This is an agreement between you and T-Mobile USA, Inc. and its affiliates ("T-Mobile," "we" or "us") for wireless local area network communications services and related services and features (including use of a non-T-Mobile network, e.g., roaming) (the "Service") and any wireless local area network compatible equipment purchased from us ("Unit") for use with the Service. - Agreements Governing Use of Service. These T-Mobile HotSpot Terms and Conditions ("T&C's"), any T-Mobile HotSpot Service Agreement you have agreed to, and the specific Rate Plan or Service Plan Information that applies to your account (see www.t-mobile.com/hotspot or the T-Mobile material you received in connection with your account) (together, the "Agreement"), govern the use of the Service and your Unit. Read below for terms that specifically apply to certain services or plans (e.g., prepaid, pay as you go, Add-On Service Plan). THESE T&C'S SUPERSEDE ALL EARLIER VERSIONS AND, AMONG OTHER PROVISIONS, IMPOSE AN EARLY TERMINATION FEE FOR CERTAIN SUBSCRIPTIONS (SEE SEC. 8), REQUIRE MANDATORY ARBITRATION OF DISPUTES (SEE SEC. 3), AND LIMIT OUR LIABILITY (SEE SEC. 14 AND 15). PLEASE READ THEM CAREFULLY BEFORE ACTIVATING OR USING THE SERVICE.
- Acceptance of Agreement by Use/Activation. BY USING/ACTIVATING THE SERVICE YOU REPRESENT YOU ARE OF LEGAL AGE AND AGREE TO BE BOUND BY THE AGREEMENT. If you do not agree to the terms of the Agreement, do not use the Service. Your electronic acceptance on our web site, your activation or use of the Service or your signature below constitutes your acceptance of the Agreement Your electronic acceptance of the Agreement shall have the same force and effect as if you had actually signed the Agreement.
- Mandatory Arbitration; Dispute Resolution. YOU WILL FIRST NEGOTIATE WITH US IN GOOD FAITH TO SETTLE ANY CLAIM OR DISPUTE BETWEEN YOU AND US IN ANY WAY RELATED TO OR CONCERNING THE AGREEMENT, OR OUR PROVISION TO YOU OF GOODS, SERVICES, OR UNITS ("CLAIM"). YOU MUST SEND A WRITTEN DESCRIPTION OF YOUR CLAIM TO OUR REGISTERED AGENT (See Sec. 20). IF YOU DO NOT REACH AGREEMENT WITH US WITHIN 30 DAYS, INSTEAD OF SUING IN COURT, YOU AGREE THAT ANY CLAIM MUST BE SUBMITTED TO FINAL, BINDING ARBITRATION WITH THE AMERICAN ARBITRATION ASSOCIATION ("AAA") UNDER ITS PUBLISHED WIRELESS INDUSTRY ARBITRATION RULES, WHICH ARE A PART OF THE AGREEMENT BY THIS REFERENCE AND ARE AVAILABLE BY CALLING THE AAA AT 800-778-7879 OR VISITING ITS WEB SITE AT www.adr.org. You must serve our registered agent (See Sec. 20) with a notice of an arbitration in order to begin an arbitration. This agreement to arbitrate extends to claims that you assert against other parties, including without limit equipment manufacturers and dealers, if you also assert claims against us in the same proceeding. The Agreement involves interstate commerce and despite the choice of law provision in Sec. 22, the Federal Arbitration Act and federal arbitration law govern arbitrations under the Agreement. An arbitrator may only award as much relief as a court having jurisdiction in the place of arbitration, limited to the same extent that a court would limit such relief and consistent with the provisions of the Agreement. An arbitrator may order injunctive or declaratory relief (so long as that injunctive or declaratory relief does not apply beyond your dealings with us) or summary judgment under applicable law. AAA has a fee schedule for arbitrations. You will pay your share of the arbitrator's fees except: (a) for claims less than $25, we will pay all arbitrator's fees and (b) for claims between $25 and $1000, you will pay $25 for the arbitrator's fee. You and we agree to pay our own other fees, costs and expenses including those for counsel, experts, and witnesses. Visit www.adr.org arbitrator fee information in hardship circumstances.
