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Terms & Conditions

Clearway Terms & Conditions of Service

CLEARWAY WIRELESS TERMS AND CONDITIONS OF SERVICE

 

Please read these Terms and Conditions of Service carefully.  These Terms and Conditions of Service are a legally binding agreement (“Agreement”) between you and Clearway Wireless (“Clearway”). Clearway Wireless is a brand of TracFone Wireless, Inc.

 

THESE TERMS AND CONDITIONS OF SERVICE CONTAIN IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS, AND REQUIRE THAT CERTAIN DISPUTES BE RESOLVED THROUGH ARBITRATION INSTEAD OF A COURT TRIAL. FOR MORE INFORMATION SEE SECTION 14 BELOW.

 

By purchasing, activating, or using any Clearway product (“Product”) or the wireless service provided by Clearway (“Service”), you the customer (“You”) acknowledge and agree to these terms and conditions (“Terms and Conditions”).  Clearway reserves the right to change or modify these Terms and Conditions at any time. Any changes or modifications to these Terms and Conditions are effective and will be binding upon you when posted on the Clearway website at www.clearway.com.  Because these Terms and Conditions are subject to change at any time you should always check our website for the most current Terms and Conditions.

 

For assistance or more information, please contact Customer Care at 1-844-442-5327.

 

1.  ACTIVATING AND USING YOUR SERVICE

You may purchase a Clearway device, a Clearway wireless line, or Clearway SIM card for use with your own compatible wireless device, or bring a compatible wireless CDMA device to use with Clearway Service. You must activate your Clearway Service by contacting Customer Care at 1-844-442-5327 or by visiting our website www.clearway.com.  If you have purchased a Clearway SIM card for use with your own compatible device, follow the instructions that came with the SIM card to activate your Service. If you are bringing your own compatible wireless CDMA device you must contact Customer Care at 1-844-442-5327 to activate your device.

 

Clearway Service can only be activated where Clearway Service is offered and supported by Clearway. Clearway provides Service at its discretion. Some functions and features referenced in the Manufacturer’s manual provided with your Clearway Device may not be available on your Clearway Device. Clearway may, at any time and without prior notice to you, modify, cancel and/or deactivate your Service and/or take other corrective action, for any reason in Clearway’s sole discretion including, but not limited to, your violation of any one or more of these Terms and Conditions.

 

Certain mobile device features may not be available throughout the entire network or their functionality may be limited. Some Clearway features are available only on Clearway devices purchased from Clearway and will not be available if you have purchased a Clearway SIM card for use on a compatible wireless device or if you are using a compatible wireless CDMA device . All plan rates, features, functionality and other product specifications are subject to change without notice or obligation. Color of devices may vary.

 

If you are using your own device, it must be compatible and not interfere with our Service, and it must comply with all applicable laws, rules and regulations. You are responsible for ensuring that any compatible wireless device that you use is compatible with the Clearway Service and that your device meets all Federal laws and standards. You are further responsible for the purchase and maintenance of any additional hardware, software and/or internet access required in order to use the Clearway Service. Clearway Service will only work with wireless devices that are compatible with our network. Not all services are available with all wireless devices or on all networks. We may remotely change your wireless device’s software, applications or programming without notice. This could affect your stored data, your device’s programming and how you are able to use your wireless device.

 

The wireless telecommunication networks used to transmit the Service are owned and operated by various licensed commercial mobile radio service providers (“Carriers”). Some Carriers differentiate the wireless service they sell by prioritizing the data traffic of their customers over the data traffic of customers on a non-Carrier brand such as Clearway at times and at locations where there are competing customer demands for network resources.  Where the network is lightly loaded, a Clearway customer will notice little, if any, effect from having lower priority.  This will be the case in the vast majority of times and locations. At times and at locations where the network is heavily loaded in relation to available capacity, however, a Clearway customer will experience increased latency during a data session, particularly, if the customer is engaged in a data-intensive activity. When network loading goes down or if a customer moves to a location that is less heavily loaded in relation to available capacity, the latency associated with a customer’s data connection will improve.

 

When you activate your Clearway Service, you may be provided with a telephone number or you may, in some circumstances, port-in a number from another carrier. Please note that you have no ownership rights to any telephone number, IP address or any other identifier associated with your wireless service and you acknowledge and agree that we may change any such number, IP address or other identifier associated with your Clearway Service at any time without prior notice to you.

 

2.  TERMINATION OF SERVICE

Either party may terminate this Agreement (which will terminate the provision of Clearway Service) at any time. Any unused service at the time of termination will not be refunded. Clearway may terminate this Agreement at any time without notice if we cease to provide service in your area. We may interrupt or terminate your Service without notice for any conduct that we believe violates this Agreement, if you behave in an abusive, derogatory or similarly unreasonable manner with any of our representatives, if we have reasonable cause to believe that you are using your Clearway device and/or wireless service for an unlawful purpose or in a way that may adversely affect our service, if you engage in any deceptive or unfair conduct with respect to your Clearway device and/or wireless Service. Any provision of this Agreement which by its context is intended to apply after termination of the Agreement will survive termination, including, but not limited to, any restrictions on the use of Clearway devices.

 

3.  CLEARWAY PLANS

Your Service will only operate after you have purchased and redeemed a wireless plan (“Plan”) and so long as you have service days left on your plan’s cycle. Please visit our website for the latest information regarding our Plans, including the amount of data provided by each Plan.

