Terms and Conditions

 

SITE TERMS OF USE

Welcome to the SmackMobile.com web site (the “Web site”), which is owned and operated by SMACK MOBILE, (“Smack Mobile” or “we”). Please read these Terms of Use carefully, as they describe the terms and conditions applicable to the Web site. BY ACCESSING ANY AREA(S) OF THE WEB SITE, YOU AGREE TO BE LEGALLY BOUND AND TO ABIDE BY THESE TERMS OF USE. By enrolling in the SMACK MOBILE Program and by using the Smack Mobile service you the participant, acknowledge and agree to the following terms and conditions:

  1. Your Acceptance of Smack Mobile’s Terms of Use and Privacy Policy

Your use of and/or visitation to any area of the Web site signifies your agreement to (1) these Terms of Use and (2) Smack Mobile’s Privacy Policy, found at https://smackmobile.com/privacy-policy  which is incorporated herein by reference. If you do not agree to any of these Terms of Use or Smack Mobile’s Privacy Policy, please do not use the Web site. In its sole discretion, Smack Mobile may modify or revise these Terms of Use or its Privacy Policy at any time, and you agree to be bound by such modifications or revisions. Nothing in these Terms of Use shall be deemed to confer any third-party rights or benefits. If you violate any of these Terms of Use, your permission to access and use the Web site and the contents of the Web site, such as text, graphics, software, images, designs, icons, and other material contained on the Web site (collectively, “Content”) automatically terminates and you must immediately cease all access to and use of the Web site and the Content.

  1. Your Use of the Web Site – Permissions and Restrictions

Smack Mobile hereby grants you permission to access and use the Web site and the Content for your personal, informational and shopping purposes only, under the following conditions:

  1. You agree to use the Web site for lawful purposes only. The Content is protected by copyright under both United States and foreign laws and contains trademarks and other proprietary information. Title to the Content remains with Smack Mobile or its licensors. Any use of the Content not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws. Content and features are subject to change or termination without notice in the editorial discretion of Smack Mobile. All rights not expressly granted herein are reserved to Smack Mobile and its licensors. You acknowledge that you do not acquire any ownership rights by accessing or using the Web site or the Content. You may not modify, publish, transmit, display, participate in the transfer or sale, create derivative works, or in any way exploit, any of the Content, in whole or in part.
  2. You agree not to alter or modify any part of the Web site.
  3. Any special rules for the use of certain software and other items provided on the Web site may be included elsewhere within the Web site and are incorporated into these Terms of Use by reference.
  4. You agree not to use the Web site for any commercial use (other than the purchase of products and services offered for sale on the Web site) without the prior written authorization of Smack Mobile.
  5. You agree not to use or launch any automated system, including, without limitation, “robots,” “spiders,” or “offline readers,” to access, monitor or copy any Content or information in or on this Web site. You agree not to upload, post, e-mail or otherwise send or transmit any material that contains software viruses, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the Web site. You also agree not to interfere with the servers or networks connected to the Web site or to violate any of the procedures, policies or regulations of networks connected to the Web site. Notwithstanding the foregoing, Smack Mobile grants the operators of public search engines permission to use spiders to copy materials from the Web site for the sole purpose of and solely to the extent necessary to create publicly available searchable indices of the materials, but not caches or archives of such materials. Smack Mobile reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information from the Web site nor to use the communication systems provided by the Web site (if any) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Web site. Any conduct by you that in Smack Mobile’s discretion restricts or inhibits any other user from using or enjoying the Web site will not be permitted.
  6. In your use of the Web site, you will otherwise comply with the terms and conditions of these Terms of Use and all applicable local, national, and international laws and regulations. You agree not to post or transmit through the Web site any material which (in Smack Mobile’s sole discretion) is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, which gives rise to civil liability, or which otherwise violates any law.
  7. You agree not to upload, post or otherwise make available on the Web site any material protected by copyright, trademark or other third party proprietary rights, including privacy and publicity rights, without the express permission of the owner of the copyright, trademark or other proprietary right, and the burden of determining that any material is not protected by copyright rests with you. You shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from any such submission.
  8. You also agree not to impersonate any other person or to conduct yourself in a vulgar or offensive manner while using the Web site. You agree that Smack Mobile may reject any User Submissions (defined below) for any reason or no reason, including, but not limited to, vulgarity or other offensive content, which determination shall be at Smack Mobile’s sole discretion, or content protected by third party proprietary rights, including, but not limited to, copyright, trademark or publicity rights.
  9. You agree that Smack Mobile, should it accept a User Submission, may include that User Submission in the Web site for as long or as short a period as Smack Mobile, in its sole discretion, chooses. Furthermore, you agree that Smack Mobile may edit User Submissions.
  10. You agree that Smack Mobile shall have the right, but not the obligation, to monitor the content of the Web site and to remove any material that Smack Mobile, in its sole discretion, finds to be in violation of the provisions herein or otherwise objectionable.
  11. Smack Mobile reserves the right to discontinue any aspect of the Web site at any time.
  1. Account Registration

In order to participate in certain areas of the Web site, you may need to register for an account. You agree to: (i) create only one account; (ii) provide truthful, accurate, current and complete information when creating your account; (iii) maintain the security of your account by restricting access to your account and not sharing your password with others; (iv) maintain and promptly update your account information if necessary; (v) notify Smack Mobile promptly upon learning of any security breaches relating to the Web site; and (vi) take responsibility for and accept all risk relating to any and all activities and transactions that occur under or in connection with your account.

  1. Terms and Conditions

All sales of products and services on the Web site are governed by https://smackmobile.com/terms . Please refer to the Terms and Conditions for the terms and conditions applicable to your purchase and use of products and services through the Web site. By purchasing products or services through the Web site, you agree to be bound by and accept the Terms and Conditions. The Terms and Conditions are subject to change at any time without notice, in Smack Mobile’s sole discretion; therefore, you should review the Terms and Conditions every time you make a purchase on the Web site.

  1. Right to Terminate

Smack Mobile reserves the right to terminate or restrict your use of our Web site, without notice, for any or no reason whatsoever. Smack Mobile reserves the right to determine whether a User Submission is appropriate and complies with these Terms of Use. Smack Mobile may remove such User Submissions and/or terminate a user’s access for uploading such material in violation of these Terms of Use at any time, without prior notice and at Smack Mobile’s sole discretion.

  1. Disclaimer of Opinion

Any opinions, advice, statements, or other information that constitutes part of the content expressed or made available by you or third parties on the Web site are those of the respective authors or producers and not of Smack Mobile, its affiliates, or their respective shareholders, members, directors, managers, officers, or employees. Under no circumstances shall Smack Mobile, its affiliates, or their respective shareholders, members, directors, managers, officers, or employees be held liable for any loss or damage caused by your reliance on information obtained through the Web site. It is your responsibility to evaluate the information, opinion, advice, or other content available through the Web site.

  1. Disclaimer of Warranty And Returns

Reasonable efforts have been made to ensure the accuracy of information presented on the Web site, but the accuracy of this information cannot be guaranteed. The Web site, the Content, and any and all products or services promoted or sold viathe Web site are provided on an “as is” basis. The use of the Web site, the Content and any product or service discussed, promoted or sold via the Web site is at your own risk.

YOU EXPRESSLY AGREE THAT USE OF THE WEB SITE IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, SMACK MOBILE, ITS PARENT, SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AND AGENTS (COLLECTIVELY, THE “SMACK MOBILE PARTIES”) DISCLAIM ALL REPRESENTATATIONS AND WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEB SITE AND YOUR USE THEREOF. NONE OF THE SMACK MOBILE PARTIES OR THEIR THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE WEB SITE WILL BE UNINTERRUPTED, ACCURATE, COMPLETE, TIMELY, RELIABLE OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WEB SITE, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION, PRODUCTS OR SERVICES PROVIDED OR ADVERTISED THROUGH THE WEB SITE. THE WEB SITE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES. NONE OF THE SMACK MOBILE PARTIES ASSUMES ANY LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING DIRECTLY OR INDIRECTLY FROM YOUR ACCESS TO AND USE OF THE WEB SITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEB SITE, (V) ANY BUGS, SPIDERS, ROBOTS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEB SITE BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEB SITE. SMACK MOBILE DOES NOT WARRANT, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE DISCUSSED, PROMOTED, ADVERTISED, OR SOLD THROUGH THIS WEB SITE OR ANY HYPERLINKED WEB SITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING. AS WITH THE PURCHASE OF A PRODUCT THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

PHONE RETURN POLICY

If your goods arrive in a damaged state, please call 1-888-954-3556 or login to Smack Mobile Members area (User: email address used to order phone | Password: created when customer signed up) to request an RMA online.

Claims for damage, delivery discrepancy etc. should be made within 48 hours of delivery – claims will not be accepted after this time.

If the goods are NOT defective and you wish to return them, you have 7 days from when the package arrives to return the goods for a refund. All returned merchandise must be in complete original manufacturer’s packaging, in the same condition as sold, with all literature, accessories, instructions, blank warranty cards and documentation. All Phones must be returned in “Like-New Condition”, show no signs of use, and must have less than 25 minutes in total cumulative talk time.

If an item is defective it may only be exchanged with an equivalent product if we are unable to supply the same item or if the item cannot be repaired. Any return shipping cost is the responsibility of the customer. All shipping and handling fees are non-refundable. This includes all refused and unaccepted packages which are also subject to a $25.00 handling fee.

All NON-DEFECTIVE “Like-New Condition” cell phone returns will be subject to a 20% restocking fee plus a minimum $9.99 shipping and handling fee, up to the actual shipping amount paid on your order and not to include promotional coupons.

If goods are not in “Like-New Condition”, or are missing packaging or documentation, we may either refuse the return or charge a restocking fee between 25% and 50% depending on the condition of the returned items, plus a minimum $9.99 shipping and handling fee up to the actual shipping amount paid on your order (not to include promotional coupons).

Detailed RMA process:

  1. Login to Smack Mobile Members area (User: email address used to order phone | Password: created when customer signed up)
  2. Click Order History and follow instructions.
  3. You will receive an RMA Authorization email with your RMA number once your return request is approved.

Please add as much detailed information as possible with the return request so that we can quickly process your RMA. Once the RMA# is requested, you will receive an email within 24 hours during normal business hours with an RMA # and the steps necessary to process your request.

Important RMA Info:

Please be sure to REMOVE the Phone Passcode, Apple iCloud Account (click here for instructions) and/or the Google Account (click here for instructions) from your phone before shipping it to our facility. A full MASTER RESET of the device is preferred prior to shipment. If this is not completed before sending the phone to us, it will delay your RMA request. If we do not have this information after 2 business days of our request, we will return the phone back to you.

