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Systems Use Agreement

SYSTEMS USE AGREEMENT


Welcome to T-Mobile.  PLEASE SCROLL DOWN AND READ THE TERMS AND CONDITIONS BELOW.  This Agreement governs the access and use by authorized dealers and sub-dealers of T-Mobile (each, a “Dealer”) of certain software and computer systems, specifically the Retailer Activity Portal (“RAP”) made available by T-Mobile USA, Inc. and its affiliates (together "T-Mobile”), (collectively, “Software”) and related equipment (if applicable) (collectively, “Hardware”).  The Software and Hardware (collectively, “Systems”) are supplied at T-Mobile’s sole discretion for purposes of activating and servicing wireless communication service (including voice and/or data service, or a combination of both) provided by T-Mobile (“Service”) for customers, subscribers, or end users who activate and use the Service (“Subscribers”).

If you agree to be bound by this Agreement, you should click on the "I AGREE" button below. IF YOU USE THE SYSTEMS, YOU CONSENT AND AGREE TO THIS AGREEMENT.  T-Mobile reserves the right to review and revise this Agreement from time to time without prior notice and, by using the Systems subsequent to any revision of this Agreement, you agree to be bound by such changes. YOU SHOULD REVIEW THIS AGREEMENT EACH TIME YOU ACCESS THE SYSTEMS.  If you find this Agreement to be unacceptable, you must immediately terminate your use of the Systems.

You represent that you may legally enter into this Agreement, have received a copy of this Agreement and have read and clearly understand its terms. If activating on behalf of a corporation or other entity, you represent that you have full authority to bind that entity and, if you do not, you agree to accept personal liability for your use of the Systems.

1. Software License; Use.
T-Mobile grants Dealer a limited, personal, non-exclusive, non-transferable, revocable license to use the Software in connection with the Hardware and/or other computer terminals authorized by T-Mobile in T-Mobile’s sole discretion and as otherwise set forth herein ("License").

The Software shall be used solely for the purpose of activating, renewing, refilling, and/or upgrading Service, upon a Subscriber’s request, in connection with the performance of Dealer's obligations, and for such other uses expressly authorized by T-Mobile upon prior written notice to Dealer.  Dealer and its personnel shall not use the Software for any fraudulent, unlawful, immoral, infringing, defamatory or obscene purpose, nor to alter, steal, corrupt, disrupt, disable or destroy any computer file, database or network. 

Any unauthorized use of the Software, any use not in compliance with this Agreement, or any action that T-Mobile, in its sole discretion, deems unauthorized use of the Software shall be a material breach of this Agreement. Unauthorized use of the Software includes but is not limited to:

  1. Accessing T-Mobile's network or other systems in any manner other than for uses authorized in Section 1 of this Agreement.
  2. Accessing T-Mobile's network or other systems in a manner that interferes with the performance of such network or systems.
  3. Loading software onto the Hardware, other than software both expressly authorized by T-Mobile and necessary for Dealer's performance of its obligations.
  4. Copying any software or programs provided with the Hardware by T-Mobile, or otherwise in violation of T-Mobile's or any third party's intellectual property rights.
  5. Recreational use including but not limited to gaming, audio playback, video playback, and similar uses.
  6. Illicit or obscene uses.
  7. Accessing any Subscriber’s account without such Subscriber’s prior consent.
  8. Upgrading, renewing, refilling, canceling, altering, disrupting or disabling Service for any Subscriber without such Subscriber’s prior consent.

Dealer understands and acknowledges that the Software, along with all intellectual property rights associated therewith, are the property of T-Mobile.  As between Dealer and T-Mobile, T-Mobile shall retain all right, title, and interest therein, and no title to or ownership of any Software or any component thereof, or any intellectual property rights associated with any Software, shall be transferred to Dealer by virtue of this Agreement.  Dealer will not infringe or violate, and will use its best efforts to preserve and protect, T-Mobile's and its licensors' interest in Software and intellectual property rights.  Any such infringement, misappropriation or violation relating to the activities of Dealer or any of its officers, employees, agents, contractors or representatives shall be deemed to be a material breach of this Agreement, subjecting Dealer to immediate termination of this Agreement, at T-Mobile’s sole discretion.  Dealer acknowledges that T-Mobile may modify, limit, restrict and/or terminate access to any or all Software at any time in T-Mobile’s sole discretion.

2. Use of Hardware; Dealer Responsibilities.
In the event that T-Mobile provides Hardware to Dealer pursuant to this Agreement, Dealer agrees that it shall:

  1. Maintain the Hardware in good working order;
  2. Refrain from removing, altering, or tampering with any marks, labels or logos attached to the Hardware;
  3. Immediately notify T-Mobile of any mechanical or electrical failure of the Hardware and cooperate with T-Mobile to return the Hardware to T-Mobile for repair or replacement, as determined by T-Mobile in its sole discretion;
  4. Not remove or transfer the Hardware from the location where it was originally installed to any other location, person or entity without the prior written approval of T-Mobile, in its sole discretion.  Any such unauthorized removal or transfer shall immediately terminate this Agreement, and Dealer shall be liable to T-Mobile for the entire replacement cost of the Hardware; and
  5. Bear the entire risk of loss or damage to all Hardware from the time of delivery to Dealer and until the time of return delivery of the Hardware to T-Mobile.

Any such Hardware is, and shall at all times remain, T-Mobile’s property, and shall not be damaged or altered in any way.  Dealer shall be liable for any and all damage to the Hardware.

3. Ethical Conduct. 
In all dealings with Subscribers and T-Mobile, Dealer and its personnel shall be governed by the highest standards of honesty, integrity, fair dealing and ethical conduct. Conduct in violation of this Section includes, but is not limited to: (a) business practices, promotions, or advertising which may be injurious to the reputation or business goodwill of T-Mobile or its Service; (b) falsification of any business records; (c) misrepresentations to T-Mobile or to any actual or potential Subscriber; (d) diversion or non-disclosure of any corporate opportunities; (e) disloyal conduct or self-dealing of any kind; (f) breach of T-Mobile payment terms or policies; (g) a plea of no contest or the conviction of Dealer or any of its officers, directors or substantial shareholders for any offense involving fraud or dishonesty, or punishable by a term of imprisonment; or (h) Dealer’s engaging in any practice that is determined to be an illegal or unfair trade practice in violation of any applicable law.  Any conduct violating the provisions of this Section shall constitute a material breach of this Agreement.

4. Prohibited Activities. 
In addition to additional limitations and prohibited activities set forth elsewhere in this Agreement, Dealer agrees not to use the Hardware, the Software, the T-Mobile network or any other T-Mobile computer systems for any fraudulent, unlawful, harassing or abusive purpose, or so as to damage or cause risk to T-Mobile’s business, reputation, employees, subscribers, facilities, or to any person.  Improper uses include, but are not limited to: (a) Violating any applicable law or regulation; (b) Posting or transmitting content Dealer does not have the right to post or transmit; (c) Posting or transmitting content that infringes a third party's trademark, patent, trade secret, copyright, publicity, privacy, or other right; (d) Posting or transmitting content that is unlawful, untrue, stalking, harassing, libelous, defamatory, abusive, tortious, threatening, obscene, hateful, abusive, harmful or otherwise objectionable as determined in T-Mobile’s sole discretion; (e) Attempting to intercept, collect or store data about third parties without their knowledge or consent; (f) Deleting, tampering with or revising any material posted by any other person or entity; (g) Accessing, tampering with or using any unauthorized areas of T-Mobile’s computer systems and/or network; (h) Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures; (i) Attempting to access or search any T-Mobile network and/or computer systems with any engine, software, tool, agent, device or mechanism other than the software and/or search agents provided by T-Mobile or other generally available third party web browser; (j) Sending unsolicited messages, including without limitation, promotions or advertisements for products or services, "pyramid schemes", "spam", "chain mail" or "junk mail"; (k) Using the Software and/or Hardware to send altered, deceptive or false source-identifying information; (l) Attempting to decipher, decompile, disassemble or reverse engineer any of the Software or any other T-Mobile computer network or system; (m) Interfering or attempting to interfere with the access of any user, host or network, including without limitation, sending a "virus" to any T-Mobile network or computer system, overloading, "flooding," "spamming," "crashing," or "mailbombing" any T-Mobile network or computer system; or (n) Impersonating or misrepresenting Dealer’s affiliation with any person or entity.  If T-Mobile suspects violations of any of the above, T-Mobile will investigate and T-Mobile may institute legal action, immediately deactivate the Software and/or access to any T-Mobile computer systems without prior notice to Dealer, and cooperate with law enforcement authorities in bringing legal proceedings against violators.  Dealer agrees to reasonably cooperate with T-Mobile in investigating suspected violations.

5. Confidential Information.
Confidential Information” means all information of or relating to Company (whether of a business, technical or other nature) which Dealer knows or reasonably should know to be confidential or proprietary.  Without limiting the generality of the foregoing, "Confidential Information" includes all information not generally known to the public that relates to the business, technology, Subscribers, potential Subscribers, finances, budgets, projections, proposals, practices of Company, including without limitation the terms of this Agreement, the identities of and all information regarding Subscribers and potential Subscribers, and all information relating to Company’s business plans and proposals, marketing plans and proposals, technical plans and proposals, and research and development.  All Confidential Information will be considered trade secrets of Company and shall be entitled to all protections given by law to trade secrets.  Any and all media (whether written, film, tape, optical, magnetic, opto-magnetic or otherwise) embodying any of the information described above shall also constitute Confidential Information.  Except for Subscriber Information (as defined below), which under all circumstances shall be treated as Confidential Information, Confidential Information shall not include information which: (a) was in or entered the public domain through no fault of Dealer; (b) Dealer can show, by written evidence, was rightfully in Dealer's possession prior to receipt thereof from Company; or (c) is disclosed to Dealer by a third party legally entitled to make such disclosure without breach of any obligation of confidentiality.

During the term of this Agreement and at all times thereafter, Dealer and its personnel shall not directly or indirectly (a) use any Confidential Information for any purpose other than that for which it is used or disclosed under the terms of this Agreement; (b) disclose to any person or entity any Confidential Information or in any other way publicly or privately disseminate any Confidential Information; or (c) assist, authorize or encourage anyone else to use, disclose, or disseminate any Confidential Information.  Without limiting the foregoing, Dealer and its Personnel shall not use Confidential Information related to