Terms, Conditions, and Subscriber Agreement
Cape's Terms, Conditions, and Subscriber Agreement outlines the terms that you agree to as a customer. If you violate these, we may have to drop you from our service.
This is an overview of our Terms of Service. Please read carefully.
We will:
- never sell your personal data to any third-party
- let you cancel at any time
- only charge what you see on your bill – no hidden fees
- be transparent about data collection, how we use it, and your rights
- acknowledge and listen to any feedback
- never agree to requests for data unless absolutely necessary as mandated by law
You will:
- use our service in line with standard cellphone user behavior
- make timely payments for any services you use
- not use our services for any unlawful activity
- face potential service cancellation if you violate our Terms
Keep in mind that:
- we don’t offer international roaming or voicemail at this time
- you must be at least 18 years old to use our service
- if you lose your recovery key, we cannot help you
By using any Service (i.e., voice, text, and data services) provided by Private Tech, Inc. d/b/a Cape (the “Company”), the Subscriber agrees to be bound by the terms and conditions of use (“Terms”) stated in this agreement (“Agreement”). If the Subscriber does not agree with the Terms, the Subscriber should not use the Company’s Services. To the extent the Subscriber complies with these Terms, the Company grants the Subscriber a personal, non-exclusive, non-transferable, limited privilege to use the Company’s Services.
Section 1. The Subscriber’s Use of the Company’s Services
By using the Company’s Services, the Subscriber represents that the Subscriber has read and agrees to be bound by these Terms. The Subscriber further agrees (1) to comply with U.S. or other applicable law (including the laws of U.S. territories) regarding the transmission of any information obtained via the Company’s Services in accordance with these Terms, (2) not to use the Company’s Services for illegal purposes or in manner inconsistent with these Terms, and (3) not to interfere or disrupt any networks to which the Company’s Services are interconnected.
The Subscriber agrees to use the Company’s Services solely for the Subscriber’s own noncommercial use and benefit, and not for resale or other transfer or disposition to, or use by or for the benefit of, any other person or entity. The Subscriber agrees that he or she will not use any device, software, or routine to interfere or attempt to interfere with the proper working of the Company’s Services. The Subscriber agrees that he or she will not take any action that unreasonably burdens the Company’s infrastructure or the infrastructure of any networks to which the Company’s Services are interconnected.
The Subscriber acquires absolutely no rights or licenses in or to the Company’s Services other than the limited right to utilize the Company’s Services in accordance with these Terms.
The Subscriber may activate Cape’s Services only where the Services are offered and supported by Cape. The wireless telecommunications networks used to transmit the Services offered by the Company are owned and operated by licensed commercial mobile radio service providers (“Carriers”), and not by the Company.By using the Company’s Services, the Subscriber represents that the Subscriber has read and agrees to be bound by these Terms. The Subscriber further agrees (1) to comply with U.S. or other applicable law (including the laws of U.S. territories) regarding the transmission of any information obtained via the Company’s Services in accordance with these Terms, (2) not to use the Company’s Services for illegal purposes or in manner inconsistent with these Terms, and (3) not to interfere or disrupt any networks to which the Company’s Services are interconnected.
The Subscriber agrees to use the Company’s Services solely for the Subscriber’s own noncommercial use and benefit, and not for resale or other transfer or disposition to, or use by or for the benefit of, any other person or entity. The Subscriber agrees that he or she will not use any device, software, or routine to interfere or attempt to interfere with the proper working of the Company’s Services. The Subscriber agrees that he or she will not take any action that unreasonably burdens the Company’s infrastructure or the infrastructure of any networks to which the Company’s Services are interconnected.
The Subscriber acquires absolutely no rights or licenses in or to the Company’s Services other than the limited right to utilize the Company’s Services in accordance with these Terms.
The Subscriber may activate Cape’s Services only where the Services are offered and supported by Cape. The wireless telecommunications networks used to transmit the Services offered by the Company are owned and operated by licensed commercial mobile radio service providers (“Carriers”), and not by the Company.Section 2. Purchases; Other Terms and Conditions
Additional terms and conditions may apply to purchases of the Company’s products or Services and to specific portions or features of the Company’s website, including promotions and other similar features, all of which terms and conditions are made a part of these Terms by this reference. The Subscriber agrees to abide by such other terms and conditions.
The Company may make changes to any Service offered on its website, or to the applicable prices for any such Service, at any time, without notice.Additional terms and conditions may apply to purchases of the Company’s products or Services and to specific portions or features of the Company’s website, including promotions and other similar features, all of which terms and conditions are made a part of these Terms by this reference. The Subscriber agrees to abide by such other terms and conditions.
The Company may make changes to any Service offered on its website, or to the applicable prices for any such Service, at any time, without notice.Section 3. Limitation of Liability
The Company cannot be held responsible for any errors, defects, lost profits, or other consequential damages arising from the use of the Company’s Services. The Company will not be liable for any damages or injury, including special or consequential damages that result from (1) any failure of performance, error, omission, interruption, defect, delay in operation of transmission, or computer virus, or (2) the use of, or the inability to use, the Company’s Services even if there is negligence by the Company or any authorized representative of the Company.
The Company’s total liability to the Subscriber for all losses, damages, and causes of action in contract, tort (including, without limitation, negligence or otherwise) will not exceed the amount the Subscriber paid to the Company to use the Company’s Services.The Company cannot be held responsible for any errors, defects, lost profits, or other consequential damages arising from the use of the Company’s Services. The Company will not be liable for any damages or injury, including special or consequential damages that result from (1) any failure of performance, error, omission, interruption, defect, delay in operation of transmission, or computer virus, or (2) the use of, or the inability to use, the Company’s Services even if there is negligence by the Company or any authorized representative of the Company.
The Company’s total liability to the Subscriber for all losses, damages, and causes of action in contract, tort (including, without limitation, negligence or otherwise) will not exceed the amount the Subscriber paid to the Company to use the Company’s Services.Section 4. Agreement to Arbitrate Disputes
The Subscriber understands that, by this Agreement, the Subscriber is giving up the right to bring a claim in court or in front of a jury. While the procedures in arbitration may be different, an arbitrator may award the Subscriber the same damages and relief, and must honor the same terms in this Agreement, as a court would, subject to the limits on arbitrator authority set forth below. If the law allows for an award of attorneys’ fees, an arbitrator may award them. The same defenses are also available to both parties as would be available in court, including any applicable statute of limitations. The Company and the Subscriber also both agree that:
(1) The Federal Arbitration Act applies to this Agreement. Except for small claims court cases or as specifically noted below, any dispute that, in any way, relates to or arises out of this Agreement, including the validity, enforceability, or scope of any portion of this Agreement (including the agreement to arbitrate) except as noted below, or from any equipment, products, and Services the Subscriber receives from the Company, or from any advertising for any such products or Services, or from the Company’s efforts to collect amounts the Subscriber may owe to the Company for such products or Services, including any disputes the Subscriber has with the Company’s employees or agents, will be resolved by one or more neutral arbitrators before the American Arbitration Association (“AAA”) as explained below in Section 4(2). This agreement to arbitrate continues to apply even after the Subscriber has stopped receiving service from the Company.
