Terms And Conditions Of Service
FRESH MOBILE TERMS AND CONDITIONS OF SERVICE
I. Fresh Mobile Wireless Service
II. Return Policy
III. Limited Warranty
IV. Unlocking Policy
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 15 BELOW.
BY USING THE SERVICE PROVIDED BY FRESH MOBILE YOU AGREE TO RECEIVE COMMUNICATIONS CONCERNING YOUR SERVICE VIA E-MAIL AND/OR THROUGH TEXT MESSAGE. YOU ALSO EXPRESSLY CONSENT TO RECEIVE ADDITIONAL MARKETING OR CUSTOMER SERVICE RELATED COMMUNICATIONS FRESH MOBILE MAY SEND ITS CUSTOMERS FROM TIME TO TIME VIA E-MAIL AND/OR THROUGH TEXT MESSAGE. IF YOU WISH TO OPT-OUT FROM RECEIVING ANY OF THESE COMMUNICATIONS PLEASE CONTACT CUSTOMER CARE OR EMAIL US AT ADMIN@FRESHMOBILEUSA.COM.
I. FRESH MOBILE WIRELESS 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 Fresh Mobile.
By purchasing, activating, and/or using any Fresh Mobile product (“Product”) or the wireless services provided by Fresh Mobile (“Service”), you acknowledge and agree to these Terms and Conditions of Service. Fresh Mobile reserves the right to change or modify any of these Terms at any time. Any changes or modifications to these Terms and Conditions of Service are effective and will be binding upon you when posted on our website at https://www.freshmobileusa.com. Because these Terms and Conditions of Service are subject to change at any time you should always check our website for the most current Terms and Conditions of Service. For assistance or more information, please contact Fresh Mobile Customer Care at 1-213-389-9111.
ACTIVATING YOUR SERVICE
To use Fresh Mobile Service, you must first purchase a Fresh Mobile phone or a Fresh Mobile Bring Your Own Device SIM Kit (“Activation Kit”) that can be used to activate a phone that is compatible with Fresh Mobile Service under the Bring Your Own Device program. To activate your phone, you must also purchase and redeem a Fresh Mobile wireless plan (“Plan”). For more information about our Plans visit our website and see Section 3 below.
You may activate your Service by visiting our website at https://www.freshmobileusa.com or by calling our Customer Care from a phone other than the one you intend to activate. If you have purchased an Activation Kit to activate your own phone, follow the instructions that came with the Activation Kit to activate your Service. When you activate your Service, you will be provided with a telephone number unless you elect to transfer or “port-in” an existing telephone number you are using with another provider. In certain instances, you may not be able to transfer your existing telephone number for reasons outside of our control. 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 Service at any time without prior notice to you.
When you activate the Service, you will have the option of registering with us and creating an account (“Account”) by providing your name, address, email address and alternative contact telephone number. If you elect not to register at the time of activation, you may not be able to obtain copies of your call detail records except upon service of a valid subpoena or a court order.
Fresh Mobile Service can only be activated where Fresh Mobile Service is offered and supported by Fresh Mobile. The wireless telecommunications networks used to transmit the voice, text, and data services that support the Service offered by Fresh Mobile are owned and operated by licensed commercial mobile radio service providers (“Carriers”), and not Fresh Mobile. 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 at times and at locations where there are competing customer demands for network resources. Where the network is lightly loaded, a Fresh Mobile 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 Fresh Mobile 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.
If you are activating your own compatible phone under the Bring Your Own Device Program, you are responsible for ensuring that the phone is unlocked, compatible with the Service, does not interfere with the Service, and that it complies with all applicable laws, rules and regulations. You are also responsible for ensuring that your phone meets all federal laws and standards. You are further responsible for the purchase and maintenance of any additional hardware and/or software required to use the Service. Not all aspects of the Service are available on all Carrier networks or will function on all phones, including, phones activated under the Bring Your Own Device program. Some functions and features referenced in the manufacturer’s manual provided with your phone may not be available when using the Service. Some Plans may not work on Smartphones or on phones activated under the Bring Your Own Device program. Devices capable only of using data service are strictly prohibited and your use of any such device is grounds for immediate deactivation and termination of your Service without a refund.
