of files as displayed on your Device. Roaming partners of Element Mobile may use these and other network management techniques, including without limitation, usage caps or temporarily reduced data throughput, now or in the future that could affect your use of data, text, and voice service while roaming on a network other than one owned by us; please review the policies of those roaming partners for more details.

Unlimited Data. If you subscribe to an unlimited data Plan, you agree that “unlimited” means you pay a fixed monthly charge for wireless data service regardless of how much data you use. You further agree that “unlimited” does not mean that you can use our wireless data Service in any way that you choose or for any prohibited activities, and that if you use your unlimited data plan in any manner that is prohibited, we may restrict, reduce your throughput speed, suspend or terminate your data Service or switch you to a tiered data plan. Your “unlimited” use can be limited as otherwise described in this Agreement, including limits set by our roaming partners and subject to their terms.

Disclaimer of Warranties

WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ABOUT YOUR SERVICE, YOUR DEVICE, OR ANY APPLICATIONS YOU ACCESS THROUGH YOUR DEVICE. WE DO NOT WARRANT THAT YOUR DEVICE WILL WORK PERFECTLY OR WILL NOT NEED OCCASIONAL UPGRADES OR MODIFICATIONS, OR THAT IT WILL NOT BE NEGATIVELY AFFECTED BY NETWORK-RELATED MODIFICATIONS, UPGRADES OR SIMILAR ACTIVITY. WE MAY NOT MANUFACTURE YOUR DEVICE OR ANY SOFTWARE THAT YOU MAY USE IN CONNECTION WITH YOUR SERVICE OR DEVICE, AND YOUR ONLY WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE DEVICE OR SOFTWARE ARE THOSE PROVIDED BY THE MANUFACTURER (WITH RESPECT TO WHICH WE HAVE NO LIABILITY WHATSOEVER). IF YOU DOWNLOAD OR USE APPLICATIONS, SERVICES OR SOFTWARE PROVIDED BY THIRD PARTIES (INCLUDING VOICE APPLICATIONS), 911 OR E–911, OR OTHER CALLING FUNCTIONALITY, MAY WORK DIFFERENTLY THAN SERVICES OFFERED BY US, OR MAY NOT WORK AT ALL. PLEASE REVIEW ALL TERMS AND CONDITIONS OF SUCH THIRD-PARTY PRODUCTS.

Waivers and Limitations of Liability

YOU AND ELEMENT MOBILE BOTH AGREE TO LIMIT CLAIMS AGAINST EACH OTHER FOR DAMAGES OR OTHER MONETARY RELIEF TO DIRECT DAMAGES. THIS LIMITATION AND WAIVER WILL APPLY REGARDLESS OF THE THEORY OF LIABILITY. THAT MEANS NEITHER OF US WILL TRY TO GET ANY INDIRECT, SPECIAL, CONSEQUENTIAL, TREBLE OR PUNITIVE DAMAGES FROM THE OTHER. WE ALSO AREN’T LIABLE FOR THE COST OF ALTERNATIVE SERVICES OR ATTORNEY’S FEES. THIS LIMITATION AND WAIVER ALSO APPLIES IF YOU BRING A CLAIM AGAINST ONE OF OUR SUPPLIERS, TO THE EXTENT WE WOULD BE REQUIRED TO INDEMNIFY THE SUPPLIER FOR THE CLAIM. YOU AGREE WE AREN’T RESPONSIBLE FOR PROBLEMS CAUSED BY YOU OR OTHERS, OR BY ANY ACT OF GOD. YOU ALSO AGREE WE AREN’T LIABLE FOR MISSED OR DELETED VOICE MAILS OR OTHER MESSAGES, OR FOR ANY INFORMATION (LIKE PICTURES) THAT GETS LOST OR DELETED IF WE WORK ON YOUR DEVICE. IF ANOTHER WIRELESS CARRIER IS INVOLVED IN ANY PROBLEM (FOR EXAMPLE, WHILE YOU’RE ROAMING), YOU ALSO AGREE TO ANY LIMITATIONS OF LIABILITY IN ITS FAVOR THAT IT IMPOSES. IN THE EVENT WE ARE FOUND TO BE RESPONSIBLE TO YOU FOR DAMAGES IN ANY WAY RELATING TO YOUR SERVICE OR DEVICE, YOU AGREE THAT OUR LIABILITY TO YOU WILL NOT EXCEED YOUR PRO-RATED MONTHLY RECURRING CHARGE FOR THE SERVICE DURING THE PERIOD IN WHICH YOU INCUR SUCH DAMAGES.

How You Resolve Disputes with Element Mobile

WE HOPE TO MAKE YOU A HAPPY CUSTOMER, BUT IF THERE’S AN ISSUE THAT NEEDS TO BE RESOLVED, THIS SECTION OUTLINES WHAT’S EXPECTED OF BOTH YOU AND US.

