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Network Companion App Terms & Conditions

Effective April 5, 2022




 

Welcome to the Network Companion Application (“App”)! In our commitment to deliver the best 5G stand-alone network, we have included on your device certain diagnostic software capabilities within the App that we use to improve your network experience and our wireless service. In addition, the App will assist you in completing activation of your device.

Please note that the terms and conditions contained herein, together with any other applicable terms agreed to by you (the General Terms & Conditions (“Ts&Cs”), Privacy Policy and End User License Agreement (“EULA”), each of which is hereby incorporated in these Terms of Service by this reference in its entirety, collectively, these “Terms of Service”) include embedded hyperlinks that may only be accessed through our websites, and if you are reviewing these Terms of Service through certain applications or other platforms, then you may need to visit the Terms and Conditions in your browser to review any hyperlinked terms incorporated herein. These Terms of Service set forth the terms and conditions pursuant to which DISH Wireless will agree to provide or otherwise make the App available to you. Your access and use is conditioned on your acceptance of these Terms of Service and are effective until we change or replace them.

DISH Wireless L.L.C. and its affiliates (referred to as, "we," "us," "our," "Boost," or "DISH Wireless") endeavors to provide you and other users with assistance in activating your new device and access to certain third-party network diagnostic applications (such features, functionalities, products, services, and any and all content contained therein collectively referred to in these Terms of Service as, "App Services"). You and other users of our App Services are collectively referred to in these Terms of Service as "you," "your," and "Users." Our App Services were designed to be accessed and used only by those Users intentionally authorized by us to receive such App Services upon activation of your device.

SUBJECT TO CERTAIN EXCEPTIONS SET FORTH BELOW IN SECTION 10, THESE TERMS OF SERVICE REQUIRE THE USE OF MANDATORY AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES (AS THAT TERM IS DEFINED IN SECTION 10 BELOW, RATHER THAN, AMONG OTHER THINGS, JURY TRIALS OR CLASS ACTIONS (SEE SECTION 10 BELOW).

 

Section 1: ACCEPTANCE OF TERMS OF SERVICE
  1.     Acceptance. Our App Services are not intended to be used by children without involvement and approval of a parent or other legal guardian. If you are under the age of 13, then you are not permitted to register with us or provide your personal information to us. If you are between the ages of 13 and 18, you may register with us only if your parent or legal guardian has read and agreed to these Terms of Service and you have the consent of your parent or legal guardian. These Terms of Service govern your use of the App. By accessing, visiting, or using any of our App Services you confirm that you have read and agreed to these Terms of Service and that you consent to the information practices disclosed in the Privacy Policy. If you do not agree to these Terms of Service, then do not access or use any of our App Services. If you are an existing user and do not wish to accept any revised Terms of Service, then you must immediately stop using all of our App Services.
  2.     Changes to these Terms of Service. These Terms of Service are effective until we change them. Because we are continuously working to improve, enhance, expand, and modify our App Services to provide you with the best experience, these Terms of Service will change from time to time, and we suggest that you check back regularly in order to understand our App Services, including our practices related to personal information as described in the Privacy Policy, the rights and restrictions related to certain of our App Services granted in the EULA, and all other terms and conditions governing your access and use of our App Services. You acknowledge and agree that we may change all or any portion of these Terms of Service at any time and from time to time, in our sole and absolute discretion, by publishing a revised version of these Terms of Service at: https://my.boostmobile.com/support/legal/general-terms-and-conditions. Any revised version of these Terms of Service will be effective immediately for new Users, and solely with respect to existing Users, such revised version will be effective 30 days following the day on which the revisions were first posted, unless expressly and specifically stated otherwise.
  3.     Additional Guidelines and Rules.  Certain areas of the App, such as third party applications or software may include usage guidelines and rules that will supplement these Terms of Service. By using those App Services on the App, you agree to comply with such guidelines and rules.

 

Section 2: OUR APP SERVICES

  1.     Our App Services. By accessing the App, you receive access to and use of: (i) certain software, technology and other intellectual property rights (including all functionality and data contained therein) owned or operated by us (ii) websites owned, operated or otherwise controlled by, or on behalf of, us; and (iii) any and all other products and/or App Services accessed, provided, used or otherwise made available to you, including to enhance past or then-current App Services.
  2.     Service Changes; Packaging of App Services. In addition to, and without limiting any other provisions in these Terms of Service, DISH Wireless may, permanently or temporarily, add, delete, rearrange, alter, interrupt, change, and/or eliminate: (i) software, applications, features and/or functionalities and technical and/or functional requirements, and/or (ii) compatible operating systems from time to time and at any time.
  3.     Compliance with Law. You agree to use our App Services, including all features and functionalities associated therewith, in accordance with all applicable laws (e.g., public performance limitations or other restrictions on any use of our App Services or contents therein). You agree not to archive, download (other than through caching necessary for personal use), reproduce, distribute, modify, display, perform, publish, license, create derivative works from, offer for sale, or otherwise use or gain access to all or any portion of our App Services, except as explicitly authorized in these Terms of Service, without express written permission from DISH Wireless. You also agree not to: circumvent, remove, alter, deactivate, degrade, thwart or otherwise interfere with any of our App Services; use any robot, spider, scraper or other automated means to access our App Services; decompile, reverse engineer or disassemble any of our App Services (e.g., software or other products); insert any code or product, or otherwise manipulate or interfere with our App Services (e.g., running any of our App Services on a device not permitted for use by us); or, use any data mining, data gathering, or extraction method. In addition, you agree not to upload, post, e-mail, or otherwise send or transmit any material designed to interrupt, interfere with, destroy, or limit the functionality of any of our App Services, or other software, hardware, or telecommunications equipment associated with our App Services (e.g., any software viruses or any other computer code, files, or programs). In the event that we learn that you are using any App Services in a manner that constitutes infringement of third-party intellectual property rights, including rights granted by U.S. copyright law, your access to the App and App Services will be terminated and DISH Wireless may take further action with respect to your Wireless Account.

 

You agree to fully comply with all import and export laws, regulations, rules and orders of the United States, or any foreign government agency or authority, and that you will not directly or indirectly export, re-export, transfer and/or release the software, related technology, or any product thereof, for any proscribed end-use, or to any proscribed country, entity or person (wherever located), without proper authorization from the U.S. and/or foreign government. You bear responsibility for and assume all expenses relating to your compliance with the described laws, regulations, rules and orders, and for obtaining all necessary authorizations and clearances. You further agree to assume responsibility for and bear all expenses relating to your compliance with the described laws, regulations, rules and orders, and obtaining all necessary authorizations and clearances.

 

Section 3: WIRELESS ACCOUNTS
  1.     Wireless Account; Login Credentials. Prior to accessing certain of our App Services, you will be required to provide certain personal information determined by us as necessary to verify your Wireless Account. You will be required to create login credentials, comprised of a user name and password ("Login Credentials") designed to enable access to the App under your Wireless Account. You are responsible for any and all actions, omissions, or other activities related to your Wireless Account, including any Users you permit to be linked to your Wireless Account (if any, and only to the extent permitted by us). The person in whose name any Wireless Account is used for access to our App Services is referred to as the "Account Owner." As an Account Owner you may have access to and control over your Wireless Account, any Users linked to your Wireless Account, and the App Services available in connection therewith. If you have a Wireless Account, then your control of such Wireless Account is exercised through your use and protection of your password. Please be aware that to maintain exclusive control and ensure compliance with these Terms of Service, you may not reveal or share your Login Credentials with anyone. If you believe that your Wireless Account has been accessed by anyone other than you or any Users you have permitted thereunder, or otherwise without permission or in any unauthorized manner, then you must contact us immediately at: 1-866-402-7366 or via Support. You are responsible for updating and maintaining the truth and accuracy of the information provided to us relating to your Wireless Account.
  2.     Account Access; Cookies. In order to provide you with ease of access to your Wireless Account and to help administer our App Services, DISH Wireless uses technology that enables us to recognize you as an User and to provide you with direct access to your account without requiring you to retype any Login Credentials every time that you access, use, or otherwise revisit our App Services. For information about how cookies allow us to simplify the ease of access to your Wireless Account, please review Privacy Policy.
  3.     Requests for Information. You should be mindful of any communication requesting that you submit any personal or other sensitive information (e.g., your personal information, credit or debit card account information, Login Credentials, or secrets questions), and before confirming any such request, you should contact Customer Service immediately at: 1-866-402-7366 or via Support. Please be aware that providing your information in response to these types of communications can result in, among other things, identity theft or fraud. In order to protect DISH Wireless and its affiliates, software providers, device providers, business partners, or other service providers or licensors (collectively, "Contributors"), we reserve the right, and may, from time to time and at any time, without providing notice to you, place on hold (or otherwise suspend) your Wireless Account in connection with any activity that we believe to be fraudulent, illegal, in violation of these Terms of Service, or otherwise suspicious. We may evaluate or elect to provide credits, refunds, price adjustments or other discounts, compensation or recompense, from time to time and at any time, in our sole and absolute discretion, BUT WE ARE NOT OBLIGATED, AND YOU ARE NOT ENTITLED AND HEREBY WAIVE ANY RIGHT, TO ANY CREDIT, REFUND, PRICE ADJUSTMENT OR ANY OTHER DISCOUNT, COMPENSATION OR RECOMPENSE FOR HOLDS PLACED ON YOUR ACCOUNT, IF ANY.
  4.     Device Deactivation. If your device is transferred, lost, or stolen, then you must immediately call Customer Service at: 1-866-402-7366 or via Support. It is your sole responsibility to notify us of any transferred, lost, or stolen devices, and to prevent any unauthorized access to our App Services and your Wireless Account. Please review the risks and responsibilities of allowing third-party access to your Wireless Account (see Section 3.A. above) that may result from your failure to notify us that your device was transferred, lost, or stolen.