We 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 our sole discretion, including, your violation of these Terms and Conditions of Service. Further, we may remotely change your phone’s software, applications, or programming without notice. This could affect information stored on your phone, your phone’s programming, and how you are able to use your phone.
All aspects of the Service, including, Plan rates, offerings, features, functionality and other product specifications are subject to change without notice or obligation. All talk and standby times are quoted in digital mode and are approximate.
TERMINATION OF SERVICE
Either party may terminate this Agreement at any time. Termination of this Agreement will result in the immediate termination of your Service which may be reactivated if you elect to do so. Each time you activate your Service you agree that you are consenting to the latest Fresh Mobile Terms and Conditions of Service. Any Service which remains unused at the time of termination cannot be refunded or transferred to another person.
We may terminate this Agreement at any time without notice if we cease to provide Service in your area. We may interrupt, suspend, cancel, or terminate your Service without immediate notice to You for any conduct that we believe violates these Terms and Conditions, including, but not limited to, the following:
- using or directing abusive, vulgar, derogatory, intimidating, or harassing language or conduct towards a Fresh Mobile representative, officer, employee, agent, or authorized retailer;
- using your Service for any unlawful, fraudulent, or illegal purpose;
- using your Service in any way that adversely affects the Service or the Carrier’s network;
- violating any Term or Condition contained in this Agreement.
FRESH MOBILE PLANS
Your Service will operate only when you have airtime minutes and service days available. Airtime is issued in minute increments. In order for you to use the Service you must establish and add minutes to your Fresh Mobile Account by purchasing a Service plan (“Service Plan”). Your Account is identified by the phone number assigned to you. Please visit our website for the latest information regarding the Service Plans we offer.
Fresh Mobile Monthly Plans. Monthly Plans provide nationwide calling, text messaging, and a fixed amount of high speed data at 4G speeds for each monthly cycle depending on the Service Plan selected. 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 availability, coverage, and speeds may vary. If your Service Plan comes with a fixed amount of high speed data, your data speed will be reduced to as low as 64 kbps for the remainder of your Service Plan cycle after you have reached your high speed data limit. Your data speed will be restored once your next Service Plan cycle begins unless you purchase a new Plan prior to the start of your next Service 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. Data transmitted over Wi-Fi does not count against your data usage.
Fresh Mobile Prepaid Plans. Prepaid Plans include a certain number of minutes that can be used for nationwide calling and text messaging as well as data based on the per-usage rates listed on our website. Each Prepaid Service Plan has a service period that begins to run the day you add the plan to your Account. Prepaid Plans are available in various denominations. For more information regarding these plans and their offerings please visit our website. Prepaid Plans can also be used as an add-on to a Fresh Mobile Monthly Plan. The airtime minutes included in most Prepaid Plans expire 120 days from the date you redeem your Service Plan.
Fresh Mobile Service Plans, airtime minutes, and data allowances have no cash value and are non-refundable or transferable. Any balance on your Fresh Mobile Account cannot be refunded, split, transferred, or redistributed to another Fresh Mobile account. Your Fresh Mobile Service Plan, airtime minutes, and data allowance can only be used with the Fresh Mobile Service and cannot be used with or transferred to any other wireless or cellular service.
Airtime minutes will be deducted for all time during which your phone is connected to, or using, the wireless system of any Carrier. Use of a wireless system typically begins when you press the “send,” “call” or other button to initiate or answer a call, and does not end until you press the “end” button. Airtime minutes are deducted for all incoming and outgoing calls, including incoming call waiting calls, simultaneous calls, calls to toll free numbers, 411, 611, Customer Care, and to access your voice mail. For simultaneous calls, such as incoming call waiting and 3-way calling (where available) airtime minutes will be deducted for each call. Airtime minutes are not deducted for calls to 911. For outbound calls, you may be charged airtime minutes for incomplete, busy and/or no answer calls. Airtime minutes are deducted in full unit increments. Partial minutes are rounded up to the next minute. No credit is given for dropped calls.
Service End Date. Your Service End Date is the last day of your Service Plan cycle. Each Service Plan identifies the service period or the number of service days available. If you are on a Fresh Mobile Monthly Plan, Service is available for a month beginning the day you redeem your Service Plan. If you are on a Prepaid Plan, you will have Service for 120 days beginning the day you redeem your Prepaid Plan.
You must purchase and redeem a new Service Plan in a timely manner before your Service End Date. If fail to purchase and redeem a new Service Plan prior to your Service End Date, your Fresh Mobile Service will be deactivated and you will lose any unused balances. If you are on a Fresh Mobile Monthly Plan your Account will be suspended on your Service End Date and will be deactivated after 60 days. If you do not reactivate your Account within 30 days from your Service End Date, Fresh Mobile may reassign your phone number to a different user. If your phone number is deactivated for non-use as described above, a new phone number will be assigned to you in the event you resume using Fresh Mobile Service.
Fresh Mobile does not generally participate in Premium SMS services or campaigns. Premium SMS services usually involve sending a text message to a designated “short code” or attempting to buy SMS services from anyone other than Fresh Mobile. Premium SMS campaigns include casting a vote, expressing your opinion, playing a game, or participating in interactive television programs through the use of a wireless phone.
You should not attempt to participate in Premium SMS services or campaigns other than those authorized by Fresh Mobile. Any text message you send to a “short code” not authorized by Fresh Mobile will likely not go through. Any charges you may incur as a result of your attempts to participate in Premium SMS services or campaigns not authorized by Fresh Mobile are not refundable.
Some Fresh 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.
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.
Not all of the online content which is accessible to one using Fresh Mobile Data Services is intended for children. In the event that you, as a legal guardian allow your child to use Fresh 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.
Availability, Interruptions, and Discontinuation to Data Services. Fresh Mobile does not guarantee the availability of Data Services and reserves the right to modify, suspend, cancel, interrupt, discontinue, terminate or reduce your data throughput speed without notice. Fresh Mobile is not responsible and will not be liable for any modifications, interruptions or discontinuation of the Data Services or for any failure to receive content you purchased using Data Services. If your Data Services are modified, suspended, canceled, interrupted, discontinued or terminated, Fresh Mobile will not provide you with a refund for any remaining used or unused Data Services.
UNUAUTHORIZED USE OF SERVICE
Your Service (i.e., voice, text, or data services) and any phone using Fresh Mobile Service may only be used for the following purposes: (a) person to person voice calls, text, and picture messaging and (b) personal web browsing, email, ordinary content downloads and uploads, video and audio streaming without excessively contributing to network congestion.
Your Service and any phone using Fresh Mobile Service may not be used for any unauthorized uses that may adversely impact other customers using our Service or the Carriers’ networks. Examples of some unauthorized uses include, but are not limited to, the following:
- continuous uninterrupted voice calls or otherwise using your voice service to provide monitoring services, data transmission, transmission of broadcasts, transmission of recorded material, interconnection to other networks, telemarketing activity, autodialed calls, or robocalls;
- automated text or picture messaging;
- uninterrupted and continuous uploading, downloading, or streaming of audio or video;
- as a server device or to 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 file sharing;
- as a substitute or backup for private lines or dedicated data connections;
- any applications that allow your phone to act as an internet access point or Wi-Fi for other devices and computers unless such use is allowed under your Plan..
A customer engaged in any unauthorized use may have their Service suspended or terminated in our sole discretion. We reserve the right to interrupt, suspend, cancel, or terminate your Service to protect a Carrier’s network from harm due to any cause including, without limitation, the excessive and/or unauthorized use of the Service. We further reserve the right to limit, deny, or terminate Service to anyone we believe is using it in an unauthorized manner or whose usage, in our sole discretion, adversely impacts a Carrier’s network or customer service levels. We will presume you are engaging in an unauthorized use in violation of these Terms and Conditions, if in our sole discretion, you are placing an abnormally high number of calls, or repeatedly placing calls of unusually long duration, if your voice minute total exceeds 43,200 minutes during a 30-day period, or if your talk, text or data usage is abnormally high, or harmful, or disruptive to the Carrier’s network or to our customer service levels. If we determine, in our sole discretion, that you are using your Service in violation of these Terms and Conditions or in any other manner that we deem to be unreasonable or excessive, we may interrupt, suspend, cancel, or terminate your Service.
