1. Introduction LinkupMobile.com is a service of Surge Phone Wireless LLC (“SurgePhone”) and Torch Wireless (“Torch”). The following Terms and Conditions apply to Surge Phone and Torch services, products, subsidiaries, parent company, affiliates, and mobile phones. Please read these Terms and Conditions carefully. By accessing or using our Site, purchasing, activating, and/or using any SurgePhone or Torch products, or services in any way, You (“You”) are agreeing to comply with these Terms and Conditions, including any policies and guidelines incorporated by reference (referred to collectively as the “Terms and Conditions”). These Terms and Conditions are a legally binding Agreement between You and SurgePhone and Torch.
Any changes or modifications to these Terms and Conditions are effective and will be binding upon You when posted on our website at LinkupMobile.com. Because these Terms and Conditions are subject to change at any time, You should always check our website for the most current version.
When You accept these Terms and Conditions, You represent that You are at least 18 years of age and that You meet the eligibility standards for Surge/Torch/Torch service.
2. Our Right to Make Changes These Terms and Conditions may change at any time, including the prices for SurgePhone and Torch products and/or services without notice or obligation. Unless expressly prohibited by law, we reserve the right to modify or cancel this service or your account or take corrective action at any time and for any reason, including, but not limited to, your violation of any provision of these Terms and Conditions without notice or obligation. Your right to use our service is subject to our business policies, practices and procedures, rates and these Terms and Conditions, which we may change at any time.
Further, we may remotely change your phone’s software, applications, or programming without notice. This could affect information stored on your phone, your phone’s programming, and how You are able to use your phone.
All aspects of the Service, including, Plan rates, offerings, features, functionality and other product specifications are subject to change without notice or obligation. Unless prohibited by law, we reserve the right to modify, change, or cancel any part of your service at any time including but not limited to rates, charges, how we calculate charges, discounts, coverage, technologies used to provide services, or your Terms and Conditions without notice or obligation.
3. Mobile Telecommunications Services Airtime may be used for domestic calling and for related services as provided in these Terms and Conditions. SurgePhone and Torch provide service for personal use only. Service may not be transferred to any third party or shared among multiple individuals.
You may not use our service in a manner that interferes with another customer’s use of our service. Our ability to provide good service may be impaired when customers place an abnormally high number of calls, send or receive an unusually high number of messages, or repeatedly place calls of unusually long duration, when compared to typical usage by other customers on similar service plans. Such atypical usage suggests that a mobile phone is being used other than for personal use in violation of these Terms and Conditions. SurgePhone and Torch has safeguards to ensure that its customers do not use the service in a manner inconsistent with personal, non-commercial use, including terminating or suspending service to the customer violating this policy. All plans and features may change or be discontinued at any time without notice.
4. UNLIMITED Services: UNLIMITED DOES NOT MEAN UNREASONABLE USE. For any Service that includes unlimited features, “unlimited” does not mean unreasonable use. UNLIMITED voice, text, and data services are provided solely for dialog between two individuals and for normal, non-commercial use. Other uses have a disproportionate impact on network resources and our ability to manage our network efficiently and are therefore considered unreasonable. UNLIMITED services may not be used for conference calling, 3-way calling, call forwarding, monitoring services, data transmissions, transmission of broadcasts, transmission of recorded material, or other connections that do not consist of uninterrupted live dialog between two individuals. If SurgePhone and Torch finds that You are using an UNLIMITED service offering for anything other than dialog between two individuals, SurgePhone and Torch may at its option terminate your service or change your plan to one with no UNLIMITED usage components. SurgePhone and Torch reserve the right to cancel or deactivate Service without notice, in order to protect the Carrier’s network from harm due to any cause including, without limitation, the excessive and/or improper use of SurgePhone and Torch service. SurgePhone and Torch reserve the right to deny or terminate Service, without notice, to anyone SurgePhone and Torch believe is using SurgePhone and Torch service in any manner prohibited above or whose usage, in SurgePhone and Torch’s sole discretion, adversely impacts the Carrier’s network or customer service levels. SurgePhone and Torch will presume You are engaging in a prohibited use in violation of these Terms and Conditions if in SurgePhone and Torch’s sole opinion, You are placing an abnormally high number of calls, or repeatedly placing calls of unusually long duration, or if your talk, text or Mobile Web usage is harmful or disruptive to the Carrier’s network or services. If we determine, at our sole discretion, that You are using SurgePhone and/or Torch’s service in violation of the Terms and Conditions, or in any other manner that we deem to be unreasonable or excessive, then we may terminate individual calls, decline to renew your service, and/or offer You a different service plan with no unlimited usage component. Notwithstanding the foregoing, SurgePhone and Torch reserve the right to deny service, throttle, deactivate or cancel existing service to anyone for any reason at any time, in SurgePhone and Torch’s sole discretion.