(2)(a) Unless the Subscriber and Cape agree otherwise, the arbitration will take place in the county or similar jurisdiction of the Subscriber’s billing address and the AAA’s consumer arbitration rules will apply. The Subscriber may obtain procedures, rules, and fee information from the AAA (https://www.adr.org/) or from the Company.
(b) For claims of $25,000 or less, the Subscriber may choose whether he or she would like the arbitration carried out based only on documents submitted to the arbitrator, or by a hearing in person or by telephone or teleconference.
(c) Alternatively, for claims within the jurisdictional limit of the small claims court in the state or territory encompassing the Subscriber’s billing address, either the Subscriber or Cape may choose to bring an individual action in small claims court instead of proceeding in arbitration. If the claims in any request or demand for arbitration could have been brought in small claims court, then either the Subscriber or Cape may choose to have the claims heard in small claims court, rather than in arbitration, at any time before the arbitrator is appointed, by notifying the other party of that choice in writing. If this provision or the limitation on bringing actions to small claims court is found to be invalid, then this provision shall be severable and the matter will proceed in arbitration. In no way will this provision allow for an action to be brought on a class or collective basis.
(3) This Agreement does not allow class or collective arbitrations even if the AAA procedures or rules would permit such arbitrations. Notwithstanding any other provision of this Agreement, the arbitrator may award money or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. No class, representative, or private attorney general or general injunctive relief theories of liability or prayers for relief may be maintained in any arbitration held under this Agreement. Any question regarding the enforceability under applicable law or interpretation of this paragraph shall be decided by a court and not by the arbitrator.
(4)(a) If either the Subscriber or Cape intends to seek arbitration under this Agreement, the party seeking arbitration must first notify the other party of the dispute, in writing, at least 60 days in advance of initiating the arbitration. Notice to Cape should be emailed to info@cape.co. The notice must include sufficient information to allow the Company to identify the Subscriber’s account, as well as to assess and attempt to resolve the Subscriber’s claim, including the name of the Cape wireless account holder, the mobile telephone number at issue, a description of the claim, the specific facts supporting the claim, the damages the Subscriber claims to have suffered, and the relief the Subscriber is seeking.
(b) The notice requirement is designed to allow Cape to make a fair, fact-based offer of settlement if it chooses to do so. The Subscriber cannot proceed to arbitration unless he or she provides this information. The Subscriber may choose to be represented by an attorney or other person as part of this process, but if the Subscriber chooses to do so, he or she must submit a letter to Cape notifying the Company of the representation, and authorizing the Company to discuss the Subscriber’s account information with the attorney or other person. The sufficiency of this notice is an issue to be decided by a court prior to the filing of any demand for arbitration.
(c) If the Subscriber has provided this information, and the Company and the Subscriber are unable to resolve the dispute within 60 days, either party may then proceed to file a claim for arbitration. If the arbitrator determines that the Subscriber’s claim was filed for purposes of harassment or is patently frivolous, the arbitrator will require the Subscriber to reimburse Cape for any filing, administrative, or arbitrator fees associated with the arbitration.
(5) Cape may, but is not obligated to, make a written settlement offer at any time before the arbitration hearing. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim or takes other action in disposition of the claim.
(6)(a) If 25 or more customers initiate notices of dispute pursuant to Section 4(4) or file a complaint in court, which raise similar claims, and counsel for the Cape customers bringing the claims are the same or coordinated for these customers, the claims shall proceed in arbitration in a coordinated proceeding.
(b) Counsel for the Cape customers and counsel for Cape shall each select five cases to proceed first in arbitration in a bellwether proceeding (i.e., a test trial involving a case that derives from the large pool of claims filed against the Company). Additional cases involving similar claims brought by the same or coordinated counsel shall not be filed in arbitration until the first cases have been resolved.
(c) If the parties are unable to resolve the remaining cases after the conclusion of the bellwether proceeding, each side may select another five cases to proceed to arbitration for a second bellwether proceeding. This process may continue until the parties are able to resolve all the claims, either through settlement or arbitration. If such a process is initiated, the filing of a notice of dispute by a customer in accordance with Section 4(4) or filing of a complaint in court will toll all applicable statutes of limitations for that customer’s dispute until the completion of the process described in this paragraph (6). A court will have authority to enforce this paragraph, including by entering an injunction to prohibit filings in violation of this paragraph.
(7) An arbitration award and any judgment confirming it apply only to that specific case. Any such award or judgment cannot be used in any other case except to enforce the award itself.
(8) If a court determines that the prohibition on class arbitrations or the limits on the arbitrator’s authority set forth in Section 4(3), or the process set forth in this Section 4, cannot be enforced under applicable law as to all or part of a dispute, then the agreement to arbitrate will not apply to that dispute or part of the dispute, which may proceed in court either once the arbitrated matters have concluded or sooner if the court so requires.
(9) If, for any reason, a claim proceeds in court rather than through arbitration, the Subscriber and Cape agree that, to the fullest extent allowed by applicable law, there will not be a jury trial. The Subscriber and the Company unconditionally waive any right to trial by jury in any action, proceeding, or counterclaim arising out of or relating to this Agreement in any way. In the event of litigation, this paragraph 6(9) may be filed to show a written consent to a trial by the court.The Subscriber understands that, by this Agreement, the Subscriber is giving up the right to bring a claim in court or in front of a jury. While the procedures in arbitration may be different, an arbitrator may award the Subscriber the same damages and relief, and must honor the same terms in this Agreement, as a court would, subject to the limits on arbitrator authority set forth below. If the law allows for an award of attorneys’ fees, an arbitrator may award them. The same defenses are also available to both parties as would be available in court, including any applicable statute of limitations. The Company and the Subscriber also both agree that:
(1) The Federal Arbitration Act applies to this Agreement. Except for small claims court cases or as specifically noted below, any dispute that, in any way, relates to or arises out of this Agreement, including the validity, enforceability, or scope of any portion of this Agreement (including the agreement to arbitrate) except as noted below, or from any equipment, products, and Services the Subscriber receives from the Company, or from any advertising for any such products or Services, or from the Company’s efforts to collect amounts the Subscriber may owe to the Company for such products or Services, including any disputes the Subscriber has with the Company’s employees or agents, will be resolved by one or more neutral arbitrators before the American Arbitration Association (“AAA”) as explained below in Section 4(2). This agreement to arbitrate continues to apply even after the Subscriber has stopped receiving service from the Company.
(2)(a) Unless the Subscriber and Cape agree otherwise, the arbitration will take place in the county or similar jurisdiction of the Subscriber’s billing address and the AAA’s consumer arbitration rules will apply. The Subscriber may obtain procedures, rules, and fee information from the AAA (https://www.adr.org/) or from the Company.
(b) For claims of $25,000 or less, the Subscriber may choose whether he or she would like the arbitration carried out based only on documents submitted to the arbitrator, or by a hearing in person or by telephone or teleconference.