A coverage map may be available on our website. Coverage maps are for general informational purposes only and depict the general coverage area of Fresh Mobile. Fresh Mobile 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 phone 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 no 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 phone 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 phone will not work. The coverage depicted on the Fresh Mobile 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 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. Fresh Mobile is not responsible for any Service outages, interruptions in Service or decline in the quality of Service regardless of the cause. Actual coverage and Service may vary from the maps and change without notice.
It is possible that under certain circumstances your phone may roam if you are outside of your network coverage area and within the United States. Roaming occurs when a subscriber of one wireless service provider uses the facilities of another wireless service provider. Although there are no additional charges for using the Service while roaming domestically, Fresh Mobile does not guarantee your ability to roam nor the availability and/or the quality of Service. Domestic roaming may be discontinued or changed at any time without notice. Due to Carrier restrictions, Fresh Mobile reserves the right to terminate the Service of any customer whose roaming usage exceeds 50% of their total usage in any three (3) Plan cycles within a 12 month period. International roaming is not offered by Fresh Mobile and is strictly prohibited.
If you are in an area where your Fresh Mobile Phone 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 Fresh Mobile Service in an emergency situation. In an emergency, locate the nearest landline phone and call for help.
DISCLAIMER OF WARRANTIES
FRESH MOBILE PRODUCTS AND SERVICE ARE PROVIDED ON AN “AS IS” AND “WHERE IS” BASIS AND BY USING ANY PRODUCT OR SERVICE YOU AGREE THAT FRESH MOBILE WILL HAVE NO LIABILITY EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT FOR ANY FAILURE, DEFECTS, MALFUNCTIONS, OR ERRORS IN THE PRODUCTS OR SERVICE. EXCEPT AS SET FORTH IN SECTION III (LIMITED WARRANTY), FRESH MOBILE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, REGARDING TITLE, MERCHANTABILITY, SUITABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE IN RELATION TO ANY PRODUCT OR SERVICE.
You acknowledge and agree that use of any Product or Service is at your sole risk and that your Service may be unavailable, interrupted, delayed or limited for a variety of reasons outside of Fresh Mobile’s control. Not all Products or Services (including Plans) are available for purchase or use in all sales channels, 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, suspended, or curtailed due to system capacity limitations, technology migration or limitations imposed by the Carrier, or because of equipment modifications, upgrades, repairs or relocations or other similar activities necessary or proper for the operation or improvement of the Carrier’s radio telephone system. Fresh Mobile does not warrant or guarantee the availability of the Service or of any other services at any specific time or in any specific geographic location or that Services will be provided without interruption. Neither Fresh Mobile, nor any Carrier, shall have any liability for Service failures, outages, interruptions, delays, or limitations of Service. All aspects of the Service, including, Plan rates, offerings, features, functionality and other product specifications are subject to change without notice or obligation. At any time, Fresh Mobile reserves the right to substitute and/or replace any Product or Service with another Product or Service of comparable quality.
LIMITATION OF LIABILITY
IN NO EVENT SHALL FRESH MOBILE OR ITS EMPLOYEES, VENDORS, SUPPLIERS, OR LICENSORS WILL BE LIABLE TO YOU OR OTHER USERS OF YOUR SERVICE FOR ANY ACTUAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE OR ENHANCED DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION ANY DAMAGES CLAIMED FOR LOSS OF PROFITS, REVENUE, INCOME, SALES, BUSINESS, GOODWILL, DATA OR INFORMATION) HOWEVER CAUSED, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE (REGARDLESS OF WHETHER NOTICE THAT SUCH LOSS MAY OCCUR WAS PROVIDED). WITH RESPECT TO JURISDICTIONS THAT MAY NOT ALLOW THE EXCLUSION OF LIABILITY, BUT MAY ALLOW LIABILITY TO BE LIMITED IN SOME CASES, FRESH MOBILE, ITS EMPLOYEES,VENDORS, SUPPLIERS, AND LICENSORS LIABILITY SHALL BE LIMITED TO U.S. $50.
You agree that neither we nor our employees, vendors, suppliers, or licensors are responsible for any damages you may suffer or incur resulting from: (a) any Product or Service provided to you by or manufactured by a third party; (b) any act or omission by another party; (c) providing or failing to provide a Service, including, but not limited to, deficiencies or problems with a Phone or Service coverage (for example, dropped, blocked, interrupted Service, etc.); (d) accidents or any health-related claims arising from or related to our Products or Service; (e) content or information accessed on your Phone while using our Products or Service; (f) an interruption or failure in accessing or attempting to access emergency services from a phone, including through 911, enhanced 911 or otherwise; (g) interrupted, failed, or inaccurate location information services, (h) content or information that is blocked by a spam filter, (i) damage to your phone or any computer or equipment connected to your phone, or damage to or loss of any information stored on your phone, 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 (j) 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 phone, computer or equipment and to back-up your information stored on each.
UNAUTHORIZED USE OF PRODUCTS
Fresh Mobile Products and Service are sold exclusively for use by you, the end consumer. The unauthorized unlocking or resale of your Fresh Mobile phone constitutes a violation of your agreement with Fresh Mobile and will invalidate the Limited Warranty associated with your Phone. You agree not to unlock, root, re-flash, jailbreak, tamper with or alter the build state of your Fresh Mobile phone in a manner which conflicts with Fresh Mobile’s Unlocking Policy referenced in Section IV below. You also agree not to use unauthorized PINs associated with Fresh Mobile Plans or engage in any other unauthorized or illegal use of your Fresh Mobile Product or the Service, or assist others in such acts, or to sell and/or export Fresh Mobile Products outside of the United States. Any attempt to unlock your Fresh Mobile phone in an unauthorized manner or to root, re-flash, jailbreak, tamper with or alter the build state of your Fresh Mobile phone 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 Fresh Mobile Product may result in the immediate suspension or termination of your Fresh Mobile Service without notice and legal action. Fresh Mobile will strictly enforce its rights under this provision and will prosecute violators to the full extent of the law. You agree that any violation of this provision through your improper, illegal, or unauthorized use or sale of your Fresh Mobile phone shall entitle Fresh Mobile to recover liquidated damages from you in the amount of not less than $5,000 per Fresh Mobile phone purchased, sold, acquired or used in violation of this provision. For more information about the unauthorized use of Fresh Mobile phones refer to www.stopcellphonetrafficking.com.
If your Fresh Mobile phone has a SIM card or if you have purchased an Activation Kit, 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. Fresh Mobile and its Carriers or other 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 Service and you will not be entitled to receive a refund for your Fresh Mobile phone or for any unused Service.
You agree to indemnify and hold harmless Fresh Mobile and its parent, subsidiaries, affiliates, vendors, suppliers, and licensors and their former, current and future officers, directors, employees, insurers, contractors, successors and assigns from any and all liabilities, penalties, claims, causes of action, and demands brought by a third party including the costs, expenses, and attorneys’ fees on account thereof arising from or related to your use of a Fresh Mobile Product or Service, whether based in contract or tort (including strict liability) and regardless of the form of action.
Most customer concerns can be resolved quickly and to the customer’s satisfaction by calling our Customer Care department at 1-213-389-9111. Before taking any formal action, You agree to first contact us 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 Fresh Mobile., Attn: Legal Department-Consumer Claims, 3536 W.8st Los angeles, CA 90005
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 FRESH MOBILE 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 Fresh Mobile, 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 Fresh Mobile 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 Fresh Mobile 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 Fresh Mobile’s Legal Department as set out above. You and Fresh Mobile 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 Fresh Mobile agree that any arbitration will be conducted on an individual basis and not on a consolidated, class wide, or representative basis. Further, You and Fresh Mobile 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), Fresh Mobile 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 Fresh Mobile in accordance with AAA Rules. Additionally, Fresh Mobile 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 Fresh Mobile 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 Fresh Mobile, Fresh Mobile will pay You the amount of the award or a minimum of $5,000, whichever is greater. Additionally, Fresh Mobile 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 Fresh Mobile 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 Fresh Mobile will reimburse your reasonable attorney’s fees twofold. The arbitrator will be the arbiter of what constitutes reasonable fees, and You and Fresh Mobile 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 Fresh Mobile 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 Fresh Mobile 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 Fresh Mobile 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 Fresh Mobile 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 Fresh Mobile agree that there will not be a jury trial. You and Fresh Mobile 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 Fresh Mobile 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 FRESH MOBILE 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 OF THIS PROVISION BY CALLING US AT 1-213-389-9111 OR BY WRITING TO FRESH MOBILE. ATTN: LEGAL DEPARTMENT-CONSUMER CLAIMS, 3536 W.8st Los angeles, CA 90005 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.
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.
II. RETURN POLICY
To see the return policy (“Return Policy”) applicable for your phone, please refer to the section below based on how you made your purchase. Fresh Mobile does not allow returns or provide refunds for any Activation Kits or Plans you may have purchased.
Store Purchases. If you purchased a Fresh Mobile phone from a retailer or wireless dealer (and not from Fresh Mobile directly either by phone or online), your Phone purchase is subject to that retailer’s return policy. To determine whether your purchase is eligible for return, please contact the store where you originally made your purchase. Fresh Mobile will not process the return of any Fresh Mobile phone sold to you by a retailer or wireless dealer.
Online Purchases from Fresh Mobile. If you purchased your Fresh Mobile phone from Fresh Mobile’s official website, you have fourteen (14) days from the date your phone was delivered to you to return it to us for either an exchange or a refund. To process a return, you must follow the return instructions that came with your Phone and pay for the shipping cost to send it back to us.
To be eligible for a return you must meet the following requirements:
- The phone you are returning must have been purchased from Fresh Mobile’s official website and the IMEI number must be verified.
- You must return the phone in like new, working condition, returned in the original manufacturer’s packaging with all included accessories, including, device, battery, charger, and manual. The phone must not have any liquid or physical damage.
- You must pay for the cost to ship the phone back to us and include a copy of your receipt.
If anything is missing or device is not in like-new condition, your shipment may not be accepted. If a device has physical or liquid damage it cannot be returned and a credit will not be issued. Fresh Mobile will return ineligible devices to you at the same address shown on the shipping label. No restocking, handling, or shipping fees will be charged to you for this device return.
If your return meets the above requirements and you have requested an exchange for a device that costs more, you will have to pay the difference in price between the phone you are returning and the new phone you are seeking to purchase. If your return meets the above requirements and you have requested a refund, please be advised that it takes up to thirty (30) business days to process the return and credit your account. Credit for returned phones will appear on your credit card statement between 1-2 billing cycles. Your credit for a returned phone will not include any shipping or delivery costs you were charged or incurred for purchasing or returning the phone.
III. LIMITED WARRANTY
All new Fresh Mobile Phones (except iPhones) are covered by a one (1) year limited warranty administered by Fresh Mobile as set forth below.
All reconditioned or refurbished phones sold by Fresh Mobile (except iPhones) have a sixty (60) day limited warranty as do all wireless accessories sold by Fresh Mobile.
New Apple iPhones are covered by a one-year limited warranty offered and administered by Apple. Please visit apple.com for more information.
To the extent available for purchase, refurbished iPhones and certified pre-owned phones are not covered by a limited warranty but may be returned for a refund within 30 days of purchase.
A Phone that you own which was not purchased from Fresh Mobile but that is registered with Fresh Mobile under the Bring Your Own Device program is not covered by this limited warranty.
How To Obtain Warranty Service. To obtain warranty service for your Fresh Mobile Phone, please contact Customer Care at 1-213-389-9111. If your problem cannot be resolved over the phone, our technicians will provide you with a Return Authorization Number, which you will use to send your Phone and/or accessories (“Product”) to the designated Service Center for repair or replacement, at our option.
Terms of Limited Warranty:
- The limited warranty for any applicable Product begins on the date of your purchase and is only applicable for defects in material and workmanship that result in Product failure during normal usage..