You agree not to use SurgePhone and Torch service in any way that is illegal, fraudulent or abusive, as determined by SurgePhone and Torch in its sole discretion. You may not alter any of the hardware or software on your SurgePhone and Torch phone for any purpose. We may change your mobile phone’s software, applications or programming remotely and without notice. This may affect stored data or other personal information or programming of SurgePhone and Torch Surge/Torch/Torch phones may not be purchased in bulk or sold to third parties.
Local phone numbers may not be available in certain markets. Wireless services use radio transmissions and are therefore affected by technological limitations. Coverage is not available everywhere. Quality of service may be affected by conditions beyond our control, including atmospheric, geographic, or topographic conditions, or by You damaging your mobile phone. We do not warrant or guarantee that service will be available at any specific time or geographic location, or that service will be provided without interruption. We may give credit for continuous service interruption of more than 24 hours on a case-by-case basis, if such interruption was reasonably within our control, and You notify SurgePhone and Torch within seven days of the interruption.
Any statements or maps provided by us, our agents, or dealers about coverage are only intended to provide high-level estimates of our coverage areas when using our 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 our estimated coverage areas that, along with other factors both within our control, may result in service interruptions, slower data speeds, or lower quality of service. You should therefore never solely rely on your mobile phone for emergency calls, such as to 911.
5. Payment Methods for Paid Service Options: You can purchase one of our Top-Ups through one of the following payment methods: (1) credit/debit card (2) Money Gram (3) contacting customer service, or (4) buying a SurgePhone and Torch Top-Up card at any of our retail locations. Sales taxes will apply.
Taxes and surcharges are not included in our pricing for service options. SurgePhone and Torch charges state and local sales taxes. The amount of these surcharges is subject to change and may vary from time to time and by area. Third party retailers are responsible for collecting sales taxes and in certain states, regulatory fees, for Top-Up transactions that occur through such third-party retailers. Taxes and fees are subject to change without notice.
In order to authorize your credit card for recurring payments, our payment system needs to check that your credit card information is valid. It does this by lodging a $.05 holding fee on your account. After 7 days, this will be refunded to your account.
6. International Calling: All phone plans include calls made in the 50 United States and do not include international calls. The placement of calls outside the domestic US may result in the termination of service at the sole discretion of SurgePhone and Torch.
7. Messaging: You can send and receive text messages of up to 160 characters on your SurgePhone and Torch phone. Text messages will be valued at 1 talk minute per message sent and/or received on SurgePhone and Torch’s basic voice and broadband plans. Certain SurgePhone and Torch unlimited service plans include both unlimited voice and text messaging. Unlimited plans are not available in all areas. Call customer service at (866) 372-0619 for package pricing. Each domestic text will be deducted from the available messages in your purchased plan. You can terminate your subscription or switch to another plan by calling SurgePhone and Torch customer service. You may receive service alerts from SurgePhone and Torch for which there is no charge. If You are receiving unwanted text messages, contact the source and ask to be removed from their distribution list.
