Bobsled Terms of Service

Effective: January 11, 2011

IMPORTANT: PLEASE READ THESE BOBSLED TERMS OF SERVICE CAREFULLY BEFORE CLICKING “I ACCEPT” OR CONTINUING TO USE OR ACCESS BOBSLED. This is a binding agreement between you and T-Mobile. If you do not want to be bound by this Agreement, do not click “I Accept” or continue to use or access Bobsled.

T-Mobile USA, Inc. (“T-Mobile”) is pleased to offer you Bobsled, an Internet-based communication service subject to these Bobsled Terms of Service (“Agreement”). As used in this Agreement, “Bobsled” includes all of the following: (a) software applications for your mobile device, your personal computer, or for your browser (“Software”); (b) the Bobsled website, accessible at bobsled.com (the “Site”), (c) the voice, chat, messaging and other services you can access and use through Software and the Site (the “Service” or “Services”); and (d) all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos, graphics or other images) or other materials you may have access to as part of, or through your use of, the Software, the Site or the Services (the “Bobsled Content” and together with “User Content,” defined below, referred to as “Content”).

You and T-Mobile agree as follows:

IMPORTANT: NOT AVAILABLE FOR EMERGENCY CALLS. Bobsled is not a replacement for your mobile or fixed phone. BOBSLED DOES NOT ALLOW YOU TO MAKE CALLS TO 911 OR OTHER EMERGENCY SERVICES. If you have an emergency, you must use your mobile or land-line phone to make any calls to emergency services. It is your responsibility to ensure you have an alternative to Bobsled for making emergency calls.

IMPORTANT: MANDATORY ARBITRATION. This Agreement affects your legal rights by, among other things, REQUIRING MANDATORY ARBITRATION OF DISPUTES (See Section 11), LIMITING YOUR REMEDIES AND T-MOBILE’S LIABILITY (See Sections 10 and 12) and providing legal rights to T-Mobile’s third party vendors and suppliers against you (See Section 21).

IMPORTANT: AUTOMATIC UPLOADING OF CONTACTS.

Messaging Services. The Software that provides messaging Services will automatically upload contact information from your phone to the Services for use with Bobsled. This feature may not be turned off. If you do not want your contacts uploaded, you must not install this Software.

Voice Services. The Bobsled voice Services will also automatically upload the contacts from the social media websites you attach to your Bobsled Account. This feature may not be turned off, but if you do not want your contacts from such social media sites uploaded, you should not attach such social media sites to your Bobsled Account.

BOBSLED IS NOT INTENDED FOR USE BY PERSONS UNDER THE AGE OF 13. IF YOU ARE UNDER 13 YEARS OLD, YOU MAY NOT USE BOBSLED, OR PROVIDE T-MOBILE WITH ANY PERSONALLY IDENTIFIABLE INFORMATION.

YOUR ACCEPTANCE CREATES AN AGREEMENT WITH T-MOBILE.
1. YOUR AGREEMENT WITH T-MOBILE STARTS WHEN YOU ACCEPT. You accept this Agreement by doing any of the following: (a) installing any Software; (b) registering for an Account (as defined below) with Bobsled; (c) activating Bobsled; (d) using the Service; (f) using Bobsled in any other manner not described in the foregoing. IF YOU DO NOT WANT TO ACCEPT, DON’T DO ANY OF THESE THINGS.
2. BY ACCEPTING THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT THESE TERMS CONSTITUTE A BINDING AND EXECUTED AGREEMENT BETWEEN YOU AND T-MOBILE, WHETHER OR NOT YOU HAVE AN ACCOUNT ON BOBSLED OR OTHERWISE USE BOBSLED, AND THAT YOU HAVE READ ALL OF THESE TERMS, UNDERSTAND THEM AND AGREE TO BE LEGALLY BOUND BY THEM.
CONSENT TO USE BOBSLED.
