Terms & Conditions
Omnipoint Technology Partners, LLC., licenses the App to You and grants You access to the OmnipointTV NOW, SET TV LIVE, SET TV service (the “Service”), conditioned upon Your acceptance of these Terms of Service and End User License Agreement (the “Agreement”).
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS (SEE SECTION 11), AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE (SEE SECTION 13).
If at any time after reviewing or using the App You wish to terminate such use or this Agreement, You must un-install and remove the App from Your Device, and delete any copy of the App in Your possession. You agree that information collected from You or Your Device before You un-install, remove or cease to use the App can still be used.
DEFINITIONS: (a) “OMNIPOINT TV NOW,” “We,” “Our” and “Us” mean OMNIPOINT , LLC and its subsidiaries, agents, employees, successors and assigns; (b) “App” means the OmnipointTV NOW application, any website, software, components, data or services provided in connection with the OmnipointTV NOW application, and any updates to these items; and (c) “You” and “Your” mean an individual who downloads or uses the App and any person or entity represented by that individual.
THE APP: The App allows You to access live television and video-on-demand content (collectively, “Content”) available through the Service over a broadband or wireless Internet connection.
2.1 USE OF APP. You must be 18 years of age, or the age of majority in Your state or territory, to subscribe to the Service. Individuals under the age of 18, or applicable age of majority, may utilize the App only with the involvement of a parent or legal guardian, under such person’s Service account and otherwise subject to this Agreement.
2.2 CONTENT. You understand that the Service may include, and the App may allow You to access, Content that may be considered offensive, indecent, explicit, or objectionable and this Content may or may not be identified as having explicit language or other objectionable attributes. Neither OMNIPOINT nor its licensors shall have liability to You for such Content. Content types, genres, categories and descriptions, if any, are provided for Your convenience, and neither OMNIPOINT nor its licensors guarantees their accuracy.
2.3 VIDEO RESOLUTION. Resolution of video content can be affected by the format of the content We receive, the variety of Internet connections and device screens used, and other reasons. So, while We can’t guarantee a specific resolution, We use video optimization technology in an effort to provide a better experience, depending on the device being used and the bandwidth available.
2.4 DATA USAGE. Usage of the App may count against Your data usage, subject to the terms of agreement with Your wireless or Internet provider.
2.5 GEOGRAPHIC LIMITATION. The Service is intended only for individuals located in the United States. You represent and warrant that, at any time you attempt to access the Service, you will be located in the United States and will not attempt to access the Service from any other location or through proxy servers located in any other location. We may use technologies to verify Your geographic location, and will block access to the Service based on our good faith determination that You are located outside of the United States.
DATA FREE TV ON THE MOBILITY NETWORK. If You are an Mobility customer, We may offer promotions that allow You, on eligible devices, to watch some or all Content within the App without using Your Mobility data allowance (“Data Free TV”). While We do not expect it to occur, some advertisements may not be included in Data Free TV and could count against Your Mobility data allowance. The following activities within the App will also count against Your Mobility data allowance: transitioning from WiFi to cellular browsing or searching for Content, viewing “settings”, downloading/updating the App (if over wireless), or any other activity within the App that does not involve streaming Content. To be eligible for Data Free TV, You must be subscribed to an Mobility postpaid data plan or eligible prepaid data plan and not opted out of Sponsored Data. Smart Limits™ and Connected Car data plan customers are not eligible for Data Free TV at this time. Corporate responsibility users (CRU) lines provisioned with a custom access point name (APN) are also excluded from Data Free TV. Data Free TV is not available in Puerto Rico and U.S. Virgin Islands, while roaming in Mexico or Canada, or while traveling internationally or overseas. To take advantage of Data Free TV if accessing the Service through a mobile device, Your mobile device OS versions must be either iOS 10.0 or Android OS 4.4 and above.
FREE TRIALS, SUBSCRIPTIONS, PRICING, BILLING, REFUNDS, AND CANCELLATION.
4.1 OMNIPOINT Free Trial. OMNIPOINT Free Trial. Free Trial is provided free to You as a result of advertisements. We may use the information You provide and information collected through Your use of OMNIPOINT Free Trial to deliver relevant advertisements. OMNIPOINT is not responsible for the products or services provided by advertisers.
4.2 Subscription Packages. While We may offer Content for free as part of OMNIPOINT Free Trial, the Service includes different subscription packages for which payment of a subscription fee is required to access Content available as part of those packages. You can find the specific details regarding Your subscription package at any time by visiting “My Account.”
