Werks Mobile Subscriber Agreement
Revised August 7, 2024
This Mobile Subscriber Agreement (“Agreement”) sets forth the terms and conditions under Werks Mobile will provide residential subscribers (“you,” “your,” or “Subscriber”) with Werks Mobile voice, messaging, and data services (“Werks Mobile” or “Service”). Your use of Werks Mobile constitutes your acknowledgement and agreement that you have read and understand the terms and conditions of this Agreement and that you agree to be bound by the terms of this Agreement. If you do not agree to comply with all of the terms of this Agreement, your sole and exclusive remedy is to discontinue your use of Werks Mobile.
THIS AGREEMENT CONTAINS: (1) A BINDING ARBITRATION PROVISION, WHICH PROVIDES THAT YOU AND WERKS MOBILE AGREE TO RESOLVE CERTAIN DISPUTES THROUGH ARBITRATION; AND (2) A WAIVER OF YOUR RIGHT TO BRING CLAIMS AS CLASS ACTIONS. YOU HAVE THE RIGHT TO OPT OUT OF THE FOREGOING PROVISIONS.
1. SERVICE PROVIDED TO YOU
1.1. Werks Mobile includes voice calling, messaging, and data, and any optional services you purchase from Werks Mobile, such as hotspot data, international calling (countries that are included in our international calling service can be found here), and roaming for which additional fees or higher rates may apply (collectively, the “Service”), and any equipment that we provide to you for use with your Service, including a SIM or e-SIM card. International calling and roaming is provided by Reach Mobile. Your use of the Service, and the use of any information collected by us through your use of the Service (including, without limitation, any account registration information) is subject to the Werks Mobile Customer Privacy Notice (“Privacy Notice”). The Privacy Notice and additional terms and conditions for your Service can be found in offer materials available when you activate or online and are incorporated into this Agreement. All other services that you receive from an operating subsidiary or affiliate of Werks Mobile, including Werks Mobile home Internet service, are subject to the applicable agreement between you and Werks Mobile related to those services. Additional charges for Werks Mobile may apply if Werks Mobile home Internet service is not maintained by you.
2. AGREEMENT
2.1. Acknowledgment: By signing up for, activating, using, creating an online account, or paying for the Service, you agree to the terms and conditions set forth in this Agreement and the prices, charges, terms, and conditions which Werks Mobile has posted or may in the future post on its website www.werksmobile.com (“Website”), all of which are incorporated herein by reference. If you fail to activate Service within 30 days after you receive a SIM card, and have not returned that SIM card pursuant to our return policy, you will be deemed to be using your Service and to have accepted this Agreement. If you do not agree to the pricing or to any terms or conditions, you may cancel the Service by calling us at 866-512-7222.
2.2. Subscriber Information: You must be eighteen (18) years of age to sign up for a Werks Mobile account. When you accept this Agreement, you warrant and represent that you are at least eighteen (18) years of age and that the account information that you have provided, and will provide, to Werks Mobile during the term of this Agreement, including without limitation, your legal name, address, telephone number(s), and payment information, if applicable (e.g. credit card numbers and expiration dates and bank account information) is accurate, complete, and current. You further warrant and represent that you are responsible for the use of Service by any minor, and that you agree to be bound by this Agreement for the terms of their use. Werks Mobile recommends that you take advantage of any access controls offered through the Service or third-party sites, which are designed to assist you in limiting or blocking access to certain types of web content you may feel are harmful to or inappropriate for minors.
3. CANCELLATION/SUSPENSION OF SERVICE
3.1. Termination of Service by Subscriber: You may stop using Werks Mobile at any time. You must notify Werks Mobile customer service line at 866-512-7222 to terminate the Service. Upon termination, and subject to any restrictions under applicable law, you shall be responsible for the full monthly charge for the Service, and any applicable fees, without proration, regardless of the date you terminated the Service.
3.2. Suspension or Termination of Services by Werks Mobile: You agree that we or our providers may immediately terminate or suspend your account, and access to all or any part of Werks Mobile, for any good cause, including but not limited to breach (including nonpayment) of this Agreement, violation of the Werks Mobile Acceptable Use Policy, or otherwise terminated by Werks Mobile in accordance with its policies or agreements. Werks Mobile’s rights under this section are in addition to any specific rights that Werks Mobile reserves in other provisions of this Agreement or in other policies and agreements to interrupt, suspend, modify, or cancel your Service and to terminate this Agreement.