(c) Alternatively, for claims within the jurisdictional limit of the small claims court in the state or territory encompassing the Subscriber’s billing address, either the Subscriber or Cape may choose to bring an individual action in small claims court instead of proceeding in arbitration. If the claims in any request or demand for arbitration could have been brought in small claims court, then either the Subscriber or Cape may choose to have the claims heard in small claims court, rather than in arbitration, at any time before the arbitrator is appointed, by notifying the other party of that choice in writing. If this provision or the limitation on bringing actions to small claims court is found to be invalid, then this provision shall be severable and the matter will proceed in arbitration. In no way will this provision allow for an action to be brought on a class or collective basis.
(3) This Agreement does not allow class or collective arbitrations even if the AAA procedures or rules would permit such arbitrations. Notwithstanding any other provision of this Agreement, the arbitrator may award money or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. No class, representative, or private attorney general or general injunctive relief theories of liability or prayers for relief may be maintained in any arbitration held under this Agreement. Any question regarding the enforceability under applicable law or interpretation of this paragraph shall be decided by a court and not by the arbitrator.
(4)(a) If either the Subscriber or Cape intends to seek arbitration under this Agreement, the party seeking arbitration must first notify the other party of the dispute, in writing, at least 60 days in advance of initiating the arbitration. Notice to Cape should be emailed to info@cape.co. The notice must include sufficient information to allow the Company to identify the Subscriber’s account, as well as to assess and attempt to resolve the Subscriber’s claim, including the name of the Cape wireless account holder, the mobile telephone number at issue, a description of the claim, the specific facts supporting the claim, the damages the Subscriber claims to have suffered, and the relief the Subscriber is seeking.
(b) The notice requirement is designed to allow Cape to make a fair, fact-based offer of settlement if it chooses to do so. The Subscriber cannot proceed to arbitration unless he or she provides this information. The Subscriber may choose to be represented by an attorney or other person as part of this process, but if the Subscriber chooses to do so, he or she must submit a letter to Cape notifying the Company of the representation, and authorizing the Company to discuss the Subscriber’s account information with the attorney or other person. The sufficiency of this notice is an issue to be decided by a court prior to the filing of any demand for arbitration.
(c) If the Subscriber has provided this information, and the Company and the Subscriber are unable to resolve the dispute within 60 days, either party may then proceed to file a claim for arbitration. If the arbitrator determines that the Subscriber’s claim was filed for purposes of harassment or is patently frivolous, the arbitrator will require the Subscriber to reimburse Cape for any filing, administrative, or arbitrator fees associated with the arbitration.
(5) Cape may, but is not obligated to, make a written settlement offer at any time before the arbitration hearing. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim or takes other action in disposition of the claim.
(6)(a) If 25 or more customers initiate notices of dispute pursuant to Section 4(4) or file a complaint in court, which raise similar claims, and counsel for the Cape customers bringing the claims are the same or coordinated for these customers, the claims shall proceed in arbitration in a coordinated proceeding.
(b) Counsel for the Cape customers and counsel for Cape shall each select five cases to proceed first in arbitration in a bellwether proceeding (i.e., a test trial involving a case that derives from the large pool of claims filed against the Company). Additional cases involving similar claims brought by the same or coordinated counsel shall not be filed in arbitration until the first cases have been resolved.
(c) If the parties are unable to resolve the remaining cases after the conclusion of the bellwether proceeding, each side may select another five cases to proceed to arbitration for a second bellwether proceeding. This process may continue until the parties are able to resolve all the claims, either through settlement or arbitration. If such a process is initiated, the filing of a notice of dispute by a customer in accordance with Section 4(4) or filing of a complaint in court will toll all applicable statutes of limitations for that customer’s dispute until the completion of the process described in this paragraph (6). A court will have authority to enforce this paragraph, including by entering an injunction to prohibit filings in violation of this paragraph.
(7) An arbitration award and any judgment confirming it apply only to that specific case. Any such award or judgment cannot be used in any other case except to enforce the award itself.
(8) If a court determines that the prohibition on class arbitrations or the limits on the arbitrator’s authority set forth in Section 4(3), or the process set forth in this Section 4, cannot be enforced under applicable law as to all or part of a dispute, then the agreement to arbitrate will not apply to that dispute or part of the dispute, which may proceed in court either once the arbitrated matters have concluded or sooner if the court so requires.
(9) If, for any reason, a claim proceeds in court rather than through arbitration, the Subscriber and Cape agree that, to the fullest extent allowed by applicable law, there will not be a jury trial. The Subscriber and the Company unconditionally waive any right to trial by jury in any action, proceeding, or counterclaim arising out of or relating to this Agreement in any way. In the event of litigation, this paragraph 6(9) may be filed to show a written consent to a trial by the court.Section 5. Unauthorized Use of Service
Cape’s Service is only intended to be used for the following purposes, without excessively contributing to network congestion: (1) person-to-person voice calls, (2) text and picture messaging, (3) web browsing, email, ordinary content downloads and uploads, video, game, and audio streaming, app usage, and (4) Voice over Internet Protocol (VoIP).
Cape’s Service may not be used in connection with certain unauthorized uses that may adversely impact other customers using the Company’s Services or any Carrier’s network, as well as any illegal purposes or purposes that infringe upon any person’s intellectual property rights, or in a manner that violates trade and economic sanctions and prohibitions as promulgated by the departments of Commerce or Treasury, or any other U.S. government agency (including any territorial government agency).Cape’s Service is only intended to be used for the following purposes, without excessively contributing to network congestion: (1) person-to-person voice calls, (2) text and picture messaging, (3) web browsing, email, ordinary content downloads and uploads, video, game, and audio streaming, app usage, and (4) Voice over Internet Protocol (VoIP).
Cape’s Service may not be used in connection with certain unauthorized uses that may adversely impact other customers using the Company’s Services or any Carrier’s network, as well as any illegal purposes or purposes that infringe upon any person’s intellectual property rights, or in a manner that violates trade and economic sanctions and prohibitions as promulgated by the departments of Commerce or Treasury, or any other U.S. government agency (including any territorial government agency).Section 6. Modification of Terms of Use
The Company reserves the right to modify, amend, remove, or restate the Terms at any time. The Subscriber’s use of any of the Company’s Services after the posting of modifications to these Terms will constitute the Subscriber’s acceptance of the Terms, as modified.
The Company reserves the right to modify, amend, remove, or restate the Terms at any time. The Subscriber’s use of any of the Company’s Services after the posting of modifications to these Terms will constitute the Subscriber’s acceptance of the Terms, as modified.
Section 7. Privacy Policy
The Subscriber’s use of the Company’s Services is subject to the Company’s Privacy Policy. Click Privacy Policy to review. Please review the Privacy Policy for more information regarding how the Company collects and uses information.
The Subscriber’s use of the Company’s Services is subject to the Company’s Privacy Policy. Click Privacy Policy to review. Please review the Privacy Policy for more information regarding how the Company collects and uses information.
Section 8. Emergency Calls
If the Subscriber is in an area where his or her phone is searching for a wireless signal or there is no wireless signal or wireless service, it is highly probable that a call to 911 will not be transmitted. The Subscriber must not rely solely on his or her Cape Services in an emergency situation. In an emergency, the Subscriber is advised to locate and utilize the nearest landline phone.
If the Subscriber is in an area where his or her phone is searching for a wireless signal or there is no wireless signal or wireless service, it is highly probable that a call to 911 will not be transmitted. The Subscriber must not rely solely on his or her Cape Services in an emergency situation. In an emergency, the Subscriber is advised to locate and utilize the nearest landline phone.
