Terms & Conditions
In this document: (1) “we,” “us,” “our,” and “SwitchPay,” mean Switch Commerce, LLC and its affiliates; (2) “you,” “your,” “customer,” and “user” mean an account holder or user doing business with us; (3) “Device” means any phone, device, accessory or other product we sell to you or that is active on your account with us; and (4) “Service(s)” means our offers, rate plans, options, wireless services or application subscriptions on your account with us.
The Subscriber Agreement
The Subscriber Agreement (“Agreement”) is an agreement under which we provide and you accept our services. In addition to these Terms and Conditions of Service (“Ts&Cs”), there are several parts to the Agreement, including, but not limited to, the detailed plan or other information on Services we provide or refer you to during the sales transaction, and any confirmation materials we may provide you. It is important that you carefully read all of the terms of the Agreement.
Services Covered by These Ts&Cs & Additional Terms
These Ts&Cs apply to our standard wireless application services and any other service we offer you that references these Ts&Cs. Different terms will apply to most accounts. Additional terms may apply when you use certain Switch Commerce services. Additional terms may also apply if you activate Services as part of a bundle with another company’s services (for example, wireless services, merchant account services, wireless phones, etc.). The additional terms for bundled Services may either modify or replace certain provisions in these Ts&Cs, including terms relating to activation, invoicing/payment, and disputing charges. Also, a different dispute resolution provision may apply to services provided by another company (the dispute resolution provisions in these Ts&Cs still apply to our Services). You will be provided details on any additional terms with your selection of any bundled service.
When You Accept the Agreement
You must have the legal capacity to accept the Agreement. You accept the Agreement when you do any of the following: (a) sign a contract with us on paper or electronically; (b) accept the Agreement through an oral or electronic statement; (c) attempt to or in any way use the Services; (d) pay for the Services; or (e) open any package or start any program that says you are accepting the Agreement when doing so. If you do not want to accept the Agreement, do not do any of these things.
Our Right to Change the Agreement & Your Related Rights
We may change any part of the Agreement at any time, including, but not limited to, rates, charges, how we calculate charges, or your terms of Service. We will provide you notice of material changes, and may provide you notice of non-material changes, in a manner consistent with this Agreement (see “Providing Notice to Each Other under the Agreement” section). If a change we make to the Agreement is material and has a material adverse effect on Services under your Term, you may terminate only if you: (a) call us after the effective date of the change; and (b) specifically advise us that you wish to cancel Services because of a material change to the Agreement that we have made.
Our Right to Suspend or Terminate Services
We can, without notice, suspend or terminate any Service at any time for any reason, including, but not limited to: (a) late payment; (b) harassing/threatening our employees or agents; (c) providing false information; (d) interfering with our operations; (e) using/suspicion of using Services in any manner restricted by or inconsistent with the Agreement; (f) breaching the Agreement, including our Policies; (g) providing false, inaccurate, dated or unverifiable identification or credit information, or becoming insolvent or bankrupt; or (h) if we believe the action protects our interests, any customer’s interests or our network.
Your Ability to Change Services & When Changes Are Effective
You typically can change Services upon request. In some instances, changes may be conditioned on pro-rated payment or certain other charges, or they may require you to accept a new Term. Changes to Services are usually effective at the start of your next full invoicing cycle. If the changes take place sooner, your invoice may reflect pro-rated charges for your old and new Services.
Your Right to Terminate Services
You can terminate Services at any time by calling us and requesting that we deactivate all Services. You are responsible for all charges billed or incurred prior to deactivation. If Services are terminated before the end of your invoicing cycle, we will not prorate charges to the date of termination and you will not receive a credit or refund for any unused Services.
Restrictions on Using Services
You cannot use our Services: (a) to transmit content/messages that are, or in any manner that is, illegal, fraudulent, threatening, abusive, defamatory, or obscene; (b) in a way that could cause damage or adversely affect our customers, reputation, network, property or Services; (c) to communicate any unsolicited commercial voice, text, SMS, or other message; (d) to infringe on the copyright of another, or upload or transmit any “virus,” “worm,” or malicious code; or (e) in any way prohibited by the terms of our Services, the Agreement or our Policies.
Activation & Miscellaneous Charges
Based on our Policies, we may charge activation, prepayment, reactivation, program or other fees to establish or maintain Services. Certain transactions may also be subject to a charge (for example, re provisioning handsets, upgrades, etc.). You will be provided notice of these types of fees before we complete the requested transaction.
Account & Service Charges; Pro-rating
You are responsible for all charges associated with your account and the Services on your account, no matter who adds or uses the Services. Charges include, but are not limited to, the monthly recurring charges, usage charges, taxes, surcharges and fees associated with your Services. These charges are described or referred to during the sales transaction, in our marketing materials, and in confirmation materials we may send to you. If you (the account holder) allow end users to access or use your Devices, you authorize end users to access, download and use Services.
How We Calculate Your Charges for Billing Purposes
Depending on the type of SwitchPay account created, SwitchPay subscribers may be charged a servicefee once per month. A one time activation fee may be charged at the time of registration. Additionally, a single fee per transaction completed from the SwitchPay pay Application will be charged.
Your bill provides you notice of your charges. It reflects monthly recurring charges (usually billed one bill cycle in advance) and usage/transaction specific charges (usually billed in the bill cycle in which they are incurred). Some usage charges, such as those that depend on usage information may be billed in subsequent bill cycles and result in higher than expected charges for that month. Bill cycles and dates may change from time to time. Your bill may also include other important notices (for example, changes to the Agreement, to these Ts&Cs, to your Service, legal notices, etc.). Your email bill may not include individual usage detail. Your usage detail is available online. Paper bills with usage detail may be subject to an additional charge. If you choose internet billing, you will not receive paper bills unless specially requested.
Payment is due in full as stated on your bill. If we do not receive payment in full by the date specified on your bill, a late payment charge, which may be charged at the highest rate permissible by law, may be applied to the total unpaid balance. We will typically bill your credit card account directly on a monthly basis, automatically. Monthly ACH can also be accepted. We may charge you, up to the highest amount permitted by law, for returned checks or other payments paid by you and denied for any reason by a financial institution. Acceptance of payments (even if marked “paid in full”) does not waive our right to collect all amounts that you owe us. We may restrict your payment methods to cashier’s check, money order, or other similar secure form of payment at any time for good reason.
You hereby authorize Switch Commerce, LLC., (the “COMPANY”, “SwitchPay”) to initiate charges, via a) credit card charges or b) debit entries, and if necessary, process adjustments to correct charges made in error, to your account as described below. You acknowledge that the origination of ACH or credit card transactions to your account must comply with the provisions of U.S. law. This authorization for recurring charges is to remain in full force and effect until COMPANY has received written notification from me of its termination in such time and in such manner as to afford COMPANY and BANK (if applicable) a reasonable opportunity to act on it.
Taxes & Government Fees
You agree to pay all federal, state and local taxes, fees and other assessments that we are required by law to collect and remit to the government on the Services we provide to you. These charges may change from time to time without advance notice.
You agree to pay all surcharges (“Surcharges”), which include, but are not limited to: Federal Universal Service, various regulatory fees, gross receipts charges, and charges for the costs we incur in complying with governmental programs. Surcharges are not taxes and are not required by law. They are rates we choose to collect from you and are kept by us in whole or in part. The number and type of Surcharges may vary depending upon the location of your primary billing address and can change over time. We determine the rate for these charges and these amounts are subject to change as are the components used to calculate these amounts. We will provide you notice of any changes to Surcharges in a manner consistent with these Ts&Cs (see “Providing Notice to Each Other Under the Agreement” section). However, since some Surcharges are based on amounts set by the government or based on government formulas, it will not always be possible to provide advance notice of new Surcharges or changes in the amount of existing Surcharges.
Disputing Charges – You Must Still Pay Undisputed Charges
Any dispute to a charge on your bill must be made within 60 days of the date of the bill that initially contained the charge. Disputes can only be made by calling or writing us as directed on your invoice or elsewhere. You accept all charges not properly disputed within the above time period – undisputed charges must still be paid as stated on your bill.
Protecting Our Network & Services
We can take any action to: (1) protect our network, our rights and interests, or the rights of others; or (2) optimize or improve the overall use of our SwitchPay Services.
Disclaimer of Warranties
We make NO representations or warranties, express or implied, including (to the extent allowed by law) any implied warranty of merchantability, non-infringement or fitness for a particular purpose concerning your Services (including your Device). We do not promise uninterrupted or error-free Services and do not authorize anyone to make warranties on our behalf.
You Agree We Are Not Responsible for Certain Problems
You agree that neither we nor our vendors, suppliers or licensors are responsible for any damages resulting from: (a) anything done or not done by someone else; (b) providing or failing to provide Services, including, but not limited to, deficiencies or problems with a Device or network coverage (for example, dropped, blocked, interrupted calls/messages, etc.); (c) traffic or other accidents, or any health-related claims relating to our Services; (d) Data Content or information accessed while using our Services; (e) an interruption or failure in accessing or attempting to access emergency services from a Device, including through 911, Enhanced 911 or otherwise; (f) interrupted, failed, or inaccurate location information services, (g) information or communication that is blocked by a spam filter, or (h) 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 Agree Our Liability Is Limited – No Consequential Damages
To the extent allowed by law, our liability for monetary damages for any claims you may have against us is limited to no more than the proportionate amount of the Service charges attributable to the affected period. Under no circumstances are we liable for any incidental, consequential, punitive or special damages of any nature whatsoever arising out of or related to providing or failing to provide Services in connection with a device, including, but not limited to, lost profits, loss of business, or cost of replacement products and services.
We each agree to first contact each other with any disputes and provide a written description of the problem, all relevant documents/information and the proposed resolution. You agree to contact us with disputes by calling or writing us as instructed on your invoice. We will contact you by letter to your billing address or on your Device.
Instead Of Suing In Court, We Each Agree To Arbitrate Disputes
We each agree to finally settle all disputes (as defined and subject to any specific exceptions below) only by arbitration. In arbitration, there is no judge or jury and review is limited. However, just as a court would, the arbitrator must honor the terms and limitations in the Agreement and can award the same damages and relief, including any attorney’s fees authorized by law. The arbitrator’s decision and award is final and binding, with some exceptions under the Federal Arbitration Act (“FAA”), and judgment on the award may be entered in any court with jurisdiction. We each also agree as follows: (1) “Disputes” are any claims or controversies against each other related in any way to our Services or the Agreement, including, but not limited to, coverage, Devices, privacy, or advertising, even if it arises after Services have terminated – this includes claims you bring against our employees, agents, affiliates or other representatives, or that we bring against you.
(2) If either of us wants to arbitrate a dispute, we agree to send written notice to the other providing a description of the dispute, previous efforts to resolve the dispute, all supporting documents/information, and the proposed resolution. Notice to you will be sent to your billing address and notice to us will be sent to: General Counsel; Arbitration Office; 2001 Edmund Halley Drive VARESP0513-502; Reston, Virginia 20191. We agree to make attempts to resolve the dispute. If we cannot resolve the dispute within forty-five (45) days of receipt of the notice to arbitrate, then we may submit the dispute to formal arbitration.
(3) The FAA applies to these Ts&Cs and arbitration provision. We each agree the FAA’s provisions, not state law, govern all questions of whether a dispute is subject to arbitration.
(4) The arbitration will be administered by the National Arbitration Forum (“NAF”) under its arbitration rules. If any NAF rule conflicts with the terms of the Agreement, the terms of the Agreement apply. You can obtain procedures, rules, and fee information from the NAF at 1-800-474-2371 or www.adrforum.com.
