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Virgin Mobile SmartCare Terms and Conditions

Hey there, smartypants! You’ve made a great call by signing up for Virgin Mobile SmartCare. Read on for all the legal details and be sure to check out the “What is Covered” and “What is not Covered” sections to get a handle on all the situations where you can use SmartCare.

For SmartCare Service, give us a shout at 1.866.213.2143.

1. SmartCare Agreement. These Virgin Mobile SmartCare Terms and Conditions (“SmartCare Terms”) apply to and form part of the agreement (the “SmartCare Agreement”) governing your purchase and use of the SmartCare service warranty program as further described herein (the “SmartCare Plan”). By entering into the SmartCare Agreement, you acknowledge and agree that you have read, understood, agree to and are bound by these SmartCare Terms, as they may be modified as set out below. All capitalized terms not otherwise defined in these SmartCare Terms shall have the meanings ascribed to them in your Membership Agreement. In the event of any conflict between these SmartCare Terms and the terms of your Membership Agreement, these SmartCare Terms shall govern. The SmartCare Agreement is governed by the laws of the province in which you reside (as evidenced by the billing address in our records) and the federal laws of Canada applicable therein.

2. SmartCare Plan Changes. Virgin Mobile may change the terms of the SmartCare Agreement (including, without limitation, these SmartCare Terms), any aspects of the SmartCare Plan and/or the services provided thereunder (the “SmartCare Services”) from time to time by providing you a clear and legible written notice at least thirty (30) days in advance of such change. If applicable, and if required by any law to which Virgin Mobile is subject, the notice will include the new provision or the changed provision (in its new and old forms), the date on which the provision will be made effective and a description of your rights. Nothing in the SmartCare Agreement obligates you to continue with the SmartCare Plan or to receive the SmartCare Services after any such change is made, but your sole remedy if the change either increases your obligations to us or reduces ours to you, will be to refuse the change and cancel your SmartCare Agreement by calling us at 1-888-999-23211-888-999-2321. You must notify us of such cancellation within 30 days of the effective date of the change. Otherwise, your continued participation in the SmartCare Plan beyond such period is your confirmation to us of your continued unconditional acceptance of the then current terms of the SmartCare Agreement. Should you continue to participate in the SmartCare Plan after such change is effective, you expressly agree that no additional written agreement or express acknowledgement shall be required to accept such change and, unless otherwise prohibited by law, you specifically waive any and all statutory requirements for notice and express acceptance of such changes except for those provided in this Section. You agree that you cannot amend your SmartCare Agreement and that no oral or written statement or representation of any sales agent, representative or employee of Virgin Mobile made to you can change your SmartCare Agreement. The SmartCare Plan is available only to Virgin Mobile members obtaining postpaid services or Virgin Mobile SuperTab services. Your participation in the SmartCare Plan is optional and you may cancel the SmartCare Plan at any time in accordance with Section 13 below.

3. SmartCare Plan Coverage Period. Your service benefits under the SmartCare Plan begin on the Effective Date (as defined in Section 5 below), continue from month to month until terminated by you or by us in accordance with Section 13 below, and are subject to the Smart CarePlan service limits set forth in Section 10 below.

4. SmartCare Plan Payment. You agree to pay all applicable fees, charges and taxes relating to the SmartCare Plan. You will be billed for the SmartCare Plan once each month on your monthly wireless services bill from Virgin Mobile (“Virgin Mobile Bill”). Applicable replacement service charges (Section 9 below), non-return charges (Section 11 below), non-covered failure charges (Section 12 below), and taxes, if any, may be added to your Virgin Mobile Bill or, at our discretion, collected from you prior to our providing Replacement Equipment (as defined in Section 5 below). Your Virgin Mobile Bill is payable in accordance with your Virgin Mobile Terms and Conditions of Service. Payments on your Virgin Mobile Bill will be applied to SmartCare Plan charges only after all other outstanding charges on the Virgin Mobile Bill have been satisfied.

5. Definitions. (1) “Effective Date” means the date you enroll in the SmartCare Plan. (2) “Covered Equipment” means the Wireless Phone or Data Stick, Smartphone or Premium Select Smartphone identified by serial number on your Membership Agreement which is activated for service on your Virgin Mobile account and with which you have logged airtime, text or data usage at the moment of Failure (provided this occurs on or after the Effective Date). Covered Equipment does not include any SIM card inserted into or accompanying the Covered Equipment, nor any Device into which you may insert the SIM card that was installed in or accompanied the Covered Equipment. (3) “Battery” and/or “Charger” means one standard battery and/or one standard charger associated with the Covered Equipment. (4) If you have chosen the Premium Plan, as indicated on your Membership Agreement, “Failure” means the operational or structural failure of the Covered Equipment to operate due to defects in parts or workmanship, normal wear and tear, accidental damage (including liquid damage and power surges), or loss or theft of the Covered Equipment. If you have chosen the Plus Plan, as indicated on your Membership Agreement, “Failure” means the operational or structural failure of the Covered Equipment to operate due to defects in parts or workmanship. (5) “Replacement Equipment” means the Wireless Phone or Data Stick, Smartphone or Premium Select Smartphone of comparable kind and quality to the Covered Equipment which we provide to you in the event of a Failure of the Covered Equipment, but does not include a SIM card.