8. Unsolicited Messages: If You are found to be sending spam from your SurgePhone and Torch phone, we may terminate your service without further notice.
9. Data Services and Usage on Your Surge/Torch phone: SurgePhone and Torch, in their sole discretion, may interrupt or suspend access due to abuse, excessive use, or violations of the Terms and Conditions.
3G or higher is considered high speed data under SurgePhone and Torch. All billing and related SurgePhone and Torch services shall operate accordingly under this definition.
Data services may be throttled based on the underlying carrier providing services. Customers may experience throttled speeds when they reach a specified threshold set by the carriers. Customers may notice changes in the performance of certain applications when they are on throttled usage. In addition, SurgePhone and Torch and their underlying carriers may adjust periodically the applicable threshold for SurgePhone and Torch‘s data usage practices. Data Services are not available with all SurgePhone and Torch phones. You are responsible for all data activity from and to your device, regardless of who initiates the activity. We reserve the right to deny or terminate service without notice for any misuse or any use that adversely affects network performance. Availability of data services is subject to change.
10. Specific Terms and Restrictions Regarding Data Services: Your relationship with companies that provide Data Content is between You and those companies. You are responsible with any information You share and it is recommended that You use good judgment and care when You communicating and interacting with any website.
11. Balance Inquiries: You may check your balance at any time free of charge by contacting customer service. Calls are billed in one-minute increments, with a minimum time per call of one minute. Call times are rounded up to the nearest whole minute. You can switch your number to another SurgePhone and Torch phone for no additional charge by contacting customer service. Please contact customer service for additional information.
A roaming charge will apply when making or receiving calls outside the home coverage area. We may notify You when You are roaming, but cannot guarantee we will be able to provide such notice in all cases. Dialing 411 on your keypad may affect your plan and could result in additional charges to your account. Roaming and International calls are not part of your plan and will result in charges to your account. Your service may be suspended due to any of these occurrences until charges are paid.
13. Disputed Charges: If You think that there has been an error in any charge to your account, You must notify us immediately. Contact customer service and an account specialist will investigate your claim. If You do not notify us within a 30-day period of the error, You waive any right to dispute the charge, including in arbitration or a court proceeding. If we determine that the disputed charge was inappropriate, your account will be credited or You may receive a refund. If You agree to a credit or refund, You are in agreement that this action has settled the dispute.
If we have attempted to charge your credit card for a charge that we deem is authorized and valid under these Terms and Conditions, and the credit card company withholds such payment because the charge has been disputed (a “charge-back”), we reserve the right to suspend your access to our service for up to 30 days until the Chargeback is reversed. If the Chargeback is not resolved and reversed, your account will be deactivated at the end of the 30-day period.
14. No Refunds of Top-Up Cards and Monthly Charges: All Top-Up sales are final and nonrefundable regardless of who uses or possesses your mobile phone after You buy airtime regardless of if it is used for voice, SMS/Text Messaging or Data, and regardless of whether the mobile phone is used with your consent or knowledge. Monthly charges are non-refundable.
15. Refunds or Exchanges: If within the first seven (7) days after receiving your mobile phone that You have purchased from SurgePhone and Torch, You are not fully satisfied with the device or service, You may return the phone with the original box accessories that we provided to You, to us for a full refund of the amount You paid for the mobile phone. You must follow the Return Procedures specified in these Terms and Conditions. Once we receive the phone, we will issue a refund of the amount You paid for the phone. We will deduct from your refund, or refuse a refund, to the extent You have not paid for Services You ordered or You return Equipment that is damaged due to neglect, misuse, liquid damage or non-standard wear and tear, missing parts or accessories, or You have otherwise violated these Terms and Conditions. Shipping and handling charges are not refundable. Restocking fees may apply.
16. Returning Your SurgePhone and Torch Phone: All mobile phones purchased directly from SurgePhone and Torch, include a seventy-two 72 hour limited warranty from the equipment provider. If You experience issues with your phone, please contact customer service. Phones will not be replaced if it is determined by SurgePhone and Torch that the customer caused the defect or damage to the device. SurgePhone and Torch reserves the right to refuse replacement.
