IMPORTANT: This Agreement limits the liability of Asurion and contains binding arbitration provisions in section 17. please Be sure to read these sections carefully before using the software or clicking the “accept” button.
1. BINDING AGREEMENT: Welcome to Metro Total Protection. The following terms of service constitute a binding legal agreement (the “Agreement”) between You, as an individual or as an authorized representative of any entity (in either case, “You” or “Your”) and Asurion, setting forth the terms and conditions under which the Metro Total Protection software (the “Software”) and any associated services, products, content, websites provided (together with the Software, the “Services”) will be licensed to You by Asurion. The terms “Asurion” “We”, “Us” or “Our” as used herein means Asurion Mobile Applications, Inc. and its affiliated companies. If You permit, authorize, provide access to or otherwise allow any other individual to use the Services through Your account, or represent such individuals in any legal capacity, such individuals shall be deemed to be included in the terms “You” or “Your” as used in this Agreement. Asurion may amend or replace these terms of service at any time, without prior notice to You except as may be required under applicable law. From time to time, you should review the then-current version of this Agreement located in the Metro Total Protection website,(the “Website”).
2. REGISTRATION And Password: The Services are licensed, not sold, to You by Asurion for use strictly in accordance with the terms of this Agreement. In consideration of Your access to and use of the Services, (i) You are of legal age to form a binding contract; (ii) Your use of the Services will be solely for Your personal and lawful use; and (iii) You will comply with all terms of this Agreement in using the Services. To access the Services and activate Your Metro Total Protection account (Your “Account”), You must create a Metro Login and password. If You do not have a Login, You may create a Metro Login and password at http://www.metropcs.com/customer_support/sso/registration/beginregistration.aspx, where You must provide your personal information and contact details. You may reset Your Log-in or password at any time by logging on to that website at any time. You are solely responsible for keeping Your Login and password associated with Your Account confidential. Anyone with knowledge of or access to Your Login and password may use that information to access Your Account or to locate Your device. You shall be solely liable for any claims, damages, losses, costs or other liabilities resulting from or caused by any failure to keep Your Login and password information confidential (whether such failure or any disclosure occurs with or without Your knowledge or consent).
3. License Grant: Subject to Your ongoing compliance with the terms and conditions of this Agreement, Asurion hereby grants You a revocable, non-transferable, non-exclusive personal license to install and use the Services on Your device that You own or control in the United States and to access and use the Services on your device or at the Website.
4. Restrictions on Use: You represent and warrant that you will not violate any of the term and conditions set forth in this Agreement and further that:
A. You will not, and will not allow, permit or enable any third party to (i) attempt to decompile, reverse engineer, disassemble or otherwise to derive source code from the Services; (ii) make any modification, adaptation, improvement, enhancement or create derivative works from the Services; (iii) use, copy, modify, alter or transfer the Services contrary this Agreement or applicable laws and regulations; (iv) rent, lease, sell, redistribute or sublicense the Services or any aspect thereof; (v) remove, obscure, or alter any copyright notices, trademarks, or other proprietary rights notices of Asurion or any party; or (vi) use any part of the Services while operating heavy machinery or engaging in any activity where insufficient attention on your part could result in personal injury, death or property damage; and
B. You will not misuse the Services and acknowledge and understand that “misuse” of the Services includes, but is not limited to using the Services in any manner that (i) interferes with other’s use of the Services or with Asurion’s ability to provide the Services; (ii) infringes the copyright, trademark or any intellectual property right, discloses a trade secret or confidential information in violation of a confidentiality or non-disclosure agreement; (iii) is fraudulent, unlawful or contains defamatory or illegal information, images, materials or descriptions; (iv) slanders, defames, harasses, stalks, threatens or otherwise violates the legal rights of others or is invasive of another’s privacy rights; (v) promotes or provides instructional information about illegal activities; (vi) encourages any conduct that would constitute a criminal offense or that gives rise to civil liability; (vii) uses the Services on a device without permission, regardless of whether it is a stolen, lost or unauthorized device; (viii) tampers with or makes an unauthorized connection to the network of any wireless service provider; (ix) involves reselling any part of the Services to any other individual or entity; or (x) disseminates viruses or other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware.
