Cricket Wi-Fi End User License Agreement
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT CLICK THE "ACCEPT" BUTTON OR DOWNLOAD, INSTALL OR USE THE APPLICATION.
THIS APPLICATION IS NOT INTENDED FOR USE BY PERSONS UNDER THE AGE OF 13. IF YOU ARE UNDER 13 YEARS OLD, YOU MAY NOT USE THIS APPLICATION OR PROVIDE CRICKET WITH ANY PERSONALLY IDENTIFIABLE INFORMATION. IF YOU ARE 13 OR OLDER BUT NOT OF LEGAL AGE TO ENTER INTO A CONTRACT, YOU SHOULD REVIEW THESE TERMS AND CONDITIONS WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND THESE TERMS AND CONDITIONS.
BY CLICKING THE "ACCEPT" BUTTON OR DOWNLOADING, INSTALLING OR USING THE APPLICATION, YOU AFFIRM THAT YOU ARE EITHER OVER THE AGE OF MAJORITY IN YOUR JURISDICTION OF RESIDENCE, OR ARE AN EMANCIPATED MINOR, OR POSSESS LEGAL PARENTAL OR GUARDIAN CONSENT, AND THAT YOU ARE FULLY ABLE AND COMPETENT TO ENTER INTO THE TERMS, CONDITIONS, OBLIGATIONS, AFFIRMATIONS, REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS LICENSE AND IN THE RELATED AGREEMENTS, AND TO ABIDE BY AND COMPLY WITH THIS LICENSE AND THE RELATED AGREEMENTS.
IF YOU ARE A CRICKET WIRELESS SERVICE SUBSCRIBER, THIS LICENSE IS SUBJECT TO THE ARBITRATION CLAUSE OF YOUR APPLICABLE WIRELESS SERVICE AGREEMENT, AS AMENDED FROM TIME TO TIME. IF YOU ARE NOT A CRICKET WIRELESS SERVICE SUBSCRIBER, THIS LICENSE IS SUBJECT TO THE ARBITRATION PROVISIONS WHICH ARE INCLUDED IN SECTION 10 OF THIS LICENSE.
Please read this end user software license agreement ("License") carefully before clicking the "Accept" button or downloading or using Cricket Wi-Fi ("Application"). As used herein, "Application" includes, without limitation, any services specific to the Application (excluding, however, Your applicable wireless service plan), software code, scripts, interfaces, graphics, displays, text, images, artwork, music or video clips, documentation and other components or content and any updates, modifications or enhancements to these items accompanying the Application or this License. These terms are an agreement between You and Cricket Wireless and its affiliates (individually and collectively, "Cricket"). "You" and "Your" in this License refer to You, an individual, and/or to the company on whose behalf You accept this License. These terms are an agreement between You and Cricket Wireless and its affiliates (individually and collectively, "Cricket").
Your use of the Application also may be governed by terms and conditions required by (i) any applicable third party content and service providers, (ii) the manufacturer and other providers of Your Device and its hardware and software components, including its operating system, (iii) the online store or other applicable distributor through which You obtain the Application, (iv) Your applicable wireless service agreement, (v) any applicable open source or third party software license, and (vi) the terms or conditions governing Your personal accounts for web content services You access through the Application ((i) through (vi), including without limitation those listed in the "Third Party Terms" section of this License, collectively being referred to as the "Related Agreements"). No Related Agreement, however, shall have the effect of limiting, encumbering or otherwise restricting Cricket's rights and remedies or Your obligations under this License, or waiving any restrictions on Your rights to use the Application under this License. This License shall not have the effect of limiting, encumbering or otherwise restricting Cricket's rights and remedies or Your obligations under any Related Agreement between You and Cricket, or waiving any restrictions on Your rights under any Related Agreement between You and Cricket. You understand and agree that even if You are not the account holder for Your Devices, Your purchase and use of the Application is governed by terms and conditions in the applicable wireless service agreement for Your Device.
If Cricket makes any updates or upgrades to the Application available to You, such updates or upgrades shall be subject to the terms and conditions of this License unless the Application is expressly provided to You under other, or additional terms and conditions, in which case, those other, or additional terms and conditions (which may include the payment of additional fees), shall apply. This Application may be downloaded and used only by wireless customers of Cricket.
