Introduction
This Fonus Service Terms and Conditions Agreement (the “Agreement”) sets forth the terms and conditions of service (the “Service Terms and Conditions”) upon which Fonus, Limited and its subsidiaries (“Fonus”) will provide you prepaid mobile voice, text, and data services (the “Fonus Mobile Service”). In this Agreement, “you” and “your” mean the customer of the Fonus Mobile Service provided by Fonus, and “we”, “our” and “us” mean Fonus and any Fonus affiliate authorized to provide you with the Fonus Mobile Service.

Acceptance of the Terms and Conditions of the Fonus Mobile Service
By using the Fonus Mobile Service, you are agreeing to be bound by all the Service Terms and Conditions contained in this Agreement. If you do not agree to these Service Terms and Conditions, you should not use the Fonus Mobile Service. These Service Terms and Conditions govern whether you activate the Fonus Mobile Service through Fonus directly or whether you do so through a third party. If you do not want to accept the Service Terms and Conditions, do not use the Fonus Mobile Service. Instead, contact Fonus customer services at support@fonus.me

You may not assign your rights or delegate any of your duties under this Agreement without our prior written consent, and any attempted assignment or delegation without such consent is void. Account balances are non-transferable between accounts or devices without our prior written consent, and any attempted transfer without such consent is void. We may assign all or part of the Agreement or your monies owed without notice to you.

Changes to the Fonus Service Terms and Conditions
Fonus reserves the right, from time to time, with or without notice to you, and in our sole and absolute discretion, to change any part of the Services Terms and Conditions, including but not limited to, rates, plans, charges, how we calculate charges, discounts, coverage, and technologies used to provide Fonus Mobile Service. The most current version of the Agreement can be reviewed by clicking on the “Legal” link located at the Fonus website (https://www.fonusmobile.com/legal). The most current version of the Agreement will supersede all previous versions. Your use of the Fonus Mobile Service and continued use of the Fonus Mobile Service after changes are made means that you agree to be bound by such changes.

Scope of the Fonus Mobile Service
The Fonus Mobile Service is provided through a number of international wireless carriers (“Carriers”), and is only available in geographic areas covered by the service network footprint of the Carriers. Notwithstanding any provision of this Agreement that may be to the contrary, it is expressly acknowledged by the parties hereto that the Carriers are intended beneficiaries of the provisions of this Agreement related to Fonus Mobile Service, including but not limited to provisions related to disclaimer of warranties, limitation of liability, dispute resolution and arbitration.

Availability of the Fonus Mobile Service
Wireless services use radio transmissions and coverage is not available everywhere. Quality of service may be affected by conditions within and beyond Carriers’ control, including atmospheric, geographic, or topographic conditions, or by damage to your device. Neither the Carriers nor we guarantee that the Fonus Mobile Service will be available at any specific time or geographic location, or that the Fonus Mobile Service will be provided without interruption. Any statements or maps provided by us or the Carriers or our representatives, agents or dealers about coverage are intended to provide high-level estimates of coverage areas when using the service outdoors under optimal conditions and do not mean that service will be available under all circumstances, at all times or without interruption. Estimating wireless coverage and signal strength is not an exact science. There are gaps in coverage within the estimated coverage areas that, along with other factors both within and beyond the Carriers’ control, may result in service interruptions, slower data speeds, or lower quality of service. You should therefore never solely rely on the Fonus Mobile Service for emergency communications.

Term of agreement
The term of this Agreement shall commence upon registration of your device using the Fonus Mobile Service. This Agreement shall remain in effect for as long as you maintain an account with unexpired price plan or add additional plans to your account within six (6) months of your last use of the Fonus Mobile Service unless earlier terminated by Fonus by giving notice or otherwise terminated in accordance with the terms of this Agreement. 

Your Fonus Mobile Service will not expire until your price plan is exhausted, or if sooner, after any six (6)-month period of continuous account inactivity. For this purpose, account activity includes use of Fonus Mobile Service and the purchase and addition of plans to your account.

Compliance with laws
Fonus Mobile Service is for personal or business use only, and in using the Fonus Mobile Service you agree to comply with all applicable laws.

Fair Usage Policy
Our wireless plans are provided solely for purposes of web browsing, messaging, and similar activities. They are not intended to serve as a primary or sole replacement for home internet services. You are responsible for all data activity from and to your device regardless of who initiates the activity. You may not be allowed to use the Fonus Mobile Service with applications and systems that drive continuous heavy data sessions and generate excessive amounts of traffic. Customers are strictly prohibited from using our phone plans in any manner that simulates or replaces home internet services, including but not limited to: (a) tethering or sharing mobile data with multiple devices for extended periods of time; (b) running servers or hosting websites using our mobile network; and (c) engaging in activities that result in high bandwidth consumption, such as continuous video streaming, downloading large files, or extensive online gaming. We reserve the right to limit, suspend or terminate without notice any misuse of our network or violation of these Service Terms and Conditions.