 

 

Section 4: RESTRICTIONS ON USE

You may use the App for lawful purposes only. You may not submit or transmit through the App any material, or otherwise engage in any conduct that:

  1. violates or infringes the rights of others including, without limitation, patent, trademark, trade secret, copyright, publicity or other proprietary rights,
  2. is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of "another's" privacy, tortuous, or contains explicit or graphic descriptions, or accounts of, sexual acts,
  3. victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability,
  4. impersonates any person, business or entity, including DISH Wireless and its employees and agents,
  5. contains viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of a computer or computer network,
  6. encourages conduct that would constitute a criminal offense, or that gives rise to civil liability,
  7. violates these Terms of Service, guidelines or any other policy posted on the App, or
  8. interferes with the use of the App by others.

You may not use the App in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party's use and enjoyment of the App. You may not attempt to gain unauthorized access to any App Services, user accounts, computer systems or networks, through hacking, password mining or any other means. We may take any legal and technical remedies to prevent the violation of this provision and to enforce these Terms of Service.

You may not use the App or any of our communication tools to transmit, directly or indirectly, any unsolicited bulk communications (including e-mails and instant messages). You may not harvest information about our users for the purpose of sending, or to facilitate the sending, of unsolicited bulk communications. You may not induce or allow others to use the App to violate the terms of this section. We may terminate your access or use of the App immediately and take any other legal action if you, or anyone using your access to the App, violates these provisions. We may take any technical remedies to prevent unsolicited bulk communications from entering, utilizing, or remaining with in our computer or communications networks.

We, our Contributors, and our users who lawfully post text, messages, information, software, images, audio and video ("Content") on the App own the property rights to that Content. The Content is protected by international treaties, and by copyright, trademark, patent, and trade secret laws and other proprietary rights. For example, we own a copyright in the selection, organization, arrangement, and enhancement of the Content, as well as in our original Content. The look and feel of our color combinations, button shapes, and other graphical elements on the App are our trademarks.

 

Section 5: COMMUNICATIONS
  1. Communications. By registering for a Wireless Account and accessing the App, you hereby consent to receive electronic communications from us and other Contributors related to such account and our App Services. These communications may involve sending emails to the email address you provided during registration, or delivering electronic communications via your Wireless Account, and will include notices about your Wireless Account (e.g., payment authorizations, password or payment method changes, confirmation e-mails, notices, and other similar or transactional information related to such account); these communications are part of our App Services and your relationship with us. You agree that any notice, agreements, disclosures, or other communications that we send to you electronically, as described herein, will satisfy any legal communication requirements (e.g., that such communications be in writing and through an appropriate method). You also consent to receiving other electronic communications from us, such as newsletters about new App Services features and content, special offers, promotional announcements, and customer surveys. If you no longer want to receive certain non-transactional communications via email, please contact Customer Service at 1-866-402-7366 or via Support, click on the "Unsubscribe" link contained in any email, or on any other link that indicates that you would like to be removed from future, similar non-transactional communications.

 

Section 6: INTELLECTUAL PROPERTY
  1.     DISH Wireless Property. The App Services, including any and all content made available in connection with your access and use of our App Services, is protected by domestic and international copyright, trade secret, trademark, and other intellectual property laws. DISH Wireless and its affiliates have patents that apply to our App Services.

  2.      End-User License Agreement. The App, our Websites, other apps, and other software and technologies are developed by, or for, us and are designed to enable our provision of certain App Services through your mobile Device. The App, our Websites, other apps, and other software and technologies may vary by Device, operating system, or other medium and the functionalities thereof may also differ among Devices. BY USING ANY OF OUR APP SERVICES, YOU ACKNOWLEDGE AND AGREE TO OUR END USER LICENSE AGREEMENT (I.E., OUR EULA) AND TO RECEIVE, WITHOUT FURTHER NOTICE OR PROMPTING, UPDATED VERSIONS OF THE APP, OUR WEBSITES, OTHER APPS, AND OTHER SOFTWARE AND TECHNOLOGIES, INCLUDING RELATED THIRD-PARTY SOFTWARE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS SET FORTH IN OUR EULA, THEN DO NOT USE ANY OF OUR APP SERVICES.

  3.      Reporting Claims. If you have a reasonable belief that your or any other's protected works have been reproduced or distributed in a way that constitutes copyright infringement, or are otherwise aware of any content available in connection with the App Services that may be infringing, violating, or otherwise misappropriating the your rights or such other party's rights, then please notify us immediately by sending us a written statement to the Notice Address set forth in Section 11. below, which written statement must set forth as much detail as is available, including, at a minimum: (i) your name; (ii) your address; (iii) your Wireless Account number (if any); and (iv) a clear and detailed statement about the applicable concern of copyright infringement and/or related claim.