 

Clearway Plans include unlimited nationwide calling and text messaging, and up to a certain amount of high speed data at 4G speeds for each Plan cycle. The amount of data that can be accessed at high speed depends on which Plan you purchase. All Plans that include high speed data also include unlimited business emails. 4G/4G LTE networks are not available on all devices and in all locations. 4G/4G LTE networks require a capable device and SIM card.  Actual data speeds are subject to your wireless device’s capabilities, coverage available in your local area and existing network conditions. After your high speed data threshold is reached, your data speed will be reduced to as low as 64 kbps for the remainder of your Plan cycle. Your high speed data will be restored once your next Plan cycle begins unless you purchase a new Plan prior to the start of your next Plan cycle. If your data speed is reduced, the reduced speed may impact the functionality of some data applications, such as streaming audio or video or web browsing. Your data allowance will automatically reset once you start your new Plan cycle. Once you start a new Plan cycle or if you redeem a new Plan prior to the end of your Plan cycle, you will lose any unused data services and service days remaining on your current Plan.  You will not receive a refund or credit for any data or service days you lose once a new plan cycle begins.

 

All Plans come automatically enabled with a feature that optimizes all detectable video streaming to DVD-quality (typically 480p) through the Carrier’s network (“Data Optimizer”).  Data Optimizer manages the amount of data used when streaming video on your phone in order to improve your experience by reducing the chances of your video stalling or buffering.  You may disable the Data Optimizer feature at any time by contacting Customer Care. Video streaming over a Wi-Fi connection will be delivered at the video’s native resolution.

 

Data transmitted over Wi-Fi does not count against your data usage. To preserve your access to data, you may sign into Wi-Fi whenever possible, but recognize that some Wi-Fi locations may not be secure. You may use certain mobile apps to help find open networks and to keep track of your data usage. Actual availability, coverage, and data speeds may vary.

 

Service End Date: Your Service End Date is the last day of your 30-day Plan cycle and is determined by the date on which you activate your Service by redeeming a Plan. Your Service End Date is automatically reset each time you purchase and redeem a new Plan. If you fail to redeem a new Plan prior to your Service End Date, your Service will be deactivated on the Service End Date and, if applicable, you may lose your phone number. To prevent this from occurring, please keep your Clearway Service active by purchasing a Plan before your Service End Date. Notwithstanding your Service End Date, Clearway reserves the right to discontinue your Service and deactivate any Clearway account for which there is no voice, text or data usage for a period of twelve (12) consecutive months.  If your Clearway account is deactivated, your Service can be reactivated by purchasing and redeeming a new Plan. Once reactivated, however, your device may be assigned a new phone number.

 

Clearway Auto-Refill:  You may enroll in Auto-Refill to purchase your 30-day Plan by registering your credit or debit card online using our website. With Auto-Refill, a new Plan will be automatically purchased and added to your Account every thirty (30) days on your Service End Date and your credit or debit card will automatically incur a charge for the cost of the Plan you elect to purchase on a recurring basis. You may cancel your enrollment in Auto-Refill at any time.

 

Plans have no cash value and are non-refundable. Plans cannot be transferred to another Clearway line or account nor can they be used with or transferred to any other wireless or cellular service.

 

4. DATA SERVICES

Depending on your device’s features, functions, and capabilities, you may use data services (“Data Services”) to access the internet and mobile apps to browse, purchase and download online content from websites and apps affiliated with Clearway or from other third-party websites and apps.  Unless you are using Wi-Fi, any data you access by using your Clearway Device will count against your data balance (“Data Usage”). Data Usage begins when your Clearway Device makes a data connection. This could occurs for example, by opening an internet browser window or an app installed on your device, sending or receiving a multi-media message (a photo or video), initiating a content download, or if internet access is somehow initiated for any other purpose. Data Usage ends when your data connection terminates. Data Usage depends on the size of the content and not the actual time it takes to download or transmit the content or multimedia message. Please note that many devices and apps use data even when they are in the foreground. To restrict an app’s use of data, please refer to your device’s service guide.

 

In addition to Data Usage which counts against your data balance, there will be additional charges each time you purchase content to download online (“Content Charge”) unless the content being download is free.  Content Charges vary depending on the type of content you purchase and download. You may be advised of any Content Charges prior to finalizing any content you purchase. Any web content or application you purchase and download may only be used or viewed on the Clearway Device used to purchase and download the content and cannot be transferred to another device or device, including a new or replacement Clearway Device. Web content, app purchases, and app store purchases are non-refundable and non-transferable.

 

Availability, Interruptions and Discontinuation of Data Service: Clearway does not guarantee the availability of Data Services in your coverage area and reserves the right to modify, suspend, interrupt, discontinue or permanently cancel Data Services, or portions thereof, without notice. Data Services are not available outside of your coverage area. Clearway is not responsible and will not be liable for any modifications, interruptions or discontinuation of Data Services or for your failure to receive any purchased web content or application. If Data Services are modified, interrupted, discontinued or cancelled, Clearway will not issue any refunds or reimburse you for any unused Services. If you cancel or attempt to cancel a download, the purchase of web content or a application, or the transfer of a multi-media message in progress, or if either of these or any other similar processes are otherwise interrupted through no action on your part, it is possible that you still incur a charge in accordance with these Terms and Conditions.