3.3. Obligation upon Termination of Agreement: You are responsible for all charges incurred through the end of your Service. Nonpayment or cancellation of the Service may affect other services or agreements that you have with Werks Mobile, including promotional bundling packages for other Werks Mobile services. You may be required to pay a reconnection and/or activation fee in addition to all past due charges, before any Werks Mobile services are reconnected.
4. MOBILE SERVICE FUNCTIONALITY
4.1. Service Performance: The equipment you use with your Werks Mobile, such as a phone or handset (the “mobile device”), uses radio transmissions to access your Service. If the mobile device isn’t in range of a transmission signal, then your Service may not work. Numerous things can affect the availability and quality of your Service, including the capacity available on the cellular network, the mobile device performance, terrain, buildings, foliage, and weather. Cellular service availability is determined by the operator of the cellular network and is not guaranteed. Additionally, Werks Mobile may reduce your data, streaming, and mobile hotspot tethering speeds (i.e., the ability to use your mobile device as a mobile hotspot for other devices), as well as video resolution, after certain data usage levels are reached, as outlined further in the Werks Mobile Network Management Practices. Accordingly, actual speeds of the Service will vary.
4.2. Additional Service Features: Features of your Service that rely on location information, such as E911 and GPS navigation, depend on the ability of the mobile device you use with your Service to acquire satellite signals (which typically are not available indoors) and cellular network coverage. While the mobile device is receiving a software update, you may not be able to use the Service until the software update is complete.
4.3. Wi-Fi Connectivity on Mobile Device: Your connection to Wi-Fi on the mobile device may also be impacted by a variety of factors, including the performance of the mobile device, interference (from other devices, buildings, or other wireless signals), your distance from the Wi-Fi access point, and the number of other users sharing the hotspot. The mobile device may automatically connect to Wi-Fi hotspots, including the Wi-Fi network in your home that is connected to your Werks Mobile home Internet service. You may disable the automatic Wi-Fi connection feature on your mobile device by turning it off using the “Settings” or an equivalent feature of your mobile device. You will still be able to manually connect to available Wi-Fi access points.
5. MOBILE DEVICE
5.1. Certified Mobile Devices: Your mobile device must comply with Federal Communications Commission regulations, be certified for use on the network on which Werks Mobile provides Werks Mobile, unlocked, and be compatible with the provisioned Service. You can check your device compatibility here. Werks Mobile does not support mobile devices that are locked or become locked by another mobile operator or that have been or become reported as lost or stolen.
5.2. Mobile Device Performance: Werks Mobile does not manufacture any mobile device that you select to use with Werks Mobile. Werks Mobile is not responsible for any defects, acts, omissions, or other problems with a mobile device. Further, Werks Mobile is not responsible for the security of the mobile device connected to the Service, including any data stored on the mobile device, and maintaining virus and other Internet security protections when accessing third-party products or services. Check with the mobile device’s manufacturer to determine whether there are any warranties on a mobile device. Mobile device performance may vary based on mobile device specifications (for example, a mobile device’s software, memory, and storage), and mobile device performance may impact access to Werks Mobile.
6. SIM CARD ACTIVATION
6.1. SIM Card Activation: By activating Werks Mobile (via a SIM card or electronic SIM (eSIM), you acknowledge that except as required by law, you shall acquire no proprietary interest in the number (MDN) or SIM (Subscriber Identity Module) assigned for your use, except for any right you may have to port it, as outlined in Section 15 below. You acknowledge that any intellectual property or software in the SIM is the property of the supplier thereof, and such supplier may change or update the software or other data in the SIM card or the software in the equipment over the air and utilize any capacity in the SIM card for administrative, network, business and/or commercial purposes.
6.2. Unauthorized Use of SIM Card: If your mobile device has a SIM card, you agree to safeguard your SIM card and not to allow any unauthorized person to use it. You agree not to, and not to permit others to, reverse engineer, copy or modify the SIM card in any way. If your mobile device has an eSIM, you agree to safeguard the device to prevent unauthorized use.