4.3 Free Trials. If Your subscription to the Service starts with a free trial, You must cancel prior to the end of the free trial, or Your subscription will automatically renew for the price in effect at the time You enrolled in the free trial.
4.4 Recurring Subscription. Your subscription to the Service will continue month-to-month until You cancel Your subscription, or We terminate it (“Subscription”). You must provide Us with a current, valid, accepted method of payment (“Payment Method”) in order to subscribe to the Service. We will charge Your Payment Method monthly, on the same day that Your Subscription to the Service begins. The day that Your Subscription to the Service begins is Your “Renewal Date.” For example, if Your Renewal Date is on the 15th of October, We will charge Your Payment Method on the 15th of each subsequent month. However, if Your Renewal Date is on the 29th, 30th, or 31st in a given month, We will charge Your Payment Method on the first day of the following month. For example, if Your Renewal Date is on the 31st of October, We will charge Your Payment Method for the following month on November 1st. If we attempt to charge Your Payment Method on the Renewal Date and payment fails or is declined, then We may re-attempt to charge Your Payment Method one or more times within the following 16 day period. We may also contact You during the same period regarding the failed payments in an effort to ensure continued service. If these attempts to obtain authorized payment are successful, Your Renewal Date will not change. You agree to pay all fees and charges for the subscription, nonrecurring charges, one-time purchases, taxes, fees, surcharges, and assessments applicable to the Service, associated equipment, installation and maintenance, and including all usage and other charges associated with Your account. In order to provide You with the Service, we may pay taxes, fees, and surcharges to municipalities and other governmental entities, which may pass on to You.
4.5 Cancellation/Refunds. You must cancel Your subscription to the Service before it renews each month in order to avoid charging of the next month’s subscription fee to Your Payment Method. You may cancel at any time at www.OMNIPOINTtvnow.com. However, We do not provide refunds or credits for any partial-month periods or unwatched Content. If You cancel after Your Renewal Date, You will continue to have access to the Service through the end of Your renewal cycle.
4.6 Payment Methods. You authorize Us to store Your Payment Method information, and to charge Your selected Payment Method monthly on Your Renewal Date for Your subscription to the Service. You also authorize Us to charge any one-time purchases or other charges You may incur in connection with Your use of the Service to Your Payment Method. If a payment is not successfully settled, due to insufficient funds, expiration of Your Payment Method, inability to verify Your Payment Method or otherwise, Your subscription to the Service will cancel and will not auto-renew.
4.7 Price Changes. We reserve the right to adjust the pricing for the Service, and any element thereof, in any manner and at any time, in Our absolute and sole discretion. Except as otherwise provided in this Agreement, any price changes to the Service, or any element thereof, will take effect following notice to You at the email address registered with Your Service account.
ACCOUNT ACCESS & PASSWORDS.
5.1 The person who created the Service account and who agrees to this Agreement is the “Account Owner.”
5.2 To provide You with ease of access to Your Service account, the Service implements technology that enables Us to recognize the Account Owner and provide the Account Owner with direct access to the account without retyping any password or other identification each time You visit and use the Service via the App, streaming devices, or Your browser. The Account Owner is solely responsible for enabling this functionality.
5.3 Streams. The number of devices on which you may simultaneously watch is limited. Currently, You are limited to 5 concurrent streams. The number of devices available for use and the simultaneous streams may change from time to time at our discretion.
CONTENT AND PROGRAMMING.
6.1 Programming. Many factors affect the availability, cost and quality of programming. We reserve the unrestricted right to change, rearrange, add or delete Our programming packages, the selections in those packages, Our prices, and any service We offer (including the Service), at any time. We will attempt to notify You of any changes within Our reasonable control.
6.2 Private Viewing. The App and Service are only for private, non-commercial use. Content may not be viewed in areas open to the public or in commercial establishments, even if no fee is charged for its viewing. You may not rebroadcast, transmit or perform the Content, or charge admission for its viewing, or transmit or distribute running accounts of it. You may not use any of Our trademarks.
6.3 Blackouts. Certain programming, including sports events, may be blacked out in Your local reception area. Blackout restrictions are decided by the sports leagues and other entities that own the local broadcast rights.
LICENSE GRANT AND USE RESTRICTIONS.
7.1 License Grant. Subject to the restrictions set forth in Section 7.2, OMNIPOINT grants You a personal, revocable, non-exclusive, non-transferable, limited right to install and use a single instance of the App on a mobile device or other computing device that is owned and controlled by You (“Your Device”), and to access and use the App on Your Device solely for accessing the Service and viewing Content, strictly in accordance with the terms and conditions of this Agreement, and all applicable local, national, and international laws and regulations.