 

Data Services are provided on an “AS IS” and “AS AVAILABLE” basis. Clearway does not warrant that Data Services will be uninterrupted or error or virus-free. No warranty of any kind, either express or implied, including but not limited to warranties of title or non-infringement or implied warranties of merchantability or fitness for a particular purpose, is made in relation to the availability, accuracy, reliability, information or content accessed when using Data Services. You expressly agree and acknowledge that use of Data Services is at your sole risk and that you may be exposed to content from various sources that may be harmful or malicious.

 

Downloadable Third Party Web Content and Applications:  You may download free or purchased web content and apps from third parties that are unrelated to Clearway. If you are using Wi-Fi, data will not be deducted from your data balance for the download. For any third party downloads attributed to your Account, you agree that Clearway is not responsible for the download, installation, use, transmission failure, interruption, or delay, of any web content, website, app, or app store you accessed. Any support questions related to third party downloads, apps, or web content should be directed to the third-party and not Clearway. When you use, download or install web content and apps sold by a third party, you may be subject to additional terms and conditions or terms of use between you and the third party seller. Clearway is not responsible for any third party content, advertisements, or websites you may access using your device. Third party web content and apps may cause harm to your device.

 

If you visit any third-party website or use any third party application, the application 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 application provider or some other third party. If you access, use or download third party applications by using Data Services, you agree and authorize Clearway and the network Carrier to provide information related to such use. You understand that your use of such third party applications 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 their use of information collected when you download, install, or use web content or applications from that third party.

 

Non-Rated Content:  Content that can be accessed or viewed by using your Data Services is not rated or filtered by Clearway and you are solely responsible for the use of such material, which may be offensive or objectionable to you or to others. Anytime you use Data Services, you agree not to hold Clearway liable for any offensive or objectionable content. Data Services are not intended for use by children. In the event that you, as a legal guardian allow your child to use your device’s Data Services, you acknowledge that your child has the permission to use the Data Services available on your device, including, without limitation, email and web browsing capabilities. You further acknowledge that as a legal guardian, it is your responsibility to determine whether use of 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. Not all websites will be available with Clearway Data Service. Access to certain websites or Internet addresses may be blocked or unavailable due to carrier or other restrictions.

 

Data Services are for individual use only and may not be offered for resale. Clearway reserves the right to take measures to protect the Carrier’s networks and other users from harm, compromised capacity or degradation in performance. These measures may impact your Data Service, and we reserve the right to deny, modify or terminate your Data Services, with or without notice, if we believe you are using your Data Services in a manner that adversely impacts a Carrier’s network. We may monitor your compliance with these Terms and Conditions, but we will not monitor the content of your communications except as otherwise expressly permitted or required by law.

 

5.  UNLIMITED PLANS INTENDED USE

Clearway Plans with unlimited services (i.e., voice, text, or data) may only be used for the following purposes: (a) person to person voice calls, (b) text and picture messaging, and (c) web browsing, email, ordinary content downloads and uploads, video and audio streaming without excessively contributing to network congestion.

Clearway Plans may not be used for certain unauthorized uses that adversely impact our Service to other customers or the Carrier’s network. Examples of some unauthorized uses include, but are not limited to, the following: (i) continuous uninterrupted voice calls; (ii) automated text or picture messaging; (iii) uninterrupted and continuous uploading, downloading, or streaming of audio or video; (iv) server devices or host computer applications, including, but not limited to, web camera posts or broadcasts, automatic data feeds, automated machine-to-machine connections or peer-to-peer (“P2P”) file sharing; (v) as a substitute or backup for private lines or dedicated data connections; or (vi) access to the internet, intranets, or other data networks except as the device’s native applications and capabilities permit.  A customer engaged in any unauthorized use may have their Service suspended and/or terminated at Clearway’s sole discretion.

Unlimited voice services may not be used for monitoring services, data transmission, transmission of broadcasts, transmission of recorded material, interconnection to other networks, telemarketing activity, autodialed calls, or robocalls. Clearway reserves the right to cancel or deactivate Service or reduce data throughput speeds in order to protect the Carrier’s network from harm due to any cause including, without limitation, the excessive and/or unauthorized use of Clearway Service. Clearway reserves the right to limit throughput or amount of data transferred and to deny or terminate Service to anyone Clearway believes is using their Service in an unauthorized manner or whose usage, in Clearway’s sole discretion, adversely impacts a Carrier’s network or customer service levels. Clearway will presume you are engaging in an unauthorized use in violation of these Terms and Conditions, if in Clearway’s sole discretion, you are placing an abnormally high number of calls, or repeatedly placing calls of unusually long duration, if your minute total exceeds 43,200 minutes during a 30-day period, or if your talk, text or data usage is harmful or disruptive to the Carrier’s network or service levels. If we determine, in our sole discretion, that you are using your Service in violation of the Terms and Conditions 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 Plan with no unlimited usage component.

Clearway may discontinue providing Service to you, discontinue your Account, terminate data connections and/or reduce data throughput speeds for customers whose usage, in the sole judgment of Clearway: (1) appear 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 Clearway customers or (2) may be harmful, disruptive, or interfere with the Carrier’s network, Clearway’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 Clearway’s right to terminate your Service under these circumstances.