1. THE APPLICATION
Cricket Wi-Fi is a Wi-Fi tool designed to provide increased Wi-Fi connectivity for Your Device. The Application manages Wi-Fi connections on Your Device by enabling or disabling the Wi-Fi connection on Your Device depending on its proximity to an available free and open Wi-Fi hotspot. Depending on Your Application settings, the Application will automatically connect Your Device to available Wi-Fi hotspots that appear to be intended for free public use, or provide You a list and/or map of available free, public Wi-Fi networks so that You can connect Your Device. The Application will also share with other end users the location of Wi-Fi hotspots You connect to that appear to be intended for free public use. The Application will not obtain security settings of Wi-Fi hotspots required for authentication. Any attempt to manipulate the Application to obtain security settings required for authentication or otherwise hack, damage, disrupt or disable the authentication protocols of a Wi-Fi hotspot is a violation of law and expressly prohibited. When Your Device is connected to a Wi-Fi hotspot, Your Device will indicate the Wi-Fi connection via an icon in the status bar on the Device display.
1.2 Consent to Use Location Information:
This Application accesses and uses Your personally identifiable location information ("Your Location Information") in order to collect hotspot locations and determine Your proximity to an available Wi-Fi hotspot so that it can initiate a connection. By using this Application, You agree that Cricket may collect and use Your Location Information for such purpose. Cricket does not retain Your Location Information longer than is reasonably necessary for such use. Cricket may also aggregate and use location information, after removing or obscuring any of Your personally identifiable information, for other purposes, including, without limitation, to store the location of an available Wi-Fi hotspot to which Your Device previously connected, to report usage, or to maintain and improve the Application. This notice will serve as Your sole notice that the Application may collect Your Location Information, and You may not receive any reminders or further notice.
1.3 Data Collection:
You acknowledge that Cricket, its affiliates, and its third party vendors may collect, use, and analyze data and information generated by Your installation and use of the Application including, but not limited to, device type, Wi-Fi and data usage, and Your Location Information as well as the service set identifier (SSID), MAC address, and performance of Wi-Fi networks You use. This data will be used to better understand consumer Wi-Fi usage patterns, network performance, and to identify Wi-Fi locations. Cricket will not disclose any personally identifiable information about You to any third-parties.
1.4 Automatic Wi-Fi Connections:
You acknowledge that the Application may automatically connect Your Device to available Wi-Fi hotspots that appear to be intended for free public use. Your use of such hotspots is subject to any applicable terms of service or acceptable use policy of the Wi-Fi hotspot provider.
The Application is not intended to initiate automatic connections to private unsecured hotspots. The use of private unsecured hotspots without the owner's permission or authorization may be prohibited by law. You may not use the Application to gain unauthorized access or attempt to gain unauthorized access to any private unsecured hotspots or to otherwise disrupt, impair, damage or destroy any hotspots. You are solely responsible for any and all activity undertaken while connected to any hotspot and agree to indemnify Cricket for any violations, claims, damages, fines, suits or allegations associated therewith.
You acknowledge that the Application may automatically connect Your Device to hotspots that require You to accept terms of service prior to gaining access to the Internet and that the Application will accept these terms of service on Your behalf. You acknowledge that You may not be able to view the terms of service or acceptable use policies at these hotspots. You agree that the Application may automatically connect Your Device to such hotspots and accept terms of service or acceptable use policies from such hotspot providers on Your behalf. When connecting to a hotspot You may not be able to avoid automatically accepting the hotspot provider's terms of service or acceptable use policy. You agree that Your use of hotspots is subject to any applicable hotspot provider terms of service or acceptable use policy. If You do not agree with Cricket Wi-Fi's process of accepting the terms of service from such hotspot providers, You must disable this capability if the Application allows this capability to be disabled. Users with compatible Android' devices may disable the automatic acceptance of third party hotspot terms feature by selecting the "Auto-Connect" "Off" box in the Application preferences. If the Application does not provide this capability for Your Device, You must turn off the Application or uninstall it.
Hotspot providers may have separate terms that are physically present and/or provided to hotspot users, such as signs or other documentation. We make no representation regarding whether any physical signs or documentation apply to Your use of any hotspot, and You agree that it is Your sole responsibility to identity whether any physical signs or documentation apply to Your use of any hotspot, and to abide by any terms of service contained in the physical signs or documentation.
The Application may provide automated login access through Your Cricket-registered Device to free, public Wi-Fi networks and hotpots. If You access any hotspots that are not free, You are responsible for all airtime charges associated with such service. Cricket accepts no liability for per-minute, roaming, or premium charges charged by any third party Wi-Fi network and/or hotspot operators.
