Before using the Sprint Nextel Family Locator Service ("SFL"), You must read and accept the following terms and conditions (the "Terms and Conditions"). The words "Sprint Nextel," "we" or "us" refer to the service provider(s) (Sprint Nextel Corporation, Sprint Corporation, Nextel Communications, Nextel Partners, Boost Mobile and their parents, subsidiaries and affiliates). The word "You" refers to the account holder, account administrator, subscriber or user of any of Sprint Nextel’s global positioning satellite ("GPS") services.
The Terms and Conditions consist of Section A, which includes your agreement with Sprint Nextel to the terms under which Sprint Nextel will provide SFL, and Section B, which consists of a legal agreement between You and WaveMarket, Inc., the provider of certain services necessary to enable SFL. It is a requirement of Sprint Nextel’s relationship with WaveMarket that all users of SFL must agree to the terms and conditions contained in Section B. Sprint Nextel may modify these Terms and Conditions at any time without notice, and such modifications shall be deemed effective immediately upon notification to You of the modified terms.
Section A. Agreement with Sprint Nextel
1. SERVICE AGREEMENT APPLICABLE. These Terms and Conditions supplement the existing service or other agreement(s) between You and Sprint Nextel (the "Service Agreement"). The Service Agreement is expressly incorporated by this reference and will continue in full force and effect and apply equally to SFL. You agree that to the extent specific Terms and Conditions contained herein between You and Sprint Nextel conflict with your Service Agreement, You will comply with these Terms and Conditions. You further agree that no provision of these Terms and Conditions is intended expressly or by implication to supersede any provision of the Service Agreement.
2. SERVICE PRICING. You will be charged a monthly recurring charge of $5 for each SFL account. Persons subscribing to the web application will be able to locate up to four devices with their SFL account.
3. LOCATION SERVICE. When you register for SFL, you will be asked to provide a password, and by providing such, you agree to be responsible for all activities occurring under your account. You will also be responsible for keeping your password secure. You may use SFL to request the best available location for the requested Sprint Nextel device. When You initialize SFL for a device included on your account, SFL will notify the user of the device via SMS text message that the device may be located by You. Thereafter, SFL may send notices to such device informing the user that the device may be located. When You initialize SFL for a device that is not on your Sprint Nextel account, You and the user of the requested device must enter a mutually chosen "Safety Word" on your devices to activate the link between your devices and the account holder (if different than the user) must also consent to such device being locatable. Thereafter, SFL may send notices to such user’s device informing the user that the device may be located. Accuracy of the location information is subject to network capabilities, environmental conditions, and whether or not the devices are powered on and within the Sprint Nextel coverage area. You acknowledge and agree that Sprint Nextel does not guarantee results and the results You may obtain from SFL, including but not limited to data and messaging, may not be accurate, timely or reliable. Sprint reserves the right to set limits on the use of these services at its discretion.
4. SMS SERVICE. You may use SFL to send SMS messages to any SFL-capable device associated with your account. Your account permits a total of one hundred (100) SMS messages per located device per month. SMS messages exceeding this limit will be charged at applicable rates. Any reply messages from the applicable devices will be charged at the applicable usage rates for SMS messaging. You may not use SMS in a manner that could result in the receipt of spam by other individuals.
5. CONSENT TO DATA COLLECTION. By providing your consent to these Terms and Conditions and by activating SFL, You authorize Sprint Nextel to collect, use, and disclose geographic location and other personal information (including your name, address, telephone number, account number, equipment identifiers, and Internet Protocol addresses) necessary to enable delivery of the SFL service, including functions that are incidental and necessary to such delivery (e.g., invoicing).
6. LAWFUL USE. You agree not to use SFL or the location information provided thereby for any unlawful purpose, and You agree to comply with all applicable laws and rules.
7. INDEMNIFICATION. As a condition of your use of SFL, and with respect to third-party claims, You agree to indemnify, defend, and hold harmless Sprint Nextel, its parent, affiliates, subsidiaries, and its and their respective officers, directors, employees, agents, contractors, successors, and assigns from and against any judgments, claims, actions, losses, damages, liabilities, costs, or expenses (including, but not limited to, reasonable attorneys' fees and legal expenses) of any kind arising from or attributable to any breach by You of your obligations established herein or any privacy, employee, or consumer protection right that is implicated herein and by the SFL service. Your duties under this provision are in addition to those indemnification duties You agreed to in your Service Agreement, and all indemnification duties shall continue in effect even after, and notwithstanding, any subsequent revocation of Consent or the expiration or termination of your customer relationship with Sprint Nextel.
8. LIMITATION OF CLAIMS. You acknowledge and agree that (a) your relationship with WaveMarket, detailed below, is wholly separate and distinct from your relationship with Sprint Nextel; (b) your sole legal recourse with respect to any act or omission of WaveMarket (such as the misuse of any location, personal, or account information that Sprint Nextel delivers to such service provider) shall lie against WaveMarket; and (c) You shall hold harmless Sprint Nextel, its parent, affiliates, and subsidiaries, and its and their respective officers, directors, employees, agents, contractors, successors, and assigns from any judgments, claims, actions, losses, damages, liabilities, costs, or expenses (including, but not limited to, reasonable attorneys' fees and legal expenses) of any kind arising from or attributable to the acts or omissions of WaveMarket.
Section B. Agreement with WaveMarket, Inc.
1. This agreement with WaveMarket, Inc. (the "WaveMarket Agreement"), grants to You a license to use Wavemarket’s software products and other tangible or intangible material or data provided solely to enable You to subscribe to and utilize the SFL ("Program").
2. GRANT OF LICENSE. WaveMarket grants You the following rights provided You comply with all terms and conditions of this WaveMarket Agreement: (a) a revocable, non-transferable and non-exclusive license to use the Program consistent with these terms and conditions; and (b) if applicable and consistent with Section A above, install and use an unlimited number of copies of software on your computers and/or mobile devices, including mobile phones, personal digital assistants or other digital electronic devices ("Mobile Device"). This WaveMarket Agreement does not grant You the right to distribute, rent, loan, lease, sell, sublicense, or otherwise transfer all or part of the Program, any access to it, or any rights granted hereunder to any other person. All rights not expressly granted herein are reserved by WaveMarket.
3. RESTRICTIONS. This WaveMarket Agreement prohibits and You will not (a) reverse engineer, decompile, or disassemble the Program; (b) modify, translate, adapt, arrange, or create derivative works based on the Program for any purpose, (c) export the Program in violation of U.S. or other applicable export control laws; (d) use the Program outside of the country of purchase or in a manner inconsistent with or in violation of this WaveMarket Agreement.
4. COPYRIGHT. The Program are protected by copyright, trade secret and other intellectual property laws and treaties and will remain the exclusive property of WaveMarket or its suppliers.
5. TERMINATION. Without prejudice to any other rights, WaveMarket may cancel this WaveMarket Agreement, without notice and without any liability to You, if You do not abide by the terms and conditions of this WaveMarket Agreement, in which case You must immediately cease using the Program. This Agreement will terminate upon expiry or termination of your agreement with Sprint Nextel.
6. USE OF DATA AND PRIVACY. You acknowledge and agree that (a) You have no expectation of privacy when using the SFL as they are locator-based services; (b) results You may obtain from the Program and SFL, including but not limited to data and messaging, may not be accurate, timely or reliable; and (c) WaveMarket and its affiliates will collect, use and disclose geographic location and other information necessary to enable delivery of the SFL service.
7. DISCLAIMER OF WARRANTIES. To the maximum extent permitted by applicable law, WaveMarket and its suppliers provide to You the Program, and any support services relating to the SFL provided by WaveMarket ("Support Services"), if any, AS IS AND WITH ALL FAULTS; WAVEMARKET DOES NOT WARRANTY UNINTERRUPTED USE OR OPERATION OF THE PROGRAM OR THAT ANY DATA SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE AMOUNT OF TIME. WAVEMARKET AND ITS SUPPLIERS HEREBY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR WRITTEN, ORAL, CONTRACTUAL OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES, DUTIES OR CONDITIONS OF OR RELATED TO: MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WAVEMARKET MAKES NO CLAIM OF OWNERSHIP OF THE DATA OBTAINED THROUGH THE PROGRAM OR SFL, AND DOES NOT WARRANT THE ACCURACY OR RELIABILITY OF ANY SUCH DATA.
8. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WAVEMARKET OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS OR REVENUES, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, CORRUPTION OR LOSS OF DATA, FAILURES TO TRANSMIT OR RECEIVE DATA OR ANY OTHER PECUNIARY LOSS WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PROGRAM, SFL OR THE SUPPORT SERVICES OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IF WAVEMARKET OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. LIMITATION OF CLAIMS. Notwithstanding any damages that You might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of WaveMarket and any of its suppliers under any provision of this WaveMarket Agreement and your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by You for the SFL. The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
10. LIMITATION OF SPRINT NEXTEL CLAIMS. You acknowledge and agree that (a) your relationship with Sprint Nextel, detailed above, is wholly separate and distinct from your relationship with WaveMarket; (b) your sole legal recourse with respect to any act or omission of Sprint Nextel with respect to SFL shall lie against Sprint Nextel; and (c) You shall hold harmless WaveMarket, any parent, affiliates, and subsidiaries, and its and their respective officers, directors, employees, agents, contractors, successors, and assigns from any judgments, claims, actions, losses, damages, liabilities, costs, or expenses (including, but not limited to, reasonable attorneys' fees and legal expenses) of any kind arising from or attributable to the acts or omissions of Sprint Nextel.
11. THIRD PARTY CLAIMS. You agree to indemnify, defend and hold harmless WaveMarket and any affiliated companies, their respective officers, directors, employees, suppliers, subcontractors and agents from any loss, liability, claim, demand, damage, or expenses (including reasonable attorney’s fees) asserted by any third party due to or arising from or in connection with your use of the Program, SFL or the Support Services. WaveMarket reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, which shall not excuse your indemnity obligations.
12. MISCELLANEOUS. This WaveMarket Agreement, including any addendum or amendment to this WaveMarket Agreement, are the entire agreement between You and WaveMarket relating to the Program, SFL and the Support Services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Program or any other subject matter covered by this WaveMarket Agreement. To the extent the terms of any WaveMarket policies or programs for Support Services conflict with the terms of this WaveMarket Agreement, the terms of this WaveMarket Agreement shall control. The failure of WaveMarket to exercise or enforce any right or provision of the WaveMarket Agreement shall not constitute a waiver of such right or provision. If any provision of the WaveMarket Agreement is found by a court of competent jurisdiction to be invalid or contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the parties’ intentions, and the other provisions of the WaveMarket Agreement shall remain in full force and effect. 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 the Program, SFL, Support Services or to the WaveMarket Agreement must be commenced within one (1) year after such claim or cause of action arose or You waive such claim or cause of action. If You acquired the SFL in the United States, this Section B is governed by the laws of the State of New York.