Section 9. Roaming
Depending on the Carrier network involved, it is possible that, in certain circumstances, the Subscriber’s phone may roam if the Subscriber is outside his or her network coverage area and within the United States, or any territory of the United States. Roaming occurs when a subscriber of one wireless service provider uses the facilities of another wireless service provider. Although there are no additional charges for using the Company’s Services while roaming domestically, the Company does not guarantee the Subscriber’s ability to roam, nor the availability and/or the quality of Service involved.
Domestic (including U.S. territorial) roaming may be discontinued or changed, at any time, without notice. Due to Carrier restrictions, Cape reserves the right to terminate the Services of any Subscriber whose roaming usage exceeds 50% of his or her total usage in any three (3) billing cycles within a 12-month period. International roaming is not offered by Cape and is strictly prohibited.Depending on the Carrier network involved, it is possible that, in certain circumstances, the Subscriber’s phone may roam if the Subscriber is outside his or her network coverage area and within the United States, or any territory of the United States. Roaming occurs when a subscriber of one wireless service provider uses the facilities of another wireless service provider. Although there are no additional charges for using the Company’s Services while roaming domestically, the Company does not guarantee the Subscriber’s ability to roam, nor the availability and/or the quality of Service involved.
Domestic (including U.S. territorial) roaming may be discontinued or changed, at any time, without notice. Due to Carrier restrictions, Cape reserves the right to terminate the Services of any Subscriber whose roaming usage exceeds 50% of his or her total usage in any three (3) billing cycles within a 12-month period. International roaming is not offered by Cape and is strictly prohibited.Section 10. Disclaimer of Warranties
Cape products and Services are provided on an “as is” and “where is” basis. By using any products or Services, the Subscriber agrees that Cape will have no liability except as expressly provided in this Agreement for any failure, defects, malfunctions, or errors in the products or Services. Cape makes no representations or warranties of any kind, either express or implied, regarding title, merchantability, suitability, non-infringement, fitness for a particular purpose, or otherwise in relation to any product or Service.
The Subscriber acknowledges and agrees that the use of any Cape product or Service is at the Subscriber’s sole risk, and that the Subscriber’s Service may be unavailable, interrupted, delayed, or limited for a variety of reasons outside of the Company’s control. Not all products or Services are available for purchase or use in all sales channels, in all areas, or with all devices. Service is subject to transmission limitations caused by certain equipment and compatibility issues, network prioritization, and atmospheric, topographical, and other conditions. Service may be temporarily refused, limited, interrupted, or curtailed due to system capacity limitations, technology migration, or limitations imposed by the Carrier, or because of equipment modifications, upgrades, repairs, or relocations or other similar activities necessary or proper for the operation or improvement of the Carrier’s network.
Cape reserves the right to substitute and/or replace, at any time, any Cape equipment (including phones and SIM cards) with other Cape equipment of comparable quality. Cape does not warrant or guarantee the availability of the Subscriber’s Services at any specific time or in any specific geographic location, or that the Services will be provided without interruption.
Neither Cape nor any Carrier shall have any liability for Service failures, outages, or limitations of Service. Certain phone features may not be available with the Company’s Services, or their functionality may be limited. All plan rates, features, functionality, and other product specifications are subject to change without notice or obligation.Cape products and Services are provided on an “as is” and “where is” basis. By using any products or Services, the Subscriber agrees that Cape will have no liability except as expressly provided in this Agreement for any failure, defects, malfunctions, or errors in the products or Services. Cape makes no representations or warranties of any kind, either express or implied, regarding title, merchantability, suitability, non-infringement, fitness for a particular purpose, or otherwise in relation to any product or Service.
The Subscriber acknowledges and agrees that the use of any Cape product or Service is at the Subscriber’s sole risk, and that the Subscriber’s Service may be unavailable, interrupted, delayed, or limited for a variety of reasons outside of the Company’s control. Not all products or Services are available for purchase or use in all sales channels, in all areas, or with all devices. Service is subject to transmission limitations caused by certain equipment and compatibility issues, network prioritization, and atmospheric, topographical, and other conditions. Service may be temporarily refused, limited, interrupted, or curtailed due to system capacity limitations, technology migration, or limitations imposed by the Carrier, or because of equipment modifications, upgrades, repairs, or relocations or other similar activities necessary or proper for the operation or improvement of the Carrier’s network.
Cape reserves the right to substitute and/or replace, at any time, any Cape equipment (including phones and SIM cards) with other Cape equipment of comparable quality. Cape does not warrant or guarantee the availability of the Subscriber’s Services at any specific time or in any specific geographic location, or that the Services will be provided without interruption.
Neither Cape nor any Carrier shall have any liability for Service failures, outages, or limitations of Service. Certain phone features may not be available with the Company’s Services, or their functionality may be limited. All plan rates, features, functionality, and other product specifications are subject to change without notice or obligation.Section 11. Indemnification
The Subscriber agrees to indemnify and hold harmless the Company and any of its subsidiaries and affiliates, vendors, suppliers, and licensors and their former, current, and future officers, directors, employees, insurers, contractors, successors, and assigns from any and all liabilities, penalties, claims, causes of action, and demands brought by a third party, including the costs, expenses, and attorneys’ fees on account thereof arising from:
(1) the Subscriber’s use of any Cape product or Service, or
(2) the Subscriber’s breach of this Agreement
whether based in contract or tort, including strict liability, and regardless of the form of action.The Subscriber agrees to indemnify and hold harmless the Company and any of its subsidiaries and affiliates, vendors, suppliers, and licensors and their former, current, and future officers, directors, employees, insurers, contractors, successors, and assigns from any and all liabilities, penalties, claims, causes of action, and demands brought by a third party, including the costs, expenses, and attorneys’ fees on account thereof arising from:
(1) the Subscriber’s use of any Cape product or Service, or
(2) the Subscriber’s breach of this Agreement
whether based in contract or tort, including strict liability, and regardless of the form of action.Section 12. Termination of Use
Cape may, in its sole discretion, terminate the Subscriber’s use of the Company’s Services at any time. The Subscriber is personally liable for any orders that he or she places, or charges that he or she incurs, prior to termination. The Company may change, suspend, or discontinue all or any aspects of the Company’s Services at any time without prior notice.
Cape may, in its sole discretion, terminate the Subscriber’s use of the Company’s Services at any time. The Subscriber is personally liable for any orders that he or she places, or charges that he or she incurs, prior to termination. The Company may change, suspend, or discontinue all or any aspects of the Company’s Services at any time without prior notice.
Section 13. Miscellaneous
These Terms will be governed and be interpreted pursuant to the laws of Washington, DC, notwithstanding any principles of conflicts of law. The Subscriber hereby consents to the jurisdiction of such courts. If any part of these Terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.
These Terms will be governed and be interpreted pursuant to the laws of Washington, DC, notwithstanding any principles of conflicts of law. The Subscriber hereby consents to the jurisdiction of such courts. If any part of these Terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.