7.2 Restrictions on Use. You shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the App, for any purpose; (b) modify, adapt, improve, or create any derivative work from the App or Content; (c) violate any applicable laws, rules or regulations in connection with Your access or use of the App or Content; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of OMNIPOINT or its collaborators, suppliers or licensors; (e) use the App or Content in a manner that derives revenue directly from such use, or use the App for any other purpose for which it is not designed or intended; (f) enable the use of the App on a device that is not Your Device; (g) enable access to or use of Content on a device that is not Your Device; (h) make the App or Content available over a network or other environment permitting access or use by multiple devices or users at the same time; (i) use the App or Content 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 OMNIPOINT or its licensors; (j) use the App to send automated queries to any website or to send any unsolicited commercial e-mail; (k) use any proprietary information or interfaces of OMNIPOINT or other intellectual property of OMNIPOINT in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the App; (l) circumvent, disable or tamper with any security-related components or other protective measures applicable to the App or the Content; or (m) reproduce, archive, retransmit, distribute, sell, lease, rent, exchange, modify, broadcast, synchronize, publicly perform, publish, publicly display, make available to third parties, transfer or circulate the App or Content. You agree to abide by the rules and policies established from time to time by OMNIPOINT. Such rules and policies may include, for example, required or automated updates, modifications, and/or reinstallations of the App and obtaining available patches to address security, interoperability, or performance issues. These obligations survive termination of this Agreement.
INTELLECTUAL PROPERTY RIGHTS.
8.1 Rights to App and Service. The App (including its source and object code), any copies thereof (whether or not present on Your Device), the Service, and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of OMNIPOINT or its collaborators, licensors, or suppliers. The source and object code of the App are the proprietary and confidential information of OMNIPOINT and its collaborators, licensors and suppliers. The App is licensed, not sold, to You. Title to the App and Service shall remain with OMNIPOINT. OMNIPOINT and its collaborators, licensors, and suppliers reserve the right to change, suspend, terminate, remove, impose limits on the use of or access to, disable access to the App or Service, or require the return of the App (or any copy thereof), at any time without notice and will have no liability for doing so. Except as expressly stated in this Agreement, You are not granted any intellectual property rights in or to the App or Service by implication, estoppel or other legal theory, and all rights in and to the App and Service not expressly granted in this Agreement are hereby reserved and retained by OMNIPOINT. These obligations survive termination of this Agreement.
8.2 OMNIPOINT Marks. The following company names and their related logos and all related product and service names, design marks and slogans are trademarks and service marks owned by and used under license from OMNIPOINT: “OMNIPOINT” “OMNIPOINT NOW” (the “OMNIPOINT Marks”). You are not authorized to use the OMNIPOINT Marks in any advertising, publicity or in any other commercial manner without the prior written consent of OMNIPOINT, which may be withheld for any or no reason. These obligations survive termination of this Agreement.
8.3 Open Source Software. The App may 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 App is subject to and governed by the terms and conditions of any license applicable to the Open Source Software (the “Open Source License Terms”). In the event of a conflict between the terms of this Agreement and the Open Source License Terms, the Open Source License Terms shall control.
TERM AND TERMINATION. This Agreement shall be effective until terminated. OMNIPOINT may, in its sole and absolute discretion, at any time and for any or no reason, disable the App, or suspend or terminate this Agreement and the rights afforded to You hereunder, with or without prior notice or other action by OMNIPOINT. Upon the termination of this Agreement, You shall cease all use of the App and uninstall the App from Your Device, and delete any copy of the App in your possession. OMNIPOINT will not be liable to You or any third party for compensation, indemnity, or damages of any sort as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement will be without prejudice to any other right or remedy OMNIPOINT may have, now or in the future. These obligations survive termination of this Agreement.
DISPUTE RESOLUTION BY BINDING ARBITRATION
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
Most customer concerns can be resolved quickly and to the customer’s satisfaction by reaching our customer service department by going to OMNIPOINTnow.com/customer-service and clicking on the “Chat available” link at the bottom of the page. In the unlikely event that OMNIPOINT’s customer service department is unable to resolve a complaint You may have to Your satisfaction (or if OMNIPOINT has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed $75,000, OMNIPOINT will pay all costs of the arbitration. Moreover, in arbitration you are entitled to recover attorneys’ fees from OMNIPOINT to at least the same extent as you would be in court.
In addition, under certain circumstances (as explained below), OMNIPOINT will pay You more than the amount of the arbitrator’s award and will pay Your attorney (if any) twice his or her reasonable attorneys’ fees if the arbitrator awards you an amount that is greater than what OMNIPOINT has offered you to settle the dispute.
11.2 Arbitration Agreement
(1) OMNIPOINT and You agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);
claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
claims that may arise after the termination of this Agreement.
References to “OMNIPOINT,” “you,” and “us” include our respective subsidiaries, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or Devices under this or prior Agreements between us. Notwithstanding the foregoing, either party may bring an individualized action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and OMNIPOINT are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
(2) A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to OMNIPOINT should be addressed to: OMNIPOINT TECHNOLOGY PARTNERS, LLC, 754 Warrenton Road, Suite 113, #209 Fredericksburg, VA. 22406 (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If OMNIPOINT and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or OMNIPOINT may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by OMNIPOINT or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or OMNIPOINT is entitled. You may download or copy a form Notice and a form to initiate arbitration at OMNIPOINT.com/arbitration-forms
(3) After you have commenced arbitration, OMNIPOINT will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than $75,000. (The filing fee currently is $200 for claims under $10,000 but is subject to change by the arbitration provider. If you are unable to pay this fee, OMNIPOINT will pay it directly upon receiving a written request at the Notice Address.) The arbitration will be governed by the Consumer Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. If the AAA is unavailable, the parties shall agree to another arbitration provider or the court shall appoint a substitute. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. (You may obtain information that is designed for non-lawyers about the arbitration process at OMNIPOINT.com/arbitration-information.) The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless OMNIPOINT and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as otherwise provided for herein, OMNIPOINT will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse OMNIPOINT for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
(4) If, after finding in your favor in any respect on the merits of your claim, the arbitrator issues you an award that is greater than the value of OMNIPOINT’s last written settlement offer made before an arbitrator was selected, then OMNIPOINT will:
pay you the amount of the award or $10,000 (“the alternative payment”), whichever is greater; and pay your attorney, if any, twice the amount of attorneys’ fees, and reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration (“the attorney premium”).
If OMNIPOINT did not make a written offer to settle the dispute before an arbitrator was selected, you and your attorney will be entitled to receive the alternative payment and the attorney premium, respectively, if the arbitrator awards you any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and the attorney premium at any time during the proceedings and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(5) The right to attorneys’ fees and expenses discussed in paragraph (4) supplements any right to attorneys’ fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys’ fees or costs. Although under some laws OMNIPOINT may have a right to an award of attorneys’ fees and expenses if it prevails in an arbitration, OMNIPOINT agrees that it will not seek such an award.
(6) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND OMNIPOINT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and OMNIPOINT agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from arbitration and may be brought in court.
(7) Notwithstanding any provision in this Agreement to the contrary, we agree that if OMNIPOINT makes any future change to this arbitration provision (other than a change to the Notice Address) during your Service Commitment, you may reject any such change by sending us written notice within 30 days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
DISCLAIMER OF WARRANTIES. YOU ACKNOWLEDGE AND AGREE THAT THE APP AND SERVICE, INCLUDING ALL CONTENT CONTAINED THEREIN OR ACCESSED THEREBY, IS PROVIDED ON AN “AS IS’ AND “AS AVAILABLE” BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE APP AND SERVICE IS AT YOUR SOLE RISK AND DISCRETION. TO THE EXTENT NOT PROHIBITED BY LAW, OMNIPOINT AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE APP AND SERVICE, 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 AGREEMENT, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, OMNIPOINT AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE APP OR SERVICE WILL MEET YOUR REQUIREMENTS; (II) THE APP OR SERVICE WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE, FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE APP OR SERVICE WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE APP OR SERVICE WILL BE CORRECTED OR THAT THE APP OR SERVICE WILL BE MAINTAINED. YOU ACKNOWLEDGE THAT THE APP 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 APP COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY, OR ENVIRONMENTAL DAMAGE. OMNIPOINT AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE APP OR SERVICE 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 OMNIPOINT AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, SHALL HAVE NO LIABILITY TO YOU FOR ANY LOSSES SUFFERED, RESULTING FROM OR ARISING IN CONNECTION WITH COMPATIBILITY OR INTEROPERABILITY