This Agreement governs your relationship with Cricket Communications, Inc. ("Cricket") with regard to any Cricket software application and/or widget ("Cricket Applications") you may be able to install, access and/or use (collectively "use") through and/or on your wireless device. This is an important agreement, and you should read it carefully and understand it.
IF YOU USE ANY CRICKET APPLICATIONS YOU ARE AGREEING TO BE BOUND BY ALL OF THE TERMS SET FORTH IN THIS AGREEMENT. IF YOU ARE NOT WILLING TO AGREE TO THESE TERMS DO NOT USE ANY CRICKET APPLICATIONS.
- Grant of Limited License. Cricket hereby grants you a non-exclusive, limited license to use the object code version of any Cricket Application made available to you through your carrier in conjunction with only one wireless communication device ("device"). The term Cricket Applications includes any upgrades, enhancements and other changes to any Cricket Application unless these are accompanied by a separate license agreement, in which event such license agreement shall govern. All rights not expressly granted are reserved by Cricket.
- Ownership. You agree that Cricket and any third parties that may have granted rights to Cricket that are included in any Cricket Application retain all right, title and interest in and to such Cricket Applications, all copies thereof, all copyrights therein and all other proprietary rights thereto. You agree to erase any Cricket Applications from your device upon receipt of notice and not to keep any copy thereof.
- Prohibitions. You agree not to: (i) reproduce, modify or distribute any Cricket Application; (ii) subject to applicable law, decompile or reverse engineer any Cricket Application, or attempt any of such actions; (iii) remove any copyright, logo, trademark or other proprietary notice from any Cricket Application, or (iv) sublicense or transfer any Cricket Application to a third party.
- Termination; Remedies. Your rights under this Agreement shall terminate immediately and without notice if you fail to comply with any material term of this Agreement, however Cricket's rights under this Agreement shall continue. Upon termination you agree to immediately erase all Cricket Applications from your device. Unless otherwise restricted by applicable law, Cricket shall be entitled to recover all costs, including reasonable attorneys fees, incurred in enforcing its rights under this Agreement, whether or not suit shall be required.
- Disclaimer of Warranty. ANY Cricket APPLICATION IS LICENSED TO YOU "AS IS." Cricket DISCLAIMS ANY AND ALL WARRANTIES REGARDING THE Cricket APPLICATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Cricket DOES NOT WARRANT THAT THE OPERATION OF Cricket APPLICATIONS WILL BE UNINTERRUPTED OR ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY OR MAY BE LIMITED.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT: (A) SHALL Cricket BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE USE OF THE Cricket APPLICATIONS (INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS), EVEN IF Cricket HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; AND (B) WILL CRICKET'S LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY, EXCEED THE FEE PAID BY YOU WITH RESPECT TO THE Cricket APPLICATIONS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY OR MAY BE LIMITED.
- Export. The Cricket Applications are subject to the export control laws and regulations of the United States and other jurisdictions, and you agree to comply with all such laws and regulations.
- Notice to U.S. Government End Users. If you are, or are acting on behalf of, an agency or instrumentality of the United States Government, each Cricket Application is a "commercial item" as that term is defined in 48 C.F.R. 2.101, developed exclusively at private expense and consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202 (June 1995). Pursuant to 48 C.F.R. 27.405(b)(2), FAR 12.212 or DFARS 227 7202 and any successor provisions, as applicable, use, reproduction and disclosure of the Cricket Applications is governed by the terms of this Agreement.
- Changes to this Agreement. This Agreement supercedes all previous versions of this document that may have existed. This Agreement may hereafter be modified and/or superceded by a subsequent Agreement posted by Cricket on its website from time to time, and you should check the current version of this Agreement from time to time to be sure that you understand the terms of this Agreement in effect.
Arbitration; Dispute Resolution.
- PLEASE READ THIS SECTION CAREFULLY. ARBITRATION MAY LIMIT RIGHTS YOU MAY HAVE AND PROVIDES FOR RESOLUTION OF MOST DISPUTES THROUGH ARBITRATION. ARBITRATION IS DIFFERENT FROM COURT; THE RULES, INCLUDING DISCOVERY, ARE DIFFERENT AND NO JUDGE OR JURY IS PRESENT AT AN ARBITRATION. THE AWARD IS FINAL AND BINDING AND SUBJECT ONLY TO VERY LIMITED REVIEW BY A COURT (INCLUDING ATTORNEY'S FEES). IN ADDITION, YOU AND WE ARE WAIVING RIGHTS TO PARTICIPATE IN CLASS ACTIONS, INCLUDING WITHOUT LIMITATION CLASS ACTIONS BEGUN BY OTHERS PRIOR TO THIS AGREEMENT. EVEN IF APPLICABLE LAW PERMITS CLASS ACTIONS OR CLASS ARBITRATIONS, YOU ARE WAIVING ANY RIGHT TO PURSUE ANY SUCH CLAIM OR CONTROVERSY AGAINST US (OUR AFFILIATES, PREDECESSORS OR SUCCESSORS IN INTEREST) ON A CLASS BASIS. WE, IN TURN, WAIVE ANY RIGHT TO PURSUE ANY SUCH CLAIM OR CONTROVERSY AGAINST YOU ON A CLASS BASIS.
