VERIZON SUPPORT AND PROTECTION APP TERMS OF SERVICE
PLEASE READ THIS LEGAL CONTRACT CAREFULLY AND COMPLETELY. IT GOVERNS YOUR USE OF THE VERIZON SUPPORT AND PROTECTION APP ("VSP"), LIMITS VERIZON AND ASURION'S LIABILITY TO YOU AND REQUIRES YOU TO RESOLVE DISPUTES WITH VERIZON OR ASURION THROUGH BINDING AND INDIVIDUAL ARBITRATION RATHER THAN THROUGH JURY TRIALS OR CLASS ACTIONS. IF YOU DO NOT AGREE WITH ANY PART OF THIS CONTRACT, DO NOT CLICK-TO-ACCEPT IT OR USE VSP. YOU WILL BEGIN TO INCUR DATA USAGE CHARGES ONCE YOUR SET-UP OF VSP IS COMPLETE.
1. VSP PROVIDERS. Verizon Support & Protection app ("VSP") is provided to You by Verizon, Asurion and McAfee: (a) Your relationship with Verizon is governed by the terms of Your Customer Agreement, including the arbitration provision, and by Paragraph 11 of this Terms of Service ("TOS"). (b) VSP includes Asurion hosting software which allows VSP to be installed and operate on Your device and software which allows the Asurion-provided functions of VSP to operate on Your device ("Asurion software"). Your relationship with Asurion is governed by the TOS. (c) VSP includes McAfee software which allows the security functions of VSP to operate on Your device. Your relationship with McAfee is governed by its Mobile Products End User License Agreement.
2. DEFINITIONS. In the TOS: (a) "Verizon" means Verizon Wireless; (b) "Asurion," "We," "Us" and "Our" mean Asurion Mobile Applications, LLC and its parents, subsidiaries, affiliates, agents, employees, successors and assigns; (c) "McAfee" means McAfee, Inc.; and (d) "You" and "Your" mean an individual who uses VSP and any person or entity represented by that individual.
3. LICENSE GRANT. Subject to the TOS, We grant You a personal, revocable, non-transferable, non-exclusive limited right to use the Asurion software on Your device solely as permitted by its functions. We grant You no other rights, beyond what is expressly granted to You herein, and specifically reserve any and all other rights.
5. ASURION FUNCTIONS. With the exception of the McAfee security functions, VSP functions are provided by Asurion, and Your ability to access those functions depends upon Your device and agreements with Us and/or Verizon. We do not warrant that the Asurion functions will be compatible with or operable on Your device or that any particular function will be available to You. You acknowledge and agree that not all of the Asurion functions may be available to You at all times or at any time. Your device must be powered on, have text messaging capability and be within the Verizon Data Coverage Area for VSP to operate. We reserve the right to change, suspend or discontinue any or all of the Asurion functions at any time, for any reason and without notice or liability to You.
6. RESTRICTIONS ON USE. VSP is intended for Your personal use only. You may download and use VSP only if You can form a binding contract with Us and You are not a person who is barred from downloading or using VSP by laws of the United States or any other applicable jurisdiction. You shall not use VSP in any way that violates any applicable rules, laws or regulations or infringes any copyright, trademark or other intellectual property right or discloses a trade secret or confidential information. You shall not: (a) decompile, reverse engineer, disassemble, derive the source code of or decrypt it; (b) make any modification, adaptation, improvement, enhancement, translation or derivative work from it; (c) rent, lease, sell, redistribute, loan, distribute, sublicense or otherwise transfer it to any third party; (d) remove, obscure, or alter any proprietary notices, including copyright or trademark notices; or (e) install or use it on more than one device.
7. MISUSE. You shall not misuse VSP including, without limitation, using it in any manner that: (a) interferes with or interrupts it or any hardware, software, system or network connected with it; (b) stalks, harasses, threatens or harms any person or is otherwise invasive of another's privacy rights; (c) uses it on a device without permission; (d) tampers with or makes an unauthorized connection to any network, including, without limitation, the network of any wireless carrier; (e) disseminates viruses or other computer code, files or programs that interrupt, destroy or limit the functionality of it or any other computer software or hardware.
8. COMMUNICATIONS. You consent to receive electronic communications from Us in connection with Your use of the VSP application. They are part of VSP services and are not subject to the Verizon Wireless Do Not Call Policy, and You are solely responsible for any fees or charges related to them. You may turn off certain features, such as receiving proactive Device Insights from Us, if you choose.
9. VSP WEB FUNCTIONALITY & PASSWORD. You agree to provide Us with complete and accurate information when using the VSP web functionality. You are solely responsible for any activity that occurs on or in relation to Your account and for keeping Your password confidential, and You are solely liable for any damages resulting from Your failure to do so. Anyone with access to Your account or password can use VSP on Your device. If You believe that the confidentiality of Your password has been compromised, You should change Your password immediately.
10. FAQs & SPECIFIC FUNCTIONS. The FAQs are available here. Please read them carefully and completely before using VSP. Additionally, You acknowledge and agree that:
B. CLICK-TO-CALL AND CLICK-TO-CHAT. If available, the Click-to-Call function may allow You to call a Tech Coach, and the Click-to-Chat function may allow You to chat with a Tech Coach. If You use those functions, You will incur data charges and/or charges normally incurred for calls made from Your device, and You will automatically communicate certain information about Your device to the Tech Coach, including settings information, battery levels and storage levels. The Tech Coach Terms of Service govern Your use of any services provided by a Tech Coach.
C. HOW WE USE INFORMATION ABOUT YOUR DEVICE TO PROVIDE APPLICATION SERVICES. The Premium version of VSP requires that your device securely sync information to Us on a regular basis, including, without limitation, its battery levels, operating system, applications and settings. This secure device information syncing feature is available only through the Premium version of VSP and allows Us to improve the Tech Coach services we provide to You. The secure device information syncing feature is not available through the Basic version of VSP. If the Premium version of VSP is available to You, the secure device information syncing feature may also allow You to receive communications from Us about Your device. We will only use the device information to: (i) provide improved Tech Coach services; and (ii) enable the potential ability to create and deliver proactive Device Insights and other capabilities that will help You improve the performance of Your device. If You do not want to receive proactive Device Insights from Us (if available), You must open the VSP application, click "Settings" and then "Alerts" and set the "Receive Proactive Device Insights" to "Off." Please see FAQs for additional instructions and information regarding this function.
11. DISCLAIMER OF WARRANTIES. THE FOLLOWING DISCLAIMER SHALL APPLY TO YOU TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. YOU ACKNOWLEDGE AND AGREE THAT VSP IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND THAT YOUR USE OF OR RELIANCE UPON VSP IS AT YOUR SOLE RISK AND DISCRETION. VERIZON AND ASURION HEREBY DISCLAIM ANY AND ALL REPRSENTATIONS, WARRANTIES AND GUARANTIES REGARDING VSP WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, VERIZON AND ASURION MAKE NO WARRANTY THAT (I) VSP WILL MEET YOUR REQUIREMENTS; (II) VSP WILL BE AVAILABLE, TIMELY, CURRENT, ACCURATE, RELIABLE, COMPLETE, SECURE OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH VSP WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN VSP WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM VERIZON, ASURION OR VSP SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE AND AGREE THAT VERIZON AND ASURION HAVE NO OBLIGATION TO SUPPORT OR MAINTAIN VSP. YOU ACKNOWLEDGE AND AGREE THAT VERIZON AND ASURION MIGHT NOT BE ABLE TO OFFER VSP AT ALL, IN THE ABSENCE OF THE FOREGOING DISCLAIMERS AND LIMITATIONS. IN THE EVENT OF ANY FAILURE OF VSP TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY VERIZON OR ASURION AND VERIZON AND ASURION WILL, AS YOUR SOLE AND EXCLUSIVE REMEDY, USE COMMERICALLY REASONABLE EFFORTS TO SATISFY THE WARRANTY. VERIZON AND ASURION WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO VSP, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY WILL BE YOUR SOLE RESPONSIBILITY.
12. LIMITATION OF LIABILITY. THE FOLLOWING LIMITATIONS SHALL APPLY TO YOU TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE VSP, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR REVENUES, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, LOSS, MISUSE OR DISCLOSURE 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 VSP. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OUR AGGREGATE LIABILITY TO YOU (WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, STATUTE OR OTHER THEORY OF LIABILITY) SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY YOU FOR VSP, IF ANY, DURING THE TWO (2) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $50, WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. ARBITRATION AGREEMENT. Most of Your concerns about the Asurion software or the TOS can be addressed simply by contacting Us at 888-442-9019. In the event We cannot resolve any dispute with You, 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 TO WAIVE OUR RIGHTS TO A TRIAL BY JURY AND TO PARTICIPATE IN CLASS ACTIONS OR OTHER REPRESENTATIVE PROCEEDINGS.
(a) This Arbitration Agreement ("A.A.") shall survive termination of the TOS and is governed by the Federal Arbitration Act. This A.A. shall be interpreted broadly, and it includes any dispute You have with Us that arises out of or relates in any way to VSP or the relationship between You and Us, whether based in contract, tort, statute, fraud, misrepresentation or otherwise. However, this A.A. does not preclude You from bringing an individual action against Us in small claims court or from informing any federal, state or local agencies or entities of Your dispute. They may be able to seek relief on Your behalf.
(b) To initiate arbitration, send a written Notice of Claim by certified mail to: Legal Department, P.O. Box 110656, Nashville, TN 37122-0656. The Notice must describe the dispute and relief sought. If We do not resolve the dispute within 30 days of receipt of the Notice, You may start an arbitration with the American Arbitration Association ("AAA"). You can contact the AAA and obtain a free copy of their rules and forms at www.adr.org or 1-800-778-7879. Asurion will reimburse You for a filing fee paid to the AAA, and if You are unable to pay a filing fee, We will pay it if You send Us a written request.
(c) The arbitration shall be administered by the AAA in accordance with the Consumer Arbitration Rules ("Rules"). The arbitrator is bound by the terms of this A.A. and shall decide all issues, with the exception that issues relating to the enforceability of this A.A. may be decided by a court. If Your dispute is for $25,000 or less, the arbitration will be conducted by submitting documents to the arbitrator, unless You request an in-person or telephonic hearing or the arbitrator decides that a hearing is necessary. If Your dispute is for more than $25,000, the right to a hearing will be determined by the Rules. Unless otherwise agreed, any hearing will take place in the county or parish of Your Verizon billing address. We will pay all filing, administration and arbitrator fees for any arbitration, unless Your dispute is found by the arbitrator to have been filed for the purpose of harassment or is patently frivolous. In that case, the Rules govern payment of such fees.
(d) The arbitrator shall issue a decision including the facts and law supporting it. If the arbitrator finds in Your favor and issues a damages award that is greater than the value of Our last settlement offer 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 $2,500, whichever is greater; and (2) pay the attorney's fees and expenses, if any, You reasonably incurred in the arbitration. While that right to fees and expenses is in addition to any right You may have under applicable law, You may not recover duplicate awards of fees and expenses. Asurion waives any right it may have under applicable law to recover attorney's fees and expenses from You if We prevail in the arbitration.
(e) If You seek declaratory or injunctive relief, that relief can be awarded only to the extent necessary to provide You relief. YOU AND WE AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT IN A PURPORTED CLASS ACTION, CLASS ARBITRATION OR REPRESENTATIVE PROCEEDING. Unless You and We agree otherwise, the arbitrator may not consolidate Your dispute with any other person's dispute and may not preside over any form of representative proceeding. If this specific provision is found to be unenforceable, then the entirety of this A. A. shall be null and void.
15. THIRD-PARTY CONTENT. VSP may expose You to content, websites, products and services created or provided by parties other than Asurion ("third-party content"). Asurion does not review, endorse or assume responsibility for third-party content and shall have no liability to You for access to or use of it. You access or use third-party content at Your own risk and discretion.
16. INTELLECTUAL PROPERTY RIGHTS. You agree that all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated with the Asurion functions of VSP are Our exclusive property, and all such rights not expressly granted to You herein are reserved and retained by Us. If You submit comments or ideas about VSP, including ways to improve VSP or other products or services ("Ideas"), You agree that Your submission is gratuitous, unsolicited and without restriction. It does not place Us under any fiduciary or other obligation, and We are free to use the Ideas without compensation and/or to disclose the Ideas to anyone on a non-confidential basis. You further acknowledge that Asurion does not, by acceptance of Your submission, waive any rights to use similar or related ideas previously known to Us, or developed by Our employees or obtained from sources other than You.
17. INDEMNIFICATION. You agree to indemnify, defend and hold Us harmless from any claim, proceeding, loss, damage, liability or expense of any kind arising out of or in connection with the following: (a) Your use or misuse of VSP; (b) Your alleged or actual breach of the TOS; (c) Your alleged or actual violation of applicable rules, laws or regulations; (d) Your negligence or willful misconduct; or (e) Your alleged or actual infringement of the intellectual property or other rights of third parties. We reserve the right, at Your expense, to assume the exclusive defense and control of any matter which You are required to indemnify, and You agree to cooperate in that defense.
18. MISCELLANEOUS. (a) Claim Limitation. Any claim related to VSP shall be brought within one year of the events giving rise to the claim. Failure to assert any such claim during that time results in it being forever barred. (b) Severability. If any term of the TOS is found to be invalid or unenforceable, it should be modified to the extent possible to make it enforceable or valid without losing its intent and purpose. If no such modification is possible, the term shall be severed. (c) Assignment. The TOS and any rights or licenses granted hereunder may not be transferred or assigned by You, but may be transferred or assigned by Us, without restriction. Any attempted transfer or assignment in violation of this is null and void. (d) Waiver. Any failure to enforce a right or term of the TOS shall not be deemed a waiver of that right or term. (e) Open Source & Third-Party Software. VSP may include open source or third-party software, and Your use of VSP is subject to any licenses or agreements governing that software. (f) Governing Law. The TOS and Your relationship with Us shall be governed by and construed in accordance with the laws of the state of Tennessee, without regard to conflicts of law provisions. Application of the U.N. Convention on Contracts for the International Sale of Goods is expressly excluded. (g) Entire Agreement. The TOS and documents incorporated by reference constitute the entire agreement between us regarding VSP and supersede prior or contemporaneous agreements.
11.11.14 DRAFT COMBINED VSP-ASURION TERMS OF SERVICE FOR VSP 3.0