RULES REGARDING THE USE OF FONUS MOBILE SERVICE – USAGE, CHARGES, AND PAYMENTS, ROAMING AND APPLICABLE DEVICE RESTRICTIONS

The Fonus Mobile Service is a prepaid service. You authorize us to charge your credit card as needed to pay for the purchase of data plans and other services as they may be offered from time to time. By subscribing to one of our monthly phone plans, you also authorize us to automatically charge your credit card and renew such plans or service at the time it expires. Our plans have built-in auto-refill features to ensure uninterrupted service. 

Fonus Mobile Service offers roaming capabilities outside of the domestic coverage areas. We do not impose any restrictions in terms of time limit in roaming areas (i.e. you may use the Fonus Mobile Service in any roaming area(s) for as long as needed). Fonus Mobile Service plans may have restrictions on the type of device that can be used with our service (e.g. hotspots, routers and computers). Certain third-party operators in roaming areas may have restrictions on the amount of data that may be used on their networks within their region, and may have differing data usage thresholds in terms of what they regard as « excessive usage ». Any violations of such restrictions are not allowed. We reserve the right to limit, suspend or terminate without notice any roaming-related or device-related misuse or violation of these Service Terms and Conditions.

We retrieve data usage information from the network operator and provide you tools to monitor your data usage and view your data balance. Although we strive to provide the most up–to-date information, we are not responsible for delayed or inaccurate data usage information received from the network operator. Your data usage is broken into usage sessions that we process as received from the network operator and charge each data usage session by the full megabyte (MB). Data plans are purchased in multiples of megabytes or gigabytes where we count one gigabyte as equal to one thousand megabytes.

Specific rules regarding content
Access to Content. Fonus Mobile Service allows you to access the Internet to view, download and send text, pictures, games, graphics, music, email, sound and other materials (“Content”) that is available and accessible from third-party websites or services. Content may be unsuitable for children or minors, unreliable, inaccurate, offensive, indecent or objectionable. You are solely responsible for evaluating the Content that you or anyone using your device access. We strongly recommend that you monitor Content access by children or minors. Content from third parties may also harm your device or its software. We may place restrictions on accessing certain Content, impose separate charges, limit the amount of data you can access or transfer, or otherwise limit or terminate services.

No Representations Regarding Content. We do not endorse the Content, features, or software offered by third parties. Your relationship with providers of Content is between you and them. WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY CONTENT OFFERED BY A THIRD PARTY THAT YOU MAY UTILIZE OR OTHERWISE ACCESS WHILE USING YOUR DEVICE, INCLUDING, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, PERFORMANCE OR ACCURACY. We have no control over the Content on any website that you may access via your device. We strongly recommend that you use good judgment and care in sharing any personal information about yourself. You will be solely responsible if you engage in any unauthorized use of Content. We are not responsible for the content or security of data that you access or store while using your device with our Services.

Suspension or termination of services
We reserve the right to issue a warning and to suspend or terminate your service and access to the Fonus Mobile Service website or any other website we operate or to our service at any time if we determine in our sole discretion that you have violated the Service Terms and Conditions or any of our rules or policies or for any other reason in our sole discretion. We also reserve the right to deny, disconnect, modify and/or terminate Fonus Mobile Service, without notice, to anyone we believe is using the Fonus Mobile Service in any manner prohibited or whose usage adversely impacts the Carriers’ wireless networks or service levels or hinders access to the Carriers’ wireless networks. We reserve the right to terminate the Fonus Mobile Service if we believe that your device is no longer in use as evidenced by a period of inactivity in excess of six months.

Use of your customer information
When you agree to the Service Terms and Conditions, you also agree to the terms of our Privacy Policy (available at https://www.fonusmobile.com). This policy may change from time to time and includes important information on what data we collect about you, how we use this data and with whom we share that data.

In the course of providing service to you, we may collect certain information made available to us solely because of our relationship with you, including information regarding the nature and type of your usage. We always will handle this data, which is “Proprietary Customer Network Information” (“PCNI”), in accordance with Federal Communications Commission (FCC) regulations, federal consumer privacy laws and our Privacy Policy. We take sensible steps to safeguard PCNI and your other personal information from unauthorized use or disclosure. Except as set forth by the Privacy Policy, we will not deliberately share your personal information without your permission. We may, from time to time, use the information you provide us to market services to you that may be related to our service offerings. To manage the way in which we communicate important notices or updates from us and our partners you can edit your profile on our website (http://www.fonusmobile.com).