6. Limitations of the Services: Certain limitations may prevent the Services from working on Your device and Your device must be within the Metro network coverage area for the Services to function. The Services may provide You, Asurion and/or the Providers only with an approximate location of Your device. Asurion does not guarantee or warrant the accuracy or correctness of the results of the Services or the Location Information associated with Your device. You accept and acknowledge and that (i) the results You obtain from the Services may not be accurate, timely or reliable; (ii) any information provided by the Services is not intended to be relied upon in situations where precise location information is needed; (iii) Location Information results are subject to uncontrollable factors associated with wireless networks and satellite data such as environmental conditions, geography and atmospheric conditions. You should be cautious of attempting to physically recover the device in an unfamiliar or unsafe location. In no event shall Asurion or any Provider have any liability to You or any third party as a result or in connection with any attempt to remotely locate, physically recover, or wipe data from the device. By enabling the Locate Function, Your device’s battery life may diminish more quickly.
7. SECURITY OF THE SERVICES: The Services are intended for Your personal use only. If You believe Your device has been stolen, You should seek assistance from Your local law enforcement. You understand that the Software may be disabled or uninstalled from Your device at any time, even when the Lock, Wipe or Alarm Function, or any other function of the Services is activated. You further understand and acknowledge that the Software may not function properly, may contain errors or bugs, and is susceptible to breach, corruption or failure. If the Software malfunctions, fails or is disabled or uninstalled from Your device, with or without Your knowledge and/or consent, the Services and any functions will not function. You are solely responsible for any resulting claims, liability, losses or damages arising out of the unauthorized disclosure, transfer or use of any personal content, data or materials stored on Your device for any reason, even if occurring as a result of a failure in the Services or from disabling or uninstalling the Software, with or without Your knowledge and/or consent. You acknowledge that using the Wipe Function to erase content and data from your device is a non-reversible action and that the Software may not necessarily be compatible with any other software or application on Your device.
8. Archived Data Restrictions: If available, the Services may include a data backup function (the “Backup Function”) that may allow You to make an archival backup copy of Your personal contact information and Your user-generated content contained on Your device (Your “Data”). You grant Asurion the right to copy, transmit, store and use an archival backup copy of Your Data on data storage systems operated by or for Asurion (“Asurion Storage Systems”). You agree that You will use the Backup Function solely for the purpose of uploading Your Data to Asurion Storage Systems and You will not attempt to (i) back up any other content or data that You do not have the legal right to use; (ii) back up, use and/or copy any data in a manner that infringes any copyrights or other intellectual property rights of any third party; or (iii) illegally copy, transmit and/or distribute any of Your Data or other content to any other device or equipment. You agree that Asurion, in its sole discretion, may disable Your access to Your archived Data or delete Your Data from Asurion Storage Systems if it has received written notification of claimed copyright infringement or otherwise has a reasonable belief that Your Data either (i) constitutes an infringement, misappropriation or violation of any third party intellectual property right; (ii) could damage, harm or tarnish Asurion’s reputation; or (iii) could cause Asurion to be liable in any manner to any third party, including any governmental entity. You acknowledge and agree that Asurion may access, preserve and disclose Your Account information and Your Data if it is required to do so by law or as necessary to: (i) comply with the orders or instruction of any court or tribunal; (ii) enforce the terms of this Agreement; (iii) respond to claims that Your Data violates the rights of any third party; (iv) respond to Your requests for customer service; or (v) protect the rights, property or personal safety of Asurion, its licensees, end users or the public. Notwithstanding the foregoing, to the maximum extent permitted by applicable law, Asurion hereby disclaims any duty or obligation, stated or implied, to monitor or review any aspect of the content of Your Data. Asurion has no responsibility or liability for any loss, failure to store or provide access to, any of Your Data through the Backup Function and may change the size and form of data that You can archive, the number of days that Your Data may be stored and the number times it may be accessed.
9. Data Removal: Asurion may automatically delete all of Your Data archived on the Asurion Storage Systems if You do not use or back up Your Data for a period of sixty (60) consecutive days, and all data deleted will be unrecoverable. You may set Your device to automatically backup Your Data and/or manually backup Your Data at least once every thirty (30) days, as described in Your Data Backup user manual to prevent automatic deletion. Once Your Data is deleted or removed, or You use the Wipe Function, the data is not retrievable.
10. Payment: You agree to pay all fees charged, if any, to Your account with the Carrier for the Services and any associated data usage charges, if any, regardless of whether You have electronically downloaded, installed or used the Software. If You fail to pay the charges for the Services when due, Your Carrier will be entitled to pursue any and all legal remedies to collect the amounts owed by You, including fees for the Services, SMS messaging, or the related service package and will also be entitled to, and is hereby authorized to, suspend the provision of the Services and disable Your use of the Services until such fees are fully paid. The Services may utilize SMS messaging as part of their functionality. When You use the Locate Function, a SMS text message will be sent to Your device with a message that Your device is being located or attempt(s) to locate Your device are being made. You acknowledge that the Carrier may charge additional fees for SMS services, that any such additional fees charged by the Carrier are solely Your responsibility and that Your failure to pay such additional fees may result in Your account with the Carrier suspending and/or disabling Your use of the Services until such fees have been fully paid. Asurion shall not be liable for any liabilities, losses or damages resulting from any failure in the functionality of the Services caused by or resulting from Your failure to pay any amounts when due. Asurion reserves the right to change the applicable fees for the Services or the related service package at any time and will take reasonable efforts to provide You with prior notice of any such change.
11. Proprietary Rights in the Services and Software: You acknowledge and agree that (i) the Services and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of Asurion and its licensors, as applicable; (ii) the source and object code of the Software and the format, directories, queries, algorithms and structure of the Software are and shall remain the proprietary information of Asurion and its licensors, as applicable; (iii) You are not granted any intellectual property rights by implication, estoppel or other legal theory in the Services or any software provided through or in conjunction with the Services; and (iv) all rights not expressly granted in this Agreement are hereby reserved and retained by Asurion.
12. Suspension and Termination: This Agreement, including the license granted, is effective until terminated. You may terminate the Services at any time by notifying the Carrier. Without prejudice to any other rights, Asurion reserves the right to suspend and/or terminate, or authorize Your Carrier to suspend or terminate Your access to Metro Total Protection or the related service package at any time for any or no reason and without notice to You. Upon any termination for any reason, Asurion shall have no liability to You and no further obligations under this Agreement.
13. EXPORT RESTRICTIONS. You may not use or otherwise export or re-export the Services except as authorized by United States law and the laws of the jurisdiction in which the Services were obtained. You agree (i) to comply with the requirements of the U.S. Department of Commerce (“DOC”) Export Administration Regulations, the U.S. International Traffic in Arms Regulations, applicable U.S. sanctions and embargoes administered by the U.S. Department of Treasury, and all applicable international, national, state and local laws, and regulations, including without limitation any applicable import and use restrictions, to the extent that any of the foregoing apply to You; (ii) not to download or otherwise export, or re-export the Services into U.S. embargoed countries or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the DOC’s Denied Person’s List or Entity List and that by using the Services, you represent and warrant that you are not located in any such country or on any such list; and (iii) and not to license, sell, provide or distribute the Services for use in connection with chemical, biological, or nuclear weapons or missiles capable of delivering such weapons. Diversion of the Services contrary to applicable law is prohibited.
14. DISCLAIMER OF WARRANTIES: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND DISCRETION. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. To the maximum extent permitted by applicable law, Asurion and each of the Providers hereby expressly disclaim all warranties and conditions of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, accuracy and non-infringement. Asurion and each of the providers make no warranty (i) against interference of your enjoyment of the Services; (ii) that the Services will be functional, uninterrupted, error-free or bug-free or meet your requirements; (iii) regarding the security, reliability or timeliness of the Services; or (iv) that any errors, bugs or failures in the Services will be corrected. Any content or material downloaded through Your use of the Services is at your own discretion and risk and You will be solely responsible for any damage or loss of Data occurring on your device or computer system or any other loss or damages of any kind resulting from the download of the Software or any other content. No advice, course of conduct or information, whether oral or written, obtained by You from Asurion or any party or through the Services shall create any warranty unless expressly stated in this Agreement. You acknowledge and agree that Asurion might not be able to offer the Software and Services at all in the absence of the foregoing disclaimers and limitations.
15. LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCE SHALL ASURION OR ANY PROVIDER BE LIABLE FOR PERSONAL INJURY, OR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR REVENUES, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, LOSS OF CONFIDENTIAL INFORMATION, BUSINESS INTERRUPTION, LOSS OF PRIVACY, CORRUPTION OR LOSS OF DATA, FAILURE TO RECEIVE OR BACKUP YOUR DATA (OR ARCHIVED DATA) OR ANY OTHER PECUNIARY LOSS WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES, ANY THIRD PARTY CONTENT, SOFTWARE OR FUNCTIONS USED IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF ASURION OR ANY OR ALL PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF ASURION AND EACH OF THE PROVIDERS TO YOU, ARISING UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO ASURION IN CONNECTION WITH THE SERVICE PACKAGE. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
16. INDEMNIFICATION: You agree to indemnify, defend and hold harmless Asurion, the Providers, and each of their respective officers, directors, employees, agents, contractors, suppliers, successors and assigns from and against any claim, proceeding, loss, damage, liability, cost or expense (including, but not limited to, reasonable attorneys' fees and legal expenses) of any kind arising out of: (i) Your access to or use of the Services or any third party content and services; (ii) any breach by You of Your obligations under this Agreement; (iii) Your violation of the rights of a third party, including any infringement of any intellectual property, proprietary right or trade secret of any person or entity, or of any privacy or consumer protection right that is implicated herein; (iv) any violation of law; or (v) Your negligence or willful misconduct. These obligations will survive any termination of the Agreement. Asurion reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify against, and You agree to cooperate in Asurion’s defense of such mater.
17. ARBITRATION AGREEMENT: Please read this Arbitration Agreement carefully. It affects Your rights.
A. Most of Your concerns about this Agreement or the Services can be addressed simply by contacting Us at 1-866-862-3397. In the unlikely event We cannot resolve any disputes, including any claims under this Agreement, that You or We may have, YOU AND WE AGREE TO RESOLVE THOSE DISPUTES THROUGH BINDING ARBITRATION OR SMALL CLAIMS COURT INSTEAD OF THROUGH COURTS OF GENERAL JURISDICTION. YOU AND WE AGREE THAT ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS ONLY. YOU AND WE AGREE TO WAIVE OUR RIGHTS TO A TRIAL BY JURY AND TO PARTICIPATE IN CLASS ARBITRATIONS AND CLASS ACTIONS. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury. It has more limited discovery than in court and is subject to limited review by courts. Arbitrators can award the same damages and relief that a court can award.
B. For the purpose of this Arbitration Agreement, references to “We” and “Us” include Asurion and Your Carrier and each of their respective parents, subsidiaries, affiliates, agents, employees, successors and assigns. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. This Arbitration Agreement shall survive the termination of this Agreement.
C. This Arbitration Agreement is intended to be interpreted broadly, and it includes any dispute: (1) arising out of or relating in any way to the Services or to this Agreement or to the relationship between You and Us, whether based in contract, tort, statute, fraud, misrepresentation or otherwise; (2) that arose either before this Arbitration Agreement or Agreement was entered into by You and Us or that arises after this Arbitration Agreement or Agreement is terminated; and (3) that currently is the subject of a purported class action litigation in which You are not a member of a certified class. Notwithstanding the foregoing, this Arbitration Agreement does not preclude You from bringing an individual action in small claims court or from informing any federal, state or local agencies or entities of Your dispute. Such agencies or entities may be able to seek relief on Your behalf.
D. If You or We intend to seek arbitration You and We must first send to the other a written Notice of Claim (“Notice”) by certified mail. Your Notice to Us should be addressed to: Legal Department, P.O. Box 110656, Nashville, TN 37122-0656. The Notice must describe the dispute and state the specific relief sought. If You and We do not resolve the dispute within 30 days of receipt of the Notice, You or We may initiate an arbitration proceeding with the American Arbitration Association (“AAA”). You can obtain the forms necessary to initiate an arbitration proceeding by visiting www.adr.org or by calling 1-800-778-7879. After We receive notice that You have commenced arbitration, We will reimburse You for payment of any filing fee to the AAA. If You are unable to pay a required filing fee, We will pay it if You send a written request by certified mail to: Legal Department, P.O. Box 110656, Nashville, TN 37122-0656. The arbitration shall be administered by the AAA in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “Arbitration Rules”) in effect at the time the arbitration is initiated and as modified by this Arbitration Agreement. You can obtain a copy of the Arbitration Rules by visiting www.adr.org or by calling 1-800-778-7879.
E. The arbitrator appointed by the AAA to decide the dispute is bound by the terms of this Arbitration Agreement. All issues are for the arbitrator to decide, including the scope of this Arbitration Agreement, with the exception that issues relating to the enforceability of this Arbitration Agreement may be decided by a court. Unless You and We agree otherwise, any arbitration hearings will take place in the county or parish of Your billing address. If Your dispute is for $10,000 or less, You may choose to conduct the arbitration hearings either by submitting documents to the arbitrator or by appearing before the arbitrator in person or by telephone. If Your dispute is for more than $10,000, the right to arbitration hearings will be determined by the Arbitration Rules. We will pay all filing, administration and arbitrator fees for any arbitration initiated pursuant to this Arbitration Agreement, unless Your dispute is found by the arbitrator to have been frivolous or brought for an improper purpose under Federal Rule of Civil Procedure 11(b). In that case, the payment of such fees shall be governed by the Arbitration Rules.
F. At the conclusion of the arbitration hearings, the arbitrator shall issue a written decision which includes an explanation of the facts and law upon which the decision is based. If the arbitrator finds in Your favor and issues a damages award that is greater than the value of the last settlement offer made by Us or if We made no settlement offer and the arbitrator awards You any damages, We will: (1) pay You the amount of the damages award or $7,500, whichever is greater; and (2) pay Your attorney, if any, twice the amount of the attorney's fees and the actual amount of any expenses reasonably incurred when pursuing Your dispute in arbitration. You and We agree not to disclose any settlement offers to the arbitrator until after the arbitrator has issued the written decision. The arbitrator may resolve any disputes regarding attorney's fees and expenses either during the arbitration hearings or, upon request, within 14 days of the arbitrator's written decision. While the right to the attorney’s fees and expenses discussed above is in addition to any right You may have under applicable law, neither You nor Your attorney may recover duplicate awards of attorney’s fees and expenses. Although We may have the right under applicable law to recover attorney’s fees and expenses from You if We prevail in the arbitration, We hereby waive the right to do so.
G. To the extent either declaratory or injunctive relief is sought in the arbitration, such relief can be awarded only to the extent necessary to provide the relief warranted by a party's individual claim. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Unless You and We agree otherwise, the arbitrator may not consolidate the dispute of another person with Your or our dispute and may not preside over any form of a representative or class proceeding. If this specific provision of this Arbitration Agreement is found to be unenforceable, then the entirety of this Arbitration Agreement shall be null and void.
18. NO RIGHT OF SURVIVORSHIP: You agree that Your Account is non-transferable and that any rights to your Data within your account terminate upon your death.
19. Notices: By using the Services, You consent to receive all communications, notices and disclosures in connection with The Services (collectively, “Notices”) in SMS or electronic form.
20. Miscellaneous: This Agreement comprises the entire agreement between You and Asurion relating to Services and supersede all prior or contemporaneous understandings regarding such subject matter. The failure of Asurion to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found to be invalid or contrary to law, then such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Services or to the Agreement must be commenced within one (1) year after such claim or cause of action arose or You waive Your right to pursue such claim or cause of action.
By clicking the “I accept” button or using the Services, You are confirming that you have read, understand and agree to be bound by this agreement, including its limitation of liability and arbitration provisions.
If You do not agree with the terms of this Agreement, click the “Do Not Accept” button and do not use the Services.