Neither you nor we may be a representative of other potential claimants or a class of potential claimants in any dispute, nor may two or more individuals' disputes be consolidated or otherwise determined in one proceeding. While the prohibition on consolidated or classwide proceedings in this Sec. 3 will continue to apply: (a) you may take claims to small claims court, if they qualify for hearing by such court and (b) if you fail to timely pay amounts due, we may assign your account for collection and the collection agency may pursue such claims in court limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement. YOU AND WE ACKNOWLEDGE AND AGREE THAT THIS SEC. 3 WAIVES ANY RIGHT TO A JURY TRIAL OR PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN A CLASS ACTION. IF A COURT OR ARBITRATOR DETERMINES THAT YOUR WAIVER OF YOUR ABILITY TO PURSUE CLASS OR REPRESENTATIVE CLAIMS IS UNENFORCEABLE, THE ARBITRATION AGREEMENT WILL NOT APPLY AND OUR DISPUTE WILL BE RESOLVED BY A COURT OF APPROPRIATE JURISDICTION, OTHER THAN A SMALL CLAIMS COURT. SHOULD ANY OTHER PROVISION OF THIS ARBITRATION AGREEMENT BE DEEMED UNENFORCEABLE, THAT PROVISION SHALL BE REMOVED, AND THE AGREEMENT SHALL OTHERWISE REMAIN BINDING.
- Changes to the Agreement or Charges. We may change or increase the charges for Service or any other charges at any time. However, if we: (a) increase the charges for a Service and you would be charged a termination or other fee to cancel that Service, or (b) we modify a material term of our Agreement with you and the modification would be materially adverse to you, we will notify you of the increase or modification (as provided in Sec. 20) and you can cancel the affected Service without paying the termination or other fee (which is your only remedy) by following the cancellation instructions in the notice. If you do not cancel the Service by following the instructions in the notice, then you agree to the increase or modification, even if you paid for Service in advance. If the notice does not say how long you have to cancel, then it is within 14 days after the date of the notice. If we increase charges for Service to which no termination or other fee to cancel service applies, we will notify you of the increase, but you will still be responsible for any termination fee applicable to any Services you may have if you cancel Service.
- Service Availability. A Unit is required to enable the Service to operate. You may buy equipment from us, or from someone else. You must ensure your Unit is compatible with the Service. Availability and performance of the Service is subject to all memory, storage and other limitations in the Unit. Service is only available at designated T-Mobile HotSpot locations, and unless otherwise stated by us on our website or in writing, is not available outside the U.S. Service is available to your Unit only when it is within the operating range of our system or of an operator with which we have an applicable roaming agreement (roaming may not be available with all plans). T-Mobile HotSpot locations and maps are subject to change at any time without notice. Actual service coverage, speeds, locations and quality may vary. Service is subject to unavailability, including emergencies, third party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and maintenance and repair, and may be interrupted, refused, limited or curtailed. We are not responsible for data, messages or pages lost, not delivered, delayed or misdirected because of interruptions or performance issues with the Service or communications services or networks (e.g., T-1 lines or the Internet). We may impose credit, usage or Service limits, suspend Service, or block certain kinds of usage in our sole discretion to protect users or our business. Network speed is an estimate and is no indication of the speed at which your Unit or the Service sends or receives data. Actual network speed will vary based on Unit configuration, compression, network congestion and other factors. The accuracy and timeliness of data received is not guaranteed; delays or omissions may occur. We may, but do not have to, change or improve the Service by, among other things, changing or upgrading the 802.11b standard.