7. DATA USAGE AND ROAMING
7.1. Data Service: Your Service provides Internet access, the ability to send and receive text and multimedia messages, and the ability to access, download and use applications, games, pictures, ringtones, music, email, graphics, videos, audio, location information, and other information (collectively, the “Content”) via the Internet on a mobile device. Some Content may be provided by Werks Mobile or its third-party licensors, independent content providers, and/or other third parties. You may be able to access the Internet through an application on your mobile device, a mobile device’s browser, or a tethered or wireless device. You are responsible for all data activity from and to your mobile device regardless of who initiates the activity. You acknowledge that when using the Service, you may encounter data Content that you may find to be offensive or objectionable. You agree to use the Service at your sole risk and that Werks Mobile will not have any liability to you for any data Content. Data service speeds are not guaranteed, and you may experience throughput levels slower than the minimum advertised speed.
7.2. Domestic Roaming: Your Service may also allow you to use your mobile device to access Werks Mobile Service in other countries, subject to different pricing and roaming terms. The charges for this Service will be determined by Werks Mobile. Please visit www.werksmobile.com for more information.
8. UNAUTHORIZED USE
8.1. Responsibility for Unauthorized Use: Except as may otherwise be provided by applicable law, you acknowledge and agree that you are solely responsible for all use of Werks Mobile (including the use of any associated mobile devices), whether or not the activity was initiated by you or someone else, and whether or not the activity was authorized. Except as may otherwise be provided by applicable law, you shall be responsible for any and all unauthorized use of your Service, including the payment of all charges, fees and other amounts that may result from such unauthorized use.
8.2. Obligation to Notify Werks Mobile: You agree to notify us immediately if your mobile device is lost or stolen, if your mobile device is fraudulently used, or if your Service is fraudulently used. Failure to notify Werks Mobile promptly may result in the termination of your Service and additional charges to you. Until such time as we receive notice from you of any fraudulent or unauthorized use, you will remain liable for all use of the Service using your mobile device.
9. 911 AND EMERGENCY CALLS
9.1. E911 Service: Enhanced 911 service (“E911”), where available, is a feature of the Service that attempts to route emergency calls to the appropriate emergency response center and automatically provides to the emergency response center, if available, the mobile device location and calling number. However, E911 service is dependent on the capability of the emergency response center to receive the location and calling number information, which is not available in all areas. If E911 service is not available, the Service will attempt to complete the 911 call, but it will not include location and calling number information. E911 service requires an accurate address to be provided to Werks Mobile when setting up the Service, and it is your responsibility to notify Werks Mobile of any changes to your address.
9.2. GPS and Location Services: In order for your Service to deliver accurate location information for emergency services, your mobile device must be able to receive satellite signals from the GPS system. If the mobile device is unable to acquire a satellite signal (for example, because you are inside a building or in another location that obstructs satellite signals), the location information provided to the emergency response center may be less accurate. Certain WiFi features, such as WiFi calling for 911, also depend on the mobile device and network capabilities, which can limit the ability to connect with emergency services.
10. PRIVACY
10.1. Privacy Notice: Werks Mobile is committed to protecting your privacy. Your location and other information related to your use of the Service is subject to the Werks Mobile Customer Privacy Notice, which can be found here. By using the Service, you consent to the collection, use, and sharing of your location and other information as described in the Privacy Notice.
10.2. Location-Based Services: Werks Mobile may collect and disclose your mobile device location to provide location-based services and applications as described in the Privacy Notice. These location-based services are not designed or intended to be used for emergency or life saving purposes and should not be relied upon in circumstances where precise location information is needed.
11. SERVICE INTERRUPTIONS AND CREDITS
11.1. Interruption of Service: Service may be interrupted from time to time for various reasons, including technical issues, maintenance, upgrades, network management, and other factors. Werks Mobile does not guarantee that the Service will be available at all times or that it will operate without interruption or error. You acknowledge and agree that Werks Mobile shall not be liable for any damages or losses resulting from any Service interruptions.
11.2. Credits for Interruptions: If the Service is interrupted for a period of twenty-four (24) consecutive hours or more, you may be eligible for a prorated credit upon request for the period of Service interruption. The credit will be determined based on the length of the Service interruption and your Service plan. Credits will not be provided for interruptions caused by factors outside of Werks Mobile’s control or for interruptions resulting from your actions or equipment.
12. FEES AND PAYMENT
12.1. Charges and Fees: You agree to pay all charges associated with your Service, including monthly recurring charges, usage-based charges, taxes, fees, and any other applicable charges. Charges for the Service are set forth on the Website and may be changed from time to time. You agree to pay all charges in accordance with the payment terms set forth on the Website or as otherwise provided to you by Werks Mobile.