- You may reject this arbitration clause by sending us a rejection notice ("Rejection Notice") within sixty (60) days after the date of your phone activation or our disclosure of this section to you ("Opt-Out Deadline") by going towww.mycricketdisputeresolution.com. Any Rejection Notice received after the Opt-Out Deadline will not be valid and you must pursue your claim in arbitration of small claims court
- Any past, present or future claim, dispute or controversy ("Claim") by either you or us against the other, or against the employees, agents, successors or assigns of the other, arising from or relating in any way to this Agreement or Services provided to you under this Agreement, including (without limitation) statutory, tort and contract Claims and Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, shall be resolved, upon the election by you or us, by binding arbitration. However, a Claim does not include any challenge to the validly and effect of the Class Action Waiver, as set forth below, which must be determined by a court. The party filing arbitration must choose one of the following three arbitration administrators: American Arbitration Association or JAMS. These administrators are independent from us, and you must follow their rules and procedures for initiating and pursuing arbitration. If you initiate the arbitration, you must also notify us in writing at the address set forth in the "Notices and Contact" section above. If we initiate the arbitration, we will notify you in writing at your then current billing address and send you a text message or (if your account is closed) the last address at which we contacted you. Any arbitration hearing that you attend will be held at a place chosen by the arbitrator or arbitration administrator at the time the claim is filed. We agree that we will not elect to arbitrate an individual Claim that you bring against us in small claims court or your state's equivalent court, if any; however, if that Claim is transferred or appealed to a different court, we reserve our right to elect arbitration. Unless otherwise provided by applicable law, neither party has the right to bring a Claim or other legal action under these Terms and Conditions more than two (2) years after the cause of action arose. We each agree that the Agreement affects interstate commerce so that the FAA (as defined below) apply (despite the choice of law provision in Section 21).
You may obtain copies of the current rules of each of the arbitration administrators named above, and other related materials, including forms and instructions for initiating arbitration, by contacting the arbitration administrators as follows:
American Arbitration Association1633 Broadway, 10th FloorNew York, New York 10019www.adr.org1-800-778-7879JAMS1920 Main Street, Suite 300Irvine, CA 92614www.jamsadr.com1-800-352-5267
This arbitration agreement shall be governed by the Federal Arbitration Act and federal arbitration law (collectively the "FAA"), and shall be conducted under the applicable procedures and rules of the arbitration administrator that are in effect on the date the arbitration is filed unless this arbitration provision is inconsistent with those procedures and rules, in which case this Agreement will prevail. These procedures and rules may limit the amount of discovery available to you or us. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations, and will honor claims of privilege recognized at law.
Judgment upon any arbitration award may be entered in any court having jurisdiction.
At your written request, we will consider any requests to advance or reimburse any arbitration filing fee, administrative and hearing fees that you are required to pay to pursue a Claim in arbitration.
The arbitrator will decide who will ultimately be responsible for paying those fees.
In no event will you be required to reimburse us for any arbitration filing, administrative, or hearing fees in an amount greater than what your court costs would have been if the Claim had been resolved in court.
- No class claims, including class actions, class arbitrations, other representative actions, or joinder or consolidation of any Claim with a Claim of any other person or entity shall be allowable in arbitration, without the written consent of both you and us ("Class Action Waiver"). This arbitration agreement survives the termination of this Agreement or the Service relationship; provided, however, if any portion of this "Arbitration; Dispute Resolution" section cannot be enforced, that portion will be severed, and the rest of the "Arbitration; Dispute Resolution" section will continue to apply, provided that the entire "Arbitration; Dispute Resolution" section shall be null and void if the Class Action Waiver is held to be invalid or unenforceable with respect to any class or representative Claim, subject to any right to appeal such holding.
- IF ARBITRATION IS CHOSEN BY YOU OR US WITH RESPECT TO A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURT. IF ARBITRATION IS CHOSEN, YOU AND WE WILL NOT HAVE RIGHTS THAT ARE PROVIDED IN COURT INCLUDING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT SUCH AS CLASS ACTION LITIGATION. OTHER RIGHTS INCLUDING THE RIGHT TO DISCOVERY AND THE RIGHT TO APPEAL ARE ALSO LIMITED BY ARBITRATION. BY USING THIS SERVICE, YOU EXPRESSLY WAIVE YOUR RIGHT TO A JURY TRIAL IN THE EVENT THAT EITHER PARTY SELECTS ARBITRATION TO RESOLVE THE DISPUTE UNDER THIS AGREEMENT.
If any provision hereof is held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of all other provisions of this Agreement shall not be affected thereby. This Agreement constitutes the entire agreement between you and Cricket regarding its subject matter and supersedes any prior agreement, whether written or oral, relating to the subject matter of this Agreement. Except as provided in Section 9, this Agreement may only be modified, and any waiver of any provision of this Agreement shall only be effective when, in writing and executed by you and a duly authorized officer of Cricket.