6. What is Covered. If the Covered Equipment suffers a Failure, we will replace it with a Device of comparable kind and quality, subject to these SmartCare Terms. However, if the Failure occurs within the first twelve (12) months of the activation date of the Covered Equipment with your Virgin Mobile wireless services, and is an operational or structural failure of the Covered Equipment to operate due to defects in parts or workmanship, the manufacturer’s warranty applies and we will not replace the Covered Equipment. Instead, you may return the Covered Equipment for servicing under the manufacturer’s warranty. If the Replacement Equipment is a different model than the Covered Equipment or if a Failure affects a Battery and/or Charger as part of the Failure of the Covered Equipment, we will also replace the Battery and/or Charger. If Your Covered Equipment utilizes a Virgin Mobile SIM Card, we will also replace the SIM Card if it suffers a Failure as part of the Failure of the Covered Equipment. WE MAKE NO ASSURANCE, REPRESENTATION, OR WARRANTY THAT ANY REPLACEMENT EQUIPMENT WILL BE IDENTICAL OR OFFER THE SAME FUNCTIONALITIES AS THE ITEM BEING REPLACED. REPLACEMENT EQUIPMENT WILL BE NEW OR REFURBISHED, IN OUR SOLE DISCRETION. Upon delivery to you, the Replacement Equipment immediately becomes the Covered Equipment.

In addition to any applicable statutory warranties (see the warranty provided with any Replacement Equipment for details), Replacement Equipment will be warranted to be free of defects in parts and workmanship for a period of 120 days from the date it is shipped to you (“Replacement Equipment Warranty Period”). If, during the Replacement Equipment Warranty Period, the Replacement Equipment fails to operate due to defects in parts or workmanship, call us at 1.866.213.2143 and it will be replaced with a device of comparable kind and quality and such replacement shall not be subject to a replacement service charge set out in Section 9 below, nor shall it be counted toward the SmartCare Plan service limits set out in Section 10 below.

7. What is not Covered.

In addition to those exclusions set out in Section 6 above, the SmartCare Plan does not cover:

(1) Incidental or consequential damages; (2) failures caused by war, revolution, acts of public enemy or terrorist, labour difficulties, including without limitation, strikes, slowdowns, picketing or boycotts, civil commotion, embargo, acts of government, or military authority; (3) abuse, misuse, or intentional acts; (4) pre-existing Failures of the Covered Equipment occurring before the Effective Date; (5) changes or enhancements in color, texture, finish, expansion, contraction, or any cosmetic damage to Covered Equipment however caused, including, but not limited to, scratches and marring, that do not affect the mechanical or electrical function of the Covered Equipment; and (6) Failure of the Covered Equipment caused by computer viruses or similar unauthorized intrusive codes or programming.

Additionally, Covered Equipment does not include and the SmartCare Plan does not cover:

(1) Contraband or property in the course of illegal transportation or trade; (2) property in transit to you from anyone other than us; (3) routine maintenance and consumable items, such as batteries (one standard Battery will be provided with Replacement Equipment if the Replacement Equipment is a different model than the Covered Equipment or if the Battery has also failed); (4) battery chargers (one standard Charger will be provided with Replacement Equipment if the Replacement Equipment is a different model than the Covered Equipment or if the Charger has also failed); (5) antennas, unless there is also a Failure of the Covered Equipment; (6) SIM Cards; or (7) any accessories (except as otherwise provided with respect to the Battery and/or Charger), including, but not limited to, color face plates, personalized data, or customized software, such as personal information managers (PIMs), ring tones, games, or screen savers.