12.2. Billing and Payment: You will be billed for the Service on a monthly basis. All charges are due and payable in accordance with the payment terms set forth on the Website. If you fail to pay any charges when due, Werks Mobile reserves the right to suspend or terminate your Service. In the event of nonpayment, you agree to pay all costs of collection, including reasonable attorneys’ fees and court costs. Werks Mobile may charge you a late fee for any past due amounts, as permitted by law.
12.3. Changes in Pricing: Werks Mobile reserves the right to change the pricing for the Service at any time. If there is a change in pricing, Werks Mobile will provide you with notice of the change. Your continued use of the Service after the effective date of the change in pricing will constitute your acceptance of the new pricing. If you do not agree to the new pricing, you may terminate the Service.
13. ADDITIONAL TERMS AND CONDITIONS
13.1. Binding Arbitration & Class Action Waiver: You agree that any dispute, claim, or controversy arising out of or relating to this Agreement or the Service shall be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. You agree to waive any right to bring or participate in any class action lawsuit. This arbitration agreement is intended to be broadly interpreted, and it includes all disputes, claims, and controversies, whether based on contract, tort, statute, fraud, misrepresentation, or any other legal theory.
13.2. Opting Out of Arbitration: You may opt out of this arbitration provision by sending a written notice of your decision to opt out to the following address: Werks Mobile Arbitration Opt-Out, 5211 Brookpark Rd Cleveland OH 44134, within thirty (30) days of first accepting this Agreement. Your opt-out notice must include your name, address, phone number, and account number. If you opt out of arbitration, all other parts of this Agreement will continue to apply.
13.3. Entire Agreement: This Agreement, including any other terms incorporated by reference, constitutes the entire agreement between you and Werks Mobile with respect to the Service. It supersedes all prior or contemporaneous communications and proposals, whether oral or written, between you and Werks Mobile with respect to the Service.
13.4. Severability: If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
13.5. No Waiver: The failure of Werks Mobile to enforce any provision of this Agreement shall not be deemed a waiver of such provision or of the right to enforce such provision.
14. CONTACT INFORMATION
14.1. Customer Service: For customer service inquiries or assistance, please contact Werks Mobile customer service at 866-512-7222 or visit our Website.
14.2. Notice: Any notice required or permitted to be given by Werks Mobile under this Agreement may be provided by any reasonable means, including by mail, email, or through the Website. Notices to you will be deemed given when sent to your email address on file with Werks Mobile or when posted on the Website. Notices to Werks Mobile must be sent to: Werks Mobile, 5211 Brookpark Rd Cleveland OH 44134, Attn: Legal Department.
15. ADDITIONAL TERMS
15.1. Porting of Mobile Number: You may be able to port your mobile number to another service provider. In order to do so, you must contact your new service provider. Werks Mobile will release your mobile number to your new service provider upon request if your account is in good standing. You will be responsible for all charges incurred prior to the porting of your mobile number.
15.2. No Resale: You agree not to resell the Service or any portion thereof.
15.3. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the state in which your billing address is located, without regard to its conflict of laws principles.
16. ACCEPTABLE USE POLICY
16.1. Compliance: You agree to comply with Werks Mobile’s Acceptable Use Policy, which can be found here. The Acceptable Use Policy is incorporated into this Agreement by reference. Failure to comply with the Acceptable Use Policy may result in the suspension or termination of your Service.
16.2. Prohibited Uses: The following uses of the Service are prohibited:
16.3. Illegal or unlawful activities.
16.4. Unauthorized access to or use of data, systems, or networks, including any attempt to probe, scan, or test the vulnerability of a system or network.
16.5. Interference with the Service of any user, host, or network, including, without limitation, mail bombing, flooding, or attempts to overload a system or network.
16.6. Distribution of any virus, worm, or other harmful software.
16.7. Sending unsolicited email, including the sending of “junk mail” or other advertising material to individuals who did not specifically request such material.
16.8. Engaging in any activity that is harmful to minors or that is likely to cause harm to minors.
16.9. Engaging in any other activity that is prohibited by applicable law or regulation.
17. MODIFICATION OF AGREEMENT
17.1. Modifications: Werks Mobile reserves the right to modify this Agreement at any time. If we make any material changes to this Agreement, we will provide you with notice of the changes. Your continued use of the Service after the effective date of the changes will constitute your acceptance of the modified Agreement. If you do not agree to the modified Agreement, you must terminate the Service.