YOU AND ELEMENT MOBILE BOTH AGREE TO RESOLVE DISPUTES ONLY BY ARBITRATION OR IN SMALL CLAIMS COURT. THERE’S NO JUDGE OR JURY IN ARBITRATION, AND THE PROCEDURES MAY BE DIFFERENT, BUT AN ARBITRATOR CAN AWARD THE SAME DAMAGES AND RELIEF, AND MUST HONOR THE SAME TERMS IN THIS AGREEMENT, AS A COURT WOULD. IF THE LAW ALLOWS FOR AN AWARD OF ATTORNEYS’ FEES, AN ARBITRATOR CAN AWARD THEM TOO. YOU AND WE ALSO BOTH AGREE THAT:

  1. THIS AGREEMENT EVIDENCES A TRANSACTION IN INTERSTATE COMMERCE, AND THUS, THE FEDERAL ARBITRATION ACT APPLIES TO THIS AGREEMENT. EXCEPT FOR SMALL CLAIMS COURT CASES THAT QUALIFY, ANY DISPUTE THAT RESULTS FROM THIS AGREEMENT OR FROM THE SERVICE OR DEVICE YOU RECEIVE FROM US (OR FROM ANY ADVERTISING FOR ANY PRODUCTS, DEVICE OR SERVICE) WILL BE RESOLVED BY ONE OR MORE NEUTRAL ARBITRATORS BEFORE THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). YOU CAN ALSO BRING ANY ISSUES YOU MAY HAVE TO THE ATTENTION OF FEDERAL, STATE, OR LOCAL GOVERNMENT AGENCIES, AND IF THE LAW ALLOWS, THEY CAN SEEK RELIEF AGAINST US FOR YOU.
  2. UNLESS YOU AND ELEMENT MOBILE AGREE OTHERWISE, THE ARBITRATION WILL TAKE PLACE IN THE COUNTY OF YOUR BILLING ADDRESS. FOR CLAIMS OVER $10,000, THE AAA’S WIRELESS INDUSTRY ARBITRATION (“WIA”) RULES AS MODIFIED BY THIS AGREEMENT WILL APPLY. IN SUCH CASES, THE LOSER CAN ASK FOR A PANEL OF THREE NEW ARBITRATORS TO REVIEW THE AWARD. FOR CLAIMS OF $10,000 OR LESS, THE PARTY BRINGING THE CLAIM CAN CHOOSE EITHER ARBITRATION, IN WHICH CASE THE AAA’S SUPPLEMENTARY PROCEDURES FOR CONSUMER-RELATED DISPUTES AS MODIFIED BY THIS AGREEMENT WILL APPLY, OR, ALTERNATIVELY, CAN BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT. YOU CAN GET PROCEDURES, RULES AND FEE INFORMATION FROM THE AAA (WWW.ADR.ORG) OR BY WRITING TO US.
  3. THIS AGREEMENT DOESN’T ALLOW CLASS ARBITRATIONS EVEN IF THE AAA PROCEDURES OR RULES WOULD. THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT.
  4. IF EITHER YOU OR WE INTEND TO SEEK ARBITRATION UNDER THIS AGREEMENT, THE PARTY SEEKING ARBITRATION MUST FIRST NOTIFY THE OTHER PARTY OF THE DISPUTE IN WRITING AT LEAST 30 DAYS IN ADVANCE OF INITIATING THE ARBITRATION. NOTICE TO US MUST BE SENT TO ELEMENT MOBILE, ATTN: DISPUTE RESOLUTION MANAGER, PO BOX 8020, WISCONSIN RAPIDS, WI 54495-8020. THE NOTICE MUST DESCRIBE THE NATURE OF THE CLAIM AND THE RELIEF BEING SOUGHT. PLEASE CALL CUSTOMER SERVICE FOR A NOTICE OF DISPUTE FORM TO FILL OUT, AND MAIL, FAX OR EMAIL IT TO US ACCORDING TO THE DIRECTIONS ON THE FORM. IF YOU AND WE ARE UNABLE TO RESOLVE THE DISPUTE WITHIN 30 DAYS, EITHER PARTY MAY THEN PROCEED TO FILE A CLAIM FOR ARBITRATION. IF THAT ARBITRATION PROCEEDS, WE’LL PAY ANY FILING FEE THAT THE AAA CHARGES YOU FOR ARBITRATION OF THE DISPUTE (PROVIDED THAT YOU ALREADY PARTICIPATED IN A MEDIATION THROUGH THE FREE PROGRAM DESCRIBED IN SUBSECTION (5) BELOW).
  5. WE ALSO OFFER YOU THE OPTION OF PARTICIPATING IN A FREE INTERNAL MEDIATION PROGRAM. THIS PROGRAM IS ENTIRELY VOLUNTARY AND DOES NOT AFFECT EITHER PARTY'S RIGHTS IN ANY OTHER ASPECT OF THESE DISPUTE RESOLUTION PROCEDURES. IN OUR VOLUNTARY MEDIATION PROGRAM, WE WILL ASSIGN AN EMPLOYEE WHO'S NOT DIRECTLY INVOLVED IN THE DISPUTE TO HELP BOTH SIDES REACH AN AGREEMENT. THAT PERSON HAS ALL THE RIGHTS AND PROTECTIONS OF A MEDIATOR AND THE PROCESS HAS ALL OF THE PROTECTIONS ASSOCIATED WITH MEDIATION. FOR EXAMPLE, NOTHING SAID IN THE MEDIATION CAN BE USED LATER IN AN ARBITRATION OR LAWSUIT. IF YOU'D LIKE TO KNOW MORE, PLEASE CONTACT US AT WWW.ELEMENTMOBILE.COM OR THROUGH CUSTOMER SERVICE. IF YOU'D LIKE TO START THE MEDIATION PROCESS, PLEASE CALL CUSTOMER SERVICE FOR A NOTICE OF DISPUTE FORM TO FILL OUT, AND MAIL, FAX OR EMAIL IT TO US ACCORDING TO THE DIRECTIONS ON THE FORM. MAKE SURE YOU CHECK ‘VOLUNTARY MEDIATON’ ON THAT FORM. BY PARTICIPATING IN THE MEDIATION, AND ONLY BY YOUR PARTICIPATION, YOU QUALIFY FOR OUR PAYMENT OF ANY FILING FEE THAT THE AAA CHARGES YOU FOR ARBITRATION OF THE DISPUTE IN ACCORDANCE WITH THIS AGREEMENT.
  6. AN ARBITRATION AWARD AND ANY JUDGMENT CONFIRMING IT APPLY ONLY TO THAT SPECIFIC CASE; IT CAN'T BE USED IN ANY OTHER CASE EXCEPT TO ENFORCE THE AWARD ITSELF.
  7. IF FOR SOME REASON THE PROHIBITION ON CLASS ARBITRATIONS SET FORTH IN SUBSECTION (3) CANNOT BE ENFORCED, THEN THE AGREEMENT TO ARBITRATE WILL NOT APPLY.
  8. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND ELEMENT MOBILE AGREE THAT THERE WILL NOT BE A JURY TRIAL. YOU AND ELEMENT MOBILE UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY WAY. IN THE EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED TO SHOW A WRITTEN CONSENT TO A TRIAL BY THE COURT.
  9. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, YOU AND WE AGREE THAT IF WE MAKE ANY FUTURE CHANGES TO THIS ARBITRATION SECTION (OTHER THAN A CHANGE TO ADDRESS INFORMATION), YOU MAY REJECT ANY SUCH CHANGE BY SENDING US A WRITTEN NOTICE WITHIN 30 DAYS OF THE EFFECTIVE DATE OF THE CHANGE. BY REJECTING ANY FUTURE CHANGE, YOU ARE AGREEING THAT YOU WILL ARBITRATE ANY DISPUTE BETWEEN US IN ACCORDANCE WITH THE LANGUAGE OF THIS PROVISION.