- Use of Service. Unless otherwise set forth by us in writing, you are receiving a single user account solely for your use of the Service through one unit per login session. You agree not to resell or attempt to resell any aspect of the Service, whether for profit or otherwise, share your IP address or ISP Internet connection with anyone, access the Service simultaneously through multiple units or to authorize any other individual or entity to use the Service. You agree that sharing the Service with another party breaches the Agreement and may constitute fraud or theft, for which we reserve all rights and remedies. You have no proprietary or ownership rights to a specific IP or other address, log-in name, or password that you use on our network. We may change your address, log-in name or password at any time. We will assign you an IP address each time you access the Service, and it will vary. You shall not program any other IP address into your Unit. You may not assign your log-in name, password or IP address to any other person or Unit. You agree that we may access your unit and information stored on it (such as drivers, software, etc.) to troubleshoot issues related to the unit or network; enable, operate and update the Service and software; investigate activity that may be in violation of this Agreement; or to comply with law. You agree not to use or attempt to use the Service, the T-Mobile network or website, or your Unit for any fraudulent, unlawful, harassing or abusive purpose, or so as to damage or cause risk to our business, reputation, employees, subscribers, facilities, or to any person. Improper uses include, but are not limited to: a. violating any applicable law or regulation; b. Posting or transmitting content you do not have the right to post or transmit; c. Posting or transmitting content that infringes a third party's trademark, patent, trade secret, copyright, publicity, privacy, or other right; d. Posting or transmitting content that is unlawful, untrue, stalking, harassing, libelous, defamatory, abusive, tortious, threatening, obscene, hateful, abusive, harmful or otherwise objectionable as determined in our sole discretion; e. Attempting to intercept, collect or store data about third parties without their knowledge or consent; f. Deleting, tampering with or revising any material posted by any other person or entity; g. Accessing, tampering with or using non-public areas of the Service or any T-Mobile website or T-Mobile's computer systems and network; h. Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures; i. Attempting to access or search the Service or any T-Mobile network or website with any engine, software, tool, agent, device or mechanism other than the software and/or search agents provided by us or other generally available third party web browser; j. Sending or attempting to send unsolicited messages, including without limitation, promotions or advertisements for products or services, "pyramid schemes", "spam", "chain mail" or "junk mail"; k. Using or attempting to use the Service or any T-Mobile website to send altered, deceptive or false source-identifying information; l. Attempting to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way making up a part of the Service or any T-Mobile website; m. Interfering or attempting to interfere with the access of any user, host or network, including without limitation, sending a "virus" to the Service or any T-Mobile website, overloading, "flooding," "spamming," "crashing," or "mailbombing" the Service or any T-Mobile website; or n. Impersonating or misrepresenting your affiliation with any person or entity.
If we suspect violations of any of the above, we may: a) institute legal action, b) immediately, without prior notice to you terminate the Agreement and the Service, c) terminate any other T-Mobile agreements between us and you and the T-Mobile service provided under those agreements, and d) cooperate with law enforcement authorities in bringing legal proceedings against violators. You agree to reasonably cooperate with us in investigating suspected violations.
T-Mobile reserves the right to install, manage and operate one or more software, monitoring or other solutions designed to assist us in identifying and/or tracking activities that we consider to be illegal or violations of these T&Cs, including but not limited to any of the activities described in this section 6. We may, but are not obligated to, in our sole discretion, and without notice, remove, block, filter or restrict by any means any materials or information (including but not limited to emails) that we consider to be actual or potential violations of the restrictions set forth in these T&Cs, including but not limited to those activities described in this section 6 and any other activities that may subject T-Mobile or its customers to liability. T-Mobile disclaims any and all liability for any failure on its part to prevent such materials or information from being transmitted over the Service and/or into your Unit.
- Content Disclaimer: Cautions and Restrictions. We do not control, nor are we responsible or liable for, data, content, services, or products (including software) that you access, download, receive or buy via the Service. We may, but do not have to, block information, transmissions or access to certain information, services, products or domains to protect us, our network, the public or our users. Therefore, messages and other content may be deleted before delivery. The Internet contains unedited materials, some of which may be offensive to you. We are not a publisher of third-party content accessed through the Service, and are not responsible for the content, accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information provided to or by third parties as accessible through the Service. You are responsible for paying all fees and charges of third party vendors whose sites, products or services you access, buy or use via the Service. If you choose to use the Service to access web sites, services or content, or purchase products from third parties, your personal information may be available to the third-party provider. How third parties handle and use your personal information related to their sites and services is governed by their security, privacy and other policies (if any) and not ours. We have no responsibility for third party provider policies, or their compliance with them. If you elect to download into your unit or otherwise enable any software, including any "client" designed to facilitate your access of the Service, you shall be solely responsible for, and shall be deemed to have reviewed and, to the extent applicable, acknowledged, accepted or waived, any disclosures, notices or options otherwise made available to you for viewing as part of the log-in process for the Service.