If You or a hotspot provider inform Cricket that the hotspot provider does not wish to be included in Cricket's hotspot list, either You or the provider may submit that information to Cricket at 1-800-274-2538 to have the hotspot provider removed.
1.5 Application Security Settings:
The Application automatically connects to hotspots the Application identifies as being intended for free public use. The Application will only initiate new automatic connections if it identifies an unsecured hotspot that appears to be intended for free public use. If the Application cannot determine whether an unsecured hotspot is intended for free public use, it will not connect.
1.6 Third Party Wi-Fi Network Security:
Cricket Wireless does not guarantee security. You acknowledge and agree that Your communications sent over third-party unsecured Wi-Fi networks are not private and may be seen and used by others. For these reasons, Cricket does not recommend that You disclose personal or other confidential information over third-party unsecured Wi-Fi networks unless You take adequate security precautions prior to transmittal.
2. LICENSE GRANT AND USE RESTRICTIONS
2.1 License Grant:
Subject to the restrictions set forth in Section 2.2, Cricket grants You a personal, revocable, non-exclusive, non-transferable, limited right to install and use one copy of the Application on a single device owned and controlled by You ("Device"), and to access and use the Application on such Device solely for Your personal use, strictly in accordance with the terms and conditions of this License, the Related Agreements, and all applicable local, national, and international laws and regulations. You represent, warrant and agree that You are using the Application solely for Your own personal use and not for redistribution or transfer of any kind. You are only authorized to use this Application in the United States.
2.2 Restrictions on Use:
You shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Application, even for research purposes; (b) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Application; (c) violate any applicable laws, rules or regulations in connection with Your access or use of the Application; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Cricket or its collaborators, suppliers or licensors; (e) use the Application in a manner that derives revenue directly from such use, or use the Application for any other purpose for which it is not designed or intended; (f) install, use or permit the Application to exist on more than one Device at a time or on any other mobile device or computer; (g) distribute the Application to multiple Devices; (h) make the Application available over a network or other environment permitting access or use by multiple Devices or users at the same time; (i) use the Application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by Cricket; (j) use the Application to send automated queries to any website or to send any unsolicited commercial e-mail; (k) use any proprietary information or interfaces of Cricket or other intellectual property of Cricket in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Application; (l) circumvent, disable or tamper with any security-related components or other protective measures applicable to the Application, the Device, or any Wi-Fi network or hotspot or (m) reproduce, archive, retransmit, distribute, disseminate, sell, lease, rent, exchange, modify, broadcast, synchronize, publicly perform, publish, publicly display, make available to third parties, transfer or circulate the Application. You agree to abide by the rules and policies established from time to time by Cricket. Such rules and policies may include, for example, required or automated updates, modifications, and/or reinstallations of the Application and obtaining available patches to address security, interoperability or performance issues. These obligations survive termination of this License.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 Rights to Application:
You acknowledge and agree that the Application, any copies thereof (including without limitation any copy that You download, install, or use on Your Device) , and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of Cricket or its collaborators, licensors, or suppliers. Furthermore, You acknowledge and agree that the source and object code of the Application and the format, directories, queries, algorithms, structure and organization of the Application are the intellectual property and proprietary and confidential information of Cricket and its collaborators, licensors and suppliers. Title to the Application shall remain with Cricket. Cricket and its collaborators, licensors, and suppliers reserve the right to change, suspend, terminate, remove, impose limits on the use of or access to, disable access to, or require the return of the Application (or any copy thereof) at any time without notice and will have no liability for doing so. Except as expressly stated in this License, You are not granted any intellectual property rights in or to the Application by implication, estoppel or other legal theory, and all rights in and to the Application not expressly granted in this License are hereby reserved and retained by Cricket. These obligations survive termination of this License.
3.2 Cricket Marks:
You acknowledge and agree that the following company names and their related logos and all related product and service names, design marks and slogans are trademarks and service marks owned by and used under license from Cricket: Cricket, Cricket Wireless, Cricket Wi-Fi and the Cricket logo (the "Cricket Marks"). You are not authorized to use the Cricket Marks in any advertising, publicity or in any other commercial manner without the prior written consent of Cricket, which may be withheld for any or no reason. These obligations survive termination of this License.