To comply with appropriate legal process, we may disclose to government agencies and law enforcement authorities any information, including your name, account history, account information or other transmission data that is properly requested by law enforcement.

Fonus website
You may use our website located at http://www.fonusmobile.com to manage your account, make purchases, view our content and learn more about our products and services. Use of the our website is subject to the terms set forth in the Terms of Website Use and Privacy Policy, which are available on our website (http://www.fonusmobile.com). In order to provide you with ease of access to your account, Fonus may place a cookie (a small text file) on any computer or mobile device from which you access the Fonus site. When you revisit the Fonus website, this cookie will enable us to recognize you as the account holder. You are responsible for updating and maintaining the truth and accuracy of the information you provide to us relating to your account. You are also responsible for maintaining the confidentiality of your account and for restricting access to your computer or mobile device. If you disclose your account to anyone or share your account access with other people, you take full responsibility for their actions, including but not limited to their unauthorized use of the Fonus Mobile Service.

Dispute resolution
We and you each agree to contact each other first with any disputes. You must contact us with any dispute by sending us an email to support@fonus.me. Please provide a description of the problem, all relevant documents/information and the proposed resolution. We will contact you at the last address that you have provided to us or by phone. We each agree to negotiate in good faith to resolve any dispute. If the dispute cannot be resolved in this manner, then it shall be resolved by arbitration as set forth below, provided that we shall not elect to use arbitration for any Claim (defined below) that you properly file and pursue in a small claims court of your state or municipality so long as the Claim is individual and pending only in the small claims court.

Arbitration
Definitions: As used in this arbitration provision, the term “Claim” means any claim, dispute or controversy between you and us arising from or relating to the Fonus Mobile Service or this Agreement as well as any related or prior agreement that you may have had with us or the relationships resulting from this Agreement, including the validity, enforceability or scope of this arbitration provision. The term Claim includes claims of every kind and nature, including but not limited to initial claims, counterclaims, cross-claims and third-party claims and claims based upon contract, tort, fraud and other intentional torts, statutes, regulations, common law and equity. For purposes of this Agreement, the term Claim is to be given the broadest possible meaning that will be enforced and includes, by way of example and without limitation, any claim, dispute or controversy that arises from or relates to (i) the use of the Fonus Mobile Service, (ii) your acquisition of, or enrollment for, the Fonus Mobile Service; and (iii) advertisements, promotions or oral or written statements related to the Fonus Mobile Service, or any goods or services purchased with the Fonus Mobile Service.

Initiation of Arbitration Proceeding/Selection of Administrator: With the exception of any dispute or any Claim pertaining to intellectual property rights, any Claim shall be resolved, upon the election by you or us, by arbitration pursuant to this Arbitration Provision and the code of procedures of the Judicial Arbitration and Mediation Services (“JAMS”). If any Claim is asserted against a party that is not a party to this Agreement, such third-party shall be notified and given the option of participating in the arbitration. For a copy of the procedures, to file a Claim or for other information about JAMS, contact them at 1920 Main Street, Suite 300, Los Angeles, CA 92614; website at http://www.jamsadr.com.

Effect of Arbitration. IF ARBITRATION IS CHOSEN BY ANY PARTY WITH RESPECT TO A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM, OR TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED FOR IN THE RULES AND PROCEDURES OF JAMS (THE “RULES”). FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION. EXCEPT AS SET FORTH BELOW, THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING. NOTE THAT OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.

Limits on Arbitration. If either party elects to resolve a Claim by arbitration, that Claim shall be arbitrated on an individual basis. There shall be no right or authority for any Claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, other Fonus Mobile Service users or other persons similarly situated. The arbitrator’s authority to resolve Claims is limited to Claims between you and us alone, and the arbitrator’s authority to make awards is limited to you and us alone. Furthermore, Claims brought by you against us or by us against you may not be joined or consolidated in arbitration with Claims brought by or against someone other than you, unless otherwise agreed to in writing by all parties.