All returns must be accompanied by an RMA number written on the return package. You will be emailed an RMA label with a unique RMA number once your return has been authorized. Please enclose a copy of your RMA request, including RMA number and order number, with the return packaging.

Please return the phone(s) along with all accessories and the original device packaging.

Please note the issue(s) that you are experiencing with the device. We recommend that you use delivery confirmation for your return in order to ensure proper delivery of your item.

RMAs are processed during normal business hours Monday – Friday in order of receipt.

You will receive notification when your return is received. This can be up to 1-2 business days after delivery at our facility.

If the phone is found to not be defective and a refund is requested, a 20-50% restocking fee will be applied prior to refund depending on the condition of the phone and the completeness of the return. Shipping is non-refundable. A $10 shipping and handling fee will be applied to all refunded goods.

You will receive notification within up to 5 business days of receipt of the disposition of your warranty or refund request.

It can take up to 15 business days after receipt of your device for your refund to post.

For RMA questions or concerns call or email Customer Support.

WARRANTY INFORMATION

All new devices purchased from our website come with a one-year manufacturer warranty from the original date of sale. All refurbished devices purchased from our website come with a 60-day warranty from the original date of sale. If your device is defective, please follow the RMA instructions listed above to see if it’s eligible for a warranty replacement. If eligible, we’ll replace the defective device with a device of the same cosmetic condition or a comparable model at our discretion.

Our conditions for a warranty claim are as follows:

  1. Your warranty only covers defects in materials or workmanship.  It does not cover defects arising from damage, normal wear-and-tear, or aging.
  2. The warranty covers issues such as: software-related issues, camera defects, unresponsive keys, dead pixels, etc.
  3. The warranty does notcover issues like: diminishing battery life, scratches, accidental damages, coverage issues, or software incompatibility/problems with 3rd-party apps.
  4. Attempting to ‘root’ or otherwise ‘mod’ your phone will void its warranty.
  5. Visible physical damage to your phone (e.g. liquid damage, cracked LCD, damaged housing) will void its warranty.

You must return all accessories (charger, cables, manual, etc.) with the defective device. If components are missing, we will charge a nonrefundable missing parts fee as outlined below:

  • Battery: $10.00
  • Charger: $7.00
  • USB Cable: $3.00
  • SD Card: $5.00
  • Manual: $3.00
  • Other parts: at our discretion

Your defective device must be returned in good condition. If the device is determined to have any damage that voids its warranty (e.g. liquid damage, ‘modded’ OS, etc.), it will be returned without repair or refund to the original address of purchase (unless stated otherwise).

Our warranties expressly exclude certain categories of damages and uses of your phone. These exclusions, which we do not cover, include possible costs or damages for which you will not be reimbursed. These exclusions are as follows:  The limits of what we provide above relate to the device itself. We are not responsible for lost data or the time that you were without a device. We encourage you to back up your data regularly, as no one else will take responsibility for the restoration of any lost data. We are not responsible for any consequential damages, from the loss of your device, the loss of your data, or the time you were without your device.  We do not warrant any device for merchantability or fitness for a particular purpose. These warranties are specifically disclaimed.  Except as provided in this warranty and to the extent permitted by law, Smack Mobile is not responsible for direct, special, incidental or consequential damages resulting from any breach of warranty or condition, or under any other legal theory, including but not limited to loss of use; loss of revenue; loss of actual or anticipated profits (including loss of profits on contracts); loss of the use of money; loss of anticipated savings; loss of business; loss of opportunity; loss of goodwill; loss of reputation; loss of, damage to or corruption of data; or any indirect or consequential loss or damage howsoever caused including the replacement of equipment and property, any costs of recovering, programming, or reproducing any program or data stored or used with apple products and any failure to maintain the confidentiality of data stored on the product. The foregoing limitation shall not apply to death or personal injury claims, or any statutory liability for intentional and gross negligent acts and/or omissions. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation may not apply to you.  We do not manufacture our devices. The only warranties applicable to our devices are those extended by the manufacturers. We have no liability, therefore, in connection with devices or for manufacturers’ acts or omissions. We make no warranties or representations, express or implied, regarding the products and services provided hereunder or any software used in connection therewith, including, but not limited to, and to the extent permitted by law, warranty of title, merchantability, fitness for a particular use, quality, non-infringement, performance or accuracy. We expressly disclaim any and all implied warranties. We do not promise error-free or uninterrupted service, and do not authorize anyone to make warranties on our behalf.

PLAN RETURN POLICY

All of our plans carry an unconditional 7-Day Money Back Guarantee. So, try us out – if we’re not your style, let us know within 7 days of activation for a full refund (minus shipping and handling). Please allow 10 business days to process your return. To submit a plan refund request please call 1-888-954-3556 or login to Smack Mobile Members area (User: email address used to order phone | Password: created when customer signed up)

  1. Liability of Smack Mobile

If you are dissatisfied with the Web site, any information found thereon, or with any part of these Terms of Use or the Privacy Policy, your sole and exclusive remedy is to discontinue using the Web site. Smack Mobile assumes no liability for or relating to the delay, failure, interruption or corruption of any data or other information transmitted in connection with the use of the Web site.

IN NO EVENT SHALL THE SMACK MOBILE PARTIES BE LIABLE FOR ANY DAMAGES OR LOSS OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR ANY OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION: (I) LOSS OF GOODWILL, PROFITS, BUSINESS INTERRUPTION, DATA OR OTHER INTANGIBLE LOSSES; (II) YOUR INABILITY TO USE, UNAUTHORIZED USE OF, PERFORMANCE OR NON-PERFORMANCE OF THE WEB SITE; (III) UNAUTHORIZED ACCESS TO OR TAMPERING WITH YOUR PERSONAL INFORMATION OR TRANSMISSIONS; (IV) THE PROVISION OR FAILURE TO PROVIDE ANY PRODUCT OR SERVICE; (V) ERRORS OR INACCURACIES CONTAINED ON THE WEB SITE OR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES OR GRAPHICS OBTAINED THROUGH THE WEB SITE; (VI) ANY TRANSACTIONS ENTERED INTO THROUGH THE WEB SITE; (VII) ANY PROPERTY DAMAGE, INCLUDING DAMAGE TO YOUR COMPUTER OR COMPUTER SYSTEM CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, DURING OR ON ACCOUNT OF ACCESS TO OR USE OF THE WEB SITE OR ANY WEB SITE TO WHICH IT PROVIDES HYPERLINKS; OR (VIII) DAMAGES OTHERWISE ARISING OUT OF THE USE OF THE WEB SITE, ANY DELAY OR INABILITY TO USE THE WEB SITE, OR ANY INFORMATION OR PRODUCTS OR SERVICES OBTAINED THROUGH THE WEB SITE. THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF THE SMACK MOBILE PARTIES HAVE BEEN ADVISED OF, OR OTHERWISE SHOULD HAVE BEEN AWARE OF, THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU SPECIFICALLY ACKNOWLEDGE THAT THE SMACK MOBILE PARTIES ARE NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. THIS WEB SITE IS CONTROLLED AND OFFERED BY SMACK MOBILE FROM ITS OFFICES IN THE UNITED STATES OF AMERICA, AND SMACK MOBILE MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE WEB SITE IS APPROPRIATE OR AVAILABLE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE WEB SITE FROM OTHER JURISDICTIONS DO SO ON THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.

If, notwithstanding the FIRST PARAGRAPH OF THIS SECTION 8, ANY SMACK MOBILE PARTY IS found liable for any loss or damage relating to YOUR use of this WEB Site (OTHER THAN WITH RESPECT TO PRODUCTS OR SERVICES PURCHASED THROUGH THIS WEB SITE), YOU agree THAT the liability of such party shall in no event exceed ONE HUNDRED DOLLARS ($100.00).

IF, NOTWITHSTANDING THE FIRST PARAGRAPH OF THIS SECTION 8, ANY SMACK MOBILE PARTY IS FOUND LIABLE FOR ANY LOSS OR DAMAGE RELATING TO ANY SERVICE(S) OR PRODUCT(S) (WHETHER TANGIBLE OR INTANGIBLE) ADVERTISED, PROMOTED OR SOLD THROUGH THIS WEB SITE, YOU AGREE THAT THE LIABILITY OF SUCH PARTY SHALL IN NO EVENT EXCEED THE AMOUNTS SET FORTH IN SECTION 21 OF THE TERMS AND CONDITIONS.

Some states or jurisdictions, to the extent their law might be deemed to apply notwithstanding the selection of Florida law as described below, do not allow the exclusion of certain warranties or limitations of liability, so the foregoing exclusions or limitations might not apply to you. except to the extent prohibited by law, all claims must be brought within two (2) years of the date the claim arises. Remedies under these Terms of Use are exclusive and are limited to those expressly provided for in these Terms of Use.

  1. Indemnification

You agree to defend, indemnify and hold harmless the Smack Mobile Parties from and against any and all claims, actions, obligations, demands, damages, costs, liabilities, losses and expenses (including reasonable attorneys’ fees and disbursements) arising out of, or relating to: (i) your use of the Web site and/or any information, services or products advertised or provided viathe Web site; (ii) your violation of these Terms of Use; (iii) your violation of any third party right, including, but not limited to, any copyright, property or privacy right; or (iv) any claim that any of your User Submissions caused damage to a third party.

  1. Third Party Advertisements; Links to Other Web Sites

Smack Mobile may display advertisements from third parties on the Web site. Your dealings or correspondence with such third parties, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. Smack Mobile is not liable for any damages or losses of any sort incurred as a result of such dealings or as a resulting of such third-party advertisements or information on the Web site.

Some of the hyperlinks on the Web site may lead to other web sites that are not controlled by, or affiliated with, Smack Mobile. In addition, other web sites may link to this Web site. Unless expressly stated, Smack Mobile has not reviewed or endorsed these web sites, has no control over those web sites and is not responsible for the content or privacy policies, or practices of any third-party web sites. In addition, Smack Mobile will not and cannot censor or edit the content of any third-party web site. By using the Web site, you expressly relieve Smack Mobile from any and all liability arising from your use of any third-party web site that you visit through or via the Web site. Accordingly, we encourage you to be aware when you leave the Web site and to read the terms and conditions and privacy policy of each other web site that you visit.

  1. User Submissions and Contributions

Any personal information you provide to Smack Mobile is subject to our Privacy Policy. Beyond that information, any email or other communications or content you send to any part of the Web site is non-confidential for all purposes. “User Submissions” include all forms of information or material uploaded or communicated in any manner by users of the Web site. If you make any such submission, you automatically grant — or warrant that the owner of such content has expressly granted — Smack Mobile a royalty-free, perpetual, irrevocable, world-wide, non-exclusive, sublicensable and transferable right and license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display the communication or content in any media or medium, or any form, format or forum now known or hereafter developed. Smack Mobile may sublicense its rights through multiple tiers of sublicenses. You also hereby grant each user of the Web site a non-exclusive license to access your User Submissions through the Web site, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Web site and under these Terms of Use. You understand and agree that Smack Mobile may choose to retain, but not display, distribute, or perform, server copies of User Submissions that have been removed or deleted.

You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: you own or have the necessary licenses, rights, consents, and permissions to use and authorize Smack Mobile to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Web site and these Terms of Use.

Smack Mobile does not endorse any User Submission, or any opinion, recommendation, or advice expressed therein, and Smack Mobile expressly disclaims any and all liability in connection with User Submissions. Smack Mobile does not permit copyright infringing activities and infringement of intellectual property rights on its Web site, and Smack Mobile may remove all User Submissions if properly notified that such User Submission infringes on another’s intellectual property rights. Smack Mobile reserves the right to remove User Submissions without prior notice.

Smack Mobile is free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any User Submission or other communication you may send to Smack Mobile without compensation to you or attribution and for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products or services and creating, modifying or improving the Web site or other web sites.

Should you send any unsolicited materials or ideas, you do so with the understanding that no consideration of any sort will be provided to you, and you are waiving any claim against Smack Mobile and its parent, subsidiaries and affiliates regarding the use of such materials and ideas, even if material or an idea is used that is substantially similar to the idea you sent.

Smack Mobile reserves the right to reject, remove or edit User Submissions at any time without notice. User Submissions should not be submitted that contain: harsh, profane, vulgar or discriminatory language; illegal, obscene, threatening, defamatory or otherwise objectionable content; URLs, phone numbers, mailing or email addresses, or personal attacks; or misleading information regarding the origin of the content. You understand and agree that we may, but are not obligated to, review the content and may delete or remove it (without notice) in our sole discretion, for any reason or no reason.

  1. Disputes

IT IS IMPORTANT THAT YOU READ THIS ENTIRE SECTION CAREFULLY. THIS SECTION PROVIDES FOR RESOLUTION OF DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF BY A JUDGE OR JURY. ANY ARBITRATION UNDER THESE TERMS OF USE WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS ACTION LAWSUITS ARE NOT ALLOWED.

Subject to the following paragraph of this Section 12, all disputes between you and Smack Mobile and/or its officers, directors, employees, agents and affiliates must be resolved by final and binding arbitration. This agreement to arbitrate is intended to be given the broadest meaning under law and includes, but is not limited to, (i) disputes and claims arising out of or relating to any aspect of the relationship between you and Smack Mobile, whether based in statute, fraud, tort, contract, misrepresentation or any other legal theory, (ii) disputes and claims that arose before this or any prior agreement, and (iii) disputes and claims concerning the scope of this arbitration provision. The arbitration will be conducted by one arbitrator using the procedures described in this Section. The arbitration of any dispute shall be administered by the American Arbitration Association (“AAA”) and shall be governed by the AAA’s Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer-Related Disputes, as modified by this Agreement, which are in effect on the date a dispute is submitted to the AAA. To the extent that such procedures differ from these Terms of Use, these Terms of Use shall govern to the fullest extent permitted by law. You have the right to be represented by counsel in an arbitration. In conducting the arbitration and making any award, the arbitrator shall be bound by and strictly enforce the terms of this Agreement and may not limit, expand, or otherwise modify its terms.

Before you take a dispute to arbitration, you must first write to us at: SMACK MOBILE, 499 E Sheridan Street Suite 400, Dania, Florida 33004 and give us an opportunity to resolve the dispute. Similarly, before Smack Mobile takes a dispute to arbitration, we must first attempt to resolve it by contacting you. If the dispute cannot be satisfactorily resolved within thirty (30) days from the date you or Smack Mobile is notified by the other of a dispute, then either party may contact the AAA in writing and request arbitration of the dispute. Information about the arbitration process and the AAA’s Arbitration Rules and its fees are available on the Internet at www.adr.org. The arbitration will be based only on written submissions of the parties and the documents submitted to the AAA relating to the dispute, unless either party requests that the arbitration be conducted using the AAA’s telephonic, online, or in-person procedures. Additional charges may apply for these procedures. Any in-person arbitration will be conducted at a location the AAA selects in Broward County Florida. Arbitrations under this Agreement shall be confidential as permitted by federal law. However, by filing for arbitration, you may elect to relieve both parties to the arbitration of confidentiality obligations.

Nothing in this Section 12 or otherwise shall preclude Smack Mobile from seeking any injunctive relief in any court of competent jurisdiction for protection of Smack Mobile’s intellectual property rights or other proprietary rights.

These Terms of Use are governed by the internal substantive laws of the State of Florida, without reference to its conflict of the laws principles. No waiver of any of these Terms of Use shall be deemed a further or continuing waiver of such term or condition or any other term or condition.

  1. Revisions to Terms of Use

These Terms of Use may be revised, modified, altered or updated (collectively, “Modified Terms”) by Smack Mobile in the future at its sole discretion. Such Modified Terms shall be effective immediately upon the posting thereof on the Web site. Any use of the Web site by you after such posting shall be deemed to constitute acceptance of such Modified Terms.

  1. Entire Agreement

These Terms of Use, as modified from time to time by Smack Mobile and including Smack Mobile’s Privacy Policy incorporated herein by reference, sets forth the entire understanding and agreement of the parties relating to the subject matter hereof, and it supersedes any prior or contemporaneous understandings of any kind or nature. By agreeing to these terms, you represent that you are not relying on any agreement, representation or warranty pertaining to the subject matter hereof that is not expressly set forth herein.

  1. Severability

If any arbitrator or any court of competent jurisdiction declares any provision of these Terms of Use to be invalid, unlawful or unenforceable as drafted, the parties intend that such provision be amended and construed in a manner designed to effectuate the purposes of the provision to the fullest extent permitted by law. If such provision cannot be so amended and construed, it shall be severed, and the remaining provisions shall remain unimpaired and in full force and effect to the fullest extent permitted by law. Each party acknowledges and agrees that any interpretation of these Terms of Use will not be construed against a party by virtue of its having drafted the provisions hereunder.

  1. Digital Millennium Copyright Act

It is Smack Mobile’s policy to respect the intellectual property rights of others. If you are a copyright owner or an agent thereof and believe that any User Submission or other communication or material infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C. § 512(c)(3) for further detail):

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Web site are covered by a single notification, a representative list of such works;
  3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably enough to permit Smack Mobile to locate the material;
  4. Information reasonably enough to permit Smack Mobile to contact you, such as an address, telephone number, and, if available, an electronic mail address;
  5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  6. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Smack Mobile’s designated Copyright Agent to receive notifications of claimed infringement is: Copyright Officer, SMACK MOBILE499 E Sheridan Street Suite 300, Dania, Florida 33004. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Smack Mobile customer service. You acknowledge that if you fail to comply with all the requirements set forth above, your DMCA notice may not be valid.

If you are the owner or an agent thereof, of material that was removed from the Web site or disabled after Smack Mobile received a copyright infringement notice, and you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material, you may ask that the material be restored by sending Smack Mobile a counter-notification. Section 512(g) of the Copyright Act requires that your counter-notification include all the following:

  • Your physical or electronic signature;
  • Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
  • A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
  • Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal courts in Florida, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, Smack Mobile may send a copy of the counter-notice to the original complaining party informing that person that Smack Mobile may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or user, and provides Smack Mobile with notice of same, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Smack Mobile’s sole discretion.

  1. Intellectual Property Notice

All content on the Web site is owned by Smack Mobile or its licensors, and is protected by U.S. and international copyright, trademark and similar intellectual property laws. All rights in and to such content is reserved. Reproduction of any content, in whole or in part, without permission is prohibited.

  1. Ability to Accept Terms

You affirm that you are at least 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Use, and to abide by and comply with these Terms of Use.

  1. General

No agency, partnership, joint venture, employee-employer, or franchisor-franchisee relationship is intended or created between you and Smack Mobile by your use of the Web site. Any provision of these Terms of Use which by its nature would survive the termination or expiration of these Terms of Use, shall do so. These Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Smack Mobile without restriction. The section headings used herein are for convenience only and shall not be given any legal import. These Terms of Use are for the benefit of Smack Mobile, its parent, subsidiaries, affiliates and its third-party content providers and licensors and each shall have the right to assert and enforce these Terms of Use directly or on its own behalf

  1. Hearing, Visual or Speech Impaired Accommodations

Any hearing, visual, or speech impaired person(s) interested in applying for a specially equipped Smack Mobile Mobile Device must call Smack Mobile and specify their need(s) to a representative. Smack Mobile will make every effort to assist such customer in obtaining a Mobile Device that is in compliance with all applicable laws, rules, and regulations.

HEARING AID COMPATIBLE HANDSETS

When wireless devices are used near hearing devices (such as hearing aids and cochlear implants), users may detect a buzzing, humming, or whining noise. Some hearing devices are more immune than others to this interference, and wireless devices also vary in the amount of interference they generate.

The wireless telephone industry has developed ratings to assist hearing device users in finding wireless devices that may be compatible with their hearing devices. Not all wireless devices have been rated. Wireless devices that are rated will have the rating displayed on their box together with other relevant approval markings.

The ratings are not guarantees. Results will vary depending on the user’s hearing device and hearing loss. If your hearing device is vulnerable to interference you may not be able to use a rated wireless device successfully.

M-Ratings: Wireless devices rated M3 or M4 meet FCC requirements and are likely to generate less interference to hearing devices than wireless devices that are not labeled. M4 is the better/higher of the two ratings.

T-Ratings: Wireless devices rated T3 or T4 meet FCC requirements and are likely to be more usable with a hearing device’s telecoil (“T Switch” or “Telephone Switch”) than unrated wireless devices. T4 is the better/higher of the two ratings. (Note that not all hearing devices have telecoils in them).

Most phones that are rated T3 also have an M3 rating. Similarly, most phones rated T4 also have an M4 rating.

Hearing devices may also be measured for immunity to this type of interference. Your hearing device manufacturer or hearing health professional may help you find results for your hearing device. The more immune your hearing aid is, the less likely you are to experience interference noise from wireless devices.