- Term; Termination of Service. The Agreement begins on the date Service is activated or used (or is otherwise deemed to have been accepted as provided in Sec. 2) and will continue until terminated by you or us in the manner provided in the Agreement. You understand that if at any time you are not current in paying amounts owed to us, or if your credit or debit card ("Card") expires, does not process payment or is otherwise rejected, we may terminate the Service immediately in our discretion without notice. Despite termination you will be liable for payment of any amounts due or other obligations incurred before or upon termination, whether the Agreement is ended by you or us. If you select a subscription plan with a fixed term longer than 31 days (such as an annual plan), the term of Service shall be a minimum of 12 months from the date of your plan commencement, after any applicable promotion periods have expired (the "Fixed Term"). If you do not or cannot renew your Fixed Term subscription upon its expiration, the plan will continue on a month to month basis. If you select any other subscription plan, the plan will commence after any applicable promotion periods have expired. We may terminate Service for any reason upon 3 days notice other than for breach (in which case we may terminate without prior notice). You may terminate Service for plans without a Fixed Term by providing 30 days notice to us. If we terminate your Service for breach, or you attempt to terminate Service prior to the end of the Fixed Term (and have not met the requirements of Sec. 18), you agree to pay us as an early termination fee for each subscription, and as a reasonable estimate of our damages, and in addition to other amounts owed, the lesser of $200 or the remaining monthly recurring fees owing to the end of the Fixed Term (which you agree may be deducted from any deposit, or automatically billed to your account or Card). In addition, we may keep any amounts prepaid by you sufficient to cover any accrued charges and fees related to the Service you have used. If you terminate the Service before the end of your billing cycle, (1) you will be charged for the entire monthly bill cycle without proration, and (2) you will not receive a credit or refund for any unused minutes or megabytes (or portions thereof).
- Default; Termination. You will be in default under the Agreement if you do not pay any sum when due, breach the Agreement or any other agreement between you and us, become the subject of any proceeding under the Bankruptcy Code or become insolvent. In any such case, you shall remain responsible for payment of all charges and fees (including any early termination fee) due under the Agreement (including charges incurred after a bankruptcy filing), which charges will be immediately due and payable. We have the right to discontinue Service and/or terminate the Agreement without prior notice if you default under the Agreement. If we agree to renew Service to you after discontinuing Service, you agree to pay any applicable reactivation charges. Our remedies hereunder are not exclusive but are in addition to all other remedies provided by law.
- Your Account. Unless you have selected a special promotional rate plan or accepted promotional pricing, you may, upon notice to us and payment of any transfer fee we assess, change to another rate plan. Any Fixed Term will remain unchanged by any modification to your account, unless we require a new Fixed Term as part of such modification. If we allow you to temporarily suspend your account, the Fixed Term will be extended by the length of the temporary suspension.
- Deposits. We may require a deposit in which you grant us a security interest to secure your payment of all amounts when due. Unless prohibited by law, deposits received by us may be commingled with other funds, and will not earn interest. We may increase your deposit at any time upon notice to you. You may either provide us with the increased deposit or terminate Service within 7 days following the date of such notice, and in the latter case any early termination fee will be waived. A deposit may not be used by you to pay any amounts owed to us (unless used to pay a final invoice) or to delay payment. You must promptly pay your bills even if you have given us a deposit. If Service is terminated for any reason, any deposit will be applied to pay any of your charges and fees then or thereafter due. Any remaining deposit or other credit balance will be returned without interest (to the extent allowed by law) to you following termination at your address in our billing records. Unless otherwise prohibited by law we will return balances of $5 or less only if you contact us to request that money. We will hold such money for you for 1 year (without accruing interest for your benefit), but you forfeit to us any portion of the money left after 1 year. You also forfeit any money that the U.S. Mail cannot deliver and returns to us.