Section 14. Entire Agreement
This Agreement constitutes the entire agreement between the Subscriber and Cape with respect to any Cape product and/or Service. The failure of either party to enforce any of the terms set forth herein shall not be construed to be a waiver of any such terms nor in any way affect the validity and enforceability of these terms. No waiver of a breach of any term shall be deemed a waiver of any other or subsequent breach of a term. Except as expressly provided in Section 4, 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.
This Agreement constitutes the entire agreement between the Subscriber and Cape with respect to any Cape product and/or Service. The failure of either party to enforce any of the terms set forth herein shall not be construed to be a waiver of any such terms nor in any way affect the validity and enforceability of these terms. No waiver of a breach of any term shall be deemed a waiver of any other or subsequent breach of a term. Except as expressly provided in Section 4, 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.
Section 1. The Subscriber’s Use of the Company’s Services
By using the Company’s Services, the Subscriber represents that the Subscriber has read and agrees to be bound by these Terms. The Subscriber further agrees (1) to comply with U.S. or other applicable law (including the laws of U.S. territories) regarding the transmission of any information obtained via the Company’s Services in accordance with these Terms, (2) not to use the Company’s Services for illegal purposes or in manner inconsistent with these Terms, and (3) not to interfere or disrupt any networks to which the Company’s Services are interconnected.
The Subscriber agrees to use the Company’s Services solely for the Subscriber’s own noncommercial use and benefit, and not for resale or other transfer or disposition to, or use by or for the benefit of, any other person or entity. The Subscriber agrees that he or she will not use any device, software, or routine to interfere or attempt to interfere with the proper working of the Company’s Services. The Subscriber agrees that he or she will not take any action that unreasonably burdens the Company’s infrastructure or the infrastructure of any networks to which the Company’s Services are interconnected.
The Subscriber acquires absolutely no rights or licenses in or to the Company’s Services other than the limited right to utilize the Company’s Services in accordance with these Terms.
The Subscriber may activate Cape’s Services only where the Services are offered and supported by Cape. The wireless telecommunications networks used to transmit the Services offered by the Company are owned and operated by licensed commercial mobile radio service providers (“Carriers”), and not by the Company.By using the Company’s Services, the Subscriber represents that the Subscriber has read and agrees to be bound by these Terms. The Subscriber further agrees (1) to comply with U.S. or other applicable law (including the laws of U.S. territories) regarding the transmission of any information obtained via the Company’s Services in accordance with these Terms, (2) not to use the Company’s Services for illegal purposes or in manner inconsistent with these Terms, and (3) not to interfere or disrupt any networks to which the Company’s Services are interconnected.
The Subscriber agrees to use the Company’s Services solely for the Subscriber’s own noncommercial use and benefit, and not for resale or other transfer or disposition to, or use by or for the benefit of, any other person or entity. The Subscriber agrees that he or she will not use any device, software, or routine to interfere or attempt to interfere with the proper working of the Company’s Services. The Subscriber agrees that he or she will not take any action that unreasonably burdens the Company’s infrastructure or the infrastructure of any networks to which the Company’s Services are interconnected.
The Subscriber acquires absolutely no rights or licenses in or to the Company’s Services other than the limited right to utilize the Company’s Services in accordance with these Terms.
The Subscriber may activate Cape’s Services only where the Services are offered and supported by Cape. The wireless telecommunications networks used to transmit the Services offered by the Company are owned and operated by licensed commercial mobile radio service providers (“Carriers”), and not by the Company.Section 3. Limitation of Liability
The Company cannot be held responsible for any errors, defects, lost profits, or other consequential damages arising from the use of the Company’s Services. The Company will not be liable for any damages or injury, including special or consequential damages that result from (1) any failure of performance, error, omission, interruption, defect, delay in operation of transmission, or computer virus, or (2) the use of, or the inability to use, the Company’s Services even if there is negligence by the Company or any authorized representative of the Company.
The Company’s total liability to the Subscriber for all losses, damages, and causes of action in contract, tort (including, without limitation, negligence or otherwise) will not exceed the amount the Subscriber paid to the Company to use the Company’s Services.The Company cannot be held responsible for any errors, defects, lost profits, or other consequential damages arising from the use of the Company’s Services. The Company will not be liable for any damages or injury, including special or consequential damages that result from (1) any failure of performance, error, omission, interruption, defect, delay in operation of transmission, or computer virus, or (2) the use of, or the inability to use, the Company’s Services even if there is negligence by the Company or any authorized representative of the Company.
The Company’s total liability to the Subscriber for all losses, damages, and causes of action in contract, tort (including, without limitation, negligence or otherwise) will not exceed the amount the Subscriber paid to the Company to use the Company’s Services.Section 5. Unauthorized Use of Service
Cape’s Service is only intended to be used for the following purposes, without excessively contributing to network congestion: (1) person-to-person voice calls, (2) text and picture messaging, (3) web browsing, email, ordinary content downloads and uploads, video, game, and audio streaming, app usage, and (4) Voice over Internet Protocol (VoIP).
Cape’s Service may not be used in connection with certain unauthorized uses that may adversely impact other customers using the Company’s Services or any Carrier’s network, as well as any illegal purposes or purposes that infringe upon any person’s intellectual property rights, or in a manner that violates trade and economic sanctions and prohibitions as promulgated by the departments of Commerce or Treasury, or any other U.S. government agency (including any territorial government agency).Cape’s Service is only intended to be used for the following purposes, without excessively contributing to network congestion: (1) person-to-person voice calls, (2) text and picture messaging, (3) web browsing, email, ordinary content downloads and uploads, video, game, and audio streaming, app usage, and (4) Voice over Internet Protocol (VoIP).
Cape’s Service may not be used in connection with certain unauthorized uses that may adversely impact other customers using the Company’s Services or any Carrier’s network, as well as any illegal purposes or purposes that infringe upon any person’s intellectual property rights, or in a manner that violates trade and economic sanctions and prohibitions as promulgated by the departments of Commerce or Treasury, or any other U.S. government agency (including any territorial government agency).Section 7. Privacy Policy
The Subscriber’s use of the Company’s Services is subject to the Company’s Privacy Policy. Click Privacy Policy to review. Please review the Privacy Policy for more information regarding how the Company collects and uses information.
The Subscriber’s use of the Company’s Services is subject to the Company’s Privacy Policy. Click Privacy Policy to review. Please review the Privacy Policy for more information regarding how the Company collects and uses information.
Section 9. Roaming
Depending on the Carrier network involved, it is possible that, in certain circumstances, the Subscriber’s phone may roam if the Subscriber is outside his or her network coverage area and within the United States, or any territory of the United States. Roaming occurs when a subscriber of one wireless service provider uses the facilities of another wireless service provider. Although there are no additional charges for using the Company’s Services while roaming domestically, the Company does not guarantee the Subscriber’s ability to roam, nor the availability and/or the quality of Service involved.
Domestic (including U.S. territorial) roaming may be discontinued or changed, at any time, without notice. Due to Carrier restrictions, Cape reserves the right to terminate the Services of any Subscriber whose roaming usage exceeds 50% of his or her total usage in any three (3) billing cycles within a 12-month period. International roaming is not offered by Cape and is strictly prohibited.Depending on the Carrier network involved, it is possible that, in certain circumstances, the Subscriber’s phone may roam if the Subscriber is outside his or her network coverage area and within the United States, or any territory of the United States. Roaming occurs when a subscriber of one wireless service provider uses the facilities of another wireless service provider. Although there are no additional charges for using the Company’s Services while roaming domestically, the Company does not guarantee the Subscriber’s ability to roam, nor the availability and/or the quality of Service involved.