18. FORCE MAJEURE
18.1. Force Majeure: Werks Mobile shall not be liable for any failure or delay in performance under this Agreement due to causes beyond its reasonable control, including, without limitation, acts of God, natural disasters, pandemics, acts of war, terrorism, strikes, labor disputes, government orders, or any other force majeure event.
19. THIRD-PARTY BENEFICIARIES
19.1. No Third-Party Beneficiaries: This Agreement is for the benefit of you and Werks Mobile only, and no third party shall have any rights under this Agreement.
20. CONTACT INFORMATION FOR COMPLAINTS
20.1. Complaints: If you have any complaints regarding the Service or this Agreement, you may contact Werks Mobile customer service at 866-512-7222 or submit your complaint in writing to Werks Mobile, [address], Attn: Customer Service.
20.2. Regulatory Complaints: You may also contact the Federal Communications Commission (FCC) or your state’s public utility or public service commission if you have a complaint regarding the Service.
21. BILLING
21.1. Invoices: Werks Mobile will issue a summary invoice statement to you monthly. You will be invoiced monthly, in advance, for recurring service charges and fees (e.g. service plan fee, taxes, regulatory fees, features, prepaid data usage) and you will be invoiced for any one-time charges (e.g. international calling, International Travel passes, data top-ups, etc.) at the time of purchase. International calling and roaming is provided by Reach Mobile. Taxes and fees, including regulatory recovery fees, surcharges, and other applicable charges, are in addition to the monthly recurring service plan fee, and subject to change. Your first invoice may include the first month’s service charges and fees, as well as monthly recurring charges and fees for the next month and charges for non-recurring services you have received. If you receive the Service under a promotion, after the promotional period ends, the then-current market prices for the Service will apply.
21.2. Separate Billing: Your Werks Mobile service is billed separately from any other Werks services (Internet, TV, Voice) you may have. Included lines of service may be referenced on your general Werks bill, but all charges, including any taxes and fees on your included line(s) of Service will be reflected on your Werks Mobile billing statement. However, Werks Mobile reserves the right to change this billing convention and provide you with a consolidated bill with charges from other lines of business upon written notice to you.
21.3. Prepaid Data Usage: All data usage included in the Service plan or any additional purchase of data usage are sold on a prepaid basis. If you pre-authorize a recurring data top-up for your Service, Werks Mobile will automatically charge your payment method at the time your account reaches the data usage limit of your Service plan. All data and content sent or received on your Werks Mobile account (including any network overhead and/or Internet Protocol overhead associated with content sent or received) counts towards your data usage. Your data usage will be measured by all data sent, received, consumed by and/or used on your account, including, without limitation, data consumed by applications (including any Werks Mobile and other Werks applications), widgets, multi-media messaging, tethering, uploading, downloading, streaming content, Internet access (including accessing corporate intranets, email and individual productivity applications), GPS and location services, and Voice over Internet Protocol, either with or without any action by the user. Unless we specifically inform you otherwise, data usage is measured in bytes, kilobytes, megabytes, and gigabytes (“GB”)—not in minutes/time. Data usage will be rounded up to the next whole unit (generally per GB) as described in your Service offering, as such may be revised from time to time. There is no refund for or carry-over of any unused allotment of prepaid data usage from one billing cycle to another.
21.4. Bill Cycle: Your Service is provided to you on a month-to-month basis. Your account has one bill cycle for your Service, regardless of the number of lines on the account. Billing for the first month will begin when the SIM Card has been both ordered and activated. All other purchases (such as international calling, International Travel passes, data top-ups, etc.) will be billed at the time of purchase. (International calling and roaming is provided by Reach Mobile.) If an additional line is added to the account before the next bill cycle, you will need to pay the monthly service charge, in advance, for the additional line at activation and then again when the account bill cycle arrives. There is no proration of the monthly service charge when an additional line is added to the account.
22. UNAUTHORIZED CHARGES
22.1. Use of the Service by Others: YOU SHOULD USE CARE WHEN ALLOWING ANOTHER PERSON, INCLUDING A CHILD OR OTHER MINOR, TO USE A MOBILE DEVICE ON YOUR ACCOUNT. You are obligated to pay all charges incurred, including charges from any other user of the Service associated with your account.
22.2. Payment Information: In addition, you are solely responsible for protecting the security of credit card and other personal information provided to others in connection with such transactions. Debit/credit card payment processing is performed by a third party. As a condition to our enabling credit card payment processing service, you agree to provide accurate and complete information about you, and you authorize the third party payment processor to receive, process and store such information, as well as transaction information related to your use of the payment processing Service. In all cases, standard credit card or other third party processing fees apply. We are not responsible for any dispute regarding charges between you and any third party. You must address all such disputes directly with the third party.
23. PORTING
23.1. You may be able to transfer, or “port,” your Werks Mobile phone number to another mobile operator. If you port a number from Werks Mobile, Werks Mobile will treat it as though you requested Werks Mobile to cancel the Service for that number. After the porting is completed, you will not be able to use the Werks Mobile Service for that number, but you will remain responsible for all Service fees and charges incurred through the end of that billing cycle, just like any other cancellation. If you port a number to Werks Mobile, Werks Mobile may not be able to provide some services right away, such as E-911 services.
24. CONSENT TO COMMUNICATIONS FROM WERKS MOBILE
24.1. You consent to be contacted by Werks Mobile or third parties acting on our behalf, without charge, on any wireless telephone number assigned to your account for any purpose, including marketing messages, and in any manner permitted by applicable law. Consent is not a condition to purchase any goods or services. You may opt out of receiving these communications by contacting Werks Mobile customer service line at 866-512-7222. You may not opt-out of receiving certain communications pertaining to your account, including, but not limited to, communications regarding emergencies, fraud or other violations of law, security issues, and harms caused to the network. You also expressly consent to be contacted by Werks Mobile, and anyone contacting you on our behalf, for any purpose, including billing, collection, or other account or service related purpose, at any telephone number or physical or electronic address where you may be reached, including any wireless telephone number. You agree that Werks Mobile, and anyone contacting you on our behalf, may communicate with you as part of our established business relationship, and regardless of whether the phone number is on the federal Do-Not-Call Registry (or state equivalents), including communications placed by any means, including autodialed or prerecorded voice calls, and text messages. If a contact number you have provided to us is no longer your number, you agree to notify us promptly that you can no longer be reached at that number. You represent that you have received, and are authorized to convey to us, the consent of any authorized users on your account to be contacted by us as described in this Section and that you have provided all notices required by applicable law. Our use of your contact information described in this section shall be in accordance with our Werks Mobile Privacy Notice.
25. BINDING ARBITRATION, WAIVER OF CLASS ACTION AND JURY TRIAL
25.1. Arbitration: Except as expressly permitted by this Agreement, any Dispute (as defined below) involving you and Werks Mobile that cannot be mutually resolved shall be resolved through individual arbitration rather than through litigation of the Dispute in court. By agreeing to this binding arbitration provision, you may be waiving constitutional or statutory rights. Arbitration means you will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury. Proceeding in arbitration may also result in limited discovery. An arbitration award is subject to limited review by a court.
25.2. Dispute: As used herein, the term “Dispute” means any dispute, claim or controversy between you and Werks Mobile, its affiliates, and/or each of their respective officers, directors, employees and agents regarding any aspect of your relationship with such parties that has accrued or may hereafter accrue, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence or any other intentional tort), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Provision. “Dispute” is to be given the broadest possible meaning that will be enforced.
25.3. Governing Law and Jurisdiction: You agree that any Dispute with Werks Mobile under this Agreement will be governed by the law of the state in which your Werks Mobile home Internet service is located, in accordance with Section 14.8 of the Werks Mobile Residential Subscriber Agreement.