3.3 Open Source Software:
The Application may utilize or include third party software that is subject to open source license terms ("Open Source Software"). You acknowledge and agree that Your right to use such Open Source Software as part of the Application is subject to and governed by the terms and conditions of any applicable open source license, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein (collectively, the "Open Source License Terms"). In the event of a conflict between the terms of this License and the Open Source License Terms, the Open Source License Terms shall control.
4. NO RESPONSIBILITY FOR THIRD PARTY CONTENT AND SERVICES
You acknowledge that the Application may permit access to products, services, websites, advertisements, promotions, recommendations, advice, information, and materials created and provided by advertisers, publishers, content collaborators, marketing agents, vendors and other third parties ("Third Party Content and Services").
You acknowledge that Cricket does not investigate, monitor, represent or endorse the Third Party Content and Services (including any third party websites accessed through the Application). Furthermore, Your access to and use of the Third Party Content and Services is at Your sole discretion and risk, and Cricket shall have no liability to You arising out of or in connection with Your access to and use of the Third Party Content and Services.
4.3 Third Party Terms of Service:
You acknowledge and agree that Your access to and use of the Third Party Content and Services and any correspondence or business dealings between You and any third party using the Application are governed by and require Your acceptance of the terms of service of such third party, including, without limitation, any terms, privacy policies, conditions, representations, warranties or disclaimers contained therein. You assume all risks arising out of or resulting from Your transaction of business over the Internet and with any third party, and You agree that Cricket and its collaborators, suppliers, and licensors are not responsible or liable for any loss or result of the presence of information about or links to such advertisers or service providers. Furthermore, You acknowledge and agree that this License does not grant You any license to (i) the Third Party Content and Services; (ii) any products, services, processes or technology described in or offered by the Third Party Content and Services; or (iii) any copyright, trademark, patent or other intellectual property right in the Third Party Content or Services or any products, services, processes or technology described or offered therein. You agree that You will not use Third Party Content or Services in a manner that would infringe or violate the rights of any other party, and that Cricket and its collaborators, suppliers, and licensors are not in any way responsible for any such use by You.
You acknowledge and agree that the provision of access to any Third Party Content and Service shall not constitute or imply any endorsement by Cricket of such Third Party Content and Services. Cricket reserves the right to restrict or deny access to any Third Party Content and Services otherwise accessible through the Application, although Cricket has no obligation to restrict or deny access even if requested by You.
4.5 Inaccurate or Inappropriate Materials:
You understand that by accessing and using the Third Party Content and Services, You may encounter information, materials and subject matter (i) that are incomplete or inaccurate; (ii) that You or others may deem offensive, indecent, or objectionable; (iii) which may or may not be identified as having explicit language, and (iv) that automatically and unintentionally appears in search results, as a link or reference to objectionable material.
Notwithstanding the foregoing, You agree to use the Third Party Content and Services at Your sole risk and that Cricket and its collaborators, suppliers, and licensors shall have no liability to You for information, material or subject matter that is found to be incomplete, inaccurate, offensive, indecent, or objectionable.
5. USER-SUBMITTED CONTENT
The Application contains features that allow You to submit, post or display content through the Application. You may not use or allow others to use the Application, directly or indirectly through Your Device or wireless number, nor upload, distribute, transmit, communicate, link to, public or access any data, information or material through, using or otherwise in connection with the Application, that (a) is libelous, defamatory, vulgar or obscene, pornographic, sexually offensive or explicit, harmful or harassing, threatening, hateful, racially, culturally, ethnically or otherwise objectionable or offensive, discriminatory or abusive; (b) violates any law or regulation or the rights of others; or (c) infringes any copyright, trademark or other intellectual property right, or any proprietary or personal rights or confidentiality obligations of others. You are solely responsible and liable for any such activity, behavior, use and conduct. This means that You, and not Cricket or its collaborators, suppliers, or licensors, are entirely responsible for all content that You provide via the Application. Cricket reserves the right to filter, edit, or control the user-submitted content posted via the Application and does not guarantee the accuracy, integrity or quality of such content. Under no circumstances will Cricket or its collaborators, suppliers, or licensors be liable in any way for any user-submitted content, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of any such content posted, emailed, transmitted or otherwise made available via the Application.