Third Parties, and Unauthorized Use

Your Service and Device will be provided by us or by our third-party vendors or contractors. We reserve the right to change or modify the source of any Service or Device provided to you at any time without notice. You agree that your Device on which your Service is activated may not be used to access any third-party services equivalent to any services provided, or made available, by Element Mobile, even if you declined to purchase such services from us. Using any manual or electronic means to modify your Device, or any software residing thereon, from the manufacturer’s specifications is a material violation of this Agreement.

Other Details About this Agreement

If we don’t enforce our rights under this Agreement in one instance, that doesn’t mean we won’t or can’t enforce those rights in any other instance. You cannot assign this Agreement or any of your rights or duties under it without our permission. However, we may at any time assign this Agreement or any debt you owe us without notifying you. This Agreement isn’t for the benefit of any third party except our affiliates, subsidiaries, agents, and predecessors and successors in interest. Headings are inserted for convenience only and shall not effect the interpretation or construction of this Agreement. Except where we’ve agreed otherwise elsewhere in this Agreement, this Agreement and any disputes covered by it are governed by the laws of the State of Wisconsin, without regard to its conflicts of laws and rules.

If any part of this Agreement, including anything regarding the arbitration process (except for the prohibition on class arbitrations as explained in the dispute resolution section above), is ruled invalid, that part may be removed from this Agreement. If you’re a Fixed Term or Month-to-Month Term customer, please note that many notices we send to you will show up as messages on your monthly bill. If you have online billing, those notices will be deemed received by you when your online bill is available for viewing. If you get a paper bill, those notices will be deemed received by you three days after we mail the bill to you. If we send other notices to you, they will be considered received immediately if we send them to your wireless device, or to any email or fax number you’ve given us, or after three days if we mail them to your billing address. If you need to send notices to us, please send them to the customer service address on your latest bill or available at www.elementmobile.com.

If you’re a Prepaid Services customer and we send notices to you, they will be considered received immediately if we send them to your wireless device or to any email or fax number you’ve given us, or if we post them as a pre-call notification on your Service, or after three days if we mail them to the most current address we have for you. If you need to send notices to us, please send them to the customer service address available at www.elementmobile.com. You may contact us if you have questions about your Element Mobile account. Please be aware of the terms of this Agreement before contacting us.