25.4. Right to Opt Out: IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, INCLUDING WITHOUT LIMITATION, THE WAIVER OF YOUR RIGHT TO BRING CLASS ACTION CLAIMS AS OUTLINED IN SECTION 17.6 BELOW, YOU MUST NOTIFY WERKS MOBILE IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST RECEIVE AND/OR READ THIS AGREEMENT BY WRITTEN NOTICE TO WERKS MOBILE, 3 BATTERYMARCH PARK, SUITE 200, QUINCY, MA 02169, ATTENTION: GENERAL COUNSEL. YOUR WRITTEN NOTIFICATION TO WERKS MOBILE MUST INCLUDE YOUR NAME, ADDRESS, AND WERKS MOBILE ACCOUNT NUMBER, AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH WERKS MOBILE THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH WERKS MOBILE OR THE DELIVERY OF SERVICE TO YOU BY WERKS MOBILE. IF YOU HAVE PREVIOUSLY NOTIFIED WERKS MOBILE OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN. IF YOU HAVE OPTED OUT OF THIS ARBITRATION PROVISION AND HAVE A DISPUTE, YOU AGREE TO ATTEMPT TO RESOLVE IT IN ACCORDANCE WITH SECTIONS 14.2 – 14.7 OF THE WERKS MOBILE RESIDENTIAL SUBSCRIBER AGREEMENT.
25.5. Arbitration Procedure: You must first present any Dispute to us by contacting Werks Mobile Customer Service at 866-512-7222 to allow us an opportunity to resolve the Dispute. You may request arbitration if your Dispute cannot be resolved within sixty (60) days from the time you presented the Dispute to Werks Mobile. Werks Mobile may request arbitration against you at any time after it has notified you of a Dispute. The arbitration of any Dispute involving you and Werks Mobile shall be governed by the American Arbitration Association’s (AAA) then current rules for consumer arbitrations (available online at www.adr.org or by calling the AAA at 1-800-778-7879), except that you may choose to file the arbitration at an AAA location in the state in which your Werks Mobile home Internet service is located, and this Agreement shall otherwise be governed by the laws of the state in which your Werks Mobile home Internet service is located, including principles of choice of law. To the extent that there is any variance between the AAA rules and this Arbitration Provision, this Arbitration Provision shall control. If you initiate arbitration, you must serve Werks Mobile’s registered agent for service of process. The arbitration shall be held in the county in which you receive the Service from Werks Mobile. If the amount in dispute is less than $10,000, the Dispute shall be resolved by the submission of documents unless the arbitrator determines that a telephonic hearing is necessary. The party requesting relief may elect a telephonic hearing, but such hearing shall be limited to one hour. If the amount in dispute is between $10,000 and $50,000, then the Dispute shall be resolved by the submission of documents unless a party requests a hearing. If the amount in dispute exceeds $50,000, or involves a request for injunctive relief, either party may request a hearing in accordance with the AAA rules. If you request arbitration, upon a showing of financial hardship, Werks Mobile will consider advancing all or part of the costs of the arbitration, but you will be responsible for reimbursing Werks Mobile if you prevail in the arbitration. If there is a hearing, each of us may have one or more persons who are knowledgeable about the facts support our respective positions, and you may elect to be represented by counsel. The arbitrator will make a decision and, if requested by either party, will provide a brief statement of the reasons for the decision. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. The decision of the arbitrator shall be final and binding on each of us and may be enforced by either party in any court of competent jurisdiction. An arbitrator may award any relief to the extent warranted by the evidence and law, but may not grant any remedy, relief, or award in excess of or contrary to what this Agreement provides. Notwithstanding anything to the contrary in this Arbitration Provision, either party may, at any time, seek temporary injunctive relief in a court of competent jurisdiction to prevent irreparable harm to such party or to the other party, as necessary to protect such party’s interests pending completion of arbitration and enforcement of the arbitrator’s award. Any disqualification of any portion of this Arbitration Provision shall be deemed severable, shall be automatically modified to the extent necessary to render it enforceable, and shall not affect the remaining provisions of the Arbitration Provision.
25.6. Waiver of Class Action Claims: By this Agreement, both you and Werks Mobile waive the right to bring any Dispute as a class, consolidated, representative, collective, or private attorney general action, or to participate in any such action, whether as a class representative or a class member. You and Werks Mobile agree that the arbitrator may not consolidate more than one party’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this waiver of class action claims is held to be illegal or otherwise unenforceable, you and Werks Mobile agree that it shall not be severable, that this entire Arbitration Provision shall be unenforceable, and that any Dispute shall be resolved in court, EXCEPT THAT you and Werks Mobile agree that you waive any right to a jury trial, and each of you and Werks Mobile submits to personal jurisdiction in the state in which your Werks Mobile home Internet service is located.
25.7. Survival: This Arbitration Provision shall survive the termination of your Service with Werks Mobile.
25.8. Small Claims Exclusion: Notwithstanding the above, each of us has the right to bring a Dispute in small claims court within the state whose laws govern this Agreement pursuant to Section, if the Dispute is within the jurisdiction of that small claims court and the matter remains in that court.
