SIMPLE MOBILE CLOUD END USER LICENSE AGREEMENT
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT CLICK THE "ACCEPT" BUTTON OR DOWNLOAD, INSTALL OR USE THE APPLICATION.
THIS APPLICATION IS NOT INTENDED FOR PERSONS UNDER THE AGE OF 13. IF YOU ARE UNDER 13 YEARS OLD, YOU MAY NOT USE THIS APPLICATION OR PROVIDE SIMPLE MOBILE WITH ANY PERSONALLY IDENTIFIABLE INFORMATION. IF YOU ARE 13 OR OLDER BUT NOT OF LEGAL AGE TO ENTER INTO A CONTRACT, YOU SHOULD REVIEW THESE TERMS AND CONDITIONS WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND THESE TERMS AND CONDITIONS.
BY CLICKING THE "ACCEPT" BUTTON OR DOWNLOADING, INSTALLING OR USING THE APPLICATION, YOU AFFIRM THAT YOU ARE EITHER OVER THE AGE OF MAJORITY IN YOUR JURISDICTION OF RESIDENCE, OR ARE AN EMANCIPATED MINOR, OR POSSESS LEGAL PARENTAL OR GUARDIAN CONSENT, AND THAT YOU ARE FULLY ABLE AND COMPETENT TO ENTER INTO THIS LICENSE AGREEMENT AND THE RELATED AGREEMENTS.
Please read this end user license agreement ("License") carefully before clicking the "Accept" button or downloading or using the Simple Mobile Cloud ("Application"). As used herein, "Application" includes, without limitation, any services, software code, scripts, interfaces, text or graphic content specific to the Application. These terms are an agreement between You and TracFone Wireless, Inc. d/b/a Simple Mobile and its affiliates (individually and collectively, "TracFone") and supplement the Simple Mobile Terms and Conditions related to your wireless service and device. Simple Mobile is a brand of TracFone. "You" and "Your" in this License refer to You, an individual, and/or to the company on whose behalf You accept this License.
Your use of the Application also may be governed by terms and conditions required by (i) any applicable third party content and service providers, (ii) the manufacturer and other providers of Your Device and its hardware and software components, including its operating system, (iii) the online store or other applicable distributor through which You obtain the Application, including without limitation those listed in the "Third Party Terms" section of this License, and (iv) any applicable open source or third party software license (collectively, the "Related Agreements"). No Related Agreement, however, shall have the effect of limiting, encumbering or otherwise restricting Simple Mobile’s rights and remedies or Your obligations under this License, or waiving any restrictions on Your rights to use the Application under this License. This License shall not have the effect of limiting, encumbering or otherwise restricting Simple Mobile's rights and remedies or Your obligations under any Related Agreement between You and Simple Mobile, or waiving any restrictions on Your rights under any Related Agreement between You and Simple Mobile.
If Simple Mobile makes any updates or upgrades to the Application available to You, such updates or upgrades shall be subject to the terms and conditions of this License unless the Application is expressly provided to You under other, or additional terms and conditions, in which case, those other, or additional terms and conditions (which may include the payment of additional fees), shall apply. This Application may be downloaded and used only by wireless customers of Simple Mobile.
1. THE SIMPLE MOBILE CLOUD APP
1.1 General Features
The Simple Mobile Cloud App is a personal cloud storage app that gives you the ability to store and manage up to 50 GB of your Device’s content. Some of the things you can do with the Simple Mobile Cloud App include the following:
· Back up, view and restore content across different OS and devices, such as photos, videos, documents, music, contacts, messages and call history;
· Tag and search: organize and find photos by automatically tagging places, things and people;
· Flashbacks: relive moments from past years;
· Highlights: selects and present the most relevant photos from the past week and allowing you to save them as an album;
· Slideshows: allows you to share photos with friends and family;
· Photo Printing and Editing: enhance photos and turn them into print creations through Fujifilm Smart Publishing, for home delivery or in-store pickup at selected stores.
Cloud storage is only available with active service on the Simple Mobile $60 Truly Unlimited plan. If you do not redeem another $60 Truly Unlimited plan or downgrades to a lower-priced plan, then the cloud service will only be available for 45 additional days, during which time your data will only be accessible for downloading. After the 45-day grace period, all your content will be deleted.