If You provide content through the Application ("User Submission"), You grant Cricket a royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable and transferable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display Your User Submission (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed and to exercise the same rights with respect to such works without compensation or attribution to You. You also hereby waive any moral rights in Your User Submission. Cricket is under no obligation to post or use any User Submission You may provide and Cricket may remove Your User Submission at any time in its sole discretion. You agree that Cricket is not under any obligation of confidentiality, express or implied, with respect to Your User Submission. You represent and warrant that You own or otherwise control all necessary rights, consents and permissions to Your User Submission necessary to submit such material and to grant Cricket all of the license rights granted herein.
The Application also contains features that allow You to share the location of unsecured hotspots that are available for free to the public. When You determine You have authority and manually connect to an available unsecured Wi-Fi hotspot the information is stored in the Application database to allow other end users the ability to access the same Wi-Fi hotspot. As such, when You manually connect to an available unsecured Wi-Fi hotspot You represent and warrant that You have authority to use the hotspot and that such use does not violate any laws, regulations or third-party property rights. Furthermore, You agree to indemnify and hold harmless Cricket and its affiliates form any damage, claim, loss or liability arising out of Your use and subsequent sharing of the unsecured Wi-Fi hotspot. In the event that You inadvertently manually connect and share an unsecured Wi-Fi hotspot that is not intended for free use by the public, You agree to promptly notify Cricket by removing the hotspot from the Application database at the following link: www.cricketwireless.com/support/apps-and-services/wi-fi-app.
6. TERM AND TERMINATION.
This License shall be effective until terminated. Cricket may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this License and the rights afforded to You hereunder with or without prior notice. Furthermore, if You fail to comply with any terms and conditions of this License, then this License and any rights afforded to You hereunder shall terminate automatically, without any notice or other action by Cricket. Upon the termination of this License, You shall cease all use of the Application and uninstall the Application. Cricket may, without notice to You, disable the Application. Cricket will not be liable to You or any third party for compensation, indemnity, or damages of any sort as a result of terminating this License in accordance with its terms, and termination of this License will be without prejudice to any other right or remedy Cricket may have, now or in the future. These obligations survive termination of this License.
7. DISCLAIMER OF WARRANTIES.
YOU ACKNOWLEDGE AND AGREE THAT THE APPLICATION, INCLUDING ALL CONTENT CONTAINED THEREIN OR ACCESSED THEREBY, IS PROVIDED ON AN "AS IS' AND "AS AVAILABLE" BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE APPLICATION AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. CRICKET AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE APPLICATION AND THIRD PARTY CONTENT AND SERVICES, WHETHER ORAL, EXPRESS, IMPLIED OR STATUTORY, AND WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE OF THE PARTIES, OR THE NATURE OR CONTEXT OF THIS LICENSE, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, CRICKET AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE, FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE APPLICATION WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CRICKET OR FROM THE APPLICATION SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE THAT CRICKET AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS HAVE NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE APPLICATION. YOU ACKNOWLEDGE THAT THE APPLICATION IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE PERFORMANCE OF, USE OR MISUSE OF, FAILURE OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY, THE APPLICATION COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY, OR ENVIRONMENTAL DAMAGE. CRICKET AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE APPLICATION WILL BE COMPATIBLE OR INTEROPERABLE WITH YOUR DEVICE OR ANY OTHER PIECE OF HARDWARE, SOFTWARE, EQUIPMENT OR DEVICE INSTALLED ON OR USED IN CONNECTION WITH YOUR DEVICE. FURTHERMORE, YOU ACKNOWLEDGE THAT COMPATIBILITY AND INTEROPERABILITY PROBLEMS CAN CAUSE THE PERFORMANCE OF YOUR DEVICE TO DIMINISH OR FAIL COMPLETELY, AND MAY RESULT IN PERMANENT DAMAGE TO YOUR DEVICE, LOSS OF THE DATA LOCATED ON YOUR DEVICE, AND CORRUPTION OF THE SOFTWARE AND FILES LOCATED ON YOUR DEVICE. YOU ACKNOWLEDGE AND AGREE THAT CRICKET AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, SHALL HAVE NO LIABILITY TO YOU FOR ANY LOSSES SUFFERED, RESULTING FROM OR ARISING IN CONNECTION WITH COMPATIBILITY OR INTEROPERABILITY PROBLEMS. SHOULD THE APPLICATION PROVE DEFECTIVE, YOU ASSUME THE ENTIRE BURDEN OF ALL NECESSARY EXPENSES, SERVICING, REPAIR, OR CORRECTION. THIS SECTION 7 SHALL SURVIVE TERMINATION OF THIS LICENSE.