- The limited warranty extends only to the original purchaser (“Purchaser”) of the Product and is not assignable or transferable to any subsequent purchaser. The limited warranty extends only to Purchasers who purchase the Product in its original packaging from an authorized dealer or retailer. Upon request from Fresh Mobile, the Purchaser must prove the date of the original purchase of the Product by a dated bill of sale or dated itemized receipt.
- During the limited warranty period, Fresh Mobile will replace or repair, at Fresh Mobile’s sole option, any defective Products or parts (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. Fresh Mobile may, in its sole discretion, replace the Product with a different but comparable Product if the same exact Product is not available. The replacement Product may consist of refurbished equipment that contains used components, some of which have been reprocessed. All used components shall comply with Product performance and reliability specifications.
- 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. Fresh Mobile’s limit of liability under this limited warranty is the actual cash value of the Product at the time the Purchaser returns the Product to Fresh Mobile for repair, determined by the price paid by the Purchaser for the Product less a reasonable amount for usage. Fresh Mobile shall not be liable for any other losses or damages. These remedies are the Purchaser’s exclusive remedies for breach of warranty.
- The Purchaser shall have no coverage or benefits under this limited warranty if any of the following conditions are applicable:
- 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 Fresh Mobile, including damage caused by shipping.
- 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, bugs, worms, Trojan Horses, cancelbots or damage caused by the connection to other products not recommended for interconnection by Fresh Mobile.
- Fresh Mobile 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.
- The Product serial number plate or the enhancement data code has been removed, defaced or altered.
- 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.
- The Product is outside of the limited warranty period.
- Fresh Mobile shall not be liable for delay in rendering service under the limited warranty, loss of use of the service 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.
- Fresh Mobile 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.
- This is the entire warranty between Fresh Mobile and the Purchaser, 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.
- This limited warranty allocates the risk of failure of the Product between the Purchaser and Fresh Mobile. The allocation is recognized by the Purchaser and is reflected in the purchase price. 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 Purchaser). This limited warranty gives the Purchaser specific legal rights and the Purchaser may also have other rights which vary from state to state.
IV. UNLOCKING POLICY
For Customers with Fresh Mobile Phones Capable of Being Unlocked: Fresh Mobile will provide an unlocking code to customers who request unlocking, provided they meet the following conditions:
- Customers must request phone unlocking. Fresh Mobile will unlock phones of current and former Fresh Mobile customers without charge. Non-former customers may request unlocking, but Fresh Mobile may charge a reasonable fee.
- The Fresh Mobile phone must have been activated on Fresh Mobile Service for no fewer than 12 months with Service Plans redeemed in no fewer than 12 months.
- Customers must possess a Fresh Mobile phone that is not reported stolen, lost, or associated with fraudulent activity.
- If a customer in good standing requesting handset unlocking is deployed as military personnel, upon provision of deployment papers, Fresh Mobile will honor that customer’s unlocking request.
For Customers with Fresh Mobile Phones not Capable of Being Unlocked: Fresh Mobile will provide customers with a partial refund or credit against the purchase of a new Fresh Mobile phone if they meet the following conditions:
- Customers must request phone unlocking.
- Customers must have had their locked device activated on Fresh Mobile 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.
- Customers must request this interim unlocking solution while their Fresh Mobile 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.
- Customers must currently own a Fresh Mobile phone model launched on Fresh Mobile’s Service after February 11, 2014 or activated with Fresh Mobile’s Service after February 11, 2015.
- Customers must possess a Fresh Mobile phone that is in working condition.
- Customers must possess a Fresh Mobile phone that is not reported stolen, lost, or associated with fraudulent activity.
- If a customer in good standing requesting phone unlocking is deployed as military personnel, upon provision of deployment papers, Fresh Mobile 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 Service Plan redemption eligibility requirements. However, all other eligibility criteria apply to Fresh Mobile’s customers who are deployed military personnel.
- Customers are eligible for this program only once every twelve (12) months.
Customers who would like to check if they are eligible or submit an unlocking request can do so through an online portal at the Fresh Mobile website or by calling 1-213-389-9111.
Fresh Mobile may refuse any unlocking request that would result in an abuse of its Unlocking Policy or is part of an effort to defraud Fresh Mobile or its customers. Fresh Mobile’s Unlocking Policy is subject to change at any time without advance notice.
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