17. Lost or Stolen Equipment: If your mobile phone is lost or stolen, You are responsible for charges incurred until You notify us of the loss of your mobile by contacting customer service. Upon receiving notice that your mobile phone is lost or stolen, SurgePhone and Torch will suspend your account. If You do not either activate a new SurgePhone and Torch phone or notify us that You have found your old mobile phone within 60 days of the suspension of your account, your account will be deactivated and You will lose your SurgePhone and Torch phone number.
18. Transferring Service of Your Mobile Phone to Another Telecommunications Provider: The mobile phone we provide to You, free of charge, is the property of SurgePhone and Torch. If You wish to transfer this mobile phone to another telecommunications provider, You must purchase the mobile phone for the retail rate of the phone. SurgePhone and Torch reserve the right to disallow use of, or “lock,” the mobile phone until this condition is met.
19. PROMOTIONS: All promotions are for a limited time and subject to restrictions and limitations. SurgePhone and Torch expressly reserve the right to change and/or cancel promotions offered at any time.
a. Gift cards are not redeemable for cash, check, transfer, or credit. All delivery times are estimated and not guaranteed. SurgePhone and Torch are not responsible for gift card delivery mistakes or mishap due to: (1) any incorrect or inaccurate information, whether caused by any promotion entrants, printing errors, or promotion related advertisements or by any equipment or programming associated with or utilized in the promotion; (2) unauthorized human intervention or error in any part of the entry, mailing, or receipt process of any promotion; or (3) technical or human error which may occur in the administration of any promotion or processing of entries. Gift cards are not guaranteed or owed to recipient. SurgePhone and Torch reserve the right to cancel or modify gift card promotion at any time without notice. SurgePhone and Torch reserves the right to refuse to mail out gift cards at its own discretion.
Auto-Pay Plans: You may only enroll in Auto-Pay by registering your valid credit or debit card online with SurgePhone and Torch and selecting the Service Plan You want. With Auto-Pay, a new Service Plan will be automatically purchased and added to your Account each month on your Service End Date and your credit or debit card will automatically incur a charge for the cost of the Service Plan You elect to purchase on a recurring basis. Please note that your Auto-Pay is determined by the last Service Plan You have purchased and added to your phone. Currently, Auto-Pay is only offered if You sign up for a minimum of 12 consecutive month’s service at the time of enrollment. If You cancel at any time prior to the end of the initial 12 consecutive month service period, your free first month promotion will be forfeited.
SurgePhone and Torch reserve the right to deny or terminate service and/or promotions without notice for any misuse or any use that adversely affects network performance. SurgePhone and Torch reserve the right to change coverage, services, and promotions, offered at any time, and SurgePhone and Torch expressly reserve the right to deny service for any or no reason without liability or penalty, except as expressly stated in these Terms and Conditions.
20. Acceptable Use of SurgePhone and Torch Products and Services: You may not use SurgePhone and Torch’s service for any illegal purpose, including harassing, threatening, abuse, defaming, or slandering any individual or entity. You may not use our service in a manner that interferes with another SurgePhone and Torch customer’s use of our service.
SurgePhone and Torch and its business partners provide messages and data for non-commercial use only. You may not publish or send any content that encourages unlawful, criminal, or fraudulent activity or that violates any SurgePhone and Torch rule or policy.