- Billing and Payment of Charges. You agree to provide us with accurate and complete billing information including legal name, address, telephone number and credit or debit card/billing information, and to report all changes to this information within 30 days of the change. You represent that the address you have provided to us for billing purposes is either your residential or business street address. You authorize us to verify your creditworthiness with credit-reporting agencies from time to time. You agree to timely pay in full all charges for Service under the Agreement, including regular monthly Service and other charges billed to your account. Charges may include, without limitation, monthly recurring charges for Service and, if applicable, excess usage charges, airport and other surcharges, roaming fees, usage when you are outside a designated local area, and additional features or services you have or use. You will be charged for Service and other features on a monthly billing cycle basis. Except as otherwise provided in your rate or service plan, monthly recurring charges are invoiced one billing cycle in advance and any portion of a monthly billing cycle is not prorated, but billed as a whole cycle. We may change your billing cycle at any time. Where roaming is available, additional fees (which may include access, airtime and/or megabyte charges) may apply when downloading or sending data outside of our network. You will be charged for all data sent or received by any unit you use (including, without limitation, "free" software downloads, messaging, unsolicited information and advertisements), regardless of whether the data is requested, actually or completely delivered, received or stored. In some cases data packets will be resent to ensure complete delivery; you will be billed for these resent packets. You understand that Service connection (and billing) starts at the time you log on to the Service and does not end until you properly log off and the network terminates the connection (after log off). If you (a) do not properly log off, (b) leave the coverage area during a session or (c) lose your connection for any reason, then billing will not terminate until at least several minutes after you lose your connection and you will be charged for this period. Some Units, such as personal data assistants and other handheld devices, may require you to remove your wireless card and turn off your Unit in order to properly terminate your connection. You should do so to ensure your connection is terminated. You understand that if you exceed any applicable allotment of minutes or megabytes ("Mb") under your rate or service plan, you will pay the per-minute and/or per-Mb overage fees applicable to your T-Mobile rate or service plan. Unused minutes, Mb's, or other allocated Services from any rate or service plans or features do not carry over to subsequent billing cycles. All minutes of use are billed in full minute increments; all Mb's of use are billed in full Mb increments; any fraction of a minute or Mb of usage is rounded up and charged, or deducted from any allocated minutes or Mb's, as a full minute or megabyte on a per session basis. Any taxes, assessments, fees, costs or charges imposed on us or you as a result of providing the Service will be added to your charges and are subject to change or increase at any time without notice. If we have agreed that you may pay for charges with a Card, we will charge the Card, when we bill for the charges, for all amounts or other obligations incurred before termination. YOU AGREE THAT YOUR CARD WILL AUTOMATICALLY BE BILLED BY US EACH MONTH FOR THE DURATION OF YOUR SERVICE UNTIL THE AGREEMENT IS TERMINATED AS PROVIDED HEREIN. You also authorize us to charge your Card at or after termination of Service to pay what you then owe (including, but not limited to, payment of any early termination fee). If you revoke authorization to charge your Card, or if for any reason your Card issuer does not pay us, we must receive payment from you on or before the due date, or you will be in default. Except as prohibited by law, charges, less disputed amounts, must be paid by the due date. You agree that (a) time is of the essence; (b) it would be impractical to fix the exact amount of our damages if you fail to pay promptly; and (c) in the event we do not receive payment by the due date, your payment is past due and you shall pay us default interest of the lower of 1.5% per month (or any portion thereof) of any past due amount until paid, or the highest amount permitted by law.
If you believe you have been incorrectly charged, you must notify us of such disputed charges within sixty (60) days from the date the disputed charges are first billed or you waive your right to dispute those charges. Please contact T-Mobile HotSpot Customer Care at 1.877.822.SPOT so that we can review your account (Add-On Service Plan customers call (800) 937-8997).If you accept a credit to resolve an issue, you agree that the issue has been resolved. We may require you to describe the dispute in writing. Any written communications concerning disputed amounts owed must be sent to: T-Mobile HotSpot Customer Care, P.O. Box 702727, Dallas, Texas 75370 (Add-On Service Plan customers see Sec. 28). If it is determined that you owe any amount in dispute, that amount will be added to any current charges and must be paid by the due date. If we accept late or partial payments or payments marked "Paid in Full" or similar notations, it will not waive any of our rights hereunder to collect all amounts that you owe us nor will it constitute an accord and satisfaction. We may charge you a fee of $20 or such amount as may be permitted by law for any Card amount rejected or check returned for insufficient funds.
- Digital Millennium Copyright Act ("DMCA") Notice. In operating the Service, we may act as a "services provider" (as defined in the DMCA) and offer services as an online provider of materials and links to third party web sites. As a result, third party materials that are not owned or controlled by us may be transmitted, stored, accessed or otherwise made available using the Service. If you believe any material available via the Service infringes a copyright, you should notify us using the notice procedure for claimed infringement under the DMCA. We will respond expeditiously to remove or disable access to material we determine may be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the applicable content. Our designated agent (the proper party for notice) to whom you should address infringement notices under the DMCA is Corporation Services Company, 1010 Union Ave. SE, Olympia, WA 98501.