PROBLEMS. SHOULD THE APP PROVE DEFECTIVE, YOU ASSUME THE ENTIRE BURDEN OF ALL NECESSARY EXPENSES, SERVICING, REPAIR, OR CORRECTION. THIS SECTION 12 SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT PROHIBITED BY LAW, UNDER NO CIRCUMSTANCES SHALL OMNIPOINT, ITS COLLABORATORS, SUPPLIERS OR LICENSORS, NOR THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE FOR ACCIDENTS, PROPERTY DAMAGE, PERSONAL INJURY, DEATH, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH OR RELATING TO THE SALE OR DISTRIBUTION OF, THE PERFORMANCE OR NON-PERFORMANCE, OR YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE APP OR SERVICE, 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, OMNIPOINT’S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE GREATER OF (i) THE FEE YOU PAID FOR YOUR INITIAL MONTH’S SUBSCRIPTION TO THE SERVICE; (ii) THE AGGREGATE AMOUNT YOU PAID TO OMNIPOINT FOR THE SERVICE DURING THE ONE MONTH PRECEDING THE DATE THAT THE CLAIM ARISES; OR (iii) TWO DOLLARS ($2.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THIS SECTION 13 SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
INDEMNIFICATION. You shall indemnify, defend and hold harmless OMNIPOINT and its collaborators, suppliers and licensors, and their officers, directors, agents and employees (the “Indemnified Parties”) from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of, in connection with or related to the following: (i) Your access to or use of the App, Service, or Third Party Content and Services; (ii) Your breach of this Agreement; (iii) Your violation of law; (iv) Your negligence or willful misconduct; or (v) Your violation of the rights of a third party. You will promptly notify OMNIPOINT in writing of any third-party claim arising out of or in connection with Your access to or use of the App or Service. These obligations survive termination of this Agreement.
MISCELLANEOUS. The following provisions survive termination of this Agreement:
15.1 Governing Law, Limitation on Actions. This Agreement shall be deemed to take place in the State of Delaware and shall be governed by and construed in accordance with the laws of the State of Delaware, excluding its conflicts of law principles. This Agreement 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 OMNIPOINT agree that any cause of action arising out of or relating to this Agreement, the App, the Service or Your use of the App or Service must commence within one (1) year after the applicable cause of action accrues in accordance with the dispute resolution provision. Otherwise, such cause of action is permanently barred.
15.2 Contact Information. You may reach OMNIPOINT Customer Service by visiting help.OMNIPOINTnow.com to chat with an agent.
15.3 Electronic Communications. We may communicate with You about the Service and this Agreement vie email to the email address registered with Your Service account. You hereby consent to receive those communications and agree that any communications We send to You electronically will satisfy any applicable legal notice requirement.
15.4 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall not be affected and shall remain valid and enforceable to the fullest extent permitted by law.
15.5 Waiver. Except as provided herein, the failure to exercise a right or require performance of an obligation under this Agreement 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.
15.6 Export Control; Lawful Use. You may not export or re-export the App except as authorized by United States law or the laws of the jurisdiction(s) in which the App was obtained. You represent and warrant that You are not located and will not use the App in any country that is (a) 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 may not use the App in any manner or for any purpose prohibited (a) by United States law, regardless of where You use the App, or (b) by local law, in the jurisdiction(s) in which You use the App.
15.7 U.S. Government Use. The App and its related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
15.8 Performance or Benchmark Testing. You may not disclose the results of any benchmark test using the App to any third party without OMNIPOINT’s prior written approval.
15.9 Modification or Amendment. To the extent not prohibited by law, OMNIPOINT may modify or amend the terms of this Agreement at any time, with or without direct notice to You, by posting a copy of the modified or amended Agreement available through the App or at www.OMNIPOINTtvnow.com. You will be deemed to have agreed to any such modification or amendment by Your decision to continue using the App following the date in which the modified or amended Agreement is made available through the App or www.OMNIPOINTtvnow.com.
15.10 Survival. Any provisions of this Agreement which by their express language or by their context are intended to survive the termination of this Agreement shall survive such termination.
15.11 Third Party Beneficiaries. Except as explicitly provided in this Agreement or in its incorporated agreements, nothing contained in this Agreement 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.
15.12 No Transfer by You. You may not transfer your rights or obligations under this Agreement. Any attempted transfer by You in contravention of this Agreement shall be null and void. OMNIPOINT may assign this Agreement without restriction.
15.13 Entire Agreement. This Agreement including the documents incorporated herein by reference constitute the entire agreement with respect to the use of the App and Service and supersedes all prior or contemporaneous understandings regarding such subject matter.
Third Party Terms
Open Source Terms. The App may use, incorporate, or access software that is subject to the following Open Source License Terms:
Copyright Joyent, Inc. and other Node contributors. Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.