SurgePhone and Torch Products and Services are sold exclusively for use by You, the end consumer. The unauthorized use or resale of your SurgePhone and Torch phone constitutes a violation of this Agreement. You agree not to unlock, root, reflash, jailbreak, tamper with, or alter the build state of your SurgePhone and Torch phone in a manner which conflicts with these Terms and Conditions. You also agree not to use unauthorized PINs associated with SurgePhone and Torch’s products or Plans or engage in any other unauthorized or illegal use of your phone or the Service, or assist others in such acts, or to sell and/or export SurgePhone and Torch phones outside of the United States. Any attempt to unlock your SurgePhone and Torch phone in an unauthorized manner or to root, re-flash, jailbreak, tamper with, or alter the build state of your SurgePhone and Torch phone may result in the inability to unlock your device, maintain your device’s unlocked state, or otherwise cause your device to malfunction. Such use along with any other unauthorized use of your SurgePhone and Torch phone may result in the immediate suspension or termination of your Service without notice and legal action. SurgePhone and Torch will strictly enforce their rights under this provision and will prosecute violators to the full extent of the law. You agree that any violation of this provision through your improper, illegal, or unauthorized use or sale of your SurgePhone and Torch phone shall entitle SurgePhone and Torch h to recover liquidated damages from You in the amount of not less than $5,000 per SurgePhone and Torch phone purchased, sold, acquired or used in violation of this provision. For more information about the unauthorized use of SurgePhone and Torch phones, please contact customer service.
In the event of termination of service for any other unauthorized usage, You will forfeit unused Service and You will not be entitled to receive a refund for your SurgePhone and Torch phone or for any unused Service.
21. Suspension or Termination of Services: We reserve the right to issue a warning and to suspend or terminate your access to our service at any time should we determine in our sole discretion that You have violated these Terms and Conditions or any other rule or policy of SurgePhone and Torch.
22. Location Based Services: Location-based information is information that indicates the location of your SurgePhone and Torch phone. When You turn on your mobile phone, your device automatically communicates with our network and relays its current location unless You have turned off You handset’s location functionality. Terminating our location-based services will not affect the status of any other services You receive from us.
24. Secure use: SurgePhone and Torch are not responsible for the content or security of voicemail, messages or contact lists You create. We urge You to create a password to access your voicemail. Always use your device in a safe manner that does not create a risk to your safety or the safety of others around You. While driving, always use a hands-free device and never use your mobile phone to send text messages. Always use your SurgePhone and Torch phone in accordance with all applicable laws and regulations.
26. Dispute Resolution: SurgePhone and Torch and You, each agree to contact one another first, with any disputes. You must contact us with any dispute and provide a description of the problem as well as all relevant documents/information and the proposed resolution. We will contact You at the last address that You have provided us or on your mobile phone. We each agree to negotiate in good faith to resolve any dispute. You agree to pay all amounts reflected on your account statement, even while a dispute is being resolved.
27. No Trial by Jury: To the extent permitted by law, if a claim proceeds in court, we each also waive any right that we may have to trial by jury in any lawsuit or other proceeding. Unless otherwise specified herein, any disputes of a legal nature, whether a claim, complaint, arbitration demand or otherwise, shall be subject to the exclusive jurisdiction of the federal or state courts located within Shelby County in the State of Tennessee.
28. Limitation of Liability: Unless prohibited by law, SurgePhone and Torch and You agree to limit claims for damages or other monetary relief against each other to direct and actual damages. You agree that SurgePhone and Torch and its business partners 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. Surge/Torch assumes no risk or responsibility for your use of any of the content provided as part of our services. You acknowledge that no fiduciary or other special relationship exists between You and SurgePhone and Torch, by virtue of these Terms and Conditions or your use of SurgePhone and Torch phones and services. You also agree we are not liable for missed voice mails, deletion of contacts from You address book, or data content or messages from your voicemail system.