(5) Unless we each agree otherwise, the Arbitration will be conducted by a single neutral arbitrator and will take place in the county of your last billing address. The federal or state law that applies to the Agreement will also apply during the arbitration.
(6) We each agree not to pursue arbitration on a class-wide basis. We each agree that any arbitration will be solely between you and us (not brought on behalf of or together with another individual’s claim). If for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate does not apply and the dispute must be brought in court.
(7) We each are responsible for our respective costs relating to counsel, experts, and witnesses, as well as any other costs relating to the arbitration. However, we will cover any arbitration administrative or filing fees above: (a) $25 if you are seeking less than $1,000 from us; or (b) the equivalent court filing fees for a court action in the appropriate jurisdiction if you are seeking $1,000 or more from us.
Exceptions to Our Agreement to Arbitrate Disputes
Either of us may bring qualifying claims in small claims court. In addition, this arbitration provision does not prevent you from filing your dispute with any federal, state or local government agency that can, if the law allows, seek relief against us on your behalf.
No Class Actions
To the extent allowed by law, we each waive any right to pursue disputes on a class-wide basis; that is, to either join a claim with the claim of any other person or entity, or assert a claim in a representative capacity on behalf of anyone else in any lawsuit, arbitration or other proceeding.
No Trial by Jury
To the extent allowed by law, we each waive any right to trial by jury in any lawsuit, arbitration or other proceeding.
You agree to indemnify, defend and hold us harmless from any claims arising out of your actions, including, but not limited to, failing to provide appropriate notices regarding location-sensitive services (see “Location Based Services” section), failure to safeguard your passwords, backup question to your shared secret question or other account information, or violating the Agreement, these Ts&Cs, any applicable law or regulation or the rights of any third party.
Providing Notice to Each Other Under the Agreement
Except as the Agreement specifically provides otherwise, you must provide us notice by calling or writing us as instructed on your invoice. We will provide you notice in your bill, correspondence to your last known billing address, to any fax number or e-mail address you have provided us, by calling you on your home phone or Device, by voice message on your Device or home phone, or by text message on your Device.
Concerning PCI SSC, PA-DSS
Acceptance of a given payment application by the PCI Security Standards Council, LLC (PCI SSC) only applies to the specific version of that payment application that was reviewed by a PA-QSA and subsequently accepted by PCI SSC (the “Accepted Version”). If any aspect of a payment application or version thereof is different from that which was reviewed by the PA-QSA and accepted by PCI SSC – even if the different payment application or version (the “Alternate Version”) conforms to the basic product description of the Accepted Version – then the Alternate Version should not be considered accepted by PCI SSC, nor promoted as accepted by PCI SSC.
No vendor or other third party may refer to a payment application as “PCI Approved” or “PCI SSC Approved”, and no vendor or other third party may otherwise state or imply that PCI SSC has, in whole or part, accepted or approved any aspect of a vendor or its services or payment applications, except to the extent and subject to the terms and restrictions expressly set forth in a written agreement with PCI SSC, or in a PA-DSS letter of acceptance provided by PCI SSC. All other references to PCI SSC’s approval or acceptance of a payment application or version thereof are strictly and actively prohibited by PCI SSC.
When granted, PCI SSC acceptance is provided to ensure certain security and operational characteristics important to the achievement of PCI SSC’s goals, but such acceptance does not under any circumstances include or imply any endorsement or warranty regarding the payment application vendor or the functionality, quality, or performance of the payment application or any other product or service. PCI SSC does not warrant any products or services provided by third parties. PCI SSC acceptance does not, under any circumstances, include or imply any product warranties from PCI SSC, including, without limitation, any implied warranties of merchantability, fitness for purpose or non- infringement, all of which are expressly disclaimed by PCI SSC. All rights and remedies regarding products and services that have received acceptance from PCI SSC, shall be provided by the party providing such products or services, and not by PCI SSC or any payment brands.”