HEARING AID COMPATIBLE HANDSETS

Model: FCC ID: HAC Rating: Functionality Level
ZTE Prestige 2 SRQ-N9136 M4, T3 (mostly tele-coil compatible) 4G LTE, camera, speakerphone, Wi-Fi
ZTE Blade Force SRQ-N9517 M4, T3 (mostly tele-coil compatible) 4G LTE, camera, speakerphone, Wi-Fi
ZTE Tempo X  SRQ-N9137 M4, T3 (mostly tele-coil compatible) 4G LTE, camera, speakerphone, Wi-Fi
Motorola Moto e5 IHDT56XF2 M4, T3 (mostly tele-coil compatible) 4G LTE, camera, speakerphone, Wi-Fi
LG K30 ZNFX410PM M3, T3 (mostly tele-coil compatible) 4G LTE, camera, speakerphone, Wi-Fi
Samsung Galaxy A6 A3LSMA600P  M4, T3 (mostly tele-coil compatible) 4G LTE, camera, speakerphone, Wi-Fi
LG G Stylo ZNFLS770 M4, T4 (very tele-coil compatible) 4G LTE, camera, speakerphone, Wi-Fi

You can find information about the wireless hearing aid compatibility rules and service providers’ obligations https://www.fcc.gov/hearing-aid-compatibility-and-volume-control. For additional information regarding hearing aid-compatible and non-hearing aid-compatible devices, visit: https://www.gari.info.

PLANS TERMS & CONDITIONS

These Terms and Conditions (“T&Cs”) are part of your service agreement with Smack Mobile, including its affiliates, assigns, and agents (“Smack Mobile,” “we,” “us, or “our”) and constitute a contract under which we provide you Service under terms and conditions that you accept. Your service agreement (“Agreement”) with us includes (i) these T&Cs, (ii) our Privacy Policy, (iii) our Acceptable Use Policy, (iv) any subscriber agreement or transaction materials that you sign or accept, (v) the service plan(s) that you choose 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 plan charges and number of minutes included in your service plan), (vi) any confirmation materials that we may provide to you, (vii) the terms set forth in any applicable coverage map brochures, and (viii) any other supplemental terms and conditions that we provide or otherwise make available to you.  In the event of a conflict between these T&Cs and any other materials that makeup the Agreement, these T&Cs shall govern to the extent necessary to resolve the conflict.

Please read these T&Cs carefully. They cover important information about our services provided to you (“Service”); your phone, handset, device, SIM card, data card, or other equipment or third party device used with our Service (“Device”); and any access and usage charges, taxes, fees, assessments, and other charges we bill you or that were accepted or processed through your Device (“Charges”). These T&Cs include terms regarding service plan changes and late payments, limitations of liability, privacy and resolution of disputes by arbitration instead of in court.

You and any authorized users on your account will have access to account information and may be able to make changes to the account. If you give your personal account validation information to someone, they can access and make changes to your account. Those changes will be binding on you. Authorized changes may require your agreement to new T&Cs.

  1. Acceptance. YOUR AGREEMENT WITH SMACK MOBILE STARTS WHEN YOU ACCEPT. You represent that you are at least eighteen (18) years old or legally emancipated and you are legally authorized to enter into this Agreement. You accept your Agreement by doing any of the following: (a) giving us a written or electronic signature or telling us orally that you accept; (b) activating Service; (c) using your Service after you make a change or addition; or (d) paying for the Service or an “Smack Mobile Device”. IF YOU DO NOT WANT TO ACCEPT, DO NOT DO ANY OF THESE THINGS.
  2. Dispute Resolution and Arbitration. SMACK MOBILE AND YOU EACH AGREE THAT, EXCEPT AS PROVIDED BELOW (AND EXCEPT AS TO PUERTO RICO CUSTOMERS), ANY AND ALL CLAIMS OR DISPUTES IN ANY WAY RELATED TO OR CONCERNING THE AGREEMENT, OUR SERVICE, DEVICES OR PRODUCTS, WILL BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL, NON-REPRESENTATIVE, BASIS. This includes any claims against other parties relating to Service or Devices provided or billed to you (such as our suppliers, third-party) whenever you also assert claims against us in the same proceeding. Smack Mobile and you each also agree that the Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law apply (despite the choice of law provision in Section 22). THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR MUST FOLLOW THIS AGREEMENT AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS’ FEES).

For all disputes, you must first give us an opportunity to resolve your claim by sending a written description and supporting documentation of your claim to the address set forth in Section 12 below. Smack Mobile and you each agree to negotiate your claim in good faith. If Smack Mobile and you are unable to resolve the claim within sixty (60) days after Smack Mobile receives your claim description and supporting documentation, you may pursue your claim in arbitration.

As an alternative to arbitration, Smack Mobile may choose to resolve billing disputes in small claims court in the county of your most recent billing address.  Smack Mobile and you each agree that if you fail to timely pay amounts due, Smack Mobile may assign your account for collection, and the collection agency may pursue, in small claims court, claims limited strictly to the collection of the past due amounts and any interest or cost of collection permitted by law or the Agreement.

Either you or we may start arbitration proceedings. You must send a letter requesting arbitration and describing your claim to our registered agent (see Section 12) to begin arbitration. The American Arbitration Association (“AAA”) will arbitrate all disputes. For claims of less than Seventy-five Thousand Dollars ($75,000.00), the AAA’s Consumer Arbitration Rules will apply; for claims over Seventy-five Thousand Dollars ($75,000.00), the AAA’s Commercial Arbitration Rules will apply. The AAA rules are available at www.adr.org. Upon filing of the arbitration demand, Smack Mobile and you will share equally all filing, administration and arbitrator fees for claims that total less than Seventy-five Thousand Dollars ($75,000.00). For claims that total more than Seventy-five Thousand Dollars ($75,000.00), the payment of filing, administration and arbitrator fees will be governed by the AAA Commercial Arbitration Rules. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. Puerto Rico customers: Refer to Section 11 for details of the Puerto Rico Telecommunications Dispute Procedure.

CLASS ACTION WAIVER. SMACK MOBILE AND YOU EACH AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Neither you, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding against Smack Mobile.

JURY TRIAL WAIVER. If a claim proceeds in court rather than through arbitration, SMACK MOBILE AND YOU EACH WAIVE ANY RIGHT TO A JURY TRIAL.

  1. No Refunds for Your Cancellation of Service Plans. You may cancel any Service plan that you pay for in advance at any time; provided that, except as otherwise required by applicable law, you will not receive any refund of amounts paid to us in connection with such Service plan (regardless of whether such plan is a 30 day Service plan or a multi-month Service plan).
  2. Our Rights to Make Changes. This provision is subject to requirements and limitations imposed by applicable law and will not be enforced to the extent prohibited by law. Your Service is subject to our business policies, practices, and procedures, which we can change without notice. WE RESERVE THE RIGHT TO CHANGE OR MODIFY THESE T&Cs OR ANY OTHER TERMS IN THE AGREEMENT AT ANY TIME AND YOU AGREE TO BE BOUND BY ALL SUCH CHANGES OR MODIFICATIONS ON THE EARLIER OF WHEN WE (i) POST THEM ON OUR INTERNET WEBSITE, OR (ii) SEND THEM TO YOU (ELECTRONICALLY OR OTHERWISE). BECAUSE THESE T&Cs ARE SUBJECT TO CHANGE AT ANY TIME, YOU SHOULD ALWAYS CHECK OUR WEBSITE FOR THE MOST CURRENT VERSION. IF WE CHANGE THE SERVICE FEE APPLICABLE TO YOUR SERVICE PLAN, YOU WILL HAVE 5 DAYS FROM THE DATE WE POST OR NOTIFY YOU OF THE REVISED SERVICE FEE TO TERMINATE YOUR SERVICE PLAN BY (i) contacting our customer service department at support@hellomobile.com, (ii) calling 1-888-954-3556 , or (iii) managing your account preferences on the Smack Mobile website.  IF YOU FAIL TO CANCEL YOUR SERVICE PLAN WITHIN THE 5 DAY PERIOD, YOU WILL BE DEEMED TO HAVE ACCEPTED THE RATE INCREASE.  ANY INCREASE IN TAXES, REGULATORY FEES OR ASSESSMENTS WILL NOT BE CONSIDERED AN INCREASE IN ANY SERVICE FEE AND WILL NOT ENTITLE YOU TO EXERCISE THE FOREGOING CANCELLATION RIGHT. 
  3. Compatible Devices. You must use a supported, compatible Device to access the Smack Mobile network. Only certain phones and tablet computers are supported Devices. Smack Mobile will provide you with a list of supported Devices upon your request. Modems, bypass, gateways, automated relay devices and any other Devices used for commercial or re-direction purposes are not supported Devices and violate our Acceptable Use Policy. Failure to use a supported, compatible Device when accessing our network will result in immediate termination of your Service.
  4. Service Availability. Coverage maps only approximate our anticipated Mobile coverage area outdoors; actual Service area, coverage and quality may vary and change without notice depending on a variety of factors including network capacity, terrain and weather. Outages and interruptions in Service may occur, and speed of Service varies. You agree we are not liable for problems relating to Service availability or quality.
  5. Important Emergency and 9-1-1 Information and Emergency Alerts. When making a 9-1-1 call, always state the nature of your emergency and provide both your location and phone number, as the operator may not automatically receive this information. Smack Mobile is not responsible for failures to connect or complete 9-1-1 calls or if inaccurate location information is provided. 9-1-1 service may not be available or reliable and your ability to receive emergency services may be impeded. We or our network supplier may use a variety of information and methods to determine the location of a 9-1-1 call, including Global Positioning Satellites, our network supplier’s Mobile network, the street address you have provided us as your primary use location (“Primary Address”), or other information. Even with this information, an emergency operator may not be able to locate you in order to provide emergency services. Other third-party entities are involved in connecting a 9-1-1 call and neither Smack Mobile nor its network supplier determines the public safety agency to which your 9-1-1 call is routed. If you are porting a phone number to or from us, we may not be able to provide you with some Services, such as 9-1-1 location services, while the port is being implemented. If you are porting a phone number to Smack Mobile, it is your obligation and responsibility to make certain that all information forwarded from the port-out carrier is accurate and complete. If you dial 9-1-1 while outside the U.S., 9-1-1 services may not be available.
  1. Service Plans.

General. Your Service will operate only after you have purchased and redeemed an Smack Mobile Service plan.  Please visit our website at www.Smack Mobile mobile.com for the latest information regarding our Service plans.

Charges. You agree to pay all charges we bill you or that were accepted or processed through your Device or on such other Devices connected with your account and as designated in your Service plan. For disputed charges, see Section 11. You agree to provide us with accurate and complete billing information and to immediately report to us all changes to your billing information.

Voice Usage.  Smack Mobile Service plans include a voice plan as part of your Service.  We round up any fraction of a minute to the next full minute. Airtime usage is measured from the time the network provider begins to process a call (before the phone rings or the call is answered) through its termination of the call (after you hang up) and the network disconnects.