30. Arbitration Procedures: You must first present any claim or dispute to us by contacting Customer Care to allow us an opportunity to resolve the dispute. You may request arbitration if your claim or dispute has not been resolved within 90 days. The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association (“AAA”) under the Wireless Industry Arbitration Rules (“WIA Rules”), as modified by this Agreement. The WIA Rules and information about arbitration and fees are available upon request from the AAA online at www.adr.org. You and we agree that this Agreement evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. Unless You and we agree otherwise, any arbitration will take place in the county seat for the county in which your billing address is located. At either party’s election, the arbitration shall be held telephonically. An arbitrator may award any relief or damages (including injunctive or declaratory relief) that a court could award, except an arbitrator may not award relief in excess of or contrary to what this Agreement provides and may not order relief on a consolidated, class wide or representative basis. In any arbitration applying the WIA Rules applicable to large/complex cases, the Arbitrators must also apply the Federal Rules of Evidence, and the losing party may have the award reviewed in accordance with the review procedures set forth in the WIA Rules. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
31. Waiver of Class Actions: By this Agreement, both You and we are waiving certain rights to litigate disputes in court. You and we both agree that any arbitration will be conducted on an individual basis and not on a consolidated, class wide or representative basis. If for any reason this arbitration clause is deemed inapplicable or invalid, or to the extent this arbitration clause allows for litigation of disputes in court, You and we both waive, to the fullest extent allowed by law, any right to pursue any claims on a class or consolidated basis or in a representative capacity.
32. Indemnification: You agree to indemnify and hold harmless SurgePhone and Torch and its affiliates and their respective officers, agents, 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 Surge/Torch products and services, or another person whom You authorize to use your products or services, whether based in contract or tort (including strict liability) and regardless of the form of action.
33. Warranties: We do not manufacture our mobile phones or other equipment. The only warranties applicable to such devices or equipment are those extended by the distributor. We have no liability, therefore, in connection with mobile phones and other equipment or for manufacturers’ acts or omissions.
ALL MOBILE PHONES, HANDSETS, DEVICES, ACCESSORIES, AND MATERIALS ARE PROVIDED BY SURGE/TORCH ON AN “AS IS” BASIS AND AS AVAILABLE, WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SURGE/TORCH EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THE IMPLIED CONDITIONS OF SATISFACTORY QUALITY AND ACCEPTANCE AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE ABOVE AND OTHER IMPLIED OR STATUTORY WARRANTIES. WE MAKE NO REPRESENTATIONS THAT THE MOBILE PHONES, HANDSETS, DEVICES, ACCESSORIES, OR MATERIALS WILL MEET YOUR REQUIREMENTS AND WE DO NOT GUARANTEE THAT ANY PHONE, DEVICE, CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH SURGE/TORCH WILL BE UNDAMAGED, UNUSED, REFURBISHED, OR CONTAIN OTHER HARMFUL COMPONENTS.
34. Effect of Terms of Service: These Terms and Conditions supersede all oral or written communications and understandings between You and SurgePhone and Torch with respect to our products and services to You and the terms under which they are offered and provided to You.
35. Employment: SurgePhone and Torch provide equal employment opportunities (EEO) to all employees and applicants for employment without regard to race, color, religion, sex, national origin, age, disability or genetics. In addition to federal law requirements, SurgePhone and Torch comply with applicable state and local laws governing nondiscrimination in employment in every location in which the company has facilities. This policy applies to all terms and conditions of employment, including recruiting, hiring, placement, promotion, termination, layoff, recall, and transfer, leaves of absence, compensation and training.
SurgePhone and Torch expressly prohibit any form of workplace harassment based on race, color, religion, gender, sexual orientation, gender identity or expression, national origin, age, genetic information, disability, or veteran status. Improper interference with the ability of Surge/Torch’s employees to perform their job duties may result in discipline up to and including discharge.
36. Entire Agreement: This Agreement, and any other associated Agreements with SurgePhone and Torch constitute the entire Agreement between You and SurgePhone and Torch with respect to any SurgePhone and Torch Product and/or Service. The failure of either party to enforce any of the Terms and Conditions set forth herein shall not be construed to be a waiver of any such Terms and Conditions nor in any way affect the validity and enforceability of these Terms and Conditions. No waiver of a breach of any term shall be deemed a waiver of any other or subsequent breach of a term. In the event any provision contained in this Agreement is deemed unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.