8. To Get SmartCare Service. In the event of a Failure of Covered Equipment, you may file a service request by calling 1.866.213.2143. You must be a Virgin Mobile member in good standing obtaining our wireless services with the Covered Equipment at the time you file your service request and you must file the service request within 30 days of the Failure of the Covered Equipment. If your service request is approved, we will provide the Replacement Equipment by mail within 2 to 10 business days, or we may require you to pick up the Replacement Equipment at a retail location in your area. A shipping/administration charge of $25.00 may be charged to you. WE MAY REQUIRE, AS A CONDITION OF APPROVAL OF YOUR SERVICE REQUEST, THAT YOU PROVIDE PROOF OF PURCHASE FOR THE COVERED EQUIPMENT AND/OR YOUR GOVERNMENT ISSUED PHOTO I.D. OR OTHER DOCUMENTATION OR INFORMATION AS REASONABLY NECESSARY TO ESTABLISH YOUR RIGHT TO SERVICE. We also retain the right to inspect the Covered Equipment (except in cases of loss or theft) as a condition of approval of your service request. You must provide us with all requested information necessary to complete your service request and pay any replacement service charge (as set out in Section 9 below) due to us within 30 days of filing your request for service (unless such charge is billed to you, in which case the Virgin Mobile Bill payment terms set out in Section 4 above will apply) or your service request will be closed. You must accept delivery of your Replacement Equipment within 30 days of approval of your Service Request or your service request will be closed. If you have chosen the Premium Plan, prior to filing a service request under the SmartCare Plan, you shall notify us immediately at 1.866.213.2143 to report your handset or device lost or stolen. You are responsible for the cost of all service or other fees and charges incurred before you notify Virgin Mobile.

9. Replacement Service Charge. A non-refundable replacement service charge applies to each approved replacement for any Failure (except as specified in the second paragraph of Section 6 above). The amount of the replacement service charge differs based on whether the Covered Equipment is a Wireless Phone or Data Stick ($50), a Smartphone ($150) or a Premium Select - Smartphone ($249). Your Covered Equipment is identified on your Membership Agreement. The replacement service charge may be included on your Virgin Mobile Bill or, at our discretion, collected from you prior to providing Replacement Equipment. A complete list of devices which are considered to be Wireless Phones, Data Sticks, Smartphones or Premium Select - Smartphone is available as follows: virginmobile.ca/smartcare

10. Service Limits. Beginning on the Effective Date, the SmartCare Agreement will cover up to, but no more than, two (2) replacements of Covered Equipment, subject to the exceptions noted below in this Section 10. Our obligation to provide Replacement Equipment is subject to a maximum cost to us of $750 per replacement. We will forward a notice of cancellation of the SmartCare Agreement and the SmartCare Plan to you, by mail, email or fax at the time of the second replacement and we will discontinue all monthly charges for the SmartCare Plan at such time. The monthly charge paid for the SmartCare Plan during the month in which the second replacement occurs will be prorated up to the date of the replacement and a credit for the remaining amount will be credited to your account.

11. Return of Replaced Equipment/Non-Return Charge. Covered Equipment approved for replacement, other than Covered Equipment replaced due to loss or theft, must be returned to us at our shipping expense in the return mailer included with your Replacement Equipment within five (5) business days of your receipt of the Replacement Equipment, failing which the non-return charge described below shall apply. The Covered Equipment we replace becomes property of Virgin Mobile, may not be activated with Virgin Mobile’s services or with any other wireless network, and you hereby assign to us all rights and benefits of any manufacturer’s warranty or other ancillary coverage relating to any Covered Equipment that we replace. If you send any other items to us in place of the Covered Equipment, these items become the property of Virgin Mobile, and may be destroyed at our discretion. If we provide Replacement Equipment to you as a result of the loss or theft of your Covered Equipment and you later find or recover the Covered Equipment, you must return it to us as directed in these SmartCare Terms. Call 1.866.213.2143 to request a prepaid return mailer. If you fail to return the Covered Equipment as directed by us, or you send us something other than the Covered Equipment, your service request may be declined or a non-return charge may be included on your Virgin Mobile Bill. The amount of the non-return charge differs based on whether it is for a Wireless Phone or Data Stick ($100), a Smartphone ($300) or a Premium Select - Smartphone ($600). You will not be entitled to the return, for any reason, of any Covered Equipment for which you have received Replacement Equipment, or of any other items you send to us in place of the Covered Equipment.

12. Non-Covered Service Charge. If we determine the returned Covered Equipment did not suffer a Failure covered by the SmartCare Plan, we will notify you in writing and a non-covered service charge will be applied to your Virgin Mobile Bill. The non-covered service charge for Wireless Phones and Data Sticks is $100. The non-covered service charge for Smartphones is $300. The non-covered service charge for Premium Select - Smartphone is $600.