Domestic (including U.S. territorial) roaming may be discontinued or changed, at any time, without notice. Due to Carrier restrictions, Cape reserves the right to terminate the Services of any Subscriber whose roaming usage exceeds 50% of his or her total usage in any three (3) billing cycles within a 12-month period. International roaming is not offered by Cape and is strictly prohibited.Section 11. Indemnification
The Subscriber agrees to indemnify and hold harmless the Company and any of its subsidiaries and affiliates, vendors, suppliers, and licensors and their former, current, and future officers, directors, employees, insurers, contractors, successors, and assigns from any and all liabilities, penalties, claims, causes of action, and demands brought by a third party, including the costs, expenses, and attorneys’ fees on account thereof arising from:
(1) the Subscriber’s use of any Cape product or Service, or
(2) the Subscriber’s breach of this Agreement
whether based in contract or tort, including strict liability, and regardless of the form of action.The Subscriber agrees to indemnify and hold harmless the Company and any of its subsidiaries and affiliates, vendors, suppliers, and licensors and their former, current, and future officers, directors, employees, insurers, contractors, successors, and assigns from any and all liabilities, penalties, claims, causes of action, and demands brought by a third party, including the costs, expenses, and attorneys’ fees on account thereof arising from:
(1) the Subscriber’s use of any Cape product or Service, or
(2) the Subscriber’s breach of this Agreement
whether based in contract or tort, including strict liability, and regardless of the form of action.Section 13. Miscellaneous
These Terms will be governed and be interpreted pursuant to the laws of Washington, DC, notwithstanding any principles of conflicts of law. The Subscriber hereby consents to the jurisdiction of such courts. If any part of these Terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.
These Terms will be governed and be interpreted pursuant to the laws of Washington, DC, notwithstanding any principles of conflicts of law. The Subscriber hereby consents to the jurisdiction of such courts. If any part of these Terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.
Section 2. Purchases; Other Terms and Conditions
Additional terms and conditions may apply to purchases of the Company’s products or Services and to specific portions or features of the Company’s website, including promotions and other similar features, all of which terms and conditions are made a part of these Terms by this reference. The Subscriber agrees to abide by such other terms and conditions.
The Company may make changes to any Service offered on its website, or to the applicable prices for any such Service, at any time, without notice.Additional terms and conditions may apply to purchases of the Company’s products or Services and to specific portions or features of the Company’s website, including promotions and other similar features, all of which terms and conditions are made a part of these Terms by this reference. The Subscriber agrees to abide by such other terms and conditions.
The Company may make changes to any Service offered on its website, or to the applicable prices for any such Service, at any time, without notice.Section 4. Agreement to Arbitrate Disputes
The Subscriber understands that, by this Agreement, the Subscriber is giving up the right to bring a claim in court or in front of a jury. While the procedures in arbitration may be different, an arbitrator may award the Subscriber the same damages and relief, and must honor the same terms in this Agreement, as a court would, subject to the limits on arbitrator authority set forth below. If the law allows for an award of attorneys’ fees, an arbitrator may award them. The same defenses are also available to both parties as would be available in court, including any applicable statute of limitations. The Company and the Subscriber also both agree that:
(1) The Federal Arbitration Act applies to this Agreement. Except for small claims court cases or as specifically noted below, any dispute that, in any way, relates to or arises out of this Agreement, including the validity, enforceability, or scope of any portion of this Agreement (including the agreement to arbitrate) except as noted below, or from any equipment, products, and Services the Subscriber receives from the Company, or from any advertising for any such products or Services, or from the Company’s efforts to collect amounts the Subscriber may owe to the Company for such products or Services, including any disputes the Subscriber has with the Company’s employees or agents, will be resolved by one or more neutral arbitrators before the American Arbitration Association (“AAA”) as explained below in Section 4(2). This agreement to arbitrate continues to apply even after the Subscriber has stopped receiving service from the Company.
(2)(a) Unless the Subscriber and Cape agree otherwise, the arbitration will take place in the county or similar jurisdiction of the Subscriber’s billing address and the AAA’s consumer arbitration rules will apply. The Subscriber may obtain procedures, rules, and fee information from the AAA (https://www.adr.org/) or from the Company.
(b) For claims of $25,000 or less, the Subscriber may choose whether he or she would like the arbitration carried out based only on documents submitted to the arbitrator, or by a hearing in person or by telephone or teleconference.
(c) Alternatively, for claims within the jurisdictional limit of the small claims court in the state or territory encompassing the Subscriber’s billing address, either the Subscriber or Cape may choose to bring an individual action in small claims court instead of proceeding in arbitration. If the claims in any request or demand for arbitration could have been brought in small claims court, then either the Subscriber or Cape may choose to have the claims heard in small claims court, rather than in arbitration, at any time before the arbitrator is appointed, by notifying the other party of that choice in writing. If this provision or the limitation on bringing actions to small claims court is found to be invalid, then this provision shall be severable and the matter will proceed in arbitration. In no way will this provision allow for an action to be brought on a class or collective basis.
(3) This Agreement does not allow class or collective arbitrations even if the AAA procedures or rules would permit such arbitrations. Notwithstanding any other provision of this Agreement, the arbitrator may award money or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. No class, representative, or private attorney general or general injunctive relief theories of liability or prayers for relief may be maintained in any arbitration held under this Agreement. Any question regarding the enforceability under applicable law or interpretation of this paragraph shall be decided by a court and not by the arbitrator.
(4)(a) If either the Subscriber or Cape intends to seek arbitration under this Agreement, the party seeking arbitration must first notify the other party of the dispute, in writing, at least 60 days in advance of initiating the arbitration. Notice to Cape should be emailed to info@cape.co. The notice must include sufficient information to allow the Company to identify the Subscriber’s account, as well as to assess and attempt to resolve the Subscriber’s claim, including the name of the Cape wireless account holder, the mobile telephone number at issue, a description of the claim, the specific facts supporting the claim, the damages the Subscriber claims to have suffered, and the relief the Subscriber is seeking.
(b) The notice requirement is designed to allow Cape to make a fair, fact-based offer of settlement if it chooses to do so. The Subscriber cannot proceed to arbitration unless he or she provides this information. The Subscriber may choose to be represented by an attorney or other person as part of this process, but if the Subscriber chooses to do so, he or she must submit a letter to Cape notifying the Company of the representation, and authorizing the Company to discuss the Subscriber’s account information with the attorney or other person. The sufficiency of this notice is an issue to be decided by a court prior to the filing of any demand for arbitration.
(c) If the Subscriber has provided this information, and the Company and the Subscriber are unable to resolve the dispute within 60 days, either party may then proceed to file a claim for arbitration. If the arbitrator determines that the Subscriber’s claim was filed for purposes of harassment or is patently frivolous, the arbitrator will require the Subscriber to reimburse Cape for any filing, administrative, or arbitrator fees associated with the arbitration.