- Disclaimer of Warranties. EXCEPT AS TO ANY WRITTEN LIMITED WARRANTY THAT MAY BE PROVIDED WITH A UNIT YOU PURCHASE FROM US, ALL SERVICES ARE PROVIDED ON AN "AS IS" AND "WITH ALL FAULTS" BASIS, AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE WHICH ARE EXPRESSLY DISCLAIMED. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SERVICE. WE DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. ANY STATEMENTS MADE IN PACKAGING, MANUALS OR OTHER DOCUMENTS, OR BY ANY OF OUR AGENTS (EXCEPT AS TO ANY WRITTEN LIMITED WARRANTY THAT MAY BE PROVIDED WITH A UNIT YOU PURCHASE FROM US), ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND NOT AS WARRANTIES BY US OF ANY KIND. NEITHER WE NOR OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, DEALERS, SUPPLIERS, PARENTS, SUBSIDIARIES OR AFFILIATES ("T-MOBILE AFFILIATES") WARRANT THAT THE INFORMATION, PRODUCTS, PROCESSES, AND/OR SERVICES AVAILABLE THROUGH THE SERVICE WILL BE UNINTERRUPTED, ALWAYS AVAILABLE, ACCURATE, COMPLETE, USEFUL, FUNCTIONAL OR ERROR FREE. IF YOU RECEIVED A WRITTEN "T-MOBILE LIMITED WARRANTY" WITH YOUR UNIT, IT IS THE ONLY WARRANTY MADE BY US WITH RESPECT TO THE UNIT. Some states do not allow the disclaimer of implied warranties, so the above exclusion may not apply to you in whole or in part.
- Limitation of Liability. We shall not be liable for any deficiency in performance caused in whole or in part by the act or omission of an underlying carrier or service provider, dealer, equipment or facility failure, network problems, interference, lack of coverage or network capacity, acts of God, strikes, fire, war, terrorism, riot, emergency, government actions or any other cause beyond our control. EVEN IF T-MOBILE OR ANY OF THE T-MOBILE AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, THEY WILL NOT BE LIABLE TO YOU OR ANY OF YOUR EMPLOYEES, AGENTS, CUSTOMERS OR ANY THIRD PARTIES FOR ANY DAMAGES ARISING FROM USE OF THE SERVICE OR ANY UNIT, INCLUDING WITHOUT LIMITATION: PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF PRIVACY OR SECURITY DAMAGES; PERSONAL INJURY OR PROPERTY DAMAGES; OR ANY DAMAGES WHATSOEVER RESULTING FROM INTERRUPTION OR FAILURE OF SERVICE, LOST PROFITS, LOSS OF BUSINESS, LOSS OF DATA, LOSS DUE TO UNAUTHORIZED ACCESS OR DUE TO VIRUSES OR OTHER HARMFUL COMPONENTS, COST OF REPLACEMENT PRODUCTS AND SERVICES, THE INABILITY TO USE THE SERVICE, THE CONTENT OF ANY DATA TRANSMISSION, COMMUNICATION OR MESSAGE TRANSMITTED TO OR RECEIVED BY YOUR UNIT, ACCESS TO THE WORLD WIDE WEB, THE INTERCEPTION OR LOSS OF ANY DATA OR TRANSMISSION, OR LOSSES RESULTING FROM ANY GOODS OR SERVICE PURCHASED OR MESSAGES OR DATA RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR OTHER MODIFICATIONS OF OR LIMITATIONS TO CERTAIN REMEDIES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU, IN WHOLE OR IN PART.
THE MAXIMUM AGGREGATE LIABILITY OF T-MOBILE AND ANY T-MOBILE AFFILIATES TO YOU, AND THE EXCLUSIVE REMEDY AVAILABLE IN CONNECTION WITH THE AGREEMENT FOR ANY AND ALL DAMAGES, INJURY, LOSSES ARISING FROM ANY AND ALL CLAIMS AND/OR CAUSES OF ACTION RELATED TO THE SERVICE OR UNIT, SHALL BE TO RECOVER THE PRORATED MONTHLY OR OTHER CHARGES TO YOU FOR THE APPLICABLE SERVICE. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES.
THE FOREGOING LIMITATIONS OF LIABILITY SHALL ALSO APPLY TO ANY THIRD PARTY NETWORK PROVIDER FROM WHICH ROAMING SERVICES ARE PROVIDED OR MADE AVAILABLE TO YOU AS PART OF THE SERVICE.
- Indemnification. You agree to defend, indemnify and hold us, any underlying carrier or network provider (including any carrier or network provider from which roaming services are provided or made available to you as part of the Service), and any T-Mobile Affiliates harmless from and against any and all claims, demands, actions, liabilities, costs or damages arising out of your use of the Service or a Unit or your violation of the Agreement. You further agree to pay our reasonable attorneys' and expert witnesses' fees and costs arising from any actions or claims hereunder and those incurred in establishing the applicability of this section.
- Privacy and Security. Wireless systems use radio channels to transmit voice and data communications over a complex network. Privacy cannot be guaranteed, and we are not liable to you or any other party for any lack of privacy you experience while using the Service. We have the right, but not the obligation to monitor, intercept and disclose any transmissions over or using our facilities, and to provide subscriber billing, account, or use records, and related information under certain circumstances (for example, in response to lawful process, orders, subpoenas, or warrants, or to protect our rights, users or property). Please consult the T-Mobile Privacy Policy posted on our website for additional information on the use and disclosure of information. You acknowledge that the Service is not inherently secure and that wireless communications can be intercepted by equipment and software designed for that purpose. Notwithstanding efforts to enhance security with respect to the Service, we cannot guarantee the effectiveness of these efforts and will not be liable to you or any other party for any lack of security that may result from your use of the Service or Unit. You acknowledge that you are responsible for taking such precautions and providing such security measures best suited for your situation and intended use of the Service. We strongly encourage and support certain customer-provided security solutions, such as virtual private networks, encryption and personal firewalls, but do not provide these to our users and are not responsible for their effectiveness. Please consult the T-Mobile HotSpot Security Statement posted on our website for additional information concerning the security of the Service on the T-Mobile network and steps you can take to enhance security while using the Service on our network. You agree to protect your username and password and you are responsible for any usage of your account. You agree to immediately notify us of any unauthorized use of your account or other security breach. If you are roaming on another network, T-Mobile cannot guarantee the security of such network, the privacy of your data or the ability of your solution to work on such network. You are strongly encouraged to review the user policies applicable to any such roaming network, including those related to security and privacy, before commencing a roaming session.
- Cancellation and Return Policy. You may cancel Service without paying any applicable early termination fee if within 30 calendar days from plan commencement ("Return Period") you: (a) contact us to cancel Service and (b) return any returnable Like New Unit (defined below) you purchased from us or our authorized agents (if any) with proof of purchase to the place of purchase. Only Like New Units returned with proof of purchase to the place of purchase within the Return Period are eligible for a refund of the purchase price. A "Like New Unit" is a Unit purchased from us or our authorized agents in its original packaging with all original contents, undamaged and in good working condition as determined by us in our sole discretion. You may be required to pay a restocking fee. Even if you cancel Service and return your Unit (if any) as provided herein, you must pay all Service and usage charges incurred prior to cancellation or return and any subsequent penalties or assessments.
- Assignment. We may assign in whole or in part our rights or duties under the Agreement without prior notice to you and upon such assignment we shall be released from all liability hereunder. You may assign the Agreement only with our prior written consent. Subject to this restriction, the Agreement shall inure to the benefit of and be binding upon the heirs successors, subcontractors, and assigns of the respective parties.
- Notices and Communication. Written notices to you shall be considered given and received by you on the third day after the date deposited in the U.S. Mail addressed to you at your address in our billing records or immediately upon delivery using electronic means such as e-mail. Written notice to us shall be considered given when received by our registered agent Corporation Services Company, 1010 Union Ave. SE, Olympia, WA 98501. You agree that we may contact you through the Service or your Unit to notify you of changes to or information about your account, the Service, additional services or the Agreement.
- Severability. All terms and provisions of these T&C's are independent of each other. If any term or provision of these T&C's is held to be inapplicable or unenforceable, including without limitation any terms or provisions in Secs. 3, 14 or 15, then: (a) such term or provision shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect, (b) the Agreement will not fail its essential purpose and (c) the balance of the terms and provisions shall remain unaffected and in full force and effect, unless our obligations hereunder are materially impaired, in which event we reserve the right to terminate the Agreement.
- Governing Law; Venue and Statute of Limitations. Except as set forth in Sec. 3, the Agreement, its validity, construction and performance, shall be governed by the laws of the state of your last known address (as listed in our records). Arbitration proceedings or any actions to enforce an arbitral award shall be in the state of your last known address (as listed in our records). In no event shall any arbitration be commenced outside the U.S., nor shall any law outside the U. S. be applied. Except as otherwise provided in the Agreement, and unless prohibited by law, any controversy, claim or dispute must be brought by you within one (1) year of the date you are entitled to assert any such claim.
- Entire Agreement. The Agreement represents the final and entire agreement between you and us regarding the Service. Except as otherwise provided in the Agreement, no prior or subsequent handwritten, typed, or oral change to the Agreement will be valid unless we accept it in writing. Our failure at any time to require strict performance by you or any other subscribers of any of the provisions herein shall not waive or reduce our right to thereafter require strict compliance with any provisions of the Agreement.
- Signing Authority; Authorized User. You acknowledge that you are of legal age, have received a copy of the Agreement and have read and clearly understand the terms of the Agreement and, if activating on behalf of a corporation or other entity, are fully authorized to legally bind such entity. You acknowledge that you are responsible for all charges incurred by any person you authorize to access your account, or to use your Unit or the Service.
- Survival. The following provisions, and any other provisions which may reasonably be construed as surviving, and the rights and obligations of the parties thereunder, shall survive any termination of the Agreement for any reason: Sec.s 3, 5, 6, 7, 9, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 26, 27 and 28, and the terms and conditions related to your use of other T-Mobile services.
- Prepaid Customers. (a) If you purchase prepaid Service of any kind (except for the DayPass product, which is described in subsection (b) below), the Agreement and the following apply to you. When purchasing prepaid Service, you are responsible for prepaying all charges for using the Service. The balance in your prepaid account is reduced by the charges attributable to your use of the Service. You must keep a positive balance in your prepaid account to continue using the Service. The prepaid Service may be subject to a minimum user session, which will be charged against your account balance. The prepaid Service you purchase is non-cancelable and will expire within a certain time period. The minimum user session, expiration period and other details concerning the prepaid Service will be disclosed in the Rate Plan Information you receive at the time of your purchase of prepaid Service. If you have any questions about your prepaid Service please contact T-Mobile HotSpot Customer Care. Prior to expiration, you may extend the expiration period by purchasing additional prepaid Service. You will not receive a monthly invoice or activity record for use of prepaid Service. Prepaid Service is non-refundable, and no reimbursement will be given for lost or stolen prepaid cards or coupons. Unused prepaid account balances become our property upon expiration or termination of the Service purchased, and will not be refunded, notwithstanding a modification as provided under Sec. 4.
(b) If you purchase the DayPass product, the Agreement and the following apply to you. When purchasing the DayPass, you are responsible for prepaying all charges for using the Service. The DayPass may only be used within the first 24 continuous hours immediately after initial login. The prepaid Service you purchase in the form of a DayPass is non-cancelable and will expire within a certain time period. The expiration period and other details concerning the DayPass will be disclosed in the Rate Plan Information you receive at the time of your purchase of the DayPass. If you have any questions about your DayPass, please contact T-Mobile HotSpot Customer Care. You will not receive a monthly invoice or activity record for use of your DayPass. The DayPass is non-refundable, and no reimbursement will be given for lost or stolen DayPasses. Unused DayPass account balances become our property upon expiration or termination of the Service purchased, and will not be refunded, notwithstanding a modification as provided under Sec. 4.
- Pay as You Go Customers. If you purchase the Service on a "pay as you go" basis, the Agreement and the following apply to you. When purchasing the pay as you go Service, you are responsible for paying all applicable charges for using the Service, which will be charged to your account or Card. There is a minimum charge for each pay as you go session (see Rate Plan Information for details).
- HotSpot Unlimited-Monthly Service Plan. If you add a HotSpot Unlimited-Monthly Service Plan ("Add-On Service Plan") to your qualifying voice or GPRS data plan, the Agreement and the following apply to you (in addition to the terms and conditions governing your voice or GPRS data rate plan). You must have an active qualifying voice or GPRS data plan to activate or maintain the Add-On Service Plan. Charges for the Add-On Service Plan will be on your voice or GPRS data rate plan bill. Monthly recurring charges are invoiced one monthly billing cycle in arrears. Please contact Customer Care at (800) 937-8997 or 611 from your T-Mobile phone if you have questions about the Add-On Service Plan or your bill. Any written communications concerning disputed amounts owed must be sent to: T-Mobile Consumer Relations, P.O. Box 37380, Albuquerque, NM 87176-7380. Canceling the Add-On Service Plan does not automatically terminate your other T-Mobile services or service agreements, and you will continue to be billed for those other services until they are properly terminated. If you breach the Agreement, we may without prior notice to you: a) terminate the Agreement and the Service, and b) terminate any other T-Mobile agreements between us and you and the T-Mobile service provided under those agreements. If you are currently a HotSpot customer and you purchase an Add-On Service Plan, your current account(s) will not be cancelled automatically; you must properly cancel. If you do not properly cancel your current service, you will continue to be responsible for charges on all active accounts. If you elect to cancel your current service you will be responsible for all amounts owed including any early termination fees. Any prepaid amounts will not be credited. Your Add-On Service Plan and Service will automatically terminate if: a) your voice or GPRS data rate plan is terminated or b) you move to a non-qualifying voice or GPRS data rate plan.
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