25.9. Waiver of Jury Trial: WHETHER ANY DISPUTE IS RESOLVED BY ARBITRATION OR IN COURT AS PROVIDED FOR IN THIS SECTION 17, YOU AND WERKS MOBILE AGREE TO WAIVE ANY RIGHT TO A JURY TRIAL AS PART OF THE RESOLUTION OF SUCH DISPUTE.
26. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
26.1. No Warranty: You understand and agree that the Service is provided on an “as is” and “as available” basis, with all faults, and without warranties of any kind. We make no warranty or representation, either express or implied, regarding the Service or your Werks Mobile Device, including but not limited to any warranty of title, non-infringement, non-interference, merchantability, fitness for a particular purpose, or of uninterrupted or error-free Service, or that the Service or Device will meet your requirements. Nor do we authorize anyone to make any warranty on our behalf.
26.2. Limitation of Liability: You understand and agree that Werks Mobile shall not be liable for any direct, special, indirect, incidental, exemplary, punitive, or consequential damages of any kind, or any other damages, including but not limited to loss of revenue or profits, loss of business or goodwill, loss of use, or any loss or damage to any Werks Mobile Device or other personal property, whether based on breach of contract, tort (including negligence), or otherwise, arising out of or in connection with this Agreement or your use or attempted use of the Service or any Werks Mobile Device. In the event Werks Mobile is found to be responsible to you for monetary damages arising out of or in connection with this Agreement, or your use or attempted use of the Service or any Werks Mobile Device, you agree that such damages shall be limited to the amount you paid to Werks Mobile for the Service or Werks Mobile Device in the month preceding the date the claim arose. Some jurisdictions do not allow the limitation or exclusion of certain warranties or liabilities, so some of the above limitations may not apply to you.
26.3. Force Majeure: Werks Mobile shall not be liable for any failure or delay in performance, including any Service outage or interruption, due to events or circumstances beyond our control.
26.4. Survivability: Those provisions of this Agreement that would by their nature continue beyond the termination of your Service (including, without limitation), shall survive termination of your Service.
26.5. Indemnification: You agree to indemnify and hold Werks Mobile and its parents, subsidiaries, affiliates, officers, agents, and employees harmless from any claim or demand, including attorneys’ fees, made by any third party due to or arising out of your use of the Service or Werks Mobile Devices provided to you under this Agreement, including, without limitation, (i) any information or content you submit, transmit, or make available through the Service; (ii) any violation by you of this Agreement; or (iii) any violation by you of any rights of another.
27. MISCELLANEOUS
27.1. Entire Agreement: This Agreement, including the policies and documents that are incorporated herein by reference, constitutes the entire agreement between you and Werks Mobile for the subject matter of this Agreement, and supersedes all prior or contemporaneous agreements, understandings, statements, or proposals regarding the Service. No written or oral statement, advertisement, or service description not expressly contained in this Agreement shall be binding on Werks Mobile.
27.2. No Assignment: You may not assign this Agreement, or your rights or obligations under it, without our prior written consent, and any attempted assignment without such consent shall be void. Werks Mobile may freely assign this Agreement or any of its rights and obligations hereunder without restriction.
27.3. Waiver: The failure of Werks Mobile to insist upon strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between you and Werks Mobile nor trade practice shall act to modify any provision of this Agreement.
27.4. Severability: If any term of this Agreement is declared invalid or unenforceable, the invalid or unenforceable term will be modified to the extent necessary to make it valid and enforceable and will not affect the validity or enforceability of the remaining terms of this Agreement.
28. ENFORCEMENT
28.1. Enforcement Rights
28.2. Actions: Werks Moblie may issue warnings, suspend, or terminate service, and remove, screen, or edit content to enforce the agreement.
28.3. Changes to the Service or this Agreement
29. Modification Rights
29.1. Changes: Werks Mobile may change the service or agreement and will notify you through various methods.
29.2. Continued Use: Using the service for more than 30 days after notice implies acceptance of changes.
This Agreement, as revised, is effective as of August 7, 2024.
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By using Werks Mobile, you acknowledge that you have read, understood, and agreed to the terms and conditions of this Agreement, as well as any other documents incorporated by reference.
For additional information, visit www.mobile.werksmobile.com.