This website (www.elementmobile.com) and other Internet websites (collectively, “Site”) operated or controlled by Wisconsin RSA #7 Limited Partnership, a Wisconsin limited partnership, d/b/a Element Mobile, its subsidiaries and affiliates (“Element Mobile”, “we”, “our” and “us”) include content, message, data, image, text, photos, advertising, graphics, audio, video, “applets”, software or other materials (collectively, “Content”), as well as communication tools, administrative services, download areas discussion forums, search, account management tools, access to certain content, certain diagnostic tools, games and other information (collectively, “Services”). The Services may themselves contain Content, and Content and Services are sometimes collectively referred to as the “Resources”. These terms of service and use, without modification by you, along with our Acceptable Use Policy and any documents, policies and guidelines incorporated by reference (collectively, “Terms”), set forth the obligations of our customers and their subsidiaries, affiliates, employees, agents and parent(s) or legal guardian(s) (collectively, “you” or “your”), our obligations, and the rules you must follow when using the Site or Resources (or both).
PLEASE READ THESE TERMS CAREFULLY. By accessing or using our Site or Resources (or both) in any way, you are agreeing to comply with these Terms. Certain other Element Mobile wireless and Internet services may have additional terms and conditions or agreements regarding your purchase or use of those services (“Other Terms”), and nothing in these Terms is intended to modify such Other Terms. To the extent that there is any conflict between these Terms and the Other Terms, the Other Terms will govern.
By using the Site or Resources (or both), you represent that you are at least 13 years old. Persons who are at least 13 years of age but under the age of 18 may only use the Site or Resources (or both) with parental or legal guardian consent. Accordingly, you agree that you are at least 18 years of age or older or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, representations and warranties set forth in the Terms; otherwise, please exit the Site and/or discontinue use of the Resources.
We may change or modify these Terms from time-to-time without notice other than posting the amended Terms on our Site. The amended Terms will be effective automatically when posted on our website. Your continued use of our Site or Resources (or both) after any changes in these Terms shall constitute your consent to such changes. We reserve the right to change, modify or discontinue, temporarily or permanently, the Site (or any portion thereof), including any and all Resources, at any time without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site (or any portion thereof), including any and all Resources.
In order to access certain Resources, you may be required to provide specific information and to create a user ID and password to establish an account. You agree that the information you provide in connection with establishing any account is accurate and complete and that you will keep your information current. You are responsible for the security of all of your user names, passwords and registration information (such as unique account identifiers or historical billing information), and you are solely responsible for any use (authorized or not) of your accounts. You agree to notify immediately us of any unauthorized activity regarding any of your accounts or other breach of security. We may in our sole discretion suspend or terminate any of your user names and passwords at any time with or without notice.
Some of the Resources are owned by Element Mobile and/or our affiliates. Other portions are owned by non-Element Mobile companies or third parties such as suppliers, vendors, and licensors (including Content that is generated by users as further described elsewhere in these Terms). The Resources are protected by a variety of laws governing the use of copyrights, trademarks, patents, or trade secrets. Subject to the rules and limitations set forth in the Terms, you are granted a limited, non-sublicensable right to access the Site and the Resources for your personal non-commercial use only, except as otherwise permitted. Without limiting the generality of the foregoing, no Resources or underlying information or technology may be downloaded or otherwise exported or re-exported (a) into Cuba, North Korea, Iran, Sudan, Syria or any other country for which the U.S. maintains an embargo on such exports, or (b) to a person or entity identified on lists of the U.S. Treasury Department (e.g., Specially Designated Nationals, Denied Persons or Entities) or the U.S. Commerce Department (e.g., Entity List, Table of Deny Orders), which control such exports. By downloading or using the Resources or underlying information or technology, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
Element Mobile respects the intellectual property rights of others. If you believe that your work has been copied and has been posted, stored or transmitted to the Site and/or Resources in a way that constitutes copyright infringement, please submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Element Mobile’s Copyright Agent the following written information:
Element Mobile’s Copyright Agent for notice of claims of copyright infringement on the Site and Resources can be reached as follows:Attn: Director of Customer Relations
Trademarks and service marks that are used or displayed on the Site and Resources are owned by Element Mobile or by third parties other than Element Mobile that offer and provide products and services on or through the Site or Resources (or both). The trademarks of Element Mobile may not be copied or used, in whole, partial or modified form, without the prior written permission of Element Mobile. In addition, the Element Mobile name, custom graphics, logos, button icons, scripts, page headers, and other trademarks and trade names owned by Element Mobile are covered by trademark, trade dress, copyright or other proprietary right law, and may not be copied, imitated, or used, in whole, partial or modified form, without the prior written permission of Element Mobile. You may not use any metatags or any other “hidden text” utilizing an Element Mobile’s name, trademark (if any), or product name without Element Mobile´s prior written consent. The RIM and BlackBerry families of related marks, images and symbols are the exclusive properties and trademarks of Research In Motion Limited—used by permission. BlackBerry is registered with the U.S. Patent & Trademark Office and may be pending or registered in other countries. Other trademarks, service marks, registered trademarks, product and service names, and company names or logos that appear on the Site or Resources (or both) are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
Parties other than Element Mobile may offer and provide products and services on or through the Site and/or Resources. Except for our branded information, products or services that are identified as being supplied by us, we do not operate, control, or endorse any information, products, or services on the Site and Resources or accessible through the Site and Resources in any way. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or individuals or the content of their websites. We do not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other conditions of use.
The Site and Resources may contain links to other websites not operated by us. The links are provided for your convenience. The inclusion of any links to other websites does not imply affiliation, endorsement or adoption by Element Mobil of those websites or the contents therein. We are not responsible for the contents, links or privacy of any linked website. Access to any other websites linked to the Site is at your own risk. When leaving the Site, you should carefully review the applicable terms and policies, including privacy and data gathering practices, of that third-party website.
Element Mobile does not warrant that information, graphic depictions, product and service descriptions or other content of the Site or Resources (or both) is/are accurate, complete, reliable, updated, current, or error-free. Despite our efforts, it is possible that a price for a product or service offered may be inaccurate or the product or service description may contain an inaccuracy. In the event we determine that a product or service contains an inaccurate price or description, we reserve the right to take any action we deem reasonable and necessary, in our sole discretion, to rectify the error, including without limitation canceling your order, unless prohibited by law. We may make improvements or changes to any of our content, information products, services, or programs described on the Site or Resources (or both) at any time without notice. You agree to notify us immediately if you become aware of any pricing or descriptive errors or inconsistencies with any products or services you order through the Site or Resources (or both) and comply with any corrective action taken by us.
You acknowledge that we may establish general practices and limits concerning use of the Site and/or Resources. Your use of this Site or Resources (or both) constitutes your consent to allow us to store electronic communications on our servers. You acknowledge that we reserve the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that we reserve the right to modify these general practices and limits from time to time. We are not responsible for back-up or restoration of your information or for any loss of or disablement of access to your information, including without limitation, email and address book information. We reserve the right to: (a) use, copy, display, store, transmit and reformat data transmitted over our network and to distribute such content to multiple Element Mobile servers for back-up and maintenance purposes; and (b) block or remove any unlawful content you store on or transmit to or from any Element Mobile server. We do not guarantee the protection of your content or data located on our servers or transmitted across our network (or other networks) against loss, alteration or improper access. You are solely responsible for obtaining, installing, and maintaining suitable equipment and software, including any necessary system or software upgrades, patches or other fixes, which are or may become necessary to access the Site or Resources (or both). Minimum systems requirements apply to the use of the Site or Resources (or both) and it is your responsibility to ensure your computer system complies with these requirements. You agree that you are solely responsible for maintaining the security of your computer(s) and all personal and other data, including without limitation, encryption of data. WE STRONGLY RECOMMEND THE USE (AND APPROPRIATE UPDATING) OF COMMERCIAL ANTI-VIRUS, ANTI-SPYWARE AND FIREWALL SOFTWARE.
In order to protect Element Mobile and its customers from fraudulent activity, we may implement reasonable procedures regarding any online orders including but not limited to validating information provided or limiting the amount of equipment (e.g. wireless phones) and/or services that may be ordered online by a single individual or entity. We reserve the right to further limit quantities or to cancel or reject orders in our sole discretion.
The Site or Resources (or both) may have “publicly accessible areas” such as message boards, forums, member profiles, yellow pages, job folders or other features that allow users to post Content that will be accessible by the public or the user population generally. With respect to any content, message, data, image, text, photos, advertising, graphics, audio, video, “applets”, software or other materials you elect to post to such publicly accessible areas of the Site or Resources (or both), while you retain any and all of your lawfully owned rights in such Content, you grant Element Mobile a royalty-free, perpetual, irrevocable, non-exclusive and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content which you provide (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed and to exercise the same rights with respect to such works. You also permit any user of the Site or Resources (or both) to access, display, view, store, distribute, perform, reproduce and prepare derivative works of, such Content that you have placed in publicly accessible areas of the Site or Resources (or both). No compensation will be paid to you or to any other person or entity with respect to the posting or use of your Content. Element Mobile is under no obligation to post or use any Content you may provide and we may remove your Content at any time in its sole discretion. You agree that we are not under any obligation of confidentiality, express or implied, with respect to your Content. You represent and warrant that you own or otherwise control all necessary rights to the Content that you post, that such Content is accurate, that use of the Content you supply does not violate these Terms, specifically including without limitation the requirements of our Acceptable Use Policy, and will not cause injury to any person or entity, and that you will indemnify Element Mobile for all claims resulting from the Content you supply.
Element Mobile does not generally pre-screen or control Content posted by users of the Site or Resources (or both), and, therefore, does not guarantee the accuracy, integrity or quality of such Content. We shall have the right (but not the obligation) in our sole discretion to monitor, refuse or remove any Content that is available via the Site or Resources (or both) for any or no reason, including that any Content violates these Terms or is otherwise objectionable. We take no responsibility and assume no liability for any Content uploaded, transmitted, or downloaded by you or any third party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography, or profanity you may encounter. As the provider of the Site and Resources, we are only a forum and are not liable for any statements, representations, or Content provided by Site and Resource users. Any opinions, advice or recommendations expressed therein are those of the users providing such Content and not those of Element Mobile. We do not endorse any Content or any opinion, recommendation or advice expressed therein. It is not our intent to discourage you from taking controversial positions or expressing vigorously what may be unpopular views; however, we reserve the right to take such action as we deem appropriate in cases where the Site or Resources (or both) is/are used to disseminate statements that are harmful or inflammatory.
You agree not to propose, post or submit to Element Mobile ideas, concepts, copy, proposals, inventions, methods or techniques for new or proposed services or products (collectively referred to as “Submitted Material “) through the Site or Resources (or both). In the event you do so, you hereby grant to Element Mobile a perpetual, worldwide, irrevocable, unrestricted, non-exclusive, royalty-free license to use all such Submitted Material in any manner whatsoever without compensation or attribution to you. You also grant to us the right, at our sole discretion, to use your name in connection with the Submitted Materials and other information as well as in connection with all advertising, marketing and promotional material related to such material and information. Use of such Submitted Material shall not require permission from or payment to you or to any other person or entity. You agree that we are not under any obligation of confidentiality, express or implied, with respect to the Submitted Material. You agree that you shall have no recourse against Element Mobile for any alleged or actual infringement or misappropriation of any proprietary right in Submitted Material and that the submission of any Submitted Material to us, including the posting of materials to any forum or interactive area on the Site or Resources (or both), irrevocably waives any and all ‘moral rights’ in such materials. You represent and warrant that you own or otherwise control all of the rights to the Submitted Material that you post, that the Submitted Material is accurate and, that use of the Submitted Material you supply does not violate these Terms and will not cause injury to any person or entity.
You agree to use the Site, including any Resources, in a manner consistent with all applicable laws and regulations. Additionally, you will not take any of the following actions with respect to our Site, or any Resources, nor will you use the Site or any Resources to upload, post, email, distribute, transmit, link, solicit or otherwise make available any thing or use Site or Resources (or both) in any manner that:
Violating the security of the Site or Resources (or both) is prohibited and may result in criminal and civil liability. We may investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of security violations include, without limitation, unauthorized access to or use of data or systems including any attempt to probe, scan, or test the vulnerability of the Site or Resources (or both) or to breach security or authentication measures, unauthorized monitoring of data or traffic, interference with service to any user, host, or network including, without limitation, mail bombing, news bombing, other flooding techniques, deliberate attempts to overload a system, forging any TCP-IP packet header, e-mail header, or any part of a message header, except for the authorized use of aliases or anonymous remailers, and using manual or electronic means to avoid any use limitations.
IN NO EVENT SHALL ELEMENT MOBILE, ITS AFFILIATES, SUBSIDIARIES, LIMITED PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SERVICE PROVIDERS, SUPPLIERS, LICENSORS, AND OTHER RELATED PARTIES, AND THEIR RESPECTIVE PARTNERS, MANAGERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND REPRESENTATIVES, BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (i) THE USE OR INABILITY TO USE THE SITE OR THE CONTENT, SERVICES, MATERIALS, SOFTWARE, INFORMATION, PRODUCTS OR TRANSACTIONS PROVIDED ON OR THROUGH THE SITE, OR (ii) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SITE OR THE CONTENT, SERVICES, MATERIALS, SOFTWARE, INFORMATION, PRODUCTS OR TRANSACTIONS PROVIDED ON OR THROUGH THE SITE, (iii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE OR RESOURCES (OR BOTH); (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE OR RESOURCES (OR BOTH); (vi) THE DELAY OR FAILURE IN PERFORMANCE RESULTING FROM AN ACT OF FORCE MAJEURE, INCLUDING WITHOUT LIMITATION, ACTS OF GOD, NATURAL DISASTERS, COMMUNICATIONS FAILURE, GOVERNMENTAL ACTIONS, WARS, STRIKES, LABOR DISPUTES, RIOTS, SHORTAGES OF LABOR OR MATERIALS, VANDALISM, TERRORISM, NON-PERFORMANCE OF THIRD PARTIES OR ANY REASONS BEYOND THEIR REASONABLE CONTROL; OR (vii) ANY OTHER MATTER RELATING TO THE SITE OR RESOURCES (OR BOTH), EVEN IF ELEMENT MOBILE OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE OR RESOURCES (OR BOTH) IS TO STOP USING THE SITE OR RESOURCES (OR BOTH).
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY, IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF ELEMENT MOBILE UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
You agree to indemnify, defend and hold harmless Element Mobile, its affiliates, subsidiaries, limited partners, officers, directors, employees, agents, representatives, service providers, suppliers, licensors, and other related parties, and their respective partners, managers, members, officers, directors, employees, agents, and representatives, from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, made by any third-party due to or arising out of Submitted Material or any other content you submit, post or upload to or transmit through the Site or Resources (or both), your use of the Site or Resources (or both), your connection to the Site or Resources (or both), your violation of these Terms, or your violation of any law or the rights of another. These obligations will survive any termination of your relationship with Element Mobile or your use of the Site or Resources (or both). Element Mobile reserves the right to assume the defense and control of any matter subject to indemnification by you, in which event you will cooperate with Element Mobile in asserting any available defenses.
You agree that we may at any time immediately terminate or suspend your account, any associated email address, and access to all or any part of the Site or the Resources or change your password without notice. Cause for such termination, suspension or change shall include, but not be limited to, (a) breaches or violations of these Terms, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Site and/or Resources (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, and/or (g) engagement by you in fraudulent or illegal activities. Termination of your account includes (or, if we elect instead to suspend your account, may include any one or more of the following) (a) removal of access to all offerings within the Site and/or the Resources, (b) deletion of your password and all related information, files and other content associated with or inside your account (or any part thereof) and (c) barring of further use of the Site and/or Resources (or any part thereof). You agree that all terminations and suspensions for cause shall be made in our sole discretion and that Element Mobile shall not be liable to you or any third party for any termination or suspension of your account, loss of storage, any associated email address, or access to the Site or Resources (or both). Further, we reserve the right to immediately terminate or suspend your account, any associated email address, and access to the Site or Resources (or both) at any time for any reason and without notice to you in our sole discretion.
Failure by Element Mobile to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions. No waiver by any party hereto of any breach or default of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default. These Terms shall be governed and construed in accordance with the laws of the State of Wisconsin applicable to agreements made and to be performed in Wisconsin. You agree that any legal action or proceeding between Element Mobile and you for any purpose concerning these Terms or the parties’ obligations hereunder shall be brought exclusively in a federal or state court of competent jurisdiction sitting in Wisconsin, and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of Wisconsin in connection with any such legal action or proceeding. Neither the course of conduct and/or course of dealing between the parties nor trade practice shall act to modify any provision of these Terms. Element Mobile may assign its rights and duties under these Terms to any party at any time without notice to you. Your rights and duties under these Terms are not assignable by you without the prior written consent of Element Mobile. These Terms do not provide any third party with a remedy, claim, or right of reimbursement. You must file any claim or suit related to the Site or Resources (or both) within one year after it arises.
Updated: January 11, 2011