Welcome to POTSreplacement.com a MarketSpark, Inc. Company! Thanks for choosing us. Your Service terms and conditions are part of this Customer Agreement (“Agreement”) and are provided by MarketSpark, Inc. (“MarketSpark”) or one of its affiliates. Your voice, text, and data services are for use within the MarketSpark coverage area. Together, your Plan and any features you use are your Service. The current version of this Agreement and the terms and conditions for your Service are available online at marketspark.co or potsreplacement.com.
By using the Service you are agreeing to every provision of this Agreement whether or not you have read it. This Agreement also applies to anyone who uses your Service.
We’d hate to see you go, but you may cancel service for any reason at any time. If your account has been activated, no refunds will be provided.
Bring your wireless number to another carrier
You may be able to bring your wireless phone number, or “port”, to another carrier. If you port a number from us, we’ll be sad to see you go! But, if you really want to leave us and port your number to another carrier, then we’ll treat it as though you asked us to cancel your Service for that number. After the porting is completed, you won’t be able to use our Service for that number, and you won’t be entitled to a refund of any balance on your account. If you port a number to us, please be aware that we may not be able to provide some services right away, such as 911 location services. You don’t have any rights to your wireless phone number, except for any right you may have to port it.
Changes to the Agreement or Your Service
We may change prices, the annual cost or any other term of your Service or this Agreement at any time, but we’ll provide notice first. If you don’t like the change, remember you can cancel at any time. But, if you use your Service after the change takes effect, that means you’re accepting the change. If we make any changes to the dispute resolution provision of this Agreement, such changes will not affect the resolution of any disputes that arose before such change.
Our wireless devices comply with Federal Communications Commission regulations and are certified for use on the network. We may change the device’s software, applications or programming remotely, without notice. By activating your SIM (Subscriber Identity Module) card, you agree we own the intellectual property and software in the SIM card, that we may change the software or other data in the SIM card remotely and without notice, and we may utilize any capacity in the SIM card for administrative, network, business and/or commercial purposes.
Coverage and Service Availability
Wireless devices use radio transmissions, so, unfortunately, you can’t get Service if your device isn’t in range of a transmission signal. And please be aware that even within your network coverage area, many things can affect the availability and quality of your Service, including network capacity, your device, terrain, buildings, foliage, and weather. We may take any action to protect and maintain the integrity of the network.
If you lose Service for more than 24 hours in a row and we’re at fault, contact us at [email protected] within 180 days and we’ll give you a credit for the time lost. This is your only right for interrupted Service.
You are responsible for paying all mandatory taxes and fees set by federal, state, and local governments that we are required to collect and remit to the government, but we’ve made it simple for you by including the taxes and fees in the monthly cost on your bill statement.
Billing and Payments
The availability of Service depends on your payment in advance of the annual charge when it is due. If you fail to make payment when due, your Service will be suspended and/or canceled. By making a payment, you will have access to Service for the designated period of time. If your account is deactivated for non-payment, it will be suspended for 60 days. If payment is not made within the 60 day period, it will be canceled. When your account is canceled, we will re-assign the phone number associated with your account, and that phone number may no longer be available to you.
We will not provide you with monthly bills. You can access your account via our website at potsreplacement.com. You are responsible for paying your annual charges for the Service provided under this Agreement, including charges made by any person you permit to have direct or indirect access to your account even if you did not authorize its use.
Lost or Stolen Devices
We’re always here to help! It’s important that you notify us right away at [email protected], so we can suspend your Service to keep someone else from using it.
Our right to limit or end Service or end this Agreement
We can, without notice, limit, suspend or end your Service or this Agreement with you for any good cause, including, but not limited to: (1) if you: (a) breach this agreement; (b) resell your Service; (c) primarily use data on other wireless companies’ networks; (d) use your Service for any illegal purpose, including use that violates trade and economic sanctions and prohibitions promulgated by any US governmental agency; (e) install, deploy or use any regeneration equipment or similar mechanism (for example, a repeater) to originate, amplify, enhance, retransmit or regenerate an RF signal without our permission; (f) if we are permanently unable to provide Service to you; or (2) if you, any user of your device or any line of service on your account, or any account manager on your account: (a) threaten, harass, or use vulgar and/or inappropriate language toward our representatives; (b) interfere with our operations; (c) “spam,” or engage in other abusive messaging or calling; (d) modify your device from its manufacturer’s specifications; or (e) use your Service in a way that negatively affects our network or other customers. We can also temporarily limit your Service for any operational or governmental reason.
DISCLAIMER OF WARRANTIES
We make no representations or warranties, express or implied, including, to the extent permitted by applicable law, any implied warranty of merchantability or fitness for a particular purpose, about your Service, your wireless device, or any applications you access through your wireless device. We do not warrant that your wireless device will work perfectly or will not need occasional upgrades or modifications, or that it will not be negatively affected by network-related modifications, upgrades or similar activity.