6.  COVERAGE MAPS

You will find coverage maps on our website. These maps are for general informational purposes only and depict the general coverage area of Clearway. Clearway does not guarantee coverage or Service availability and the coverage maps are not a guarantee of coverage. Coverage is not available everywhere. The coverage maps display only the predicted and approximate optimal wireless coverage for voice calls, while outdoors, of the network on which your device may be activated including the coverage area of the network’s roaming partners, if applicable. The coverage areas shown do not guarantee Service availability, and may include locations with limited or no coverage. Within coverage areas, there may be significant limitations or interruptions in coverage that may impact Service and result in dropped and blocked connections, slower Data Service and data speeds or not Data Service or data connectivity and call interference. This could occur due to many factors including your device, network changes, network traffic volume, network outages, technical limitations, signal strength, the terrain and your proximity to buildings, foliage and other obstructions, weather and other conditions. You will not be able to operate your device or make 911 calls if Service is not available. Some features on your device may not operate when roaming on the network of a network roaming partner. If you travel outside of your coverage area, your device will not work. The coverage depicted on the Clearway coverage maps is based on the information provided by other carriers and public sources and we cannot guarantee their accuracy. Coverage maps for your network may also vary or change based on your home location so please refer to our website for the most up-to-date coverage map applicable to your device and geographic area. Your coverage will also vary based upon the Clearway plan you select. Clearway is not responsible for any Service outages, interruptions in Service or decline in the quality of Service regardless of the cause.

 

7.  EMERGENCY CALLS

If you are in an area where your Clearway Device is searching for a wireless signal or there is no wireless signal or wireless service, it is highly probable that a call to 911 will not go through. Do not rely solely on your Clearway Service in an emergency situation. In an emergency, locate the nearest landline phone and call for help.

 

8.  LIMITATIONS OF SERVICE AND USE OF EQUIPMENT

Your Service may be unavailable, interrupted, delayed or limited for a variety of reasons outside of Clearway’s control. Not all Plans or services may be available for purchase or use in all areas or with all devices. Service is subject to transmission limitations caused by certain equipment and compatibility issues, atmospheric, topographical and other conditions. Further, Service may be temporarily refused, limited, interrupted or curtailed due to system capacity limitations, technology migration or limitations imposed by the Carrier, or because of equipment modifications, upgrades, failures, repairs or relocations or other similar activities necessary or proper for the operation or improvement of the Carrier’s radio telephone system. At any time, Clearway reserves the right to substitute and/or replace any Clearway equipment (including devices) with other Clearway equipment including devices of comparable quality. Some functions and features referenced in the Manufacturer’s manual for a particular device model may not be available on your device. Clearway does not warrant or guarantee the availability of Services at any specific time or in any specific geographic location or that Services will be provided without interruption. Neither Clearway, nor any Carrier, shall have any liability for Service failures, outages or limitations of Service. Because of the risk of being struck by lightning, you should not use your Clearway Device outside during a lightning storm. You should also unplug the Clearway power cord and charger to avoid electrical shock and/or fire during a lightning storm. Certain mobile device features may not be available throughout the entire network or their functionality may be limited.

9.  UNAUTHORIZED USAGE; TAMPERING

Clearway Devices are sold exclusively for use by you, the end consumer. The unauthorized unlocking or resale of your Clearway Device constitutes a violation of your agreement with Clearway and will invalidate the limited warranty associated with your Device. You agree not to unlock, root, re-flash, jailbreak, tamper with or alter the build state of your Clearway Device in a manner which conflicts with the Unlocking Policy referenced in Section 17 below.  You also agree not to use unauthorized PINs associated with Clearway Plans or engage in any other unauthorized or illegal use of your Clearway Device or the Service, or assist others in such acts, or to sell and/or export Clearway Device outside of the United States. Any attempt to unlock your Clearway Device in an unauthorized matter or to root, re-flash, jailbreak, tamper with or alter the build state of your Clearway Device may result in the inability to unlock your device, maintain your device’s unlocked state, or otherwise cause your device to malfunction.  Such use along with any other unauthorized use of your Clearway Device may result in the immediate suspension or termination of your Service without notice and legal action. TracFone will strictly enforce its rights under this provision and will prosecute violators to the full extent of the law.

If your Clearway Device has a SIM Card or you have purchased a SIM Card to use with a compatible device, then you agree to safeguard your SIM Card and not to allow any unauthorized person to use your SIM Card. You agree not to, directly or indirectly, alter, bypass, copy, deactivate, remove, reverse-engineer or otherwise circumvent or reproduce the encoded information stored on, or the encryption mechanisms of your SIM Card or to allow any other person to do so. Any violation of the restrictions on the use of your SIM Card that are contained in this Section may result in the immediate termination of your Service without notice. The Carriers, TracFone Wireless, Inc., or its service providers, may, from time to time, remotely update or change the encoded information on your SIM Card.

In the event of termination for any other unauthorized usage, you will forfeit unused airtime and service and you will not be entitled to receive a refund for your Clearway Device or for any unused airtime and service.

10.  ROAMING

Roaming occurs when a subscriber of one wireless service provider uses the facilities of another wireless service provider. Roaming most often occurs when you make and receive calls outside of the network coverage area of your wireless service provider. When you are roaming, an indicator light on your Clearway Device may display the word “Roam” or “RM” on the screen while the device is not in use. There are no additional charges for roaming calls with your Clearway Service. Clearway does not guarantee the availability and/or quality of it Service while you are roaming. Access to Data Services may not be available while roaming. National roaming capability may be discontinued or changed at any time without notice. Clearway reserves the right to terminate the Service of any customer who is roaming for 50% or more of usage in any 3 billing cycles within a 12 month period.

 

11.  LIMITED WARRANTY

A new Clearway Devices (except iPhones) are covered by a one (1) year limited warranty administered by Clearway as set forth below.

All reconditioned or refurbished Clearway Devices (except for iPhones) have a ninety (90) day limited warranty as do all wireless accessories sold by Clearway.

Certified pre-owned devices sold by Clearway are not covered by a limited warranty but may be returned for a refund within 30 days of purchase.

New Apple iPhones are covered by a one-year limited warranty offered and administered by Apple. Please visit apple.com for more information. 

A device that you own which was not purchased from Clearway but that is registered with Clearway under the “Bring Your Own Phone” program is not covered by the limited warranty.

How To Obtain Warranty Service. To obtain warranty service from Clearway on a new Clearway device or accessory purchased from Clearway, please contact Customer Care at 1-844-442-5327. If your problem cannot be resolved over the phone, our Clearway technicians will provide you with a Return Authorization Number, which you will use to send your device and/or accessories to the designated Service Center for repair or replacement, at Clearway’s option.

Terms of Limited Warranty. Clearway warrants that your Clearway device or accessory (“Product”) is free from defects in material and workmanship that result in Product failure during normal usage, according to the following terms and conditions:

  1. The limited warranty for a new Clearway Device extends for one (1) year beginning on the date of the purchase of your new Clearway Device. The limited warranty on a Clearway accessory extends for ninety (90) days beginning on the date of the purchase of your Clearway accessory.
  2. The limited warranty offered by Clearway extends only to the original purchaser (“Consumer”) of the Product and is not assignable or transferable to any subsequent purchaser/end-user. The limited warranty extends only to Consumers who purchase the Product in its original packaging from an authorized dealer. Upon request from Clearway, the Consumer must prove the date of the original purchase of the Product by a dated bill of sale or dated itemized receipt.
  3. During the limited warranty period, Clearway will repair or replace, at Clearway’s sole option, any defective Products or parts (except as excluded below), or any Products or parts that will not properly operate for their intended use (except as excluded below) with new or refurbished Products or parts if such replacement or repair is needed because of Product malfunction or failure during normal usage. The limited warranty does not cover loss of personal information, passwords, contacts, music, ringtones, pictures, videos, applications or other content, memory cards, software, defects in appearance, cosmetic, decorative or structural items, including framing, and any non-operative parts. Clearway’s limit of liability under this limited warranty is the actual cash value of the Product at the time the Consumer returns the Product to Clearway for repair, determined by the price paid by the Consumer for the Product less a reasonable amount for usage. Clearway shall not be liable for any other losses or damages. These remedies are the Consumer’s exclusive remedies for breach of warranty.
  4. The Consumer shall have no coverage or benefits under this limited warranty if any of the following conditions are applicable:
  1. The Product has been subjected to abnormal use, abnormal conditions, improper storage, exposure to moisture or dampness, unauthorized modifications, unauthorized connections, unauthorized repair, misuse, neglect, abuse, accident, alteration, improper installation, or other acts which are not the fault of Clearway, including damage caused by shipping.
  2. The Product has been damaged from external causes such as collision with an object, or from fire, flooding, sand, dirt, windstorm, lightning, earthquake or damage from exposure to weather conditions, an act of God, or battery leakage, theft, blown fuse, or improper use of any electrical source, damage caused by computer or internet viruses, devices viruses, bugs, worms, Trojan Horses, cancelbots or damage caused by the connection to other products not recommended for interconnection by Clearway.
  3. Clearway was not advised in writing of the alleged defect or malfunction of the Product within fourteen (14) days after the expiration of the applicable limited warranty period.
  4. The Product serial number plate or the enhancement data code has been removed, defaced or altered.
  5. The defect or damage was caused by the defective function of the cellular system or by inadequate signal reception by the external antenna, or viruses or other software problems introduced into the Product.
  6. The Product is outside of the one (1) year Limited Warranty period.
  1. Clearway does not warrant uninterrupted or error-free operation of the Product or service. Clearway cannot and does not guarantee that your communications will be private or secure; it is illegal for unauthorized people to intercept your communications, but such interceptions can occur. If a problem develops during the limited warranty period, the Consumer shall contact Clearway Customer Care for repair or replacement processing of the Product. Clearway shall, at its discretion, provide a replacement product that may consist of a refurbished device of the same model if available, or of a comparable model.
  2. You (the Consumer) understand that the product may consist of refurbished equipment that contains used components, some of which have been reprocessed. The used components comply with Product performance and reliability specifications.
  3. CLEARWAY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE. THE LIMITED WARRANTY SET FORTH HEREIN IS THE CONSUMER’S SOLE AND EXCLUSIVE REMEDY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. CLEARWAY SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS, SAVINGS OR REVENUE, LOSS OF DATA OR USE OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL OR SUBSTITUTE EQUIPMENT OR FACILITIES, INJURTY TO PROPERTY DOWNTIME, OR THE CLAIMS OF ANY THIRD PARTIES, INCLUDING CUSTOMERS, RESULTING FROM THE PURCHASE OR USE OF THE PRODUCT AND/OR SERVICE OR ARISING FROM BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF CLEARWAY KNEW OF THE LIKELIHOOD OF SUCH DAMAGES. CLEARWAY SHALL NOT BE LIABLE FOR DELAY IN RENDERING SERVICE UNDER THE LIMITED WARRANTY, LOSS OF USE DURING THE PERIOD THAT THE PRODUCT IS RETURNED FOR REPLACEMENT OR WARRANTY SERVICE OR FOR THE LOSS OR UNAUTHORIZED USE OF CUSTOMER PASSWORDS, PERSONAL INFORMATION, CONTACTS, PICTURES, VIDEOS, APPLICATIONS, MUSIC, RINGTONES AND OTHER CONTENT.
  4. Some states do not allow the exclusion or limitation of incidental and consequential damages, so certain of the above limitations or exclusions may not apply to you (the Consumer). This limited warranty gives the Consumer specific legal rights and the Consumer may also have other rights which vary from state to state.
  5. Clearway neither assumes nor authorizes any authorized service center or any other person or entity to assume for it any other obligation or liability beyond that which is expressly provided for in this limited warranty including the provider or seller of any extended warranty or service agreement.
  6. This is the entire warranty between Clearway and the Consumer, and supersedes all prior and contemporaneous agreements or understandings, oral or written, relating to the Product, and no representation, promise or condition not contained herein shall modify these terms.
  7. This limited warranty allocates the risk of failure of the Product between the Consumer and Clearway. The allocation is recognized by the Consumer and is reflected in the purchase price.

12.  LIMITATION OF LIABILITY

Clearway is not liable to you, other users of your Clearway Service, or any third party for any failure to post, receive, process or credit a payment for your Clearway Service including, without limitation, any failure to add or credit any airtime or due date information to your Clearway Device or for any other claim arising out of or in any way related to your Clearway Service.

 

Clearway will not be liable to you for any actual, direct, indirect, special, incidental, consequential, exemplary or punitive damages of any kind, including lost profits (regardless of whether it has been notified such loss may occur) by reason of any act or omission in its provision of equipment and/or Services to you. Clearway will not be liable for any act or omission of any other company furnishing a part of our Services or any equipment or for any damages that result from any Service or equipment provided by or manufactured by third parties. If you return your Clearway Device to Clearway for any reason, Clearway is not responsible and shall not be liable to you or anyone else for any personal information, such as user names, passwords, contacts, pictures, SMS, MMS and/or additional downloads, you may have stored on your Clearway Device or which may remain on your Clearway Device when it is returned.

 

You agree that neither we nor our vendors, suppliers or licensors are responsible for any damages you may suffer or incur resulting from: (a) anything done or not done by another person; (b) providing or failing to provide Data Services, including, but not limited to, deficiencies or problems with a device or network coverage (for example, dropped, blocked, interrupted service, etc.); (c) traffic or other accidents, or any health-related claims relating to our Service; (d) Data Content or information accessed while using our Service; (e) an interruption or failure in accessing or attempting to access emergency services from a device, including through 911, Enhanced 911 (E911), Next Generation 911 (NG911) or otherwise; (f) interrupted, failed, or inaccurate location information services, (g) information or communication that is blocked by a spam filter, (h) damage to your device or any computer or equipment connected to your device, or damage to or loss of any information stored on your device, computer or equipment from your use of the Services or from viruses, worms, or downloads of malicious content, materials, data, text, images, video or audio; or (i) things beyond our control, including acts of God (for example, weather-related phenomena, fire, earthquake, hurricane, etc.), riot, strike, war, terrorism or government orders or acts. You should implement appropriate safeguards to secure your device, computer or equipment and to back-up your information stored on each.

 

IN NO EVENT SHALL CLEARWAY, ITS EMPLOYEES OR LICENSORS OR AFFILIATES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE, SALES, OR DATA; ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, OR LOSS OF BUSINESS INFORMATION; OR FOR ANY OTHER SPECIAL, DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, COVER, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE CLEARWAY WIRELESS SERVICE, VOICE MAIL, ANY GPS MAPS, SOFTWARE, DATA SERVICES OR OTHER WEB CONTENT, EVEN IF CLEARWAY, OR ITS RESPECTIVE LICENSORS OR AFFILIATES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITH RESPECT TO JURISDICTIONS THAT MAY NOT ALLOW THE EXCLUSION OF LIABILITY, BUT MAY ALLOW LIABILITY TO BE LIMITED IN SOME CASES, CLEARWAY, ITS EMPLOYEES, LICENSORS AND AFFILIATES' LIABILITY SHALL BE LIMITED TO U.S. $50.

13.  INDEMNIFICATION

You agree to indemnify and hold harmless Clearway, TracFone Wireless, Inc. including its officers and its employees from any and all liabilities, penalties, claims, causes of action, and demands brought by third parties including the costs, expenses, and attorneys' fees on account thereof resulting from your use of a Clearway Device and/or Clearway Services, whether based in contract or tort (including strict liability) and regardless of the form of action.

 

14.  DISPUTE RESOLUTION

Most customer concerns can be resolved quickly and to the customer’s satisfaction by calling our Customer Care department at 1-844-442-5327.  Before taking any formal action, You agree to first contact us in writing and provide a description of your dispute, all relevant documents, and your proposed resolution.  If we are unable to resolve your dispute within 30 days of your notice to us, You agree to submit your dispute to binding arbitration or small claims court as set forth in this provision.  Please forward your dispute to TracFone Wireless, Inc., Attn: Legal Department-Consumer Claims, 9700 NW 112 Avenue, Miami, FL 33178.

 

BINDING ARBITRATION

 

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE.  IT PROVIDES FOR RESOLUTION OF ALL DISPUTES AND CLAIMS (INCLUDING ONES THAT ALREADY ARE THE SUBJECT OF LITIGATION) THROUGH BINDING ARBITRATION INSTEAD OF SUING IN COURT IN THE EVENT THAT THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE OR CLAIM.  ARBITRATION IS BINDING AND SUBJECT TO ONLY A VERY LIMITED REVIEW BY A COURT.  THIS ARBITRATION CLAUSE SHALL SURVIVE TERMINATION OF THIS AGREEMENT.  YOU AGREE THAT YOU ARE AWARE THAT THERE IS NO JUDGE NOR JURY IN ARBITRATION BUT THAT AN ARBITRATOR MAY AWARD YOU THE SAME DAMAGES AND RELIEF THAT YOU MAY BE ABLE TO RECOVER IN A COURT OF LAW.  YOU AND TRACFONE FURTHER AGREE THAT THE ARBITRATOR MUST HONOR THE TERMS OF THIS AGREEMENT.  NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY BRING A CLAIM IN SMALL CLAIMS COURT.

 

This provision is intended to encompass all disputes or claims arising out of Your relationship with TracFone, arising out of or relating to the Service or any equipment used in connection with the Service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal or equitable theory).  References to You and TracFone include our respective subsidiaries, affiliates, predecessors in interest, successors, and assigns.

 

All claims will be resolved by binding arbitration where permitted by law.  You must first present any claim or dispute to TracFone by contacting our Legal Department, as set out above, to allow an opportunity to resolve the dispute prior to initiating arbitration.  The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association (“AAA”) under the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, the “AAA Rules”), as modified by this agreement.  The AAA Rules are available online at www.adr.org, by calling the AAA a 1-800-778-7879, or by contacting TracFone’s Legal Department as set out above.  You and TracFone agree that use of the Service evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law.  Additionally, for claims of $10,000 or less, You can choose to proceed with arbitration being decided on the documents submitted in an effort to minimize costs and the time it may take for an arbitrator to reach his or her decision.

 

You and TracFone agree that any arbitration will be conducted on an individual basis and not on a consolidated, class wide, or representative basis.  Further, You and TracFone agree that the arbitrator may not consolidate proceedings or more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.  If the preclusion of consolidated, class wide, or representative proceedings is found to be unenforceable, then this entire arbitration clause shall be null and void. 

 

Absent a finding that Your demand is frivolous, brought for an improper purpose, or malicious as set forth by the standards of Federal Rule of Civil Procedure 11(b), TracFone will pay the filing, administration, and arbitrator fees of an arbitration initiated in accordance with this Agreement.  If, however, the arbitrator does deem that Your demand was frivolous, was brought for an improper purpose, or was malicious under the same standard used in a court of law, payment of all fees will be divided between You and TracFone in accordance with AAA Rules.  Additionally, TracFone hereby waives any right to seek its attorney’s fees from You in the event that it prevails in the arbitration, except where Your demand is deemed frivolous, brought for an improper purpose, or malicious under the standard set out above.  Nothing in this section shall be construed by an arbitrator as barring an award of attorney’s fees to You, the customer, where the law would so provide.  If You initiate an arbitration in which You seek more than $50,000 in damages, the payment of fees will be governed by the AAA rules.

 

If TracFone made You a settlement offer that You rejected prior to entering arbitration and the arbitrator ultimately finds in Your favor in any respect with an award that is greater than the last written offer made to You by TracFone, TracFone will pay You the amount of the award or a minimum of $5,000, whichever is greater.  Additionally, TracFone will pay Your attorney twice the reasonable expense of attorney’s fees as well as reimbursing any expenses that Your attorney reasonably incurs for investigating, preparing, and pursuing Your claim.  If TracFone opted not to make You a written settlement offer, these same terms apply, meaning that You are guaranteed a minimum award of $5,000 if the arbitrator finds in Your favor and that TracFone will reimburse Your reasonable attorney’s fees twofold.  The arbitrator will be the arbiter of what constitutes reasonable fees, and You and TracFone agree that the arbitrator may make any rulings as to the payment and reimbursement of fees and expenses for an additional 14 days after the arbitrator’s ruling on the merits.

 

Unless You and TracFone agree otherwise and in an effort to reduce the burden of arbitration on You, the location of any arbitration shall be in the county of Your, the customer’s, residence for those customers located within the United States.  For customers residing outside of the United States, the location of arbitration shall be Miami, Florida, unless You and TracFone agree otherwise.  Either or both parties may participate in the proceedings by telephone.  The arbitrator shall apply the law of the State in which You, the customer, reside to the dispute.

 

If for any reason this arbitration provision is deemed inapplicable or invalid, or to the extent this arbitration provision allows for litigation of disputes in court, You and TracFone waive to the fullest extent permitted by law, (i) any right to pursue any claims on a class or consolidated basis  and (ii) Your right to serve in a representative capacity in any class or consolidated basis.  Neither You nor TracFone shall disclose the existence, contents, or results of any arbitration except to the extent required by law.  Judgment on the award rendered may be entered by any court of competent jurisdiction.

 

In the event that any claim proceeds in a court of law rather than through arbitration, You and TracFone agree that there will not be a jury trial.  You and TracFone unconditionally waive any right to a trial by jury in any action, proceeding, or counterclaim arising out of or relating to this Agreement in any way.  You and TracFone further agree that in the event of litigation, this section of the Agreement may be filed as an exhibit illustrating a knowing and written consent of any right to a trial by jury.

 

YOU HAVE THE RIGHT TO OPT OUT OF THIS PROVISION COVERING DISPUTE RESOLUTION BY BINDING ARBITRATION WITHIN 30 DAYS OF THE ACTIVATION OF YOUR SERVICE.  IN THE EVENT YOU ACTIVATE SERVICE WITH TRACFONE AND DO NOT OPT OUT OF THIS PROVISION WITHIN 30 DAYS, YOUR INACTION SHALL BE DEEMED TO BE CONSENT TO THIS PROVISION COVERING DISPUTE RESOLUTION.  YOU MAY OPT OUT OF THIS PROVISION BY CALLING US AT 1-877-836-2368 OR BY WRITING TO TRACFONE WIRELESS, INC., ATTN: LEGAL DEPARTMENT-CONSUMER CLAIMS, 9700 NW 112 AVENUE, MIAMI, FL 33178.  ANY OPT-OUT RECEIVED AFTER THE OPT-OUT DEADLINE (OR, IN THE CASE OF THOSE MAILED, POSTMARKED AFTER THE OPT-OUT DEADLINE) WILL BE INVALID, AND YOU MUST PURSUE YOUR CLAIM IN ARBITRATION.

 

15.  CHOICE OF LAW

This Agreement shall be construed under the laws of the law of the State in which you reside without regard to its choice of law rules, except for the arbitration provision contained herein, which will be governed by the Federal Arbitration Act. If you reside outside of the United States, then this Agreement will be governed by the laws of the state of Florida.

16.  PRIVACY POLICY

To view our Privacy Policy, please refer to our website.

 

17.  UNLOCKING POLICY

For Customers with Clearway Handsets Capable of Being Unlocked:  Clearway will provide an unlocking code to customers who request unlocking, provided they meet the following conditions:

(a)        Customers must request handset unlocking.  Clearway will unlock handsets of current and former Clearway customers without charge.  Non-former customers may request unlocking, but Clearway may charge a reasonable fee. 

(b)        The Clearway Handset must have been activated on Clearway Service for no fewer than 12 months with Plans redeemed in no fewer than 12 months. 

(c)        Customers must possess a Clearway Handset that is not reported stolen, lost, or associated with fraudulent activity. 

(d)        If a customer in good standing requesting handset unlocking is deployed as military personnel, upon provision of deployment papers, Clearway will honor that customer’s unlocking request.

Clearway may refuse any unlocking request that would result in an abuse of its Unlocking Policy or is part of an effort to defraud Clearway or its customers. Clearway’s Unlocking Policy is subject to change at any time without advance notice.

For Customers with Clearway Handsets not Capable of Being Unlocked:  Clearway will provide customers with a partial refund or credit against the purchase of a new Clearway Handset if they meet the following conditions:

(a)        Customers must request handset unlocking.

(b)        Customers must have had their locked device activated on Clearway Service for no fewer than 12 months, redeemed air time cards in no fewer than 12 months, and not have had their telephone number recycled or ported. 

(c)        Customers must request this interim unlocking solution while their Clearway Service is active or within 60 days after their Service expires.  This 60-day grace period applies even if the customer’s telephone number was recycled or ported. 

(d)        Customers must currently own a Clearway Handset model launched on Clearway’s Service after February 11, 2014 or activated with Clearway’s Service after February 11, 2015.

(e)        Customers must possess a Clearway Handset that is in working condition. 

(f)         Customers must possess a Clearway Handset that is not reported stolen, lost, or associated with fraudulent activity. 

(g)        If a customer in good standing requesting handset unlocking is deployed as military personnel, upon provision of deployment papers, Clearway will honor that customer’s unlocking request by sending a refund for the trade-in value of the used, locked phone returned by the customer without regard to the 12 months of service activation and Plan redemption eligibility requirements.  However, all other eligibility criteria apply to Clearway’s customers who are deployed military personnel.

(h)        Customers are eligible for this program only once every twelve (12) months. 

After an eligible customer contacts Clearway to request the trade-in value of his or her handset, Clearway will provide a prepaid mailer for the customer to return the used, locked handset.  Upon receipt of the device, Clearway will send the customer a check for the trade-in value of the handset.  The trade-in value is determined by a formula reached through agreement with the FCC.

Customers who would like to check if they are eligible or submit an unlocking request can do so through an online portal at the Clearway website or by calling 1-888-442-5102.

18.  ENTIRE AGREEMENT

This Agreement, the Privacy Policy, the Limited Warranty, and the Unlocking Policy, constitute the entire Agreement between You and TracFone Wireless, Inc. with respect to any Clearway Product and/or Service.  The failure of either party to enforce any of the terms set forth herein shall not be construed to be a waiver of any such terms nor in any way affect the validity and enforceability of these Terms.  No waiver of a breach of any term shall be deemed a waiver of any other or subsequent breach of a term. In the event any provision contained in this Agreement is deemed unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.

© 2018 TracFone Wireless, Inc.

 

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