13. Ending your SmartCare Agreement and SmartCare Services. You or we may cancel your SmartCare Agreement at any time for any reason. You may cancel the SmartCare Agreement by calling Virgin Mobile at 1-888-999-23211-888-999-2321 to request cancellation. If you cancel your SmartCare Agreement, coverage will cease, and we will cease billing you, on the next business day following the date we receive your request for cancellation. If you fail to make any monthly payment for your SmartCare Agreement or any charge provided for in your SmartCare Agreement, the rights and benefits under your SmartCare Agreement will cease on the date the payment was due. Also, if you exhaust the SmartCare Plan service limits by being provided a second replacement under your SmartCare Plan, the SmartCare Plan automatically terminates as provided in Section 10 above. In the event we cancel your SmartCare Agreement for any other reason, we shall provide you with a written notice at least thirty (30) days prior to the effective date of cancellation (or longer notice if required by any law to which Virgin Mobile is subject), which notice shall state the effective date of cancellation. We will cease billing you on the effective date of cancellation. Any termination, cancellation, suspension, interruption, or discontinuation of your wireless service with Virgin Mobile for any reason constitutes cancellation of your SmartCare Agreement by you, subject to these SmartCare Terms.

14. Limits on our Liability. In the event of any error, omission or failure by us or our agents or service providers with respect to the SmartCare Plan or the SmartCare Services provided by us or our agents or service providers hereunder, our RESPONSIBILITY AND LIABILITY and that of our agents or service providers SHALL BE LIMITED TO THE CHARGES ACTUALLY PAID BY YOU FOR THE SMARTCARE PLAN (BUT NO MORE THAN THE LAST 6 MONTHLY CHARGES YOU PAID FOR THE SMARTCARE PLAN). THIS IS YOUR SOLE REMEDY FOR ANY ERRORS, OMISSIONS OR FAILURE OF US OR OUR AGENTS’ OR SERVICE PROVIDERS’ PERFORMANCE. FURTHER, UNDER NO CIRCUMSTANCES SHALL WE OR OUR AGENTS OR SERVICE PROVIDERS BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (EVEN IF WE OR OUR AGENTS OR SERVICE PROVIDERS HAVE BEEN ADVISED OF OR HAVE FORESEEN THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THE SMARTCARE PLAN OR OUR OR OUR AGENTS’ OR SERVICE PROVIDERS’ PERFORMANCE UNDER THE SMARTCARE PLAN, OR UNDER ANY PROVISION OF THE SMARTCARE AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THESE SMARTCARE TERMS, OR AS PROVIDED UNDER ANY APPLICABLE LAW, WE HEREBY SPECIFICALLY DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SMARTCARE PLAN AND SERVICES TO BE PROVIDED HEREUNDER BY US AND OUR AGENTS OR SERVICE PROVIDERS, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

The limits set out above apply except to the extent expressly prohibited by any law to which Virgin Mobile is subject.

15. Force Majeure. We have no responsibility for delays or failures due to acts of God, fire, flood, explosion, war, revolution, acts of public enemy or terrorist, labour difficulties, including without limitation strikes, slowdowns, picketing or boycotts, civil commotion, embargo, acts of government in, military authority, or the elements, or other causes beyond our reasonable control, and in such event, we may cancel the SmartCare Agreement and the SmartCare Plan immediately.

16. Restrictions on Transfer and Abuse of the SmartCare Plan. This SmartCare Plan is for your use only. You may transfer your Virgin Mobile wireless service account and the Covered Equipment to another person, with Virgin Mobile’s prior consent. If you choose to do so, then subject to this consent, and if the transferee so desires, the transferee may assume your obligations under your SmartCare Agreement and continue the SmartCare Plan with respect to the transferred serial number and you shall be released from future obligations under the SmartCare Agreement; otherwise, you or the transferee must cancel the SmartCare Plan in accordance with Section 13 above. If you transfer the Covered Equipment to another person without also transferring your Virgin Mobile wireless service account to such person or if you transfer the Covered Equipment to another account or wireless service provider, then you must cancel the SmartCare Plan in accordance with Section 13 in order to discontinue the monthly charges. Any abuse of the SmartCare Plan by you, including but not limited to seeking replacement of a wireless device not belonging to you, may result in termination of the SmartCare Plan upon notice.

We may assign our obligations under the SmartCare Plan to another party at any time. In the case of assignment by us, we will be released from future obligations under the SmartCare Agreement by providing you at least thirty (30) days advance written notice to you of our assignment. Upon notice of the assignment you may, at your option, continue or cancel your participation in the SmartCare Plan. To continue your participation in the SmartCare Plan simply continue to pay your Virgin Mobile Bill. To cancel your participation in the SmartCare Plan, simply call 1-888-999-23211-888-999-2321 and request cancellation of the SmartCare Plan.

17. Duty to Mitigate. You must take all reasonable steps to mitigate Failures of the Covered Equipment and to cooperate in the processing of your service requests including following our reasonable directions to troubleshoot or correct simple Failures of the Covered Equipment such as accepting software patches.