2. LICENSE GRANT AND USE RESTRICTIONS
2.1 License Grant:
Subject to the restrictions set forth in Section 2.2, Simple Mobile grants You a personal, revocable, non-exclusive, non-transferable, limited right to install and use one copy of the Application on a single device owned and controlled by You ("Device"), and to access and use the Application on such Device solely for Your personal use, strictly in accordance with the terms and conditions of this License, the Related Agreements, and all applicable laws and regulations. You represent, warrant and agree that You are using the Application solely for Your own personal use and not for redistribution or transfer of any kind.
2.2 Restrictions on Use:
You shall not, and agree not to or enable others to:
(a) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Application;
(b) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Application;
(c) violate any applicable laws, rules or regulations in connection with Your access or use of the Application;
(d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Simple Mobile or its vendors, suppliers or licensors;
(e) use the Application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended
(f) use the Application in a manner that derives revenue directly from such use, or use the Application for any other purpose for which it is not designed or intended;
(g) install, use, or permit the Application to exist on more than one device at a time or on any device without first accepting the License;
(h) make the Application available over a network or other environment permitting access or use by multiple Devices or users at the same time;
(i) use the Application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by Simple Mobile;
(j) use any proprietary information or interfaces of TracFone or other intellectual property of TracFone in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Application;
(k) circumvent, disable or tamper with any security-related components or other protective measures applicable to the Application or the Device or
(l) reproduce, archive, retransmit, distribute, disseminate, sell, lease, rent, exchange, modify, broadcast, synchronize, publicly perform, publish, publicly display, make available to third parties, transfer or circulate the Application.
You agree to abide by the rules and policies established from time to time by Simple Mobile. Such rules and policies may include, for example, required or automated updates, modifications, and/or reinstallations of the Application and obtaining available patches to address security, interoperability or performance issues. These obligations survive termination of this License.
3. USE OF INFORMATION
3.1 Data Collection:
You authorize and consent to the collection, storage, and use by Simple Mobile and some of its third party vendors of any information and data generated, related to, or derived by Your installation and use of the Application including, but not limited to, account information (such as your email and telephone number) and certain financial information relating to any products and/or services that you purchase directly from the Application (such as name, address, credit card information, billing address).
You acknowledge and agree that Simple Mobile reserves the right to disclose any information about you to government or law enforcement officials or private parties as Simple Mobile, in Simple Mobile’s sole discretion, believes necessary: (i) to satisfy or comply with any applicable law, regulation or legal process or to respond to lawful requests, including subpoenas, warrants or court orders; (ii) to protect Simple Mobile’s property, rights and safety and the rights, property and safety of third parties or the public in general; and (iii) to prevent or stop activity Simple Mobile considers to be illegal or unethical.
3.2 Third Party Wi-Fi Network Security:
You acknowledge and agree that your communications sent over the Internet or Wi-Fi networks are only secure if you are using a specific communication protocol intended for securing such communications. Further, you acknowledge and agree that communications sent over third-party unsecured Wi-Fi networks are not private and may be seen and used by others. For these reasons, Simple Mobile does not recommend that You disclose personal information over third-party unsecured Wi-Fi networks without ensuring that adequate security precautions are taken prior to transmittal.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Rights to Application:
You acknowledge and agree that the Application, any copies thereof (including without limitation any copy that You download, install, or use on Your Device) , and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of Simple Mobile or its vendors, licensors, or suppliers as applicable. Further, You acknowledge and agree that the source and object code of the Application and the format, directories, queries, algorithms, structure and organization of the Application are the intellectual property and proprietary and confidential information of Simple Mobile and its vendors, licensors and suppliers. Title to the Application shall remain with Simple Mobile. Simple Mobile and its vendors, licensors, and suppliers reserve the right to change, suspend, terminate, remove, impose limits on the use of or access to, disable access to, or require the return of the Application (or any copy thereof) at any time without notice and will have no liability for doing so. Except as expressly stated in this License, You are not granted any intellectual property rights in or to the Application by implication, estoppel or other legal theory, and all rights in and to the Application not expressly granted in this License are hereby reserved and retained by TracFone. These obligations survive termination of this License.
You acknowledge and agree that the following company names and their related logos and all related product and service names, design marks and slogans are trademarks and service marks owned by TracFone: "Simple Mobile" and "Simple Mobile Cloud” (the "Marks"). You are not authorized to use the Marks in any advertising, publicity or in any other commercial manner without the prior written consent of TracFone, which may be withheld for any or no reason. These obligations survive termination of this License.