1. Access to and Use of Bobsled and Software. Subject to your continued compliance with this Agreement, T-Mobile grants to you a limited, revocable, nonexclusive, nontransferable license to install and use the Software and to access and use Bobsled solely for your personal and non-commercial use. Your limited right of use will automatically expire upon any termination or cancellation of this Agreement.
2. Beta or Prerelease. If Software or Services are designated as pre-release or beta software, then you may use the pre-release or beta Services or Software (and any Services T-Mobile chooses to offer you in connection with it) in a manner consistent with the terms of this Agreement solely for evaluation purposes until the earlier of (i) the date of the commercial release of the non-beta version of the Software, or (ii) 10 days after the date on which T-Mobile sends notice terminating this Agreement, which T-Mobile may do at any time. You acknowledge that Software and Services designated as pre-release or beta may contain bugs, may not operate properly or perform all intended functions, may interfere with the functioning of other software applications, and may cause errors, data loss or other problems. In light of the fact that pre-release or beta Software and Services are provided to you free of charge, THE RELEASED PARTIES (as defined in Section 10(a)) WILL NOT BE LIABLE FOR DIRECT DAMAGES, AS WELL AS ANY DAMAGES LIMITED UNDER SECTION 10 BELOW, RELATED TO PRE-RELEASE OR BETA SOFTWARE.
3. Consent To Establishment Of Person-To-Person Communications. Bobsled is designed to enable “person-to-person” communications among users with computers and other devices for purposes of direct communication, with minimum involvement of central computer servers. However, you acknowledge that Bobsled makes certain information about your Account (as defined below) known to other users and computers with which you interact or associated instant messaging or social networks in which you participate. You acknowledge and consent to allowing T-Mobile to enable such communications, and you agree that T-Mobile is not responsible for the conduct of any party (or their computers) that interacts with you or your computer as a result of your installation or use of Bobsled.
ELIGIBILITY AND ACCOUNT REGISTRATION. In order to access certain features of Bobsled you must register to create an account (“Account”).
1. Voice Services. To create an Account using voice Services, you will be required to accept the Software permissions (including any applicable social media site access and application permissions), the Terms of Service and download Software. Your Account in the voice Services utilizes your social media identity as your identity with Bobsled, and attaches your Bobsled account to that social media account, which may involve sharing of data between your Bobsled account and your social media account. Your social media identity is your Account for Bobsled’s voice Services.
2. Messaging Services. During the registration process for Bobsled’s messaging Services, you will be required to provide certain information and you will establish a username and a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete.
3. T-Mobile reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. T-Mobile reserves the right to reclaim public place marks and usernames on behalf of businesses or individuals that hold a legal claim or trademark on those public place marks or usernames. You are responsible for safeguarding your password. You agree not to disclose your password to any third party. You acknowledge and agree that you are solely responsible for all activities and actions on your Account and that any such activities or actions will be attributed to you, whether or not you have authorized such activities or actions. You will immediately notify T-Mobile of any unauthorized use of your Account.
BOBSLED CONTENT. Bobsled Content is protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in this Agreement, T-Mobile and its licensors exclusively own all right, title and interest in and to Bobsled Content, including all associated intellectual property rights. All trademarks, service marks, logos, trade names and any other proprietary designations of T-Mobile or its partners, suppliers and vendors used in or on Bobsled are trademarks or registered trademarks of T-Mobile or such parties, as applicable. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties. T-Mobile authorizes you to download, view and print any Bobsled Content solely for your personal and non-commercial purposes, and subject to the restrictions set forth in this Agreement.
USER CONTENT.
1. You Own Your User Content. You retain ownership rights to your User Content (as defined below). You may post, upload, publish, submit or transmit text, graphics, your location, images, music, software, audio, video, information or other materials to be made available through Bobsled (“User Content”). By making available any User Content through Bobsled, you hereby grant to T-Mobile a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content on, through or by means of Bobsled in order to provide Bobsled to you. You also grant each user of Bobsled the right to access, display, view, store and reproduce your User Content for your personal use. T-Mobile does not claim any ownership rights in any such User Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any such User Content. You acknowledge and agree that you are solely responsible for all User Content you make available through Bobsled and any User Content made available to Bobsled by means of your Account. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all such User Content you make available or otherwise made available through your Account or you have all rights, licenses, consents and releases that are necessary to grant to T-Mobile and each user of Bobsled the rights in such User Content, as contemplated under this Agreement; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or T-Mobile’s use of the User Content (or any portion thereof) on, through or by means of Bobsled will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
2. By using Bobsled, you acknowledge and agree that a copy of all User Content sent or received by you may be stored on Bobsled unless you choose to delete it. You acknowledge and agree that while T-Mobile may not currently have set a fixed upper limit on the number or volume of transmissions you may send or receive through Bobsled or on the amount of storage space used for the provision of Bobsled, such fixed upper limits may be set by T-Mobile at any time, at its sole discretion.
3. User Content does not represent or reflect any advice, views, opinions or beliefs of T-Mobile, and T-Mobile does not endorse or claim any responsibility for User Content.
RESTRICTIONS AND LIMITATIONS.
1. You agree to comply with the following restrictions and limitations, and you agree not to permit others to violate them while on your Account:
  1. Bobsled is not a replacement for your phone service. Bobsled does not allow you to make calls to emergency services (including 911). If you have an emergency, you must call emergency services using a mobile or land line phone. You agree to make arrangements for alternative means of communication to contact emergency services.
  2. You may not sell, rent, lease, sublicense or redistribute Software or its activation key(s), or use or permit others to install or directly or indirectly access or use any aspect of Bobsled, its functionality or its activation key(s), except as provided in this Agreement.
  3. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying Bobsled, including the Bobsled Content or the Software.
  4. You will not use, copy, reproduce, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, assign, import, export, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit Bobsled, including the Bobsled Content and the Software, except as expressly permitted in this Agreement. Notwithstanding the foregoing, you may copy the Software for the sole and exclusive purpose of installing the Software as provided above in Section 2.
  5. You may not reverse engineer, decompile or disassemble the Software or otherwise attempt to derive its source code, except and only to the extent that any of these activities is permitted by applicable law despite this restriction.
  6. You may not modify, disable, circumvent, avoid, bypass, remove, deactivate, impair or otherwise interfere with features of Bobsled, including the Software, that enforce license restrictions or that limit or report technical or statistical information regarding any aspect of Bobsled or use thereof to T-Mobile or an entity outside of T-Mobile.
  7. If an upgrade or update of the Software is available, the Software may automatically update and upgrade itself when it is launched. You acknowledge and agree that T-Mobile may update the Software at any time and without notice to you. You may not continue to use prior versions of the Software after the Software is updated or upgraded.
  8. The Bobsled Acceptable Use Policy, available at http://bobsled.com/legal/bobsled-acceptable-use-policy, (“AUP”) provides guidelines on how you may use Bobsled and how you must treat others when using Bobsled. You may not use Bobsled for a purpose or in a manner not permitted by the AUP, including, without limitation, infringement of intellectual property rights, applicable copyright or pornographic laws, or abuse of other users. You hereby agree to strictly comply with and follow the AUP.
2. T-Mobile will have the right to investigate and prosecute suspected violations of this Agreement, the Acceptable Use Policy, or any suspected violation of law, to the fullest extent of the law. T-Mobile may involve and cooperate with law enforcement authorities in prosecuting users suspected of violating the AUP or other aspects of this Agreement. You acknowledge that T-Mobile has no obligation to monitor Content or your access to or use of Bobsled or to review, pre-screen, flag, filter or edit any User Content, but has the right to do so for the purpose of operating Bobsled, to ensure compliance with this Agreement or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. T-Mobile reserves the right, at any time and without prior notice, to remove or disable access to all or a portion of Bobsled, including any Content, if T-Mobile, in its sole discretion, believes that your activities or actions violate this Agreement (including the AUP), violate any applicable law or are otherwise harmful to Bobsled.
3. Portions of the Software make use of unmodified open source software components. Any customer may request the source code for open source portions of this product. To request the source code for such open source components, send a request to T-Mobile’s registered agent, Corporation Services Company at the address in Section 19.
BOBSLED OWNERSHIP. Bobsled, including the Software, the Service, the Site and Bobsled Content, is licensed, not sold. You acknowledge that Bobsled (including any changes you may request or suggest to Bobsled) is the property of T-Mobile and its licensors. Title to Bobsled, including each copy of the Software and Bobsled Content, and all related intellectual property rights embodied in or represented by Bobsled will remain with T-Mobile and its licensors at all times, as will all other rights not explicitly granted to you under this Agreement. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by T-Mobile or its licensors, except for the licenses and rights expressly granted in this Agreement.
THIRD PARTY SITES; NO ENDORSEMENT.
1. Bobsled interacts with various social media and websites and utilizes the information you make available to Bobsled from these outlets. Bobsled is not a part of these other sites nor is it sponsored, affiliated with, offered or endorsed by these sites. Your use of these sites is at all times governed by their terms of service. Nothing in this Agreement amends or in any way limits the rights and responsibilities you have with these sites.
2. Bobsled contains links to, and may allow you to visit, other websites ("Third Party Sites"). If you choose to visit any of these Third Party Sites by "clicking on" another third party link or navigating to a Third Party Site, you will be directed to that third party's website. The fact that Bobsled links to a website or presents a banner ad or other type of advertisement is not an endorsement, authorization or representation of T-Mobile’s affiliation with that third party, nor is it an endorsement of their privacy or information security policies or practices. T-Mobile does not exercise control over Third Party Websites. These other websites may place their own cookies or other files on your computer, collect data or solicit personal information from you. Other sites have their own terms of use and follow different rules regarding the use or disclosure of the personal information you submit to them. T-Mobile encourages you to read the terms of use, privacy policies or statements of the other Third Party Sites you visit.
PRIVACY AND PERSONAL DATA.
1. Your privacy is important to T-Mobile. Any data about you that is collected or generated by your use of Bobsled, including but not limited to: identification data, electronic identification data, survey results and usage data, and diagnostic information, may be retained and used by T-Mobile, subject to the terms of T-Mobile’s privacy policy (available at http://bobsled.com/legal/bobsled-privacy-policy). You should carefully review this policy to understand how your personal data will be used.
2. Messaging Services. The Software that provides messaging Services will automatically upload contact information from your phone to the Services for use with Bobsled. This feature may not be turned off. If you do not want your contacts uploaded, you must not install this Software.
3. Voice Services. The Bobsled voice Services will also automatically upload the contacts from the social media websites you attach to your Bobsled Account. This feature may not be turned off, but if you do not want your contacts from such social media sites uploaded, you should not attach such social media sites to your Bobsled Account.
4. Bobsled may display advertisements and promotions on Bobsled. These advertisements may be targeted to the Content or other information stored on Bobsled (including without limitation your information), or other information that T-Mobile may have about you. The manner, mode and extent of advertising by T-Mobile on Bobsled is subject to change without specific notice to you.
5. Marketing Communications. As further described in the privacy policy, T-Mobile or its Bobsled partners may send you marketing and advertising communications. If you do not want to receive marketing communications from T-Mobile or its Bobsled partners in connection with Bobsled, you must complete the form at the following link: http://bobsled.com/optout.
6. In consideration for T-Mobile granting you access to and use of Bobsled, you agree that T-Mobile may digitally scan content stored on Bobsled, including without limitation your User Information, in order to provide you with targeted advertising on Bobsled.
EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW (INCLUDING ANY APPLICABLE CONSUMER PROTECTION LAWS OF A FOREIGN JURISDICTION), NEITHER T-MOBILE NOR ITS VENDORS, SUPPLIERS, LICENSORS OR DISTRIBUTORS, NOR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONTROLLED OR CONTROLLING ENTITIES, LICENSORS OR LICENSORS’ DISTRIBUTORS (EACH, A “RELEASED PARTY” AND COLLECTIVELY, THE “RELEASED PARTIES”), WILL HAVE ANY LIABILITY TO YOU OR ANY END USERS FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF DATA, LOST PROFITS, BUSINESS OR REVENUE, LOSS OF GOODWILL OR OTHER ECONOMIC ADVANTAGE, OR LOSS OF PRIVACY, ARISING OUT OF OR RELATED TO THESE TERMS OR BOBSLED (INCLUDING WITHOUT LIMITATION THE SOFTWARE, SERVICES, SITE, USER CONTENT, BOBSLED CONTENT OR OTHER CONTENT, EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED OF, OR KNEW OR SHOULD HAVE KNOWN OF, THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION ALSO APPLIES TO ANY CLAIMS YOU MAY BRING AGAINST ANY OTHER PARTY TO THE EXTENT THAT A RELEASED PARTY WOULD BE REQUIRED TO INDEMNIFY THAT PARTY FOR SUCH CLAIM.
1. WITHOUT LIMITING THE SCOPE OR EFFECT OF ANYTHING ABOVE, IN NO EVENT WILL THE RELEASED PARTIES’ TOTAL LIABILITY WITH RESPECT TO ALL CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS OR BOBSLED (INCLUDING CLAIMS OF NEGLIGENCE AND STRICT LIABILITY) EXCEED THE LOWER OF (i) THE AGGREGATE DIRECT DAMAGES ACTUALLY INCURRED BY YOU, OR (ii) THE CHARGES YOU PAID OR OWE THE RELEASED PARTIES FOR BOBSLED.
2. YOU AGREE THE RELEASED PARTIES ARE NOT LIABLE FOR PROBLEMS CAUSED BY YOU OR A THIRD PARTY. EXCEPT TO THE EXTENT PROHIBITED BY LAW, ALL CLAIMS MUST BE BROUGHT WITHIN 2 YEARS OF THE DATE THE CLAIM ARISES.
3. SOME JURISDICTIONS LIMIT THE EXCLUSION OF DAMAGES OR LIMITATION OF LIABILITY, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IF ANY PART OF THE EXCLUSIONS OF DAMAGES OR LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS IS UNENFORCEABLE UNDER APPLICABLE LAW, THE RELEASED PARTIES’ AGGREGATE LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
DISPUTE RESOLUTION AND ARBITRATION.
1. YOU AND EACH OF THE RELEASED PARTIES AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL CLAIMS OR DISPUTES IN ANY WAY BETWEEN YOU AND ANY OF THE RELEASED PARTIES RELATED TO OR CONCERNING IN ANY RESPECT THIS AGREEMENT OR BOBSLED WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. For clarity, this includes any claims against other parties (such as third party suppliers or vendors) relating to or concerning Bobsled in any respect. You and each of the Released Parties also agree that this Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law apply. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR MUST FOLLOW THIS AGREEMENT AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS’ FEES).
2. For all disputes, whether pursued in court or arbitration, you must first give T-Mobile an opportunity to resolve your claim by sending a written description of your claim to T-Mobile Customer Relations, P.O. Box 37380, Albuquerque, NM 87176-7380. You and T-Mobile each agree to negotiate with each other in good faith about your claim. If the claim is not resolved within 60 days after receipt of the claim description, you may pursue your claim in arbitration. You may pursue your claim in a court only under the circumstances described below.
3. Notwithstanding the above, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION if: (i) your claim qualifies, you may initiate proceedings in small claims court; or (ii) YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE YOU ACTIVATED BOBSLED (the “Opt Out Deadline”). You must opt out by the Opt Out Deadline. You may opt out of these arbitration procedures by calling 1-866-323-4405 or completing the opt-out form located at www.T-Mobiledisputeresolution.com. Any opt-out received after the Opt Out Deadline will not be valid and you must pursue your claim in arbitration or small claims court.
4. If the arbitration provision applies or you choose arbitration to resolve your disputes, then either you or T-Mobile (or another Released Party), as applicable, may start arbitration proceedings. To begin arbitration or other legal proceeding, (i) you must serve T-Mobile’s registered agent, Corporation Services Company, at the address in Section 19, below. The American Arbitration Association (AAA) will arbitrate all disputes. For claims of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for claims over $75,000, the AAA’s Commercial Arbitration Rules will apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Upon filing of the arbitration demand, T-Mobile (or another Released Party, as applicable), will pay all filing, administration and arbitrator fees for claims that total less than $75,000. For claims that total more than $75,000, the payment of filing, administration and arbitrator fees will be governed by the AAA Commercial Arbitration Rules. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. In addition, for claims under $75,000 as to which you provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to a recovery of reasonable attorneys’ fees and costs. Except for claims determined to be frivolous, T-Mobile agrees not to seek an award of attorneys’ fees in arbitration even if an award is otherwise available under applicable law.
5. Class Action Waiver. YOU AND EACH OF THE RELEASED PARTIES AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS BETWEEN YOU AND A RELEASED PARTY, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. If a court or arbitrator determines in an action between you and a Released Party that this waiver is unenforceable, the arbitration terms will be void as to you. If you chose to pursue your claim in court by opting out of the arbitration provision as specified above, this Class Action Waiver provision will not apply to you. Neither you, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt out requirements above.
6. Jury Trial Waiver. If any claim between you and a Released Party proceeds in court rather than through arbitration, YOU AND EACH RELEASED PARTY WAIVE ANY RIGHT TO A JURY TRIAL.
WARRANTY DISCLAIMER. TO THE EXTENT PERMITTED BY LAW, BOBSLED IS PROVIDED ON AN “AS IS” AND “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OF ANY KIND. EACH OF THE RELEASED PARTIES DISCLAIMS ALL WARRANTIES WITH RESPECT TO BOBSLED AND ALL THIRD PARTY PRODUCTS OR SERVICES YOU OR END USERS MAY UTILIZE IN CONNECTION WITH BOBSLED, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. IN PARTICULAR, THE RELEASED PARTIES DO NOT REPRESENT OR WARRANT THAT BOBSLED IS ERROR FREE OR FREE FROM HARMFUL COMPONENTS, WILL OPERATE IN AN UNINTERRUPTED OR TIMELY MANNER, IS COMPLETELY SECURE OR WILL BE IMMUNE FROM UNAUTHORIZED ACCESS, WILL INTEROPERATE WITH THIRD PARTY APPLICATIONS OR SERVICES, OR WILL NOT CAUSE SYSTEM FAILURE OR DAMAGE TO THE EQUIPMENT YOU USE TO ACCESS BOBSLED OR ANY OF THE APPLICATIONS OR CONTENT THAT RESIDE ON YOUR EQUIPMENT. Without limiting the foregoing, you acknowledge and agree to the following:
1. The Released Parties assume no responsibility for the security, accuracy, timeliness, truthfulness, completeness, reliability or propriety of any content exchanged using Bobsled, and do not represent or warrant that such content will be free of any viruses, worms, or any other destructive properties, or that the Content will be legal, non-infringing or violating any rights or applicable laws. T-Mobile makes no warranty regarding the quality of any products, services or content purchased or obtained through Bobsled.
2. Bobsled is not designed or manufactured for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support systems, or weapon or combat systems, in which their failure could lead directly to personal injury, death, or property or environmental damage. The Released Parties disclaim any express or implied warranty of fitness for such uses.
3. You are solely responsible for all of your communications and interactions with other users of Bobsled and with other persons with whom you communicate or interact as a result of your use of Bobsled. You understand that the Released Parties do not have any obligation to screen or inquire into the background of any users of Bobsled, nor do the Released Parties have any obligation to make any attempt to verify the statements of users of Bobsled. The Released Parties make no representations or warranties as to the conduct of users of Bobsled or their compatibility with any current or future users of Bobsled. You agree to take reasonable precautions in all communications and interactions with other users of Bobsled and with other persons with whom you communicate or interact as a result of your use of Bobsled, particularly if you decide to meet offline or in person.
4. No advice or information, whether oral or written, obtained from any of the Released Parties or through Bobsled, will create any warranty not expressly made herein.
5. YOU ACKNOWLEDGE THAT THE USE OF BOBSLED IS ENTIRELY AT YOUR OWN RISK.
INDEMNIFICATION. You hereby undertake to defend, indemnify, and hold each of the Released Parties harmless from any claims, liabilities, damages, losses and expenses, including without limitation reasonable legal and accounting fees, arising out of or in connection with your or an activities attributable to your Account’s (a) use Bobsled, (b) breach of this Agreement, or (c) violation of any laws or regulations or the rights of any third party.
TERM; TERMINATION AND SUSPENSION.
1. This Agreement will continue in effect indefinitely, unless you and T-Mobile enter into a new agreement that entirely replaces this Agreement, or unless T-Mobile terminates this Agreement as provided herein. Without prejudice to any other rights, T-Mobile may temporarily or permanently deny, limit, suspend, or terminate your use of Bobsled and this Agreement if T-Mobile believes that: (a) you have abused your rights to use Bobsled; (b) T-Mobile reasonably believe you have breached or otherwise failed to comply with this Agreement (including without limitation the AUP); (c) you have performed any act or omission that violates any applicable law, rule, or regulation; (d) you have performed any act or omission that is harmful or likely to be harmful to T-Mobile, or any other third party, including T-Mobile’s other users or suppliers; or (e) you made use of Bobsled to perform an illegal act, or for the purpose of enabling, facilitating, assisting or inducing the performance of such an act. If T-Mobile terminates this Agreement, (i) you must immediately stop using all aspects of Bobsled (including the Site) and destroy all copies of the Bobsled Content, the Software and all of its component parts, (ii) T-Mobile will have no further obligation to provide Bobsled to you as of the termination date, and (iii) you will remain liable for all amounts due hereunder.
2. You may cancel your Account at any time by following the uninstall procedures listed in the FAQ on the Site.
3. The parties’ respective rights and obligations under Sections 5, 7 – 13, 14, and 17 - 22 will survive the termination of this Agreement.
T-MOBILE’S RIGHT TO MAKE CHANGES TO THESE TERMS.
1. Bobsled is subject to all of T-Mobile’s business policies, practices, and procedures, which T-Mobile may change without notice. UNLESS EXPRESSLY PROHIBITED BY LAW, T-MOBILE MAY CHANGE OR MODIFY ANY OF THESE TERMS AT ANY TIME. If T-Mobile makes a material modification to this Agreement (as determined by T-Mobile in its sole discretion), the modification will take effect 7 days after T-Mobile provides you with initial notification of the change. T-Mobile may provide you with such notice by sending notice via email or by posting the change on its website. All non-material changes will take effect immediately, unless this Agreement is amended to comply with legal requirements, which will become effective as required or ordered.
2. Your continued use of Bobsled after a non-material change or notice of a material change in accordance with the previous paragraph constitutes your agreement to any T-Mobile changes to this Agreement. If you do not agree to the changes, you must discontinue your use of Bobsled. YOU SHOULD PERIODICALLY REVIEW THESE TERMS FOR CHANGES.
CHARGES. As of the date of this Agreement, T-Mobile does not charge users any fees for use of the Bobsled. T-Mobile reserves the right, at any time, to impose or restructure any access and usage charges, taxes, fees or other charges (“Charges”) for all or a portion of Bobsled. T-Mobile will notify you in advance of any changes with respect to Charges it chooses to impose.
COMPLIANCE WITH LAW.
1. Your actions using Bobsled must comply with all applicable laws and regulations. You must comply with all applicable laws, regulations, rulings and executive orders of any governmental authority relating to the exportation or importation of Bobsled (including without limitation the Software), including but not limited to the export and destination control regulations for U.S. goods. This means that you may not export or re-export Bobsled or any part thereof to any country, person, entity, or end user subject to U.S.A. export restrictions. Restricted countries currently include, but are not necessarily limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria.
2. IN SOME COUNTRIES THERE ARE RESTRICTIONS ON USE OF BOBSLED. IT IS YOUR RESPONSIBILITY TO ENSURE YOU ARE ALLOWED TO USE BOBSLED WHERE YOU ARE LOCATED.
DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) NOTICE. T-Mobile respects the Intellectual Property Rights of others and is committed to complying with U.S. Copyright laws. Our policy is to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). The DMCA provides recourse for owners of copyrighted material who believe their rights under U.S. copyright law have been infringed on the Internet. If you believe that material available on or through Bobsled infringes a copyright of yours or any third party, please notify T-Mobile as provided below. After receiving notice, T-Mobile may remove or disable access to any infringing material as provided for in the DMCA. T-Mobile’s designated agent to whom you must address infringement notices under the DMCA is Christina Kirkpatrick at 12920 SE 38th Street, Bellevue, WA 98006. The notice must include the following information as provided by the DMCA, 17 U.S.C. 512 ( c ) (3):
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
6. A statement that the information in the notification is accurate and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
NOTICES AND COMMUNICATION. To begin arbitration or other legal proceeding, you must serve our registered agent. Our registered agent is Corporation Service Company and can be contacted at 1-866-403-5272. You expressly consent to be contacted, for any and all purposes, at any telephone number, or physical or electronic address you provide to T-Mobile. You agree that T-Mobile may contact you in any way, including, pre-recorded or artificial voice or text messages delivered by an automatic telephone dialing system, or e-mail messages delivered by an automatic e-mailing system. Notices from T-Mobile to you are considered delivered when T-Mobile sends them to you via the Software or by email or fax to any email or fax number you provided to us, or 3 days after mailing to your billing address.
CHOICE OF LAW. This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state in which you reside, without regard to the conflicts of laws rules of that state. Foreign laws do not apply. Arbitration or court proceedings must be in: the county and state in which you reside. If you are a resident of a foreign country, by accepting this Agreement you consent to jurisdiction and venue in King County, Washington, and further agree to the applicability of the Federal Arbitration Act, federal law, and the laws of the State of Washington, without regard to conflicts of laws. If you are a foreign resident and it is determined in any proceeding brought by T-Mobile (or another Released Party, as applicable), that you are not subject to personal jurisdiction in the State of Washington, T-Mobile or another Released Party may pursue an action against you in any state or foreign country in which jurisdiction may be established. If any provision of this Agreement is invalid under the law of a jurisdiction that is applicable under this Agreement, that provision will not apply in that jurisdiction.
THIRD PARTY BENEFICIARIES. Certain elements of Bobsled are provided on T-Mobile’s behalf by third party service providers including without limitation Vivox, Inc. and HDmessaging, Inc. (collectively, “Service Providers”). For the avoidance of doubt, the Service Providers are each a Released Party. In addition, each of the Service Providers is an intended third party beneficiary of this Agreement. You hereby agree that each of the Services Providers may implement and realize the benefit of all of T-Mobile’s rights, disclaimers and protections under this Agreement, including Section 11 Dispute Resolution and Arbitration, and may enforce this Agreement against you directly.
ENFORCEABILITY AND ASSIGNMENT. A waiver of any part of this Agreement in one instance is not a waiver of any other part or any other instance and must be expressly provided in writing. If T-Mobile doesn’t enforce its rights under any provisions of this Agreement, T-Mobile may still require strict compliance in the future. Except as provided in this Agreement, if any part of this Agreement is held invalid that part may be severed from this Agreement. You can’t assign this Agreement or any of your rights or duties under it without T-Mobile’s prior written consent, and any attempt to do so will be null and of no effect. T-Mobile may assign all or part of this Agreement or your debts to T-Mobile, as applicable, without notice. This Agreement, including the Privacy Policy and Acceptable Use Policy referenced herein, is the entire agreement between you and T-Mobile and defines all of the rights you have with respect to Bobsled, except as provided by law, and you cannot rely on any other documents or statements by any sales, service representatives or other agents. The original version of this Agreement is in English. To the extent there are conflicts between the English version and any other language version, the English version will control. Any determination made by T-Mobile pursuant to this Agreement, will be in T-Mobile’s sole reasonable discretion.