(5) Cape may, but is not obligated to, make a written settlement offer at any time before the arbitration hearing. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim or takes other action in disposition of the claim.
(6)(a) If 25 or more customers initiate notices of dispute pursuant to Section 4(4) or file a complaint in court, which raise similar claims, and counsel for the Cape customers bringing the claims are the same or coordinated for these customers, the claims shall proceed in arbitration in a coordinated proceeding.
(b) Counsel for the Cape customers and counsel for Cape shall each select five cases to proceed first in arbitration in a bellwether proceeding (i.e., a test trial involving a case that derives from the large pool of claims filed against the Company). Additional cases involving similar claims brought by the same or coordinated counsel shall not be filed in arbitration until the first cases have been resolved.
(c) If the parties are unable to resolve the remaining cases after the conclusion of the bellwether proceeding, each side may select another five cases to proceed to arbitration for a second bellwether proceeding. This process may continue until the parties are able to resolve all the claims, either through settlement or arbitration. If such a process is initiated, the filing of a notice of dispute by a customer in accordance with Section 4(4) or filing of a complaint in court will toll all applicable statutes of limitations for that customer’s dispute until the completion of the process described in this paragraph (6). A court will have authority to enforce this paragraph, including by entering an injunction to prohibit filings in violation of this paragraph.
(7) An arbitration award and any judgment confirming it apply only to that specific case. Any such award or judgment cannot be used in any other case except to enforce the award itself.
(8) If a court determines that the prohibition on class arbitrations or the limits on the arbitrator’s authority set forth in Section 4(3), or the process set forth in this Section 4, cannot be enforced under applicable law as to all or part of a dispute, then the agreement to arbitrate will not apply to that dispute or part of the dispute, which may proceed in court either once the arbitrated matters have concluded or sooner if the court so requires.
(9) If, for any reason, a claim proceeds in court rather than through arbitration, the Subscriber and Cape agree that, to the fullest extent allowed by applicable law, there will not be a jury trial. The Subscriber and the Company unconditionally waive any right to trial by jury in any action, proceeding, or counterclaim arising out of or relating to this Agreement in any way. In the event of litigation, this paragraph 6(9) may be filed to show a written consent to a trial by the court.The Subscriber understands that, by this Agreement, the Subscriber is giving up the right to bring a claim in court or in front of a jury. While the procedures in arbitration may be different, an arbitrator may award the Subscriber the same damages and relief, and must honor the same terms in this Agreement, as a court would, subject to the limits on arbitrator authority set forth below. If the law allows for an award of attorneys’ fees, an arbitrator may award them. The same defenses are also available to both parties as would be available in court, including any applicable statute of limitations. The Company and the Subscriber also both agree that:
(1) The Federal Arbitration Act applies to this Agreement. Except for small claims court cases or as specifically noted below, any dispute that, in any way, relates to or arises out of this Agreement, including the validity, enforceability, or scope of any portion of this Agreement (including the agreement to arbitrate) except as noted below, or from any equipment, products, and Services the Subscriber receives from the Company, or from any advertising for any such products or Services, or from the Company’s efforts to collect amounts the Subscriber may owe to the Company for such products or Services, including any disputes the Subscriber has with the Company’s employees or agents, will be resolved by one or more neutral arbitrators before the American Arbitration Association (“AAA”) as explained below in Section 4(2). This agreement to arbitrate continues to apply even after the Subscriber has stopped receiving service from the Company.
(2)(a) Unless the Subscriber and Cape agree otherwise, the arbitration will take place in the county or similar jurisdiction of the Subscriber’s billing address and the AAA’s consumer arbitration rules will apply. The Subscriber may obtain procedures, rules, and fee information from the AAA (https://www.adr.org/) or from the Company.
(b) For claims of $25,000 or less, the Subscriber may choose whether he or she would like the arbitration carried out based only on documents submitted to the arbitrator, or by a hearing in person or by telephone or teleconference.
(c) Alternatively, for claims within the jurisdictional limit of the small claims court in the state or territory encompassing the Subscriber’s billing address, either the Subscriber or Cape may choose to bring an individual action in small claims court instead of proceeding in arbitration. If the claims in any request or demand for arbitration could have been brought in small claims court, then either the Subscriber or Cape may choose to have the claims heard in small claims court, rather than in arbitration, at any time before the arbitrator is appointed, by notifying the other party of that choice in writing. If this provision or the limitation on bringing actions to small claims court is found to be invalid, then this provision shall be severable and the matter will proceed in arbitration. In no way will this provision allow for an action to be brought on a class or collective basis.
(3) This Agreement does not allow class or collective arbitrations even if the AAA procedures or rules would permit such arbitrations. Notwithstanding any other provision of this Agreement, the arbitrator may award money or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. No class, representative, or private attorney general or general injunctive relief theories of liability or prayers for relief may be maintained in any arbitration held under this Agreement. Any question regarding the enforceability under applicable law or interpretation of this paragraph shall be decided by a court and not by the arbitrator.
(4)(a) If either the Subscriber or Cape intends to seek arbitration under this Agreement, the party seeking arbitration must first notify the other party of the dispute, in writing, at least 60 days in advance of initiating the arbitration. Notice to Cape should be emailed to info@cape.co. The notice must include sufficient information to allow the Company to identify the Subscriber’s account, as well as to assess and attempt to resolve the Subscriber’s claim, including the name of the Cape wireless account holder, the mobile telephone number at issue, a description of the claim, the specific facts supporting the claim, the damages the Subscriber claims to have suffered, and the relief the Subscriber is seeking.
(b) The notice requirement is designed to allow Cape to make a fair, fact-based offer of settlement if it chooses to do so. The Subscriber cannot proceed to arbitration unless he or she provides this information. The Subscriber may choose to be represented by an attorney or other person as part of this process, but if the Subscriber chooses to do so, he or she must submit a letter to Cape notifying the Company of the representation, and authorizing the Company to discuss the Subscriber’s account information with the attorney or other person. The sufficiency of this notice is an issue to be decided by a court prior to the filing of any demand for arbitration.
(c) If the Subscriber has provided this information, and the Company and the Subscriber are unable to resolve the dispute within 60 days, either party may then proceed to file a claim for arbitration. If the arbitrator determines that the Subscriber’s claim was filed for purposes of harassment or is patently frivolous, the arbitrator will require the Subscriber to reimburse Cape for any filing, administrative, or arbitrator fees associated with the arbitration.
(5) Cape may, but is not obligated to, make a written settlement offer at any time before the arbitration hearing. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim or takes other action in disposition of the claim.
(6)(a) If 25 or more customers initiate notices of dispute pursuant to Section 4(4) or file a complaint in court, which raise similar claims, and counsel for the Cape customers bringing the claims are the same or coordinated for these customers, the claims shall proceed in arbitration in a coordinated proceeding.
(b) Counsel for the Cape customers and counsel for Cape shall each select five cases to proceed first in arbitration in a bellwether proceeding (i.e., a test trial involving a case that derives from the large pool of claims filed against the Company). Additional cases involving similar claims brought by the same or coordinated counsel shall not be filed in arbitration until the first cases have been resolved.