WAIVERS AND LIMITATIONS OF LIABILITY
You and MarketSpark both agree to limit claims against each other for damages or other monetary relief to direct damages. This limitation and waiver will apply regardless of the theory of liability. That means neither of us will try to get any indirect, special, consequential, treble or punitive damages from the other. This limitation and waiver also apply if you bring a claim against one of our suppliers, to the extent we would be required to indemnify the supplier for the claim. You agree we aren’t responsible for problems caused by you or others, or by any act of God.
We hope to make you a happy customer! Most customer concerns can be quickly resolved by contacting customer support. You can dispute charges for any Service(s) within 180 days of the date the disputed charge was incurred by emailing us at [email protected]
BUT IF YOU WISH TO PRESERVE YOUR RIGHT TO BRING AN ARBITRATION OR SMALL CLAIMS CASE REGARDING SUCH DISPUTE, YOU MUST WRITE TO US AT [email protected], IF YOU DO NOT NOTIFY US IN WRITING OF SUCH DISPUTE WITHIN THE 180-DAY PERIOD, YOU WILL HAVE WAIVED YOUR RIGHT TO DISPUTE THE CHARGE(S) AND TO BRING AN ARBITRATION OR SMALL CLAIMS CASE REGARDING ANY SUCH DISPUTE.
YOU AND MARKETSPARK BOTH AGREE TO RESOLVE DISPUTES ONLY BY ARBITRATION OR IN SMALL CLAIMS COURT. YOU UNDERSTAND THAT BY THIS AGREEMENT YOU ARE GIVING UP THE RIGHT TO BRING A CLAIM IN COURT OR IN FRONT OF A JURY. WHILE THE PROCEDURES MAY BE DIFFERENT, AN ARBITRATOR CAN AWARD YOU THE SAME DAMAGES AND RELIEF AND MUST HONOR THE SAME TERMS IN THIS AGREEMENT, AS A COURT WOULD. IF THE LAW ALLOWS FOR AN AWARD OF ATTORNEYS’ FEES, AN ARBITRATOR CAN AWARD THEM TOO. WE ALSO BOTH AGREE THAT:
(1) THE FEDERAL ARBITRATION ACT APPLIES TO THIS AGREEMENT. EXCEPT FOR SMALL CLAIMS COURT CASES, ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THIS AGREEMENT OR FROM ANY EQUIPMENT, PRODUCTS AND SERVICES YOU RECEIVE FROM US (OR FROM ANY ADVERTISING FOR ANY SUCH PRODUCTS OR SERVICES), INCLUDING ANY DISPUTES YOU HAVE WITH OUR EMPLOYEES OR AGENTS, WILL BE RESOLVED BY ONE OR MORE NEUTRAL ARBITRATORS BEFORE THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). YOU CAN ALSO BRING ANY ISSUES YOU MAY HAVE TO THE ATTENTION OF FEDERAL, STATE, OR LOCAL GOVERNMENT AGENCIES, AND IF THE LAW ALLOWS, THEY CAN SEEK RELIEF AGAINST US FOR YOU. THIS AGREEMENT TO ARBITRATE CONTINUES TO APPLY EVEN AFTER YOU HAVE STOPPED RECEIVING SERVICE FROM US.
(2) UNLESS YOU AND MARKETSPARK AGREE OTHERWISE, THE ARBITRATION WILL TAKE PLACE IN THE COUNTY OF YOUR BILLING ADDRESS. FOR CLAIMS OVER $10,000, THE AAA’S CONSUMER ARBITRATION RULES WILL APPLY. FOR CLAIMS OF $10,000 OR LESS, THE PARTY BRINGING THE CLAIM CAN CHOOSE THE AAA’S CONSUMER ARBITRATION RULES OR, ALTERNATIVELY, CAN BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT. YOU CAN GET PROCEDURES, RULES AND FEE INFORMATION FROM THE AAA (WWW.ADR.ORG). FOR CLAIMS OF $10,000 OR LESS, YOU CAN CHOOSE WHETHER YOU’D LIKE THE ARBITRATION CARRIED OUT BASED ONLY ON DOCUMENTS SUBMITTED TO THE ARBITRATOR, OR BY A HEARING IN PERSON OR BY PHONE.
(3) THIS AGREEMENT DOESN’T ALLOW CLASS OR COLLECTIVE ARBITRATIONS EVEN IF THE AAA PROCEDURES OR RULES WOULD. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT. ANY QUESTION REGARDING THE ENFORCEABILITY OR INTERPRETATION OF THIS PARAGRAPH SHALL BE DECIDED BY A COURT AND NOT THE ARBITRATOR.
(4) IF EITHER OF US INTENDS TO SEEK ARBITRATION UNDER THIS AGREEMENT, THE PARTY SEEKING ARBITRATION MUST FIRST NOTIFY THE OTHER PARTY OF THE DISPUTE IN WRITING AT LEAST 30 DAYS IN ADVANCE OF INITIATING THE ARBITRATION. NOTICE TO MARKETSPARK SHOULD BE SENT TO MARKETSPARK DISPUTE RESOLUTION MANAGER at [email protected] THE NOTICE MUST DESCRIBE THE NATURE OF THE CLAIM AND THE RELIEF BEING SOUGHT. IF WE ARE UNABLE TO RESOLVE OUR DISPUTE WITHIN 30 DAYS, EITHER PARTY MAY THEN PROCEED TO FILE A CLAIM FOR ARBITRATION. WE’LL REIMBURSE ANY FILING FEE THAT THE AAA CHARGES YOU FOR ARBITRATION OF THE DISPUTE. IF YOU PROVIDE US WITH SIGNED WRITTEN NOTICE THAT YOU CANNOT PAY THE FILING FEE, MARKETSPARK WILL PAY THE FEE DIRECTLY TO THE AAA. IF THAT ARBITRATION PROCEEDS, WE’LL ALSO PAY ANY ADMINISTRATIVE AND ARBITRATOR FEES CHARGED LATER.
(5) WE MAY, BUT ARE NOT OBLIGATED TO, MAKE A WRITTEN SETTLEMENT OFFER ANYTIME BEFORE THE ARBITRATION HEARING. THE AMOUNT OR TERMS OF ANY SETTLEMENT OFFER MAY NOT BE DISCLOSED TO THE ARBITRATOR UNTIL AFTER THE ARBITRATOR ISSUES AN AWARD ON THE CLAIM. IF YOU DON’T ACCEPT THE OFFER AND THE ARBITRATOR AWARDS YOU AN AMOUNT OF MONEY THAT’S MORE THAN OUR OFFER BUT LESS THAN $5,000, OR IF WE DON’T MAKE YOU AN OFFER, AND THE ARBITRATOR AWARDS YOU ANY AMOUNT OF MONEY BUT LESS THAN $5,000, THEN WE AGREE TO PAY YOU $5,000 INSTEAD OF THE AMOUNT AWARDED. IN THAT CASE, WE ALSO AGREE TO PAY ANY REASONABLE ATTORNEYS’ FEES AND EXPENSES, REGARDLESS OF WHETHER THE LAW REQUIRES IT FOR YOUR CASE. IF THE ARBITRATOR AWARDS YOU MORE THAN $5,000, THEN WE WILL PAY YOU ONLY THAT AMOUNT.
(6) AN ARBITRATION AWARD AND ANY JUDGMENT CONFIRMING IT APPLY ONLY TO THAT SPECIFIC CASE; IT CAN’T BE USED IN ANY OTHER CASE EXCEPT TO ENFORCE THE AWARD ITSELF.
(7) IF FOR SOME REASON THE PROHIBITION ON CLASS ARBITRATIONS SET FORTH IN SUBSECTION (3) CANNOT BE ENFORCED, THEN THE AGREEMENT TO ARBITRATE WILL NOT APPLY.
(8) IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND MARKETSPARK AGREE THAT THERE WILL NOT BE A JURY TRIAL. YOU AND MARKETSPARK UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY WAY. IN THE EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED TO SHOW A WRITTEN CONSENT TO A TRIAL BY THE COURT.
About this Agreement
If we don’t enforce our rights under this agreement in one instance, that doesn’t mean we won’t or can’t enforce those rights in any other instance. You can’t assign this Agreement or any of your rights or duties under it without our permission. However, we may assign this Agreement or any debt you owe us without notifying you.
If we send notices to you, they will be considered received immediately if we send them to your wireless device or to any email that you’ve given us. If you need to send notices to us, please send them to [email protected]
If any part of this agreement, including anything regarding the arbitration process (except for the prohibition on class arbitrations as explained in part 7 of the dispute resolution section above), is ruled invalid, that part may be removed from this agreement.
This agreement and the documents it incorporates form the entire agreement between us. You can’t rely on any other documents, and you have no other rights regarding Service or this agreement. This Agreement isn’t for the benefit of any third party except our affiliates, subsidiaries, agents, and predecessors and successors in interest. Except where we’ve agreed otherwise elsewhere in this agreement, this agreement and any disputes covered by it are governed by federal law and the laws of the state encompassing the area code of your wireless phone number when you accepted this agreement, without regard to the conflicts of laws and rules of that state.
December 10, 2018