NOTWITHSTANDING AND WITHOUT WAIVING THE FOREGOING, THE TERMS AND CONDITIONS OF THE RELATED AGREEMENTS MAY PROVIDE LIMITED REMEDIES TO YOU.
8. LIMITATION OF LIABILITY.
EXCEPT TO THE EXTENT PROHIBITED BY LAW, UNDER NO CIRCUMSTANCES SHALL CRICKET, ITS COLLABORATORS, SUPPLIERS OR LICENSORS, NOR THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE FOR ACCIDENTS, PROPERTY DAMAGE, PERSONAL INJURY, DEATH, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SALE OR DISTRIBUTION OF, THE PERFORMANCE OR NON-PERFORMANCE, OR YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE APPLICATION AND ANY THIRD PARTY CONTENT AND SERVICES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CRICKET'S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE GREATER OF (i) THE INITIAL PURCHASE PRICE PAID BY YOU FOR THE APPLICATION, (ii) THE AGGREGATE AMOUNT YOU PAID TO CRICKET FOR THE APPLICATION DURING THE ONE MONTH PRECEDING THE DATE THAT THE CLAIM ARISES, OR (iii) TWO DOLLARS ($2.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THIS SECTION 8 SHALL SURVIVE TERMINATION OF THIS LICENSE.
You shall indemnify, defend and hold harmless Cricket and its collaborators, suppliers and licensors, and their officers, directors, agents and employees (the "Indemnified Parties") from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of or in connection with the following: (i) Your access to or use of the Application or Third Party Content and Services; (ii) Your breach of this License; (iii) Your violation of law; (iv) Your negligence or willful misconduct; or (v) Your violation of the rights of a third party. You will promptly notify Cricket in writing of any third-party claim arising out of or in connection with Your access to or use of the Application. These obligations survive termination of this License.
10. DISPUTE RESOLUTION BY BINDING ARBITRATION
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
Most customer concerns can be resolved quickly and to the customer's satisfaction by calling our customer service department at 1-800-274-2538. In the unlikely event that Cricket's customer service department is unable to resolve a complaint you may have to your satisfaction (or if Cricket has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed $75,000, Cricket will pay all costs of the arbitration. Moreover, in arbitration you are entitled to recover attorneys' fees from Cricket to at least the same extent as you would be in court. In addition, under certain circumstances (as explained below), Cricket will pay you more than the amount of the arbitrator's award and will pay your attorney (if any) twice his or her reasonable attorneys' fees if the arbitrator awards you an amount that is greater than what Cricket has offered you to settle the dispute.
(1) Cricket and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising); claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and claims that may arise after the termination of this Agreement.
References to "Cricket," "you," and "us" include our respective subsidiaries, affiliates, agents, dealers, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of Services or Devices under this or prior Agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and Cricket are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
(2) A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Cricket should be addressed to: Office for Dispute Resolution, Cricket Wireless, 1025 Lenox Park Blvd., Atlanta, GA 30319 ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Cricket and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Cricket may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Cricket or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Cricket is entitled. You may download or copy a form Notice and a form to initiate arbitration at www.newcricket.com/arbitration-forms.
(3) After Cricket receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than $75,000. (The filing fee currently is $200 but is subject to change by the arbitration provider. If you are unable to pay this fee, Cricket will pay it directly upon receiving a written request at the Notice Address.) The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. (You may obtain information that is designed for non-lawyers about the arbitration process at www.newcricket.com/arbitration-information. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless Cricket and you agree otherwise, any arbitration hearings will take place in the county (or parish) of the address associated with your billing address. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as otherwise provided for herein, Cricket will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse Cricket for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
(4) If, after finding in your favor in any respect on the merits of your claim, the arbitrator issues you an award that is greater than the value of Cricket's last written settlement offer made before an arbitrator was selected, then Cricket will pay you the amount of the award or $10,000 ("the alternative payment"), whichever is greater; and pay your attorney, if any, twice the amount of attorneys' fees, and reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration ("the attorney premium"). If Cricket did not make a written offer to settle the dispute before an arbitrator was selected, you and your attorney will be entitled to receive the alternative payment and the attorney premium, respectively, if the arbitrator awards you any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
(5) The right to attorneys' fees and expenses discussed in paragraph (4) supplements any right to attorneys' fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys' fees or costs. Although under some laws Cricket may have a right to an award of attorneys' fees and expenses if it prevails in an arbitration, Cricket agrees that it will not seek such an award.