(c) If the parties are unable to resolve the remaining cases after the conclusion of the bellwether proceeding, each side may select another five cases to proceed to arbitration for a second bellwether proceeding. This process may continue until the parties are able to resolve all the claims, either through settlement or arbitration. If such a process is initiated, the filing of a notice of dispute by a customer in accordance with Section 4(4) or filing of a complaint in court will toll all applicable statutes of limitations for that customer’s dispute until the completion of the process described in this paragraph (6). A court will have authority to enforce this paragraph, including by entering an injunction to prohibit filings in violation of this paragraph.
(7) An arbitration award and any judgment confirming it apply only to that specific case. Any such award or judgment cannot be used in any other case except to enforce the award itself.
(8) If a court determines that the prohibition on class arbitrations or the limits on the arbitrator’s authority set forth in Section 4(3), or the process set forth in this Section 4, cannot be enforced under applicable law as to all or part of a dispute, then the agreement to arbitrate will not apply to that dispute or part of the dispute, which may proceed in court either once the arbitrated matters have concluded or sooner if the court so requires.
(9) If, for any reason, a claim proceeds in court rather than through arbitration, the Subscriber and Cape agree that, to the fullest extent allowed by applicable law, there will not be a jury trial. The Subscriber and the Company unconditionally waive any right to trial by jury in any action, proceeding, or counterclaim arising out of or relating to this Agreement in any way. In the event of litigation, this paragraph 6(9) may be filed to show a written consent to a trial by the court.Section 6. Modification of Terms of Use
The Company reserves the right to modify, amend, remove, or restate the Terms at any time. The Subscriber’s use of any of the Company’s Services after the posting of modifications to these Terms will constitute the Subscriber’s acceptance of the Terms, as modified.
The Company reserves the right to modify, amend, remove, or restate the Terms at any time. The Subscriber’s use of any of the Company’s Services after the posting of modifications to these Terms will constitute the Subscriber’s acceptance of the Terms, as modified.
Section 8. Emergency Calls
If the Subscriber is in an area where his or her phone is searching for a wireless signal or there is no wireless signal or wireless service, it is highly probable that a call to 911 will not be transmitted. The Subscriber must not rely solely on his or her Cape Services in an emergency situation. In an emergency, the Subscriber is advised to locate and utilize the nearest landline phone.
If the Subscriber is in an area where his or her phone is searching for a wireless signal or there is no wireless signal or wireless service, it is highly probable that a call to 911 will not be transmitted. The Subscriber must not rely solely on his or her Cape Services in an emergency situation. In an emergency, the Subscriber is advised to locate and utilize the nearest landline phone.
Section 10. Disclaimer of Warranties
Cape products and Services are provided on an “as is” and “where is” basis. By using any products or Services, the Subscriber agrees that Cape will have no liability except as expressly provided in this Agreement for any failure, defects, malfunctions, or errors in the products or Services. Cape makes no representations or warranties of any kind, either express or implied, regarding title, merchantability, suitability, non-infringement, fitness for a particular purpose, or otherwise in relation to any product or Service.
The Subscriber acknowledges and agrees that the use of any Cape product or Service is at the Subscriber’s sole risk, and that the Subscriber’s Service may be unavailable, interrupted, delayed, or limited for a variety of reasons outside of the Company’s control. Not all products or Services are available for purchase or use in all sales channels, in all areas, or with all devices. Service is subject to transmission limitations caused by certain equipment and compatibility issues, network prioritization, and atmospheric, topographical, and other conditions. Service may be temporarily refused, limited, interrupted, or curtailed due to system capacity limitations, technology migration, or limitations imposed by the Carrier, or because of equipment modifications, upgrades, repairs, or relocations or other similar activities necessary or proper for the operation or improvement of the Carrier’s network.
Cape reserves the right to substitute and/or replace, at any time, any Cape equipment (including phones and SIM cards) with other Cape equipment of comparable quality. Cape does not warrant or guarantee the availability of the Subscriber’s Services at any specific time or in any specific geographic location, or that the Services will be provided without interruption.
Neither Cape nor any Carrier shall have any liability for Service failures, outages, or limitations of Service. Certain phone features may not be available with the Company’s Services, or their functionality may be limited. All plan rates, features, functionality, and other product specifications are subject to change without notice or obligation.Cape products and Services are provided on an “as is” and “where is” basis. By using any products or Services, the Subscriber agrees that Cape will have no liability except as expressly provided in this Agreement for any failure, defects, malfunctions, or errors in the products or Services. Cape makes no representations or warranties of any kind, either express or implied, regarding title, merchantability, suitability, non-infringement, fitness for a particular purpose, or otherwise in relation to any product or Service.
The Subscriber acknowledges and agrees that the use of any Cape product or Service is at the Subscriber’s sole risk, and that the Subscriber’s Service may be unavailable, interrupted, delayed, or limited for a variety of reasons outside of the Company’s control. Not all products or Services are available for purchase or use in all sales channels, in all areas, or with all devices. Service is subject to transmission limitations caused by certain equipment and compatibility issues, network prioritization, and atmospheric, topographical, and other conditions. Service may be temporarily refused, limited, interrupted, or curtailed due to system capacity limitations, technology migration, or limitations imposed by the Carrier, or because of equipment modifications, upgrades, repairs, or relocations or other similar activities necessary or proper for the operation or improvement of the Carrier’s network.
Cape reserves the right to substitute and/or replace, at any time, any Cape equipment (including phones and SIM cards) with other Cape equipment of comparable quality. Cape does not warrant or guarantee the availability of the Subscriber’s Services at any specific time or in any specific geographic location, or that the Services will be provided without interruption.
Neither Cape nor any Carrier shall have any liability for Service failures, outages, or limitations of Service. Certain phone features may not be available with the Company’s Services, or their functionality may be limited. All plan rates, features, functionality, and other product specifications are subject to change without notice or obligation.Section 12. Termination of Use
Cape may, in its sole discretion, terminate the Subscriber’s use of the Company’s Services at any time. The Subscriber is personally liable for any orders that he or she places, or charges that he or she incurs, prior to termination. The Company may change, suspend, or discontinue all or any aspects of the Company’s Services at any time without prior notice.
Cape may, in its sole discretion, terminate the Subscriber’s use of the Company’s Services at any time. The Subscriber is personally liable for any orders that he or she places, or charges that he or she incurs, prior to termination. The Company may change, suspend, or discontinue all or any aspects of the Company’s Services at any time without prior notice.
Section 14. Entire Agreement
This Agreement constitutes the entire agreement between the Subscriber and Cape with respect to any Cape product and/or Service. The failure of either party to enforce any of the terms set forth herein shall not be construed to be a waiver of any such terms nor in any way affect the validity and enforceability of these terms. No waiver of a breach of any term shall be deemed a waiver of any other or subsequent breach of a term. Except as expressly provided in Section 4, 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.
This Agreement constitutes the entire agreement between the Subscriber and Cape with respect to any Cape product and/or Service. The failure of either party to enforce any of the terms set forth herein shall not be construed to be a waiver of any such terms nor in any way affect the validity and enforceability of these terms. No waiver of a breach of any term shall be deemed a waiver of any other or subsequent breach of a term. Except as expressly provided in Section 4, 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.