Location of Arbitration/Payment of Fees. Any arbitration hearing that you attend shall take place in Los Angeles County, California, or in Hong Kong. At the conclusion of the arbitration, the arbitrator will decide who will ultimately be responsible for paying the filing, administrative and/or hearing fees in connection with the arbitration. If and to the extent you incur filing, administrative and/or hearing fees in arbitration, exceeding the amount they would have been if the Claim had been brought in the state or federal court which is closest to your billing address and would have had jurisdiction over the Claim, we will reimburse you to that extent unless the arbitrator determines that the fees were incurred without any substantial justification.

Federal Arbitration Act. This arbitration provision is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16, as it may be amended (the “FAA”). The arbitration shall be governed by the Rules, except that (to the extent enforceable under the FAA) this arbitration provision shall control if it is inconsistent with the Rules. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitations and shall honor claims of privilege recognized at law and, at the timely request of either party, shall provide a brief written explanation of the basis for the decision. In conducting the arbitration proceeding, the arbitrator shall not apply the Federal or any state rules of civil procedure or rules of evidence. Either party may submit a request to the arbitrator to expand the scope of discovery allowable under the Rules. The party submitting such a request must provide a copy to the other party, who may submit objections to the arbitrator with a copy of the objections provided to the requesting party, within fifteen (15) days of receiving the requesting party’s notice. The granting or denial of such request will be in the sole discretion of the arbitrator who shall notify the parties of his/her decision within twenty (20) days of the objecting party’s submission. The arbitrator shall take reasonable steps to preserve the privacy of individuals, and of business matters. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision will be final and binding.

Severability of Arbitration Provisions. This arbitration provision shall survive termination of your Fonus Mobile Service. If any portion of this arbitration provision is deemed invalid or unenforceable under any principle or provision of law or equity, consistent with the FAA, it shall not invalidate the remaining portions of this arbitration provision, the Agreement or any prior agreement you may have had with us, each of which shall be enforceable regardless of such invalidity.

No trial by jury
If for any reason, a claim proceeds in court rather than through arbitration, we each waive any right that we may have to trial by jury in any lawsuit or other proceeding to the extent permitted by law.

Limitation of liability
We and you agree to limit claims for damages or other monetary relief against each other to direct and actual damages unless prohibited by law. You agree that we and our business partners (including the Carriers) are not liable to you or any third party for any indirect, special, incidental, consequential, exemplary or punitive damages of any kind, including lost profits (regardless of whether we have been notified that such loss may occur) by reason of any act or omission in our provision of products or services or under any legal theory, including fraud, misrepresentation, breach of contract, personal injury, product liability or any other theory. We assume no risk or responsibility for your use of any Content. We are not liable for (1) any act or omission of any other company furnishing a part of our service or any equipment provided for such service; (2) errors or omissions of our business partners; or (3) any damages that result from any product or service provided by or manufactured by third parties. You acknowledge that no fiduciary relationship or other special relationship exists between you and us, by virtue of the Service Terms and Conditions or your use of the Fonus Mobile Service.

Warranties
WE MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, REGARDING THE SERVICES PROVIDED HEREUNDER OR ANY SOFTWARE USED IN CONNECTION THEREWITH, INCLUDING, BUT NOT LIMITED TO, AND TO THE EXTENT PERMITTED BY LAW, WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, QUALITY, NON-INFRINGEMENT, PERFORMANCE OR ACCURACY. WE EXPRESSLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES. THE FONUS AND FONUS MOBILE SERVICE WEBSITE AND ITS CONTENTS ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. NEITHER WE NOR THE CARRIER PROMISE ERROR-FREE OR UNINTERRUPTED SERVICE AND NEITHER WE NOR THE CARRIER AUTHORIZE ANYONE TO MAKE WARRANTIES ON OUR BEHALVES.

Indemnification
You agree to indemnify us, our affiliates, our business partners and their respective officers, agents, members, managers, partners and employees, from any and all liabilities, settlements, penalties, claims, causes of action and demands brought by third parties (including any costs, expenses or attorneys’ fees on account thereof) resulting from your use of the Fonus Mobile Service, or use of our services by another person who uses your device and/or our services, whether based in contract or tort (including strict liability) and regardless of the form of action.

Lost or stolen prepaid cards
Neither Fonus nor its business partners are responsible for lost or stolen SIM cards for Fonus Mobile Service. SIM cards are not refundable, returnable nor exchangeable and have no cash value.

Governing law
This Agreement shall be governed by and construed in accordance with the laws of the state of California, without regard to conflicts of laws provisions.

Entire agreement
This Agreement, as modified by any changes from time to time pursuant to Section 3, constitutes the complete and exclusive agreement between Fonus and you with respect to the subject matter hereof, and supersedes all prior or contemporaneous oral or written communications, representations, understandings, or agreements not specifically incorporated herein.