 

Section 7: DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

  1.     YOUR USE OF OUR APP SERVICES IS AT YOUR SOLE RISK. OUR APP SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THESE TERMS OF SERVICE, DISH WIRELESS (ON BEHALF OF ITSELF AND THE OTHER CONTRIBUTORS) HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF SATISFACTION, ENJOYMENT, QUALITY, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. DISH WIRELESS DOES NOT TAKE ANY RESPONSIBILITY WHATSOEVER OR OTHERWISE WARRANT THE PERFORMANCE OF ANY DEVICE, INCLUDING THE CONTINUING COMPATIBILITY OF THE DEVICE (OR ITS OPERATING SYSTEM) WITH ANY OF OUR APP SERVICES, OR ANY INTERNET OR WIRELESS CONNECTION, INCLUDING ITS SPEED, BANDWIDTH OR COMPATIBILITY WITH ANY DEVICE OR WIRELESS SERVICE. FURTHERMORE, WE DO NOT MAKE ANY PROMISES ON BEHALF OF ANY THIRD PARTY, INCLUDING THE OTHER CONTRIBUTORS, AND YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED ON ANY PROMISES MADE BY US RELATED TO SUCH PARTIES OR THE PRODUCTS AND APP SERVICES PROVIDED BY THEM. The disclaimers set forth in these Terms of Service expressly apply to any terms hyperlinked and incorporated herein, including the Ts&Cs, the Privacy Policy and the EULA, and including the software contained in our App Services and your use of such software. We do not warrant that any issues, errors, or other defects or failures in or related to the software or our App Services will be corrected.

  2.     NEITHER DISH WIRELESS NOR ANY OTHER CONTRIBUTOR MAKES ANY WARRANTY WHATSOEVER THAT: (i) THE APP SERVICES WILL MEET YOUR REQUIREMENTS OR REASONABLE SATISFACTION; (ii) THE APP SERVICES WILL PROVIDE OR CONTINUE TO PROVIDE ANY OTHER PARTICULAR FUNCTIONALITY; (iii) THE APP SERVICES WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH, OR DATA-THROUGHPUT RATE, BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (iv) INFORMATION RELATED TO YOUR WIRELESS ACCOUNT OBTAINED FROM THE USE OF THE APP SERVICES WILL BE ACCURATE OR RELIABLE.

  3.     DISH WIRELESS MAY RECOMMEND CERTAIN LEVELS OF INTERNET CONNECTION AND/OR WIRELESS CONNECTIVITY FOR USE WITH CERTAIN OF OUR APP SERVICES; PROVIDED, HOWEVER, THAT YOU HEREBY AGREE AND UNDERSTAND THAT DISH WIRELESS WILL HAVE NO RESPONSIBILITY WHATSOEVER FOR YOUR INTERNET CONNECTIVITY AND/OR WIRELESS CONNECTIVITY AND DISH WIRELESS DOES NOT WARRANT OR GUARANTEE THE AVAILABILITY OR PERFORMANCE OF ANY INTERNET CONNECTIVITY AND/OR WIRELESS CONNECTIVITY, INCLUDING THE SPEED, BANDWIDTH, COMPATIBILITY, SUFFICIENCY, EQUIPMENT, OR DELIVERY OF ANY INTERNET CONNECTION OR THAT ANY CERTAIN INTERNET CONNECTIVITY AND/OR WIRELESS CONNECTIVITY WILL IMPROVE OUR SERVICE(S). PLEASE BE AWARE THAT CERTAIN OF OUR APP SERVICES MAY REQUIRE THE USE OF ADDITIONAL DATA, AND THAT ANY INCREASED COSTS, FEES, OR OTHER AMOUNTS DUE TO BE PAID BY YOU AS A RESULT OF ANY INCREASE IN USAGE (E.G., USAGE OF DATA) IN CONNECTION WITH THE APP SERVICES WILL BE YOUR SOLE RESPONSIBILITY.

  4.     WE HEREBY DISCLAIM ANY, AND YOU AGREE THAT WE HAVE, NO OBLIGATION WHATSOEVER TO REPLACE OR SUPPLEMENT ANY APP SERVICES, PACKAGE OF APP SERVICES, OR PORTION OF ANY APP SERVICE(S) THAT WE CHANGE. WE ARE NOT OBLIGATED, AND YOU ARE NOT ENTITLED AND HEREBY WAIVE ANY RIGHT, TO ANY CREDIT, REFUND, PRICE ADJUSTMENT, OR ANY OTHER DISCOUNT, COMPENSATION OR RECOMPENSE FOR ANY AMOUNT PAID BY YOU TO RECEIVE REPLACEMENT, SUPPLEMENTAL OR ALTERNATE APP SERVICES, PACKAGES OF APP SERVICES AND/OR POTION OF APP SERVICES AS A RESULT OF ANY CHANGE.

  5.               ANY MEDIA, SOFTWARE, OR OTHER MATERIAL OR CONTENT DOWNLOADED, STREAMED OR OTHERWISE OBTAINED THROUGH USE OF OUR APP SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR OTHER HARDWARE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD, STREAMING OR OBTAINING OF ANY SUCH MEDIA, SOFTWARE OR OTHER MATERIAL OR CONTENT. NEITHER DISH WIRELESS NOR ANY OTHER CONTRIBUTOR ASSUMES ANY RESPONSIBILITY, AND WILL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, CORRUPT, OR OTHERWISE HARM ANY OF YOUR PROPERTY OR THE PROPERTY OF ANY THIRD PARTY, INCLUDING YOUR SOFTWARE, DEVICE OR OTHER HARDWARE.

  6.                NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DISH WIRELESS OR THE OTHER CONTRIBUTORS, OR VIA YOUR WIRELESS ACCOUNT OR USE OF THE APP SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.

 

Section 8: LIMITATION OF LIABILITY
  1.     Indirect Damages. YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER DISH WIRELESS NOR ANY OTHER CONTRIBUTORS WILL BE LIABLE TO YOU FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES (E.G., INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER INDIRECT DAMAGES, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES EVEN IF DISH WIRELESS OR ANY OF SUCH OTHER CONTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM, OR OTHERWISE RESULTING DIRECTLY OR INDIRECTLY FROM: (i) USE OF ANY OF OUR APP SERVICES OR THE APP; (ii) ACTIONS, OMISSIONS, AND OTHER ACTIVITY UNDER YOUR WIRELESS ACCOUNT (INCLUDING USE NOT AUTHORIZED BY US); (iii) THE PERFORMANCE OR NON-PERFORMANCE OF OUR APP SERVICES  OR THE APP; OR (iv) THE INSTALLATION, MAINTENANCE, REMOVAL, OR TECHNICAL SUPPORT OF OUR APP SERVICES OR THE APP, EVEN IF SUCH DAMAGES RESULT FROM THE NEGLIGENCE OR GROSS NEGLIGENCE OF DISH WIRELESS OR THE OTHER CONTRIBUTORS.

  2.     Force Majeure. NEITHER DISH WIRELESS NOR ANY OTHER CONTRIBUTORS WILL BE LIABLE TO YOU FOR ANY FAILURE TO PERFORM THAT IS CAUSED BY OR OTHERWISE RESULTS FROM ANY ACTS OF GOD, FIRES, EARTHQUAKES, FLOODS, PANDEMICS, EPIDEMICS OR OTHER PUBLIC HEALTH EMERGENCIES POWER OR TECHNICAL FAILURE, SERVER, INTERNET, SATELLITE OR UPLINK OR WIRELESS NETWORK FAILURE, ACTS OF ANY GOVERNMENTAL BODY, OR ANY OTHER CAUSE BEYOND OUR REASONABLE CONTROL.

  3.     Limitation of Liability. IN ADDITION TO ANY OTHER LIMITATIONS SET FORTH IN THESE TERMS OF SERVICE, NEITHER DISH WIRELESS NOR THE OTHER CONTRIBUTORS, WILL BE LIABLE FOR ANY ADDITION, DELETION, REARRANGEMENT, ALTERATION, INTERRUPTION, CHANGE AND/OR ELIMINATION IN ANY APP SERVICES OR FOR ANY DELAY, FOR THE AVOIDANCE OF DOUBT, INCLUDING: (i) IF SUCH ADDITION, DELETION, REARRANGEMENT, ALTERATION, INTERRUPTION, CHANGE AND/OR ELIMINATION, OR DELAY ARISES IN CONNECTION WITH THE TERMINATION OR SUSPENSION OF DISH WIRELESS ACCESS TO ALL OR ANY PORTION OF OUR APP SERVICES FOR ANY REASON WHATSOEVER; (ii) THE RELOCATION OF ALL OR ANY PORTION OF OUR APP SERVICES TO DIFFERENT SERVER(S); (iii) ANY ADDITION, DELETION, REARRANGEMENT, ALTERATION, INTERRUPTION, CHANGE AND/OR ELIMINATION IN THE FEATURES AND/OR FUNCTIONALITY AVAILABLE WITH YOUR DEVICE(S) OR OUR APP SERVICES; (iv) ANY SOFTWARE OR OTHER DOWNLOADS INITIATED BY US OR OUR CONTRIBUTORS; OR (v) ISSUES RESULTING FROM YOUR DEVICE, OR YOUR INTERNET OR WIRELESS CONNECTION, INCLUDING, LACK OF SUFFICIENT BANDWIDTH. FURTHERMORE, NONE OF DISH WIRELESS, ITS PROVIDERS, DEVICE PROVIDERS OR SERVICE PROVIDERS, OR ANY OF ITS OR THEIR THIRD-PARTY LICENSORS WILL BE LIABLE FOR ANY ADDITION, DELETION, REARRANGEMENT, ALTERATION, INTERRUPTION, CHANGE AND/OR ELIMINATION OF OR TO ANY DEVICE(S), FOR THE AVOIDANCE OF DOUBT, INCLUDING REMOVING OR DISABLING SOFTWARE, FEATURES AND/OR FUNCTIONALITY.

  4.     Limitation of Direct Damages. EXCEPT AS SPECIFICALLY AND EXPRESSLY SET FORTH IN SECTION 8, THE MAXIMUM AGGREGATE LIABILITY OF DISH WIRELESS FOR ANY AND ALL CLAIMS UNDER OR RELATING TO EACH: (i) WIRELESS ACCOUNT INCLUDING ALL USERS THERE UNDER (IF MORE THAN 1 IS PERMITTED BY US), or (ii) YOU ONLY, IF YOU ARE NOT A USER UNDER ANY WIRELESS ACCOUNT, IS LIMITED TO AN AMOUNT EQUAL TO THE AGGREGATE OF THE FEES THAT WERE PAID BY YOU UNDER THESE TERMS OF SERVICE DURING THE 6 MONTHS BEFORE THE APPLICABLE CLAIM, OR IF DURING THE FIRST 6 MONTHS OF ANY ACCESS OR USAGE TERM, THEN THE FIXED FEES TO BE PAID BY YOU UNDER SUCH TERMS OF SERVICE DURING THE FIRST 6 MONTHS OF SUCH USAGE TERM.

  5.     Applicability. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, BUT ONLY TO THE EXTENT SUCH LIMITATIONS ARE EXPRESSLY DISALLOWED UNDER THE APPLICABLE LAW(S).

 

Section 9: INDEMNIFICATION

You hereby agree to indemnify, defend and hold DISH Wireless and its parents and affiliates, each of its and their present and future media providers, device providers, business partners, service providers, licensors, contractors, subcontractors, authorized distributors, authorized subdistributors, authorized retailers, directors, members, managers, officers, agents, employees, and other Users, and each of their respective assigns, heirs, successors, and legal representatives (the "Protected Group") harmless from, against and with respect to any and all actions, claims, disputes or demands, including reasonable attorneys' fees and costs, that are incurred in connection with, arising out of or relating to access to or use /misuse of the App or our App Services by you or in connection with your Wireless Account including any User thereof, your connection to the App, our App Services, your devices, your violation of these Terms of Service or your violation of any rights of another User.

 

Section 10: DISPUTE RESOLUTION, ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
  1.      Mandatory Binding Arbitration and Class Action Waiver. Subject the provisions of this Section 10 below, if you access or use the App and/or any of our App Services, then you and DISH Wireless hereby agree that any and all past, present and future disputes, claims, actions or other controversies arising out of or relating in any way to our App Services, these Terms of Service and/or your relationship with the Protected Group except any Dispute relating to the enforcement of DISH Wireless', its affiliates' or any of the Protected Group's intellectual property rights and without limiting our and your rights to resolve disputes using various informal dispute resolutions (each, a "Dispute") will be determined exclusively on an individual (non-class) basis by binding arbitration or, within the scope of its jurisdiction, in small claims court. 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 under the U.S. Federal Arbitration Act ("FAA"). Use of a neutral arbitrator is designed to provide you and us with a fair proceeding. Arbitrators may award the same damages and relief that a court may award, and judgment on any such award may be entered in any court of competent jurisdiction. YOU HEREBY ACKNOWLEDGE YOUR UNDERSTANDING AND AGREE THAT BY ACCEPTING THESE TERMS OF SERVICE AND THE ARBITRATION PROVISIONS HEREIN, THE FAA WILL GOVERN THE INTERPRETATION AND ENFORCEMENT OF THIS PROVISION, AND THAT YOU AND DISH WIRELESS AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND DISH WIRELESS ARE EACH HEREBY IRREVOCABLY WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN ANY CLASS OR REPRESENTATIVE ACTION IN CONNECTION WITH ANY DISPUTE BETWEEN US. YOU AND DISH WIRELESS ALSO AGREE THAT ANY ARBITRATION CONDUCTED HEREUNDER WILL BE BROUGHT ONLY ON AN INDIVIDUAL BASIS, AND WILL NOT BE BROUGHT OR PROCEED ON BEHALF OF A CLASS OR IN A REPRESENTATIVE CAPACITY. A "Dispute" includes those based in contract, any applicable current or future federal, state, local or international law, statute, rule, or government or quasi-government order or action or regulation, tort (including fraud, misrepresentation, fraudulent inducement, negligence, willful misconduct or any other intentional tort) or any other legal or equitable theory. The meaning of "Dispute" is to be interpreted to have the broadest possible meaning permitted by law, and will only be modified to the extent necessary to be legal, binding and no longer in conflict with any law as further provided in Section 10 below. For example only, Disputes also include your billing disputes, claims involving or relating to telephone calls, direct marketing, advertisements or electronic communications that you claim you received from DISH Wireless and/or a party acting on our behalf or any actions or other controversies in connection with our Privacy Policy.

  2.     Dispute Resolution. If a Dispute arises and you or we wish to seek arbitration or file any action in small claims court, then the party wishing to seek arbitration or file an action must first send to the other party, by certified mail, notice of the applicable Dispute ("Dispute Notice"), and you and DISH Wireless hereby agree to attempt to resolve any such Dispute through informal dispute resolution for at least 60 days following the date on which the applicable Dispute Notice is properly sent. You and we must submit a form of Dispute Notice, which must include a written statement that sets forth: (i) the name, address and preferred contact information of the party giving the notice; (ii) a description of the nature and basis of the applicable Dispute; (iii) the facts giving rise to such Dispute; and (iv) the specific relief sought by you in connection therewith. You must send, any and all Dispute Notice(s) to: DISH Wireless Attn: Office of the General Counsel, 5701 S Santa Fe Drive, Littleton, Colorado 80120 ("Notice Address"), by certified mail; and we must send any Dispute Notice to you at the contact information we have for you (e.g., to your Wireless Account, the email address you provided to register your Wireless Account or your billing address). If we and you do not agree to a resolution of a Dispute during the required informal dispute resolution period above, then either party may commence arbitration or a small claims court proceeding in accordance with this Section 10 to resolve such Dispute. To initiate arbitration proceedings the party seeking such arbitration must open a case by filing with the American Arbitration Association ("AAA") a demand for such arbitration, paying the administrative filing fee and providing a copy of the applicable arbitration agreement (collectively, the "Demand for Arbitration"); you will only be responsible for paying an arbitration initiation fee equal to the amount that you would pay to file a lawsuit against us in the appropriate court of law in your state, not to exceed $125.00, and we will pay any excess fees or deposit(s) required to initiate such arbitration proceeding. If you are entitled to reimbursement pursuant to this Section 10 and would like us to reimburse you for the actual amount of fees paid by you to initiate an arbitration proceeding, then you must send written notice to DISH Wireless at the Notice Address, by certified mail, of: (a) the amount requested; (b) the name of the payee; (c) the return address for the payment; and (d) a copy of the receipt or other documentation evidencing the amount paid by you. You must download or copy a form to initiate arbitration www.adr.org. A Demand for Arbitration must be made through "AAA WebFile," at www.adr.org, or by filing such demand with any AAA office, regardless of the intended location of the requested proceeding. During the arbitration, the amount of any settlement offer made by us or you may not be disclosed until after the arbitrator determines the amount, if any, to which you or we are entitled in connection with the applicable Dispute.

  3.     Arbitration Procedures and Forum. All arbitration proceedings will be administered by the AAA and governed under its Consumer Arbitration Rules (including any amendments thereto or successor rules thereof published by the AAA) (collectively, the "AAA Rules"), as supplemented and modified by these Terms of Service. The AAA Rules are available online at www.adr.org, by calling the AAA at 1 (888)-309-0838, by clicking the hyperlinks above. The arbitrator will be bound by the terms and conditions of these Terms of Service. Subject only to the limited exceptions expressly set forth in this Section 10, the arbitrator, and not any federal, state or local court, agency or other authority, will have the exclusive authority to resolve any and all Disputes, including issues relating to the scope, interpretation, applicability and enforceability of this arbitration agreement (e.g., any claim that all or any part of these Terms of Service (including, for example, this Section 10) is void or voidable). Unless you and DISH Wireless agree otherwise, any arbitration hearing will be held in the county (or parish) of your billing address or if no billing address is provided, then of your primary residence.

  4.     Costs of Arbitration; Compelling Arbitration. Subject to the exceptions expressly set forth in this Section 10, if you or we decide to initiate arbitration and seek less than $75,000 in damages, then we will pay all costs and fees of the applicable arbitration proceeding for any such proceeding initiated in accordance with the notice requirements unless the arbitrator finds that the arbitration was brought for an improper purpose; and if you or we initiate any arbitration proceeding seeking more than $75,000 in damages, then the payment of such costs and fees will be governed by the applicable AAA Rules. Except as otherwise expressly permitted pursuant to Section [], if either party attempts to have a Dispute reviewed by a court (e.g., files a judicial or administrative action asserting a claim that is subject to arbitration), and the other party successfully compels arbitration of the applicable Dispute, then the party attempting (or that attempted) to have such Dispute reviewed by such court in violation of these Terms of Service must pay the other party's costs and expenses incurred in seeking to compel arbitration, including reasonable attorneys' fees.

  5.     Class Action Waiver. NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY IN CONNECTION WITH ANY DISPUTE (AS DEFINED ABOVE). Further, unless both you and DISH Wireless specifically agree otherwise in writing, 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. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that individual party's individual claim. In the event that this Section 10 or any other material provision of this Section 10 is held to be unenforceable, void or voidable, then Section 10 in its entirety will be void, ab initio.

  6.     Miscellaneous. Notwithstanding our rights to make future changes to these Terms of Service, if any such future change made by us to the provisions in Section 10 materially limit or alter your then-current rights, then you may reject such changes by sending written notice to DISH Wireless at the Notice Address, by certified mail, of your rejection of the applicable changes: (i) within 30 days following the date on which we notify you of such modified Terms of Service; or (ii) in the event we do not provide notice of such future change, then within 30 days following the date on which you become aware of such modified Terms of Service. The dispute resolution, binding arbitration and class action waiver agreements and provisions will survive the expiration or earlier termination of your Wireless Account, or other access to or use of the App or our App Services. Please be aware that this agreement does not preclude you from bringing issues to the attention of federal, state or local agencies, including the Federal Communications Commission, and such agencies can, if the law allows, seek relief against us on your behalf. We also each agree that this agreement evidences a transaction in interstate commerce, and thus the FAA governs the interpretation and enforcement of the provisions and agreements set forth in this Section 10.

 

Section 11: MISCELLANEOUS
  1.      Notice. Any notice required or permitted to be given by DISH Wireless under these Terms of Service may be provided by any reasonable means, including by mail, by publication on the DISH Wireless website, via your Wireless Account for our App Services (e.g., by sending an electronic message to your Wireless Account), through the App or by telephone or by e-mail. If we send you notice by mail, it will be considered given the day after it is deposited in the U.S. mail, addressed to you at your physical address of record as then-currently stated in our records. If we send you notice to your personal e-mail or through your Wireless Account e-mail, including notice directing you to changes published on our Website, such notice will be considered given upon sending to your e-mail address of record as then-currently stated in our records and associated with your Wireless Account or upon sending to your Wireless Account. If we give you notice by telephone, it will be considered given when personally delivered to you or when left as a message at your phone number of record as then-currently stated in our records. Unless otherwise specified in these Terms of Service, any notice required or permitted to be given by you under these Terms of Service must be in writing and be sent to DISH Wireless at the Notice Address, by certified mail; and will be deemed given only when such notice is received by us at the Notice Address. If your name, contact information or other account information is no longer accurate or otherwise changes, then you must promptly access and correct such information associated with your Wireless Account as further described under the "Your Rights" section of our Privacy Policy.

  2.     Entire Agreement. These Terms of Service, including those terms hyperlinked and incorporated herein, constitute the entire agreement between DISH Wireless and you regarding the subject matter hereof. With respect to the App or any of our App Services, these Terms of Service govern your use of such App Services, and supersede any prior agreements or understandings between you and DISH Wireless with respect to the subject matter hereof.

  3.     Applicable Law. These Terms of Service, including all matters relating to their validity, construction, performance and enforcement, and any claim, complaint or dispute arising out of or related to these Terms of Service, your relationship to DISH Wireless and/or otherwise related to our App Services will be governed by the laws of the State of Colorado without giving effect to its conflict of law provisions. If any provision in these Terms of Service is declared to be illegal, invalid or is otherwise in conflict with any law, then such provision will automatically be considered modified to the minimum extent necessary to make such provision legal, binding and no longer in conflict with such law, without affecting the validity of any other provisions of such Terms of Service, and any and all other provisions will remain in full force and effect to the fullest extent permitted by law.

  4.     Choice of Forum. You agree that any action at law, in equity, under contract (including under these Terms of Service) or otherwise that is excluded from, or otherwise not subject to arbitration or small claims court must be filed, and that venue properly lies, only in the state or federal courts located in the city and county of Denver, Colorado, United States of America and you hereby irrevocably consent and submit to the personal jurisdiction of such courts for the purpose of litigating such action.

  5.     Assignment. You agree that DISH Wireless may assign or otherwise transfer (e.g., sell) your agreement to these Terms of Service with DISH Wireless to any third party without your prior consent. You may not assign or otherwise transfer (e.g., via the sale of any Device) any agreement(s) with us without first obtaining our prior written consent, which consent may be withheld, delayed or conditioned for any reason whatsoever (e.g., your Wireless Account reflects an outstanding unpaid balance).

  6.     No Waiver; Remedies Cumulative. Except as otherwise expressly provided in these Terms of Service, the failure of a party to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. The rights and remedies provided under these Terms of Service to DISH Wireless in case of your default or breach of these Terms of Service are cumulative and without prejudice to any other rights and remedies that DISH Wireless or you may have at law, in equity, under contract (including under these Terms of Service) or otherwise, all of which are hereby expressly reserved.

  7.      No Third-Party Beneficiaries; Claim Limitation. You agree that, except as otherwise expressly provided in these Terms of Service, there are no third party beneficiaries to your agreement to these Terms of Service. You agree that regardless of any law to the contrary, any claim, Dispute or cause of action by you arising out of or related to our App Services pursuant to these Terms of Service must be filed within 1 year following the date on which such claim, Dispute or cause of action arose; and if not filed within such 1-year period, then you hereby irrevocably waive any and all rights to pursue such claim(s), Disputes or other cause(s) of action.

  8.     Headings. The section titles and paragraph headings in these Terms of Service are for convenience only and have no legal or contractual effect. Any and all examples or references to "include," "includes" or "including" set forth in these Terms of Service are by way of example only and will be interpreted as non-limiting. Any reference in these Terms of Service to the singular form of a word will include the plural form of the word, if applicable, and any reference to the plural will include the singular, if applicable. In addition, the term "days" when used in these Terms of Service, unless specified as a “business day” means a calendar day. For the purposes of these Terms of Service, a “business day” means a weekday (other than a Saturday or a Sunday) excluding any national (United States) holiday.

  9.     Survival. Any provision of these Terms of Service that logically would be expected to survive the suspension, completion, expiration or earlier termination of your Wireless Account, and/or other App Services or your agreement to these Terms of Service will survive such suspension, completion, expiration or earlier termination, including any and all representations and warranties contained in these Terms of Service and any and all provisions and agreements regarding indemnification obligations, confidentiality obligations, dispute resolution, binding arbitration and class action waivers, the "Miscellaneous" provisions in this Section 11, limitations of liability and disclaimers.

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