Data Usage and Messaging. Smack Mobile Service plans include a data plan (“Data Plan”) as part of your Service.  Data usage is rounded up to the next full-kilobyte increment at the end of each data session.   For all Smack Mobile Service plans except the Smack Mobile plans, 1 gigabyte of data is equivalent to 1,024 megabytes.  For all Smack Mobile plans, 1 gigabyte of data is equivalent to 1,000 megabytes.  Your data usage includes, among other things, text, web browsing, instant or picture messages, and email whether read or unread, sent or received, solicited or unsolicited. We use filters to block spam messages, but we do not guarantee that you will not receive spam or other unsolicited messages, and we are not liable for such messages.  All data purchased with an Smack Mobile Service plan (both data that comes with a Smack Mobile Service plan and any additional data you purchase as an add-on), including Smack Mobile   plan roll-over data, will expire immediately upon termination of your Smack Mobile Service plan for any reason.

Permissible and Prohibited Uses. Your Data Plan is intended for Web browsing, messaging, and similar activities on your Device. Examples of prohibited uses can be found in Section 14 of these T&Cs and in our Acceptable Use Policy.

Data Usage Level. Smack Mobile has set a 30-day 4G data usage level (“Usage Level”) for each of its Service plans.  For purposes of these T&Cs, “4G” means minimum data speeds equal to the lesser of (i) an average of 1.0 mbps over a 30-day service term, or (ii) the average network speed in your market over a 30-day service term as dictated by Smack Mobile’s network supplier (over which Smack Mobile has no control).  Our network supplier measures your upload and download data usage (“Actual Usage”) to determine if your total Actual Usage, as aggregated over the applicable 30-day period (“Usage Total”), exceeds the 30-day 4G Usage Level for the Service plan you selected. Please note that “Actual Usage” includes all of your requests to upload or download data, whether or not such data is actually uploaded or downloaded, as well as network overhead. For example, if you request that an image be downloaded to your Device but travel outside of your network coverage area before the download is complete, such request will be included in your Actual Usage even though the image was never downloaded to your Device. If you purchased a Service plan that includes a finite amount of data in a 30-day Service period, your data will be suspended once you reach the 30-day data limit and reset upon the commencement of the following 30-day Service period.  If you purchased a Service plan that includes unlimited data and you exceed your Service plan’s 30-day Usage Level, Smack Mobile will reduce the speed at which you can send and receive data over the Smack Mobile network until the end of the applicable 30-day period. The initial reduction in your data speed depends upon your Service plan and can be found in our FAQs.  If you continue to send and/or receive a substantial amount of data (as determined by Smack Mobile in its sole discretion) after our initial reduction of your data speed, we may further reduce your data speed to 64 kbps.  Once you begin a new 30-day period in your Service plan, your Service plan Usage Level will be reset and your upload and download speeds will be restored. For example, if a customer purchases a Service plan that includes unlimited data service, but only includes up to 1 gigabyte of high speed data at 4G speeds during a given 30-day period, then the first gigabyte of data requested by that customer in that 30-day period will be provided at up to 4G speeds (subject to 4G network availability and the actual network speeds of Smack Mobile’s network supplier).  Any data uploaded or downloaded by that customer in excess of 1 gigabyte will be provided at reduced speeds not lower than 64 kbps. Please be aware that your Usage Level is much more likely to exceed your Service plan’s 30-day Usage Level if you use streaming video, or if you download significant quantities of music files, movies, software applications, or engage in other high-bandwidth activities.

New and existing customers can enable a customer-controlled feature (“Data My Way”) on qualifying unlimited data plans to better optimize their Data Plan, 4G Service, and high-speed data consumption. Qualifying plans that feature Data My Way allow customers to choose the maximum data upload and download speeds that will be applied to their Service when they are connected to the cellular network. For example, when Data My Way is enabled, streaming video optimization technology is automatically applied, and video is delivered at lower quality (typically 480p) rather than at a higher resolution (e.g. HD) better suited for larger screens, which helps customers stretch their Data Plans by reducing the amount of high-speed data consumed for streaming video. Data speed optimization is not applied when a device is on Wi-Fi and therefore all data, including video, will be delivered at available speeds. By accessing their account preferences on the Smack Mobile website, qualifying Data My Way customers can choose between one of three available data upload and download speed options, with delivery rates that range from up to 1.0 mbps to full network speed. When Data My Way is enabled, Smack Mobile will apply a default data delivery rate at its sole discretion and as available Customers can switch the speed of their Data My Way Service at any time during the applicable 30-day period and may apply Data My Way to a new Data Plan, an existing Data Plan, or a Data Plan add-on.

Protective Measures. To provide a good experience for most of our customers and minimize capacity issues and degradation in network performance, we may take measures including temporarily reducing data throughput for a subset of customers who use a disproportionate amount of bandwidth. If you use your Data Plan in a manner that could interfere with other customers’ service, affect our ability to allocate network capacity among customers, or degrade service quality for other customers, we may suspend, terminate, or restrict your data session, or switch you to a more appropriate Data Plan which may result in an increased cost. We also manage our network to facilitate the proper functioning of services that require consistent high speeds, such as video calling, which may, particularly at times and in areas of network congestion, result in reduced speeds for other services. Additionally, we may implement other network management practices, such as caching less data, using less capacity, sizing video more appropriately for a Device to transmit data files more efficiently, and deploying streaming video optimization technology. Streaming video optimization technology is intended to manage data usage on the network, reduce the risk of streaming video stalling and buffering, and reduce the amount of high-speed data consumption used for streaming video. Streaming video optimization improves streaming video reliability as well as makes room for other users to enjoy higher browsing speeds. The streaming video optimization process is agnostic as to the streaming video content itself and to the website that provides it. While most changes to streaming video files are likely to be indiscernible, the optimization process may minimally impact the appearance of the streaming video as displayed on your Device. These practices operate without regard to the content itself or the source of the content, and do not discriminate against offerings that might compete against those offered by us on the basis of such competition.  Streaming video optimization technology is automatically applied to Data My Way Service plans based on the applicable data upload and download speed option chosen by the customer, if such options are available.

Wi-Fi Features.  Smack Mobile, at its sole discretion, may make available Wi-Fi voice and text messaging services, i.e., the ability to originate and terminate calls and text messages over a Wi-Fi connection (“Wi-Fi Calling).  If offered by Smack Mobile, Wi-Fi Calling will only be available for Smack Mobile customers that (i) have a Wi-Fi capable Device with Smack Mobile supported Wi-Fi calling capability, (ii) have Wi-Fi Calling service provisioned on their account, (iii) have a compatible SIM card, and (iv) are connected to functioning third-party internet service.  Not all services available on Smack Mobile’s supplier’s network are available while using Wi-Fi Calling.  For example, emergency alerts may not be available with Wi-Fi Calling.  You acknowledge that calling 9-1-1 via Wi-Fi Calling uses the internet and operates differently than traditional 9-1-1 (see our complete 9-1-1 disclosure posted on our website at www.Smack Mobile mobile.com/911-disclosure).  For example, 9-1-1 may not work during power or internet outages or disruptions, or if internet or your Service is suspended.  Location information when using Wi-Fi Calling may be limited or unavailable.  If Smack Mobile makes Wi-Fi Calling available to you, you must provide us with your up-to-date, primary address.  If the location at which you primarily use Wi-Fi Calling changes, either temporarily or permanently, you must promptly update your address with Smack Mobile.  You may provide us with your primary address, or update your primary address, by contacting us at the email address, telephone number or mailing address specified in Section 12.  If you do not provide us with your primary address and update it promptly as described above, we or our network supplier may block your usage of certain Wi-Fi Networks.  When you call 9-1-1 over Wi-Fi away from your primary address, we and our network supplier may have no or very limited information about your location.  Neither Smack Mobile nor its network supplier is responsible or liable for anything related to your use of or inability to use any Wi-Fi Calling MADE AVAILABLE TO you, including, without limitation, any failure of emergency calls (whether 9-1-1 calls or otherwise).  Wi-Fi Calling may decrement Service plan minutes.  Most devices will not transition between Wi-Fi and the Mobile network.  Devices using Mobile connections may be vulnerable to unauthorized attempts to access data and software stored on the device.

CONTENT AND APPLICATIONS

APP Data Usages. Some Smack Mobile Plans also provide data services. Your use of data services (“Data Usage”) occurs whenever your phone is connected to the network and is engaged in any data transmission, including but not limited to, (i) opening or using an internet browser or app in any way, including, but not limited to app installations and updates, (ii) sending, receiving, or downloading any type of content, including, but not limited, emails, documents, pictures, MMS messages or any other content, or (iii) if data access or a data connection is initiated in any other way or for any other purpose.

Smack Mobile is willing to grant you the right to use the Services only on the condition that you accept all of the provisions contained in these Terms and within our Privacy Policy. By using our Services, you acknowledge and agree that you have read and understand our Terms and Privacy Policy and accept them in their entirety.

Some apps, content, programs, and software that you download or that come pre-loaded on your Phone automatically and regularly send and receive data transmissions in order to function properly, without you affirmatively initiating the request and without your knowledge. For example, apps that provide real-time information and location-based applications connect to our network and send and receive updated information so that it is available to you when you want to access it. We will deduct all Data Usage from the amount of high-speed data provided by the Plan you purchased whenever your Phone is engaged in a data connection, including, any type of connection which you affirmatively initiate or those that run automatically in the background without your knowledge whether they are successful or not. The duration of your data connection and the associated Data Usage is not determined from the exact moment you press a button on your Phone. Data Usage may depend on the amount of data or content transmitted during a data connection and the amount of time it takes to send or receive the data or content being transmitted. If you cancel or attempt to cancel a data or content transmission in progress, or if the process is otherwise interrupted through no action on your part, you will still incur Data Usage. Unless you are using Wi-Fi, any Data Usage on your Phone, will count against your data balance.

For content downloads from the internet or an app store, you may incur a charge for the content you download (a “Content Charge”) from the provider of the content you have purchased. Unless Smack Mobile is the provider of such content, you agree that Smack Mobile is not responsible for the purchase, download, transfer, installation, use, transmission failure, interruption, or delay, or any web content, app store, or an app you access or purchase. Any support questions related to third-party downloads, including, but not limited to web content and apps should be directed to the third-party provider and not Smack Mobile. When you use, download, or install web content and/or apps provided or sold by a third-party, you may be subject to separate terms and conditions, terms of use, privacy policies and other policies of the third-party. You agree that Smack Mobile is not responsible nor liable to you for any third-party content, advertisements, websites, app stores, or apps you may download or access using your phone.

If you visit or use any third-party website, app store, or app, the third party may access, collect, use or disclose your personal information or require that the network carrier disclose your personal information, including, your location information (if applicable). If you access or use any third-party apps while using Smack Mobile ’s Data Services, you agree and authorize Smack Mobile and the network Carrier to provide information related to such use. You understand that your use of a third-party app is subject to the third party’s terms and conditions and policies, including its privacy policy. You should refer to the third-party’s privacy policy for information regarding the use of information collected when you download, install, or use web content or applications from that third party.

Not all of the online content which is accessible to one using Smack Mobile Data Services is intended for children. In the event that you, as a legal guardian allow your child to use Smack Mobile ’s Data Services, you acknowledge that your child has the permission to use the Data Services including, without limitation, email and web browsing capabilities. You further acknowledge that as a legal guardian, it is your responsibility to determine whether using Data Services is appropriate for your child. If you browse the internet using Data Services, you agree that you are of the minimum legal age to visit certain sites and you agree not to visit any illegal sites.

Content and Applications. Your device comes preloaded with apps and software, you agree when applying for service with Smack Mobile that you will indemnify and hold harmless, Smack Mobile of all Liabilities for such preloaded software being installed on your device. You can purchase Content and Applications (for example, downloadable, streaming or networked applications, wallpapers, ringtones, games, productivity tools and video) (“Content and Apps”) for and with your compatible Mobile device. Some Content and Apps that you can purchase with your Mobile device are not sold by Smack Mobile and for such Content and Apps, you can identify the third-party seller at the point of purchase. Smack Mobile is not responsible for such Content and Apps, including download, installation, use, transmission failure, interruption, or delay, or any content or website you may be able to access through the Content and Apps. Any support questions for such Content and Apps should be directed to the third-party seller identified at the point of purchase. When you download or install any Content and Apps sold by a third-party seller, you may be subject to license terms between you and the third-party seller and Content and Apps creator/owner. When you use, install, display, run, or listen to Content and Apps that you purchase from Smack Mobile, the Content and Apps are licensed to you by Smack Mobile and may be subject to additional license terms between you and the creator/owner of the Content and Apps. Whether purchased from Smack Mobile or a third-party seller, any Content and Apps you purchase are licensed for personal, lawful, non-commercial use on your Mobile device only. You may not transfer, copy, or reverse engineer any Content and Apps, or alter, disable or circumvent any digital rights management security features embedded in the Content and Apps. Content and Apps may not be transferable from one Mobile device to another Mobile device. You understand and agree that the Content and Apps contain the intellectual property of third parties. You understand and agree that the Content and Apps are protected by law (including copyright law) and are solely for your personal, non-commercial use. You agree to comply with all applicable laws (including copyright law) and may only make such copies as are reasonably necessary for your personal and non-commercial use. You agree that any other redistribution, reproduction, transmission, communication, sale, use (including, except in the case of Ringtones, as a “ringer” for a telephone), broadcast, public performance, rental or lending, adaptation, sub-license or other use of the Content and Apps without the prior written consent of the copyright owner is prohibited. You understand and agree that all rights not expressly granted herein are reserved by the applicable content owner.
Third Party Applications.  Your location can be identified while using GPS applications. It is your responsibility to notify Authorized Users that their location can be identified while using GPS applications. If you use a third-party application, the application may access, collect, use or disclose your personal information or require Smack Mobile to disclose your information, including location information (when applicable), to the application provider or some other third party. If you access, use or authorize third party applications through the Services, you agree and authorize Smack Mobile to provide information related to your use of the Services or the application(s). You understand that your use of third-party applications is subject to the third party’s terms and conditions and policies, including the third party’s privacy policy. You agree that any Authorized User may access, use or authorize Smack Mobile or third-party location-sensitive applications through the Services. You understand that your use of such location-sensitive applications is subject to the application’s terms and conditions and policies, including its privacy policy. If you activate location-sensitive services for Mobile devices used by other Authorized Users, you agree to inform the Authorized User(s) of the terms of use for location-sensitive applications and that the Mobile device may be located. For additional information on location-sensitive services, see our Privacy Policy at our website.

Downloadable Content and Applications. Content or applications (e.g., downloadable or networked applications, wallpapers, ringtones, games, and productivity tools) (collectively, “Content & Apps”) that you can purchase with your Device are not sold by Smack Mobile. Smack Mobile is not responsible for the Content & Apps, including download, installation, use, transmission failure, interruption, or delay, or any content or website you may be able to access through the Content & Apps. Unless otherwise stated, any support questions for these Content & Apps may be directed to the third-party seller. When you use, download or install Content & Apps sold by a third-party seller, you may be subject to license terms, terms of use, a privacy policy and/or other policies between you and that third party. Content & Apps you purchase from third parties are licensed for personal, lawful, non-commercial use on your Device only. You may not transfer, copy, or reverse engineer any Content & Apps, or alter, disable or circumvent any digital rights management security features embedded in the Content & Apps. Content & Apps may not be transferable from one Device to another Device. Some Devices or Content & Apps may continue to have contact with our network without your knowledge, which may result in additional charges, for example, while roaming internationally. Software on your Device may automatically shut down or limit the use of Content & Apps or other features or Services without warning. Smack Mobile is not responsible for any third-party content, advertisements, or websites you may be able to access using your Device.

Indemnification.  You release us and will indemnify, defend, and hold harmless Smack Mobile  and its affiliates, and their respective officers, directors, employees, and agents, against any claim, loss, damage, settlement, cost, expense, or other liability (including attorneys’ fees) arising from or related to (a) any and all Preloaded App(s), Generated App(s), Submitted Materials, or your use of the Service; or (b) your breach of or non-compliance with this Agreement (each, a “Claim“).  You will not consent to the entry of a judgment or settle a Claim without our prior written consent.  You will use counsel reasonably satisfactory to us to defend each Claim.  If we reasonably determine that a Claim might adversely affect us, we may take control of the defense at our expense (and without limiting your indemnification obligations).  Your obligations under this section are independent of your other obligations under this Agreement.

Use of Information. If you visit any third-party website or app store, or download or use any Content & Apps, the third party may access, collect, use or disclose your personal information or require the network carrier to disclose your information, including location information (when applicable) to the Content & Apps provider or some other third party.  If you access or use any Content & Apps through Smack Mobile’s Service, you agree and authorize Smack Mobile and its network carrier to provide information related to such use. You understand that your use of a third-party app is subject to the third party’s terms and conditions and policies, including its privacy policy. Please refer to the Content & Apps creator/owner’s privacy policy for information regarding their use of information collected when you download, install, or use any third-party Content & Apps. We are not responsible for any transmission failure, interruption, or delay related to Content & Apps, or any content or website you may be able to access through the Content & Apps.

Roaming. Your Device may connect to another provider’s network (“Roaming”) even when you are within the Smack Mobile cov1-800-erage area. Check your Device to determine if you are Roaming. There may be extra charges (including long distance, tolls, data usage) and higher rates for Roaming usage, and your quality and availability of service may vary significantly.  Our Roaming charges and rates are subject to change at any time and any such changes are effective forty-five (45) days after the posting of same to the Smack Mobile web site.  Please check our web site frequently so that you are aware of our Roaming charges and rates and any changes thereto.

INTERNATIONAL LONG DISTANCE

International Calling

Depending on your chosen rate Plan, international calling may be available to you. International calls deduct minutes at the same rate as local and national calling. You may call cellular phones in the countries with the word “cellular” listed next to the name of the country. The countries where international calling is available are subject to change at any time without prior notice. In order to place an international call, you will need to dial the International Long Distance (“ILD”) access number and follow the instructions. Voice minutes deductions for international calls begin the moment the ILD access number is dialed and apply to dropped calls, misdialed numbers, and busy destination numbers. When placing international calls, you may experience connection failures more frequently than during calls made within the United States. Smack Mobile will not credit minutes deducted for unsuccessful calls. You will not be able to make or receive calls on your Smack Mobile phone when you are located outside of the United States, Puerto Rico, the U.S. Virgin Islands, or Guam (the “Coverage Area”). Any attempt to make or receive calls when you are located outside of the Coverage Area could result in service deactivation and de-enrollment from the Smack Mobile Lifeline Program.

 Taxes, Fees and Surcharges. You are responsible for, and shall pay, the taxes, fees and surcharges set forth in Sections below (“Taxes and Surcharges”) in connection with your Service account. Such Taxes and Surcharges will be included in your Service account charges (a) at the time you order the Service and (b) each time there are any further charges to your Service account. Payment of Taxes and Surcharges is in addition to payment for the Service and will be billed to your credit card.

Regulatory Recovery Fee. The Regulatory Recovery Fee is assessed to help recover Smack Mobile’s costs to comply with various federal and state programs, taxes and fees including, but not limited to, (i) state and federal Telecommunications Relay Service Programs, (ii) Federal Universal Service Fund Program, (iii) international, federal, state, municipal, local and/or other governmental franchise, excise, public utility and other telecommunications taxes, fees and charges now in force or enacted in the future, and (iv) other regulatory reporting and compliance obligations imposed upon Smack Mobile in connection with providing the Service. For all Smack Mobile Service plans except the Smack Mobile plans, the Regulatory Recovery Fee is calculated as a flat per transaction fee of $0.50 for service charges of $10.00 or less, and $1.00 for service charges of $10.01 or more. For Smack Mobile   plans, the Regulatory Recovery Fee is calculated as a flat fee of (i) $1.00 per line credit per month, (ii) $0.50 on Smack Mobile   add-ons (e.g., additional data, call anywhere credit or roaming credit) of $10.00 or less, and (iii) $1.00 on Smack Mobile   add-ons of $10.01 or more; provided, however, that no additional Regulatory Recovery Fee beyond the $1.00 per line credit per month will be charged for Smack Mobile   add-ons when purchased with one or more line credits.  Although added to the overall charge, the Regulatory Recovery Fee is separate from the cost of Service and the Regulatory Recovery Fee shall not result in the purchase of any additional Service time.

Federal Universal Service Fund Fee. The Federal Universal Service Fund Fee is designed to recover Smack Mobile’s contribution to the Federal Universal Service Fund program. The Universal Service Administrative Company (“USAC”) establishes a quarterly contribution factor, and Smack Mobile charges its customers the then-applicable rate charged to Smack Mobile by USAC.

State Universal Service Fund Fees.  The State Universal Service Fund Fee is designed to recover Smack Mobile’s contribution to various state universal service fund programs.  Certain state agencies establish a quarterly, semi-annual or annual contribution factor, and Smack Mobile may choose to charge its customers to recoup the state universal service fund fees charged to Smack Mobile.

Sales and Use Taxes. Sales and use taxes are assessed to allow Smack Mobile to recover the cost of all federal, state, municipal, local or other governmental sales and use taxes now in force or enacted in the future, that arise as a result of your subscription to, use of, or payment for Smack Mobile Service. To determine sales and use taxes, we will use the street address you identified as your Place of Primary Use (“PPU”). The PPU for Puerto Rico must be in Puerto Rico. If you did not identify the correct PPU, or if you provided an address (such as a PO box) that is not a recognized street address, does not identify the applicable taxing jurisdictions or does not reflect the Service area associated with your telephone number, you may be assigned a default location for tax purposes. In the event of a disputed tax jurisdiction location being assigned, any tax refund must be requested within sixty (60) days of our notification to you that the tax has been assessed.

9-1-1 Fees. Each state, city, municipality, or county has specific charges that are levied for access to 9-1-1.  Determination of the applicable 9-1-1 charges depends on where you purchase Smack Mobile Service.  Smack Mobile may bill its customers for 9-1-1 charges.  Any such 9-1-1 charges are a monthly recurring charge assessed on a per line basis and will appear on your monthly invoice.

Your Right to Dispute Charges.

Unless otherwise provided by law, you agree to notify us of any dispute regarding your bill or charges to your account within sixty (60) days (twenty (20) days for Puerto Rico customers) after the date you first receive the disputed bill or charge. If you do not notify us of your dispute in writing with supporting documentation within this time period, you may not pursue a claim in arbitration or in court. Except for Puerto Rico customers and unless otherwise provided by law, you must pay disputed charges until the dispute is resolved. If you accept a credit, refund or other compensation or benefit to resolve a disputed bill or charge, you agree that the issue is fully and finally resolved. For unresolved disputes see Section 2 above. To contact or notify us, see Section 12. This paragraph is notice to Puerto Rico customers that payment of undisputed charges is due when stated on your bill, regardless of any dispute.

Puerto Rico Customers. We will provide you with a determination regarding any dispute that is presented to us in accordance with this Section 11 within fifteen (15) days after we receive it. You may appeal our determination to the Telecommunications Board of the Commonwealth of Puerto Rico (“Telecommunications Board”) by filing a petition for review up to thirty (30) days after the date of our determination. Your petition for review shall be made through the filing of a document containing the following information: (i) your name and address; (ii) our company name; (iii) the pertinent facts; (iv) any applicable legal provisions that you are aware of; and (v) the remedy you are requesting. The document may be filed handwritten or typewritten and must be signed by you. You must send us a copy of your document to the following address: Smack Mobile, 499 E Sheridan St STE 300 Dania FL 33004, Attn: Customer Service. You must send your petition for review to the Telecommunications Board at the following address: 500 Ave. Roberto H. Todd (Pad. 18 – Santurce), San Juan, Puerto Rico 00907-3941. The Telecommunications Board will review our determination only on appeal. You are advised of the provisions regarding suspension of Service that appear in Law 33 of July 7, 1985, Law 213 of September 12, 1996 and Regulation 5940 promulgated by the Telecommunications Board. You are also advised of Regulation 5939 of March 12, 1999 promulgated by the Telecommunications Board regarding the procedures for resolution of customer disputes.

Notices and Customer Communications.

Receipt of Communications.  You expressly consent to receive all communications, agreements, documents, notices and disclosures (“Notices”) from us, at the telephone number associated with your Device, or physical or electronic address you provide to us. Notices from us to you are considered delivered when we deliver them to your Device by text message or voice, or by email to any email address you provide to us, or three (3) days after mailing to your billing address.

Autodialed or Prerecorded Messages.  We may at times contact you using autodialed or prerecorded message calls or text messages at the telephone number associated with your Device. We may place such calls or texts to (i) provide notices regarding your Smack Mobile account or account activity, (ii) investigate or prevent fraud, or (iii) collect a debt owed to us. You agree that we and our service providers may contact you using autodialed or prerecorded message calls and text messages to carry out the purposes we have identified above. We may share your phone number with service providers with whom we contract to assist us in pursuing these interests but will not share your phone number with third parties for their own purposes without your consent. Standard telephone minute and text charges may apply. We and our service providers will not use autodialed or prerecorded message calls or texts to contact you for marketing purposes at the telephone number associated with your Device unless we receive your prior express written consent.

TCPA DISCLOSURE

To ensure that consumer’s inquiries are handled promptly, courteously, and accurately, some of the phone calls between you and us or any of our affiliates, agents, assigns and service providers, may be monitored and recorded by us and any of our affiliates, agents, assigns and service providers, to enhance service to you. You consent to this monitoring and recording. You agree that Smack Mobile may from time to time make calls and/or send text messages to you at any telephone numbers associated with your account, including Mobile telephone numbers that could result in charges to you. The manner in which these calls or text messages are made to you may include, but is not limited to, the use of prerecorded/artificial voice messages and/or automatic telephone dialing system. You further agree that Smack Mobile may send e-mails to you at any e-mail address you provide us or use other electronic means of communication to the extent permitted by law. Consent may be revoked at any time and by any reasonable means.

Privacy policy is available online at https://smackmobile.com/privacy-policy.

12.3 Revocation of Consent.  You do not have to consent to receive autodialed or prerecorded message calls or texts in order to use Smack Mobile Service. Where Smack Mobile is required to obtain your consent for such communications, you may choose to revoke your consent by any reasonable means, including by (i) contacting our customer service department at support@hellomobile.com, (ii) calling 1-281-254-2748 , (iii) writing to: Smack Mobile, , 13419 Balmore Cir Houston TX 77069 , Attn: Customer Service, or (iv) managing your account preferences on the Smack Mobile website. Written notices from you to us are considered delivered when you send an email or three (3) days after mailing to the address above.

To begin arbitration or other legal proceeding, you must serve our registered agent. Our registered agent is Smack Mobile and can be contacted at support@smackmobile.com or by telephone at 1-281-254-2748 .

  1. Lost or Stolen Devices. You agree to notify us if your Device is lost or stolen. Once you notify us, we will suspend your Service. After your Service is suspended, you will not be responsible for additional usage charges incurred in excess of your Service plan charges, and applicable Taxes and Surcharges. If you request that we not suspend your Service, you will remain responsible for all usage and charges incurred and applicable Taxes and Surcharges. We may prevent a lost or stolen Device from registering on any network. California customers: For charges incurred before you notify us, you are not liable for charges you did not authorize, but the fact that your Device or account was used is some evidence of authorization. You may request that we investigate charges you believe were unauthorized. We may ask you to provide information and you may submit information to support your request. If we determine the charges were unauthorized, we will credit your account. If we determine the charges were authorized, we will inform you within thirty (30) days and you will remain responsible for the charges.
  2. Misuse of Service or Device. By activating or renewing Service with Smack Mobile, you agree that you do so because you want Service from Smack Mobile and not for any other purposes. Smack Mobile Service plans may only be used for the following purposes (and your use of Smack Mobile Service must be initiated from your supported, compatible Device): (i) voice calls between two individuals; (b) text and picture messaging; and (iii) Internet browsing and ordinary content downloads. You agree not to misuse the Service or Device, including but not limited to: (a) reselling or rebilling our Service; (b) using the Service or Device to engage in unlawful activity, or in conduct that adversely affects our customers, employees, business, or any other person(s), or that interferes with our operations, network, reputation, or ability to provide quality service, including but not limited to the generation or dissemination of viruses, malware or “denial of service” attacks; (c) using the Service as a substitute or backup for private lines or dedicated data connections; (d) using the Service for continuous, mobile to mobile or mobile to landline voice calls; (e) using the Service for automated text or picture messaging to another mobile device or email address; (f) uploading, downloading or streaming of continuous video or audio; (g) tampering with or modifying your Smack Mobile Device; (h) “spamming” or engaging in other abusive or unsolicited communications, or any other mass, automated voice or data communication for commercial or marketing purposes; (i) reselling Smack Mobile Devices for profit, or tampering with, reprogramming or altering Smack Mobile Devices for the purpose of reselling the Smack Mobile Device; (j) using the Service in connection with server devices or host computer applications, including continuous Web camera posts or broadcasts, automatic data feeds, automated machine-to-machine connections, voice or SMS relay, or peer-to-peer (P2P) file-sharing; (k) accessing, or attempting to access without authority, the information, accounts or devices of others, or to penetrate, or attempt to penetrate, Smack Mobile’s or another entity’s network or systems; (l) running software or other devices that maintain continuously active Internet connections when a computer’s connection would otherwise be idle, or “keep alive” functions (e.g., using a Service plan for Web broadcasting, operating servers, telemetry devices and/or supervisory control and data acquisition devices); (m) using the Service to relay voice calls or text and picture messages not originated from the Device; or (n) assisting or facilitating anyone else in any of the above activities. You agree that you will not install, deploy, or use any regeneration equipment or similar mechanism (for example, a repeater or signal booster) to originate, amplify, enhance, retransmit or regenerate a transmitted RF signal. Voice services may not be used for monitoring services, data transmission, transmission of broadcasts, transmission of recorded material, relay services, interconnection to other networks, telemarketing activity, autodialed calls or robocalls.

Prohibited Uses.

Smack Mobile can suspend or terminate Services for any reason, at any time. We can, without notice, suspend or terminate any Service at any time for any reason. For example, we can suspend or terminate any Service for: (a) Excessive usage determined solely at the discretion of Smack Mobile; (b) exceeding an Account Spending Limit; (c) harassing, threatening, abusing, offending, or being excessively impolite to our employees or agents; (d) interfering with our operations; (e) using/suspicion of using Services in a way that violates, or is inconsistent, with the Agreement and Policies or adversely affects any of our other customers, reputation, network, property, or Services; (f) breaching, failing to follow, or abusing the Agreement or Policies; (g) providing false, inaccurate, dated, or unverifiable information, including identification or credit information; (h) becoming insolvent or bankrupt; (i) modifying a Device from its manufacturer specifications (for example, rooting the device); (j) failing to use our Services or maintain an active Device; (k) you resell or attempt to resell the Services or (l) if we believe the action protects our interests, any customer’s interests, or our network.

Prohibited Network Uses.

To ensure the activities of some users does not impair the ability of our customers to have access to reliable services provided at reasonable costs, you may not use our services in a manner that is unlawful, infringes on intellectual property rights, or harms or unduly interferes with the use of SMACK MOBILE’s network or systems. SMACK MOBILE reserves the right, without notice or limitation, to limit data throughput speeds or quantities or to deny, terminate, end, modify, disconnect, or suspend service if an individual engages in any of the prohibited voice or data uses detailed above, or if SMACK MOBILE, at its sole discretion, determines action is necessary to protect its Mobile networks from harm or degradation.

Prohibited Voice Uses.

SMACK MOBILE voice services are provided solely for live dialogue between, and initiated by, individuals for personal use and as otherwise described in this policy. SMACK MOBILE’s services may not be used for any other purposes, including, but not limited to: monitoring services, transmission of broadcasts, and transmission of recorded material; telemarketing, autodialed calls, and other commercial uses; or other connections that do not consist of uninterrupted live dialogue between individuals. SMACK MOBILE may discontinue service, at our sole discretion, for any other reason that violates our policy of providing service for individual use.

Our Rights to Limit or End Service or the Agreement.

WE MAY LIMIT, THROTTLE, SUSPEND OR TERMINATE YOUR SERVICE OR AGREEMENT WITHOUT NOTICE AT ANY TIME AND FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, if you, any user of your Device, or any user on your account: (a) breaches the Agreement; (b) transfer(s) Service to another person without our consent; (c) becomes insolvent, goes bankrupt or threatens bankruptcy (except as prohibited by law); (d) misuses your Service or Device as described in Section 14 above; (e) uses your Service or Device in a manner that is excessive, unusually burdensome, or unprofitable to us; or (f) are on a Service plan that we determine is no longer available to you. We may impose credit, usage or other limits to your Service, suspend your Service, or block certain types of calls, messages or sessions (such as international, 10XXX, 0+/0-, chat services, 900 or 976 calls), in our sole discretion and without notice.

Smack Mobile reserves the right to cancel or deactivate Service or reduce data throughput speeds in order to protect its supplier’s network from harm or to protect itself from financial or other harm due to any cause including, without limitation, the excessive and/or unauthorized use of Smack Mobile Service. Smack Mobile reserves the right to limit throughput or the amount of data transferred and to deny or terminate Service to anyone Smack Mobile believes is using their Service in an unauthorized manner or whose usage, in Smack Mobile’s sole discretion, adversely impacts its supplier’s network or customer service levels. Smack Mobile will presume you are engaging in an unauthorized use in violation of these T&Cs, if in Smack Mobile’s sole discretion, you are placing an abnormally high number of calls, or repeatedly placing calls of unusually long duration, or if your talk, text or data usage is harmful or disruptive to Smack Mobile’s supplier’s network or service levels or to Smack Mobile’s financial or other interests. If we determine, in our sole discretion, that you are using your Service in violation of these T&Cs or in any other manner that we deem to be unreasonable or excessive, we may terminate individual calls or data connections, terminate or reduce data throughput or terminate your Service, decline to renew your Service, or offer you a different Service plan without an unlimited usage component which may result in an increased cost to you.

Smack Mobile may discontinue providing Service to you, discontinue your account, terminate data connections and/or reduce data throughput speeds if your usage, in the sole judgment of Smack Mobile: (i) appears likely to generate abnormally high call volumes or data usage and/or abnormally long average call lengths or data usage as compared to the usage of other Smack Mobile customers; or (ii) may be harmful or disruptive to, or interfere with, Smack Mobile’s supplier’s network, Smack Mobile’s service or the ability to provide quality service to other customers. By initiating Service and placing or receiving calls, you acknowledge and agree to Smack Mobile’s right to terminate your Service under these circumstances.

If we limit, suspend or terminate your Service and later reinstate your Service, you may be charged a reinstatement fee.

This paragraph constitutes notice to Puerto Rico customers that your Service may be suspended or cancelled if you engage in any of the foregoing actions in Sections 14 and 15 in accordance with the Puerto Rico Suspension Regulation 5940 of March 12, 1999, promulgated by the Telecommunications Board where applicable, or in Smack Mobile’s sole discretion. If your Service or account is limited, suspended or terminated and then reinstated, you may be charged a reactivation fee.

Refund Policy.  If you have purchased one of our 30-day Service plans and we terminate or suspend your Service for any reason specified in Section 15.1 or otherwise, you will not receive any refund of amounts paid to us in connection with such Service plan.  If you have purchased one of our pre-paid, multi-month Service plans and we suspend or terminate your Service for any reason specified in Section 15.1 or otherwise, we will refund a pro rata portion of your Service fee for any then-remaining 30-day Service period(s) within your Service plan, not including the 30-day Service period in which we suspend or terminate your Service.

Device Refunds and Restocking Fees. For Smack Mobile-provided Devices, SIM Kits and accessory returns and exchanges, see the applicable return policy, which is available in the Device, SIM Kit or accessory box or packaging. Some Smack Mobile-provided Devices and accessories may not be refunded or exchanged, and you may be required to pay a restocking fee.  Devices offered to Smack Mobile customers, if any, will comply with the FCC’s regulations concerning hearing aid compatibility.

No Future Service.  In the event Smack Mobile terminates your Service for any reason specified in Section 15.1 or otherwise, we reserve the right to prohibit you from using  any Smack Mobile Service plan in the future by blocking your device from our network, prohibiting you from using a new Smack Mobile Service account that you purchase, or through other means.

  1. Intellectual Property. You agree not to infringe, misappropriate, dilute or otherwise violate the intellectual property rights of Smack Mobile or any third party. Except for a limited license to use the Services, your purchase of Services and Smack Mobile Devices does not grant you any license to copy, modify, reverse engineer, download, redistribute, or resell the intellectual property of Smack Mobile or others related to the Services and Smack Mobile Devices; this intellectual property may be used only with Smack Mobile Service unless expressly authorized by Smack Mobile. You agree that a violation of this section harms Smack Mobile, which cannot be fully redressed by money damages, and that Smack Mobile shall be entitled to seek immediate injunctive relief in addition to all other remedies available.
  2. Privacy Information. Our Privacy Policy governs how we collect and use information related to your use of our Service and is available online at www.Smack Mobile mobile.com/privacy-policy. We may change our Privacy Policy without notice; however, if we change our policy to allow use or disclosure of personal information in a way that, in our sole determination, is materially different from that stated in the policy at the time the data was collected, we will post notice in advance of the change. Data on your Device may automatically be stored on your SIM card, Device or our network. Your data may remain on the Device even if your SIM card is removed; the data left on your Device will be accessible to others who use your Device, and may be deleted, altered, or transferred to our or our supplier’s network servers.
  3. Disclaimer of Warranties. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN WRITING, AND TO THE EXTENT PERMITTED BY LAW, THE SERVICES AND DEVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OF ANY KIND. WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES, OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING YOUR SERVICE OR YOUR DEVICE. WE DO NOT PROMISE UNINTERRUPTED OR ERROR-FREE SERVICE AND WE DO NOT AUTHORIZE ANYONE TO MAKE ANY REPRESENTATIONS OR WARRANTIES ON OUR BEHALF. WE DO NOT GUARANTEE THAT YOUR COMMUNICATIONS WILL BE PRIVATE OR SECURE.
  4. Waivers and Limitations of Liability. UNLESS PROHIBITED BY LAW, OUR LIABILITY FOR DAMAGES OR OTHER MONETARY RELIEF FOR ANY CLAIMS YOU MAY HAVE AGAINST US IS STRICTLY LIMITED TO NO MORE THAN THE AMOUNTS ACTUALLY PAID BY YOU TO US FOR THE SERVICE FROM WHICH THE DAMAGES OR OTHER LIABILITY AROSE IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. YOU EXPRESSLY AGREE THAT UNDER NO CIRCUMSTANCES ARE WE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, TREBLE, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OUR SERVICE (INCLUDING THE PROVISION OF OR FAILURE TO PROVIDE SAME), ANY DEVICE, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT WE HAVE BEEN INFORMED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED, THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION AND WAIVER ALSO APPLIES TO ANY CLAIMS YOU MAY BRING AGAINST ANY OTHER PARTY TO THE EXTENT THAT WE WOULD BE REQUIRED TO INDEMNIFY THAT PARTY FOR SUCH CLAIM. YOU AGREE WE ARE NOT LIABLE FOR PROBLEMS CAUSED BY YOU OR A THIRD PARTY. EXCEPT TO THE EXTENT PROHIBITED BY LAW, ALL CLAIMS MUST BE BROUGHT WITHIN TWO (2) YEARS OF THE DATE THE CLAIM ARISES.
  5. Indemnification. You agree to defend, indemnify, and hold us harmless from and against any and all losses, claims, liabilities, costs and expenses (including taxes, fees, fines, penalties, interest, expenses of investigation and attorneys’ fees and disbursements) as incurred, arising out of or relating to use of the Service or Devices, breach of the Agreement, or violation of any laws or regulations or the rights of any third party by you or any person on your account or that you allow to use your Service or Device.
  6. Enforceability and Assignment. A waiver of any part of the Agreement in one instance is not a waiver of any other part or any other instance and must be expressly provided in writing. If we do not enforce our rights under any provisions of the Agreement, we may still require strict compliance in the future. Except as provided in Section 2, if any part of the Agreement is held invalid that part may be severed from the Agreement. You cannot assign the Agreement or any of your rights or duties under it without our written consent. We may assign all or part of the Agreement or your debts to us without notice. The Agreement is the entire agreement between Smack Mobile and you and defines all of the rights you have with respect to your Service or Smack Mobile Device, except as provided by law, and you cannot rely on any other documents or statements by any sales or service representatives or other agents. If you purchase a Device, services or content from a third party, you may have a separate agreement with the third party; Smack Mobile is not a party to that agreement. Any determination made by us pursuant to this Agreement, shall be in our sole reasonable discretion. Sections 2-3, 5, 8-14, and 16-22 of this Agreement continue after termination of our Agreement with you.
  7. Choice of Law. This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state in which your billing address in our records is located, without regard to the conflicts of laws rules of that state. Foreign laws (except for Puerto Rico) do not apply. Arbitration or court proceedings must be in: (a) the county and state in which your billing address in our records is located, but not outside the U.S.; or (b) in Puerto Rico if your billing address is in Puerto Rico. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction.
  8. CPNI. Customer Proprietary Network Information (“CPNI”) is information that Smack Mobile and other telecommunications carriers obtain when providing your telecommunications services to you. CPNI includes the types of telecommunications services you currently purchase, how you use them, and the billing information related to those services, including items such as the types of local, long distance and Mobile telecommunications services that you have purchased and your calling details.  Your telephone number, name and address are not considered CPNI.

We may use CPNI to offer you additional services of the type you already purchase from Smack Mobile.  We may also use your CPNI to offer you products and services, packages, discounts and promotions from our affiliates, which may be different from the types of services you already purchase.

Smack Mobile uses technology and security features and strict policy guidelines to safeguard the privacy of CPNI and protect it from unauthorized access or improper use.  Smack Mobile does not disclose CPNI outside of Smack Mobile, its affiliates and their respective agents without customer consent except as required by law.  When Smack Mobile uses third parties to perform services on its behalf that require the use of CPNI, Smack Mobile requires that they protect the CPNI consistent with this privacy policy.  Smack Mobile does not sell CPNI to unaffiliated third-parties.

If you wish to restrict our use of your CPNI for marketing purposes, you may contact a customer service representative at the customer service phone number located on your Smack Mobile telephone bill or in Section 12 of these T&Cs.

For Subpoena Compliance

Please send email to legal@smackmobile.com.

OR

For all legal demands for Subscriber Information; Subpoenas, Court orders and/or Search Warrant, please send request to:

Attn: Subpoena Compliance
Smack Mobile
13419 Balmore Cir
Houston, Texas 77069

Email: legal@smackmobile.com

 

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