4.3 Open Source Software:
The Application may utilize or include third party software that is subject to open source license terms ("Open Source Software"). You acknowledge and agree that Your right to use such Open Source Software as part of the Application is subject to and governed by the terms and conditions of any applicable open source license, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein (collectively, the "Open Source License Terms"). In the event of a conflict between the terms of this License and the Open Source License Terms, the Open Source License Terms shall control.
5. THIRD PARTY CONTENT AND SERVICES
You acknowledge that the Application may permit access to products, services, websites, advertisements, promotions, recommendations, advice, information, and materials created and provided by advertisers, publishers, content vendors, marketing agents, vendors and other third parties ("Third Party Content and Services").
You acknowledge that Simple Mobile does not investigate, monitor, represent, endorse or guarantee the availability of any Third Party Content and Services (including any third party websites accessed through the Application). As a result, You understand that by accessing and using the Third Party Content and Services, You may encounter information, materials and subject matter (i) that is incomplete or inaccurate; (ii) that You or others may deem offensive, indecent, or objectionable; (iii) which may or may not be identified as having explicit language, and (iv) that automatically and unintentionally appears in search results, as a link or reference to objectionable material. Notwithstanding the foregoing, Your access to and use of the Third Party Content and Services is at Your sole discretion and risk, and Simple Mobile and its vendors, suppliers, and licensors shall have no liability to You for (a) Your access to and use of the Third Party Content and Services or (b) any Third Party Content or Service that is found to be incomplete, inaccurate, offensive, indecent, or objectionable.
To the extent you choose to use or access such Third Party Content and Services, you are responsible for compliance with any applicable laws, including but not limited to applicable local laws and privacy and data collection laws. Further, Simple Mobile reserves the right to restrict or deny access to any Third Party Content and Services otherwise accessible through the Application, although Simple Mobile has no obligation to restrict or deny access even if requested by You.
5.3 Third Party Terms of Service:
In addition, You acknowledge and agree that Your access to and use of the Third Party Content and Services and any correspondence or business dealings between You and any third party using the Application may be governed by and require Your acceptance of the terms of service of such third party, including, without limitation, any terms, privacy policies, conditions, representations, warranties or disclaimers contained therein. You assume all risks arising out of or resulting from Your transaction of business over the Internet and with any third party, and You agree that Simple Mobile and its vendors, suppliers, and licensors are not responsible or liable for any loss or result of the presence of information about or links to such advertisers or service providers.
Furthermore, You acknowledge and agree that this License does not grant You any license to (i) the Third Party Content and Services; (ii) any products, services, processes or technology described in or offered by the Third Party Content and Services; or (iii) any copyright, trademark, patent or other intellectual property right in the Third Party Content or Services or any products, services, processes or technology described or offered therein. You agree that You will not use Third Party Content or Services in a manner that would infringe or violate the rights of any other party, and that Simple Mobile and its vendors, suppliers, and licensors are not in any way responsible for any such use by You.
6. TERM AND TERMINATION.
This License shall be effective until terminated. Simple Mobile may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this License and the rights afforded to You hereunder with or without prior notice. Furthermore, if You fail to comply with any terms and conditions of this License, then this License and any rights afforded to You hereunder shall terminate automatically, without any notice or other action by Simple Mobile. Upon the termination of this License, You shall cease all use of the Application and uninstall the Application. Simple Mobile may, without notice to You, disable the Application. Simple Mobile will not be liable to You or any third party for compensation, indemnity, or damages of any sort as a result of terminating this License in accordance with its terms, and termination of this License will be without prejudice to any other right or remedy Simple Mobile may have, now or in the future. These obligations survive termination of this License.
7. DISCLAIMER OF WARRANTIES.
YOU ACKNOWLEDGE AND AGREE THAT THE APPLICATION, INCLUDING ALL CONTENT CONTAINED THEREIN, IS PROVIDED ON AN "AS IS' AND "AS AVAILABLE" BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE APPLICATION AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION.
SIMPLE MOBILE AND ITS VENDORS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE APPLICATION AND THIRD PARTY CONTENT AND SERVICES, WHETHER ORAL, EXPRESS, IMPLIED OR STATUTORY, AND WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE OF THE PARTIES, OR THE NATURE OR CONTEXT OF THIS LICENSE, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
FURTHERMORE, SIMPLE MOBILE AND ITS VENDORS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL BE UNINTERRUPED, ACCURATE, RELIABLE, TIMELY, SECURE, FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE APPLICATION WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SIMPLE MOBILE OR FROM THE APPLICATION SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE THAT SIMPLE MOBILE AND ITS VENDORS, SUPPLIERS AND LICENSORS HAVE NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE APPLICATION. YOU ACKNOWLEDGE THAT THE APPLICATION IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE PERFORMANCE OF, USE OR MISUSE OF, FAILURE OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY, THE APPLICATION COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY, OR ENVIRONMENTAL DAMAGE.
SIMPLE MOBILE AND ITS VENDORS, SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE APPLICATION WILL BE COMPATIBLE OR INTEROPERABLE WITH YOUR DEVICE OR ANY OTHER PIECE OF HARDWARE, SOFTWARE, EQUIPMENT OR DEVICE INSTALLED ON OR USED IN CONNECTION WITH YOUR DEVICE. FURTHERMORE, YOU ACKNOWLEDGE THAT COMPATIBILITY AND INTEROPERABILITY PROBLEMS CAN CAUSE THE PERFORMANCE OF YOUR DEVICE TO DIMINISH OR FAIL COMPLETELY, AND MAY RESULT IN PERMANENT DAMAGE TO YOUR DEVICE, LOSS OF THE DATA LOCATED ON YOUR DEVICE, AND CORRUPTION OF THE SOFTWARE AND FILES LOCATED ON YOUR DEVICE. YOU ACKNOWLEDGE AND AGREE THAT SIMPLE MOBILE AND ITS VENDORS, SUPPLIERS AND LICENSORS, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, SHALL HAVE NO LIABILITY TO YOU FOR ANY LOSSES SUFFERED, RESULTING FROM OR ARISING IN CONNECTION WITH COMPATIBILITY OR INTEROPERABILITY PROBLEMS. SHOULD THE APPLICATION PROVE DEFECTIVE, YOU ASSUME THE ENTIRE BURDEN OF ALL NECESSARY EXPENSES, SERVICING, REPAIR, OR CORRECTION. THESE OBLIGATIONS SURVIVE TERMINATION OF THIS LICENSE.
NOTWITHSTANDING AND WITHOUT WAIVING THE FOREGOING, THE TERMS AND CONDITIONS OF THE RELATED AGREEMENTS MAY PROVIDE LIMITED REMEDIES TO YOU.
8. LIMITATION OF LIABILITY.
EXCEPT TO THE EXTENT PROHIBITED BY LAW, UNDER NO CIRCUMSTANCES SHALL SIMPLE MOBILE, ITS VENDORS, SUPPLIERS OR LICENSORS, NOR THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE FOR ACCIDENTS, PROPERTY DAMAGE, PERSONAL INJURY, DEATH, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SALE OR DISTRIBUTION OF, THE PERFORMANCE OR NON-PERFORMANCE, OR YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE APPLICATION AND ANY THIRD PARTY CONTENT AND SERVICES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SIMPLE MOBILE'S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE GREATER OF (I) THE INITIAL PURCHASE PRICE PAID BY YOU FOR THE APPLICATION, (II) THE AGGREGATE AMOUNT YOU PAID TO SIMPLE MOBILE FOR THE APPLICATION DURING THE ONE MONTH PRECEDING THE DATE THAT THE CLAIM ARISES, OR (III) TWO DOLLARS ($2.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THESE OBLIGATIONS SURVIVE TERMINATION OF THIS LICENSE.
You agree to indemnify, defend and hold harmless TracFone Wireless, Inc. d/b/a Simple Mobile and its vendors, suppliers and licensors, and their officers, directors, agents and employees (collectively, the "Indemnified Parties") from and against any claim, action, lawsuit, proceeding, loss, damage, liability, fine, penalty, interest and expense (including, without limitation, reasonable attorneys fees and legal expenses) arising out of or in connection with Your use of the Application. You will promptly notify Simple Mobile in writing of any third-party claim arising out of or in connection with Your access to or use of the Application. These obligations survive termination of this License.
10. DISPUTE RESOLUTION BY BINDING ARBITRATION
Most customer concerns can be resolved quickly and to the customer’s satisfaction by contacting Customer Care at 1-877-878-7908. Before taking any formal action, You agree to first contact us and provide a description of your dispute, all relevant documents, and your proposed resolution. If we are unable to resolve your dispute within 30 days of your notice to us, You agree to submit your dispute to binding arbitration or small claims court as set forth in this provision. Please forward your dispute to TracFone Wireless, Inc., Attn: Legal Department-Consumer Claims, 9700 NW 112 Avenue, Miami, FL 33178.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF ALL DISPUTES AND CLAIMS (INCLUDING ONES THAT ALREADY ARE THE SUBJECT OF LITIGATION) THROUGH BINDING ARBITRATION INSTEAD OF SUING IN COURT IN THE EVENT THAT THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE OR CLAIM. ARBITRATION IS BINDING AND SUBJECT TO ONLY A VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE TERMINATION OF TRACFONE’S AGREEMENT WITH YOU. YOU AGREE THAT YOU ARE AWARE THAT THERE IS NO JUDGE NOR JURY IN ARBITRATION BUT THAT AN ARBITRATOR MAY AWARD YOU THE SAME DAMAGES AND RELIEF THAT YOU MAY BE ABLE TO RECOVER IN A COURT OF LAW. YOU AND TRACFONE FURTHER AGREE THAT THE ARBITRATOR MUST HONOR THE TERMS OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY BRING A CLAIM IN SMALL CLAIMS COURT.
This provision is intended to encompass all disputes or claims arising out of your relationship with TracFone, arising out of or relating to the Service or any equipment used in connection with the Service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal or equitable theory). References to You and TracFone include our respective subsidiaries, affiliates, predecessors in interest, successors, and assigns.
All claims will be resolved by binding arbitration where permitted by law. You must first present any claim or dispute to TracFone by contacting our Legal Department, as set out above, to allow an opportunity to resolve the dispute prior to initiating arbitration. The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association (“AAA”) under the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, the “AAA Rules”), as modified by this agreement. The AAA Rules are available online at www.adr.org, by calling the AAA a 1-800-778-7879, or by contacting TracFone’s Legal Department as set out above. You and TracFone agree that use of the Service evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. Additionally, for claims of $10,000 or less, You can choose to proceed with arbitration being decided on the documents submitted in an effort to minimize costs and the time it may take for an arbitrator to reach his or her decision.
You and TracFone agree that any arbitration will be conducted on an individual basis and not on a consolidated, class wide, or representative basis. Further, You and TracFone agree that the arbitrator may not consolidate proceedings or more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If the preclusion of consolidated, class wide, or representative proceedings is found to be unenforceable, then this entire arbitration clause shall be null and void.
Absent a finding that your demand is frivolous, brought for an improper purpose, or malicious as set forth by the standards of Federal Rule of Civil Procedure 11(b), TracFone will pay the filing, administration, and arbitrator fees of an arbitration initiated in accordance with this License. If, however, the arbitrator does deem that your demand was frivolous, was brought for an improper purpose, or was malicious under the same standard used in a court of law, payment of all fees will be divided between You and TracFone in accordance with AAA Rules. Additionally, TracFone hereby waives any right to seek its attorney’s fees from You in the event that it prevails in the arbitration, except where your demand is deemed frivolous, brought for an improper purpose, or malicious under the standard set out above. Nothing in this section shall be construed by an arbitrator as barring an award of attorney’s fees to You, the customer, where the law would so provide. If You initiate an arbitration in which You seek more than $50,000 in damages, the payment of fees will be governed by the AAA rules.
If TracFone made You a settlement offer that You rejected prior to entering arbitration and the arbitrator ultimately finds in your favor in any respect with an award that is greater than the last written offer made to You by TracFone, TracFone will pay You the amount of the award or a minimum of $5,000, whichever is greater. Additionally, TracFone will pay your attorney twice the reasonable expense of attorney’s fees as well as reimbursing any expenses that your attorney reasonably incurs for investigating, preparing, and pursuing your claim. If TracFone opted not to make You a written settlement offer, these same terms apply, meaning that You are guaranteed a minimum award of $5,000 if the arbitrator finds in your favor and that TracFone will reimburse your reasonable attorney’s fees twofold. The arbitrator will be the arbiter of what constitutes reasonable fees, and You and TracFone agree that the arbitrator may make any rulings as to the payment and reimbursement of fees and expenses for an additional 14 days after the arbitrator’s ruling on the merits.
Unless You and TracFone agree otherwise and in an effort to reduce the burden of arbitration on You, the location of any arbitration shall be in the county of your, the customer’s, residence for those customers located within the United States. For customers residing outside of the United States, the location of arbitration shall be Miami, Florida, unless You and TracFone agree otherwise. Either or both parties may participate in the proceedings by telephone. The arbitrator shall apply the law of the State in which You, the customer, reside to the dispute.
If for any reason this arbitration provision is deemed inapplicable or invalid, or to the extent this arbitration provision allows for litigation of disputes in court, You and TracFone waive to the fullest extent permitted by law, (i) any right to pursue any claims on a class or consolidated basis and (ii) your right to serve in a representative capacity in any class or consolidated basis. Neither You nor TracFone shall disclose the existence, contents, or results of any arbitration except to the extent required by law. Judgment on the award rendered may be entered by any court of competent jurisdiction.
In the event that any claim proceeds in a court of law rather than through arbitration, You and TracFone agree that there will not be a jury trial. You and TracFone unconditionally waive any right to a trial by jury in any action, proceeding, or counterclaim arising out of or relating to this License in any way. You and TracFone further agree that in the event of litigation, this section of the License may be filed as an exhibit illustrating a knowing and written consent of any right to a trial by jury.
YOU HAVE THE RIGHT TO OPT OUT OF THIS PROVISION COVERING DISPUTE RESOLUTION BY BINDING ARBITRATION WITHIN 30 DAYS. IN THE EVENT YOU DO NOT OPT OUT OF THIS PROVISION WITHIN 30 DAYS, YOUR INACTION SHALL BE DEEMED TO BE CONSENT TO THIS PROVISION COVERING DISPUTE RESOLUTION. YOU MAY OPT OF THIS PROVISION BY CALLING US AT 1-877-878-7908 OR BY WRITING TO TRACFONE WIRELESS, INC., ATTN: LEGAL DEPARTMENT-CONSUMER CLAIMS, 9700 NW 112 AVENUE, MIAMI, FL 33178. ANY OPT-OUT RECEIVED AFTER THE OPT-OUT DEADLINE (OR, IN THE CASE OF THOSE MAILED, POSTMARKED AFTER THE OPT-OUT DEADLINE) WILL BE INVALID, AND YOU MUST PURSUE YOUR CLAIM IN ARBITRATION.
11. Governing Law
This License shall be deemed to take place in the State of Florida and shall be governed by and construed in accordance with the laws of the State of Florida, excluding its conflicts of law principles. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. To the maximum extent permitted by applicable law, You and Simple Mobile agree that any cause of action arising out of or relating to the Application or Your use of the Application must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. This Section 11 is not intended to and does not alter any provisions of Your agreement to the General Terms and Conditions for Simple Mobile Wireless Service.
12. Jurisdictional Issues, Export Control
This Application is intended for use within the United States of America. Simple Mobile makes no representation that this Application is appropriate or available for use in other locations. If You choose to access or use the Application from other locations, You do so on Your own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Application from jurisdictions in which the Application, in whole or in part, is illegal or penalized is prohibited. You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction(s) in which the Application was obtained. You represent and warrant that You are not (a) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, or (b) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. You also agree that You will not use the Application for any purposes prohibited by United States law.
13. U.S. Government Restricted Rights:
The Application was developed at private expense and is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraphs (a) through (d) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS and in similar clauses in the NASA FAR Supplement, and their successors, and all other Federal laws and regulations that protect Licensor rights in privately developed commercial software.
14. Performance or Benchmark Testing
You may not disclose the results of any benchmark test using the Application to any third party without Simple Mobile's prior written approval.
Any provisions of this License which by their express language or by their context are intended to survive the termination of this License shall survive such termination.
16. Third Party Beneficiaries
Except as explicitly provided in this License or in the Related Agreements, nothing contained in this License is intended or shall be construed to confer upon any person (other than the parties hereto) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person.
17. No Transfer by You
You may not rent, lease, lend, sublicense, assign or transfer the Application, this License or any of the rights granted hereunder. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect. These obligations survive termination of this License. Simple Mobile may assign this License without restriction.
18. Entire Agreement; Severability; and Waiver:
Simple Mobile may modify or amend the terms of this License at any time, with or without notice to You, by posting a copy of the modified or amended License available through the Application. You will be deemed to have agreed to any such modification or amendment by Your decision to continue using the Application following the date in which the modified or amended License is made available through the Application or the referenced website.
If any provision of this License is held to be invalid or unenforceable with respect to a party, the remainder of this License, or the application of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this License shall be valid and enforceable to the fullest extent permitted by law.
Except as provided herein, the failure to exercise a right or require performance of an obligation under this License shall not affect a party's ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach.