SmarTalkPrepaid Service Aggreement.

SmarTalkPrepaid Service Agreement.

THANK YOU FOR USING THE SMARTALK PREPAID PHONE SERVICE. In this Agreement (“Agreement”), “you” and “your” mean the customer of the SmarTalk Prepaid Phone Service defined below, and “SmarTalk”, “we”, “our” and “us” mean SmarTalk and any SmarTalk affiliate authorized to provide you with the SmarTalk Prepaid Phone Service*.

BY USING OR PAYING FOR THE SERVICE, YOU AGREE TO THE RATES, CHARGES, TERMS AND CONDITIONS IN THIS AGREEMENT AS PERIODICALLY UPDATED.  IF YOU HAVE ANY QUESTIONS CONCERNING THIS AGREEMENT, CALL CUSTOMER SERVICE AT 1 800 385-2206**.

SmarTalk Prepaid Phone Service means the advanced purchase of specified amounts of direct-dialed or directory assisted U.S. domestic and international calling capability in the form of a prepaid phone card containing the SmarTalk brand ("SmarTalk Prepaid Phone Card").

1. CARD USAGE

You may purchase SmarTalk Prepaid Phone Cards at various retailer locations or from vending machines throughout the U.S. You may access the SmarTalk Prepaid Phone Service from most touch tone telephones via the toll free access number printed on your card. SmarTalk Prepaid Phone Cards cannot be used for toll free calls, calls for paid services with premium charges, operator-assisted calls, or calls to 911. SmarTalk Prepaid Phone Cards may have an expiration date as disclosed on the card and/or in the marketing material. For cards issued on or after March 1, 2014, card value expires 365 days after activation or last use. The SmarTalk Prepaid Phone Service is supported by customer service 24 hours a day. A toll free customer service number is printed on your SmarTalk Prepaid Phone Card. Safeguard your card and PIN; you are responsible for any unauthorized use, loss, or theft.

2. RATES AND CHARGES.

a. General. Talk time is charged in full minutes. Any partial minute of talk time is charged as a whole minute. If your SmarTalk Prepaid Phone Card is minute denominated, each minute of talk time used will be deducted from the minute balance on your card. If your SmarTalk Prepaid Phone Card is dollar denominated, the dollar value of each minute used will be deducted from the dollar balance on your card. The rates for any particular call depend on a number of factors, which include, for example, the type of card purchased, the type of call made (e.g., U.S. domestic or international), and whether the call is placed to or from a mobile phone. International rates are higher than U.S. domestic rates. The charges for the SmarTalk Prepaid Phone Service may also include, for example, a per call surcharge, a weekly or monthly fee, and a communication fee. Surcharges and fees are printed on the SmarTalk Prepaid Phone Card and/or in the marketing material. Surcharges will also apply to calls made from pay phones. The U.S. payphone surcharge policy is printed on the SmarTalk Prepaid Phone Card and/or in the marketing material. If your SmarTalk Prepaid Phone Card is rechargeable, a recharge convenience fee will apply if you recharge your card. Call the customer service toll free number on your card for specific rates and surcharges.

b. Changes. Rates and charges for the SmarTalk Prepaid Phone Service for international calls are subject to change. Recharge rates may have different rates than the rates at the time you purchased your SmarTalk Prepaid Phone Card. Call the customer service number on your card for exact rates and surcharges.

c. Taxes. You must pay all taxes that federal, state and local authorities require.

d. Recharge Policy. SmarTalk Prepaid Phone Cards are not rechargeable unless otherwise expressly stated on the card or packaging.

3. SUSPENDING AND CANCELING THE SERVICES.

a. Cancellation of the Services. SmarTalk Prepaid Phone Cards are not returnable, exchangeable, or refundable unless defective. The SmarTalk Prepaid Phone Service cannot be cancelled by you after your SmarTalk Prepaid Phone Card is purchased or used.

b. Fraudulent Use. Your SmarTalk Prepaid Phone Card may be suspended or terminated without notice if we have reason to suspect fraudulent use.

c. Other. SmarTalk may from time to time discontinue some or all of the features or services of the SmarTalk Prepaid Phone Service or SmarTalk Prepaid Phone Cards, subject to applicable law and regulation.

4. INDEMNIFICATION.

YOU AGREE THAT WE SHOULD NOT BE RESPONSIBLE FOR ANY THIRD-PARTY CLAIMS AGAINST US THAT ARISE FROM YOUR USE OF THE SERVICES. FURTHER, YOU AGREE TO REIMBURSE US FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS' FEES, UNLESS SUCH CLAIMS ARE BASED ON OUR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. THIS PROVISION WILL CONTINUE TO APPLY AFTER EXPIRATION OR TERMINATION OF YOUR SMARTALK PREPAID PHONE CARD.

5. LIMITATIONS OF LIABILITY.

NOTHING IN THIS AGREEMENT LIMITS OUR LIABILITY, IF ANY, FOR OUR WILLFUL OR INTENTIONAL MISCONDUCT.

 

IF OUR NEGLIGENCE CAUSES DAMAGE TO PERSON OR PROPERTY, WE WILL BE LIABLE FOR NO MORE THAN THE AMOUNT OF DIRECT DAMAGES TO THE PERSON OR PROPERTY. IF OUR NEGLIGENCE CAUSES DAMAGE OF ANY OTHER SORT, WE WILL BE LIABLE FOR NO MORE THAN THE AMOUNT OF OUR CHARGES FOR THE SERVICES DURING THE AFFECTED PERIOD. FOR ALL CLAIMS THAT ARE NOT THE RESULT OF OUR WILLFUL OR INTENTIONAL MISCONDUCT, WE WILL NOT BE LIABLE FOR PUNITIVE, RELIANCE, OR SPECIAL DAMAGES (UNLESS AN APPLICABLE STATUTE EXPRESSLY AUTHORIZES SUCH DAMAGES), AND WE WILL NOT BE LIABLE FOR INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUE OR INCREASED COSTS OF OPERATION. THESE LIMITATIONS APPLY EVEN IF THE DAMAGES WERE FORESEEABLE OR WE WERE TOLD THEY WERE POSSIBLE, AND THEY APPLY TO ANY NEGLIGENCE CLAIM THAT DOES NOT INVOLVE WILLFUL MISCONDUCT OR INTENTIONAL MISCONDUCT, NO MATTER HOW THAT CLAIM IS STYLED OR ON WHAT LEGAL GROUNDS (SUCH AS CONTRACT, TORT, STATUTE, MISREPRESENTATION) IT IS BASED.

 

WE WILL NOT BE LIABLE FOR ANY DAMAGES — AND WILL BE LIABLE ONLY FOR THE AMOUNT OF OUR CHARGES FOR THE SERVICES DURING THE AFFECTED PERIOD — IF SERVICES ARE INTERRUPTED, OR THERE IS A PROBLEM WITH THE INTERCONNECTION OF OUR SERVICES WITH THE SERVICES OR EQUIPMENT OF SOME OTHER PARTY. THIS SECTION WILL CONTINUE TO APPLY AFTER THIS AGREEMENT ENDS.

6. WARRANTIES.

EXCEPT AS THIS AGREEMENT EXPRESSLY STATES, WE MAKE NO EXPRESS WARRANTY REGARDING THE SERVICES AND DISCLAIM ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE ALSO MAKE NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. WE DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT.

7. CREDIT ALLOWANCES FOR INTERRUPTIONS.

If an interruption or failure of the SmarTalk Prepaid Phone Service is caused solely by us and not by you or a third party or other causes beyond our reasonable control, you may be entitled to a credit allowance as specified in the applicable SmarTalk Service Guide.

8. COMPLAINT PROCEDURE.

Direct all complaints not resolved to your satisfaction to the appropriate state regulatory agency in the state where your SmarTalk Prepaid Phone Card was purchased. If your SmarTalk Prepaid Phone Card was not purchased, then direct such complaints to the appropriate state regulatory agency in the state where your card was received.

9. DISPUTE RESOLUTION+.

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 IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION. YOU CONTINUE TO HAVE CERTAIN RIGHTS TO OBTAIN RELIEF FROM A FEDERAL OR STATE REGULATORY AGENCY.

 

a.     Binding Arbitration. The arbitration process established by this section is governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1–16. You have the right to take any dispute that qualifies to small claims court rather than arbitration. All other disputes arising out of or related to this Agreement (whether based in contract, tort, statute, fraud, misrepresentation or any other legal or equitable theory) must be resolved by final and binding arbitration. This includes any dispute based on any product, service or advertising having a connection with this Agreement and any dispute not finally resolved by a small claims court. The arbitration will be conducted by one arbitrator using the procedures described in this Section 9. If any portion of this Dispute Resolution Section is determined to be unenforceable, then the remainder shall be given full force and effect.

 

The arbitration of any dispute shall be conducted in accordance with the American Arbitration Association's ("AAA") 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. 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.

 

NO DISPUTE MAY BE JOINED WITH ANOTHER LAWSUIT, OR IN AN ARBITRATION WITH A DISPUTE OF ANY OTHER PERSON, OR RESOLVED ON A CLASS-WIDE BASIS. THE ARBITRATOR MAY NOT AWARD DAMAGES THAT ARE BARRED BY THIS AGREEMENT AND MAY NOT AWARD PUNITIVE DAMAGES OR ATTORNEYS' FEES UNLESS SUCH DAMAGES OR FEES ARE EXPRESSLY AUTHORIZED BY A STATUTE. YOU AND WE BOTH WAIVE ANY CLAIMS FOR AN AWARD OF DAMAGES THAT ARE EXCLUDED UNDER THIS AGREEMENT.

 

b.     Arbitration Information and Filing Procedures. Before you take a dispute to arbitration or to small claims court, you must first contact our customer account representatives at 1-800-385-2206 or write to us at P.O. Box 598022, Orlando, Florida 32859-8022 and give us an opportunity to resolve the dispute. Similarly, before we take a dispute to arbitration, we must first attempt to resolve it by contacting you. If the dispute cannot be satisfactorily resolved within sixty days from the date you or we are notified by the other of a dispute, then either party may contact the AAA in writing at AAA Service Center, 134555 Noel Road, Suite 1750, Dallas, Texas 75240-6620 and request arbitration of the dispute. Information about the arbitration process and the AAA's Arbitration Rules and its fees are available from the AAA on the Internet at www.adr.org, or by contacting us at 1-800-385-2206 or P.O. Box 598022, Orlando, Florida 32859-8022. The arbitration will be based only on the 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, on-line, or in-person procedures. Additional charges may apply for these procedures. Any in-person arbitration will be conducted at a location that the AAA selects in the state of your primary residence. Arbitrations under this Agreement shall be confidential as permitted by federal law. By notifying us within twenty days after commencing an arbitration proceeding, you may elect to relieve both parties to the arbitration of confidentiality obligations.

c.      Fees and Expenses of Arbitration. You must pay the applicable AAA filing fee when you submit your written request for arbitration to the AAA. The AAA's filing fee and administrative expenses for a document arbitration will be allocated according to the AAA's Rules, except as stated herein, for claims of less than $10,000, you will only be obligated to pay a filing fee of $20 and we will pay all of the AAA's other costs and fees. For claims between $10,000 and $75,000, you will pay a fee to the AAA of no more than $375, and we will pay all of the AAA's other costs and fees. If you elect an arbitration process other than a document ("desk") or telephone arbitration, you must pay your allocated share of any higher administrative fees and costs for the process you select. If you request such an alternative process, or for claims of $10,000 or greater, we will also consider, upon receiving your request and on a case-by-case basis, paying some or all of the AAA's fees and expenses that you would otherwise be allocated under the AAA's rules. You also may ask the AAA about the availability of a pro bono arbitrator and/or a waiver or deferment of fees and expenses from the AAA; more information about the AAA's rules and policies is available at the AAA's website, which is www.adr.org. Unless applicable substantive law provides otherwise, each party will pay its own expenses to participate in the arbitration, including attorneys' fees and expenses for witnesses, document production and presentation of evidence. If you prevail before the arbitrator, however, you may seek to recover the AAA's fees and the expenses of the arbitrator from us. If we prevail before the arbitrator, and if we show that you acted in bad faith in bringing your claim, then we may seek to recover the AAA's fees and expenses of the arbitrator from you.

10. CHANGES TO THIS AGREEMENT.

This Agreement may only be changed in the manner provided for in this Section 10. We may change this Agreement, including the incorporated SmarTalk Service Guide, from time to time. If we make any changes to the prices or charges, we will comply with our notice commitments described in Section 2 of this Agreement. With respect to all other changes to this Agreement, we will notify you of the changes, and they will be effective no sooner than fifteen days after we post them at www.prepaidserviceguide.com. You may also request a copy of the revised Agreement, including the revised SmarTalk Service Guide by calling customer service at 1-800-385-2206 or by contacting us at P.O. Box 598022, Orlando, Florida 32859-8022.

 

IF YOU CONTINUE TO USE OR PAY FOR THE SMARTALK PREPAID PHONE SERVICE AFTER ANY CHANGES IN THE PRICES, CHARGES, TERMS OR CONDITIONS, YOU AGREE TO THE CHANGES.

11. MISCELLANEOUS.

a.   No Third Party Rights. This Agreement does not provide any third party with a remedy, claim, or right of reimbursement.

 

b.   Acts Beyond Our Control. Neither you nor we will be responsible to the other for any delay, failure in performance, loss or damage due to fire, explosion, power blackout, earthquake, volcanic action, flood, the weather elements, strike, embargo, labor disputes, civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, or other causes beyond our reasonable control, except that you must pay for any services used.

 

c.    Assignment. We can assign all or part of our rights or duties under this Agreement without notifying you. If we do that, we have no further obligations to you. If you allow someone to use your SmarTalk Prepaid Phone Card, then that person is subject to the terms and conditions in this Agreement and the SmarTalk Service Guide.

 

d.   Notices. Except as otherwise may be provided under any applicable state laws and/or requirements, notices from you to us must be provided as specified in this Agreement. Notice from you to us made by calling us is effective as of the date that our records show that we received your call. Our notice to you under this Agreement will be provided by one or more of the following: posting on our web site, recorded announcement or newspaper ad.

 

e.   Separability. If any part of this Agreement is found invalid, the rest of the Agreement will remain valid and enforceable.

 

f.    Governing Law. This Agreement is governed by the Federal Communications Act to the full extent applicable, and otherwise by the law of the State of New York, without regard to its choice of law rules. The arbitration provisions in Section 9 are also governed by the Federal Arbitration Act. This governing law provision applies no matter where you reside, or where you use or pay for the SmarTalk Prepaid Phone Service.

 

g.   Entire Agreement. This Agreement (which incorporates by reference the SmarTalk Service Guide and all terms and conditions on your SmarTalk Prepaid Phone Card and/or packaging) constitutes the entire agreement between us and supersedes all prior agreements, understandings, statements or proposals, and representations, whether written or oral. This Agreement can be amended only as provided in Section 10. No written or oral statement, advertisement, or service description not expressly contained in the Agreement will be allowed to contradict, explain, or supplement it. Neither you nor SmarTalk is relying on any representations or statements by the other party or any other person that are not included in this Agreement.

 

*SmarTalk Prepaid Phone Service is provided by AT&T Corp. or affiliate d/b/a/SmarTalk.

**TTY for customers with hearing/speech disabilities: 800 855-1155.

+Arbitration does not apply to CA residents for disputes arising in CA.

 

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