(6) The arbitrator may award declaratory 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. YOU AND CRICKET AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Cricket agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
(7) Notwithstanding any provision in this Agreement to the contrary, we agree that if Cricket makes any future change to this arbitration provision (other than a change to the Notice Address) during your Service Commitment, you may reject any such change by sending us written notice within 30 days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
The following provisions survive termination of this License:
11.1 Governing Law, Limitation on Actions:
This License shall be deemed to take place in the State of New York and shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law principles. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. To the maximum extent permitted by applicable law, You and Cricket agree that any cause of action arising out of or relating to the Application or Your use of the Application must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. This Section 11.1 is not intended to and does not alter any provisions of Your applicable wireless service agreement.
11.2 Contact Information:
In the event that You have a question, complaint or claim regarding Your use of the Application, please call Cricket Customer Service by dialing 611 from Your Device if You are a Cricket Wireless service subscriber or 1-800-274-2538or visit www.cricketwireless.com/contactus.
If any provision of this License is held to be invalid or unenforceable with respect to a party, the remainder of this License, or the application of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this License shall be valid and enforceable to the fullest extent permitted by law.
Except as provided herein, the failure to exercise a right or require performance of an obligation under this License shall not affect a party's ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach.
11.5 Jurisdictional Issues, Export Control:
This Application is intended for use within the United States of America. Cricket makes no representation that this Application is appropriate or available for use in other locations. If You choose to access or use the Application from other locations, You do so on Your own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Application from jurisdictions in which the Application, in whole or in part, is illegal or penalized is prohibited. You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction(s) in which the Application was obtained. You represent and warrant that You are not (a) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, or (b) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. You also agree that (x) You will not use the Application for any purposes prohibited by United States law; or (y) download the Application while in China, India, Pakistan, Russia, Turkey, or United Arab Emirates.
11.6 U.S. Government Restricted Rights:
The Application was developed at private expense and is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraphs (a) through (d) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS and in similar clauses in the NASA FAR Supplement, and their successors, and all other Federal laws and regulations that protect Licensor rights in privately developed commercial software.
11.7 Performance or Benchmark Testing:
You may not disclose the results of any benchmark test using the Application to any third party without Cricket's prior written approval.
11.8 Modification or Amendment:
Cricket may modify or amend the terms of this License at any time, with or without notice to You, by posting a copy of the modified or amended License available through the Application or at newcricket.com/Cricketwifi. You will be deemed to have agreed to any such modification or amendment by Your decision to continue using the Application following the date in which the modified or amended License is made available through the Application or the referenced website.
Any provisions of this License which by their express language or by their context are intended to survive the termination of this License shall survive such termination.
11.10 Third Party Beneficiaries:
Except as explicitly provided in this License or in the Related Agreements, nothing contained in this License is intended or shall be construed to confer upon any person (other than the parties hereto) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person.
11.11 No Transfer by You:
You may not rent, lease, lend, sublicense, assign or transfer the Application, this License or any of the rights granted hereunder. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect. These obligations survive termination of this License. Cricket may assign this License without restriction.
11.12 Copyright Complaints:
Cricket respects the intellectual property rights of others. If You believe that Your work has been copied and has been posted, stored or transmitted by or through the Application in a way that constitutes copyright infringement, please submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Cricket's Copyright Agent the following written information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that You claim has been infringed upon;
- A specific description of where the material that You claim is infringing is located on the Sites;
- Your address, telephone number, and e-mail address;
- A statement by You that You have a good-faith belief that the disputed use a is not authorized by the copyright owner, its agent, or the law;
- A statement by You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner's behalf.
Cricket's Copyright Agent for notice of claims of copyright infringement on the Sites can be reached as follows:
Manager of Security & Copyright Infringement 1800 Perimeter Park Drive, Suite 100 Morrisville, NC 27560 Phone: (919) 319-5737 Fax: (919) 319-8154 E-mail: firstname.lastname@example.org
For more information about Cricket's copyright protection practices under the DMCA and for information on how to contact Cricket's DMCA agent, please refer to www.cricketwireless.com/legal-info/acceptable-use-policy.html.
11.13 Entire Agreement:
This License including the documents incorporated herein by reference constitute the entire agreement with respect to the use of the Application licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter.