Terms and Conditions for Participation in Trade-Up program for devices returned through Clover Wireless ("Program")
1. INTENDED AUDIENCE USE: Clover Wireless provides this Trade-in Tool ("Tool") site to you, a Consumer ("Consumer", "you" or "your") on behalf of Motorola Mobility LLC ("Motorola"), subject to these Terms of Use. Clover Wireless may update the Terms of Use from time to time without notice to you. If you have any questions about the Trade-Up Program or the Terms of Use please contact Clover Wireless at [email protected]. This Tool (collectively "the Site") and all the information, communications, software, scripting, photos, text, video, graphics, music, sounds, images and other materials and services found on the Site (collectively "Content"), is intended for the lawful use of your participation. The Site is controlled and operated in whole or in part by Clover Wireless from its offices within the United States. You acknowledge that Clover Wireless reserves the right in its sole discretion to refuse or terminate access to the Tool by you at any time.
1.1 Eligibility. These Terms of Use are solely between Clover Wireless and you. You acknowledge and agree that Clover Wireless or Motorola shall have no legal, equitable or other liability of any kind to you as it relates to your voluntary participation in this Program.
2. ACCEPTANCE OF TERMS: You acknowledge you have read, and agree to be bound by these Terms of Use and to comply with all applicable laws and regulations, including without limitation U.S. export and re-export control laws and regulations regarding the transmission of technical data exported from the United States. By your continued use of this website tool, you agree to each of the terms and conditions set forth and/or linked below. You further agree to comply with all local laws, regulations and rules regarding online conduct and acceptable Content. You represent you have the legal authority to accept these Terms of Use on behalf of yourself or any party you represent. If you do not agree to these terms, you will be prohibited from using the Tool.
3. SCOPE AND EFFECTIVE DATE OF TERMS AND CONDITIONS: These terms and conditions apply to your use of the Tool, the Site and your participation in the Program offered and maintained by Clover Wireless.
4. ENTIRE AGREEMENT, SEVERABILITY, APPLICABLE LAW AND LIMITATION OF ACTIONS: The Terms of Use constitute the entire agreement between you and Clover Wireless and govern your use of the Tool, superseding any prior agreements (if any) between you and Clover Wireless relating to your use of this Tool. If any provision of these web Tool Terms of Use is held to be invalid by any law, rule, order or regulation of any government or by the final determination of any state or federal court, such invalidity shall not affect the enforceability of any other provision of the Terms of Use. The failure of Clover Wireless to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of such right or provision.
By accessing the Tool you agree that the statutes and laws of the United States and the State of Michigan, without regard to conflicts of laws principles, will apply to all matters relating to the use of the Tool, and you agree that any litigation and any matters or proceedings which are not subject to arbitration as set forth in these Terms and Conditions and/or for entering any judgment on an arbitration award,shall be subject to the exclusive jurisdiction of the state or federal courts in Michigan. 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 Tool, or the Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever barred. The Section titles in the Terms of Use are for convenience only and have no legal or contractual effect.
Binding Arbitration: Any controversy or claim arising out of or relating to the Program shall be settled by binding arbitration in a location determined by the arbitrator as set forth herein (provided that such location is reasonably convenient for claimant), or at such other location as may be mutually agreed upon by the parties, in accordance with the procedural rules for commercial disputes set forth in the Comprehensive Arbitration Rules and Procedures of JAMS ("JAMS Rules and Procedures") then prevailing, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator shall be selected pursuant to the JAMS Rules and Procedures. The arbitrator shall apply Michigan law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law. In the event that the claimant is able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Clover Wireless will pay as much of the claimant's filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class or representative basis, then the entirety of this arbitration provision shall be null and void, and neither claimant nor Clover Wireless shall be entitled to arbitrate their dispute. Upon filing a demand for arbitration, all parties to such arbitration shall have the right of discovery, which discovery shall be completed within sixty (60) days after the demand for arbitration is made, unless further extended by mutual agreement of the parties. THE ARBITRATION OF DISPUTES PURSUANT TO THIS PARAGRAPH SHALL BE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. DO NOT ENTER TAKE PART IN THE PROGRAM IF YOU DO NOT AGREE TO HAVE ANY CLAIM OR CONTROVERSY ARBITRATED IN ACCORDANCE WITH THESE TERMS OF USE.
BY PARTICIPATING IN THE PROGRAM, YOU AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW: (1) ANY AND ALL DISPUTES, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THE PROGRAM WILL BE RESOLVED INDIVIDUALLY THROUGH BINDING ARBITRATION AS SET FORTH ABOVE, WITHOUT RESORT TO ANY FORM OF CLASS ACTION; (2) ANY AND ALL CLAIMS, JUDGMENTS AND AWARDS WILL BE LIMITED TO ACTUAL THIRD-PARTY, OUT-OF-POCKET COSTS INCURRED (IF ANY), BUT IN NO EVENT WILL ATTORNEYS' FEES BE AWARDED OR RECOVERABLE; (3) UNDER NO CIRCUMSTANCES WILL YOU BE PERMITTED TO OBTAIN ANY AWARD FOR, AND ENTRANT HEREBY KNOWINGLY AND EXPRESSLY WAIVES ALL RIGHTS TO SEEK, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, LOST PROFITS AND/OR ANY OTHER DAMAGES, OTHER THAN ACTUAL OUT OF POCKET EXPENSES, AND/OR ANY RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED; AND (4) YOUR REMEDIES ARE LIMITED TO A CLAIM FOR MONEY DAMAGES (IF ANY) AND ENTRANT IRREVOCABLY WAIVES ANY RIGHT TO SEEK INJUNCTIVE OR EQUITABLE RELIEF. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OR EXCLUSION OF LIABILITY, SO THE ABOVE MAY NOT APPLY TO YOU.
5. LIMITATION OF LIABILITY: The Program is offered and supported solely by Clover Wireless. Any and all transactions processed on this Site are exclusively the responsibility of Clover Wireless and the user. Neither Clover Wireless or Motorola will be liable for any damages of any kind arising out of or relating to the use or the inability to use this Tool, its content or links, including but not limited to damages caused by or related to errors, omissions, interruptions, defects, delay in operation or transmission, computer virus, line failure, lost profits and all other direct, indirect, special, incidental, exemplary or consequential damages even if Clover Wireless and Motorola have been advised of the possibility of such damages. Notwithstanding the foregoing, your exclusive remedy and the total liability of Clover Wireless or Motorola to you for all losses, damages, and causes of action, including but not limited to those based on contract, tort, or otherwise, arising out of your use of this Tool, its content or links, shall not exceed the amount you paid to access this Tool.
6. RESTRICTIONS ON USE OF CONTENT: © Copyright 2012 Clover Wireless All Rights Reserved. The unauthorized copying, displaying or other use of any Content from this site is a violation of the law. You acknowledge having been advised by Clover Wireless that the Content is protected in the U.S. and internationally by a variety of laws, including but not limited to, copyright laws and treaty provisions, trademark laws, patent laws and other proprietary rights laws (collectively, "Rights"). In addition to Clover Wireless' Rights in individual elements of the Content, Clover Wireless, or its licensors, own a copyright in the selection, coordination and arrangement of the Content. You are hereby granted permission to access the Content from the Site in whole or in part, solely for the purposes of using the Tool and related services found on the Site. This permission terminates automatically if you breach any of the web site Terms of Use. Neither title nor intellectual property rights are transferred to you, but remain with Clover Wireless, who owns full and complete title. You may not resell, decompile, reverse engineer, disassemble, or otherwise convert any software that may be included as part of the Content to a perceivable form. Clover Wireless does not grant you any permission to use the Content other than the permission expressly stated in these Terms of Use. All other use of Content from the Site, including, but not limited to uploading, downloading, modification, publication, transmission, participation in the transfer or sale of, copying, reproduction, republishing, creation of derivative works from, distribution, performance, display, incorporation into another web site, reproducing the Site (whether by linking, framing or any other method), or in any other way exploiting any of the Content, in whole or in part, or downloading and using software repeatedly for uses other than those expressly permitted may not be made without Clover Wireless' prior express written consent.
7. ELIGIBILITY TO PARTICIPATE IN PROGRAM:
7.1 Prohibited Conduct. If you choose to participate in this Program, you agree to comply with any rules or regulations governing the Program. Additionally, as a condition of your continued participation in the Program, you agree not to: 1) upload, post, email, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; 2) harm minors in any way; 3) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; 4) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Program; 5) upload, post, email, transmit or otherwise make available any content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); 6) upload, post, email, transmit or otherwise make available any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; 7) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; 8) upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; 9) interfere with or disrupt the service or servers or networks connected to the service, or disobey any requirements, procedures, policies or regulations of networks connected to the service; 10) "stalk" or otherwise harass another person or entity; or 11) collect or store personal data about other users. You agree that violation of any of the foregoing, which shall be determined in Clover Wireless' sole discretion, will result in your immediate disqualification from participant in the Program, and may result in additional legal actions being taken by Clover Wireless.
7.2 Program Requirements. In order to participate in the Program, you must have an eligible used smartphone as listed here. The Program is only valid within the United States. You must be a minimum of 18 years of age to participate. The Program is not valid on stolen property, pre-production or prototype smartphones. The site is for the exclusive use by consumers and is strictly prohibited for use by wireless dealer's, retailers, or corporate accounts. There is a maximum of five (5) trade-ins per household. Requests from PO boxes will not be honored or acknowledged. Limit one device per postmarked envelope. A valid proof of purchase is a) an copy of the sales receipt or b) a copy of the UPC code from the smartphone box. Limit one Motorola Visa prepaid card per IMEI number. Clover Wireless has the right to reject any trade-up submissions where 1) the used phone is submitted by anyone other than the user of the used phone and 2) when the used phone was not active at the time of the new phone purchase and 3) the trade-up voucher was not signed by you and 4) there is an invalid proof of purchase or 5) we believe there to be fraudulent intentions. Without a valid proof of purchase, you will not receive the $100 Motorola Visa prepaid card. Clover Wireless is not responsible for lost, late, mutilated, misdirected or postage due mail or requests. We recommend making a photocopy of your submission for your records. Any attempt at fraud will be prosecuted to the fullest extent of the law. Offer void where prohibited.
8. HOW IT WORKS: The Tool will generate a mail-in form that includes an acknowledgment by you that (1) you understand the phone will not be eligible for return; (2) you are responsible for removal of all personal information before relinquishing the smartphone; and (3) you are responsible for deactivating the used smartphone phone and ensuring you retire any outstanding balance. The eligible new smartphone must be purchased before June 30, 2014. Your qualifying package (used device, mail-in form, and valid proof-of-purchase) must be postmarked within 30 days of your date of purchase of the eligible new smartphone in order to receive the $100 Motorola Visa Prepaid Card.
9. DEACTIVATION OF SERVICE: Clover Wireless, its vendors or Motorola are not responsible for previous or subsequent airtime charges accrued to your phone prior to or following participation in the Program. Should any airtime charges occur, it is your responsibility to resolve any payment(s) issues.
10. CONDITION OF TRADE-UP PRODUCT: To receive your $100 Motorola Visa prepaid card, the used phone must be in working order.
11. RIGHT, TITLE AND INTEREST IN THE USED PHONE: By submitting the used smartphone, you verify that you own the right, title, and interest in the used phone.
12. RETURN OF USED PHONE OR CONTENT THEREIN: Once you trade-up the used phone, Clover Wireless or its vendors will not be able to return the used phone or any of its contents including accessories or data contained in the used phone. All transactions are final and non-returnable. There will be no substitutes or replacements provided.
13.PAYMENT: After purchase, you must ship in the used phone within 30 days. You will receive the $100 Visa Prepaid Card 6-8 weeks from the time of receipt of the used phone. $100 Motorola Visa prepaid cards that are mailed to you, but returned by the Postal Service will be forfeited and not re-mailed.
14. REMOVAL OF PERSONAL DATA FROM THE USED PHONE: Clover Wireless will remove any personal data from your used phone. We recommend you remove all personal or confidential information by performing a factory reset and removing your SD and SIM cards.
15. ACCURACY AND REVISIONS: Clover Wireless may modify, suspend, withdraw or discontinue, temporarily or permanently, the Content, in whole or in part, at any time without notice. You agree that Clover Wireless and Motorola shall not be liable to you or to any third party for any modification, suspension, withdrawal or discontinuance of the Content. Clover Wireless may at any time revise these web site Terms of Use by updating this posting. By using the Site, you agree to be bound by any such revisions and you agree to periodically visit this page to determine the then current web site Terms of Use to which you are bound.
16. TERMINATION: You agree that Clover Wireless in its sole discretion, may terminate or restrict your use or access to this Program (or any part thereof) for any reason, including, without limitation, that Clover Wireless believes you have violated or acted inconsistently with the letter or spirit of these Terms of Service, the terms, conditions, or rules of the Program.
17. PRIVACY AND INFORMATION SHARING: In order to fulfill your Trade-Up request, you will share your contact information with Clover Wireless.
18. FOR ADDITIONAL INFORMATION: If you have any questions that the Trade-Up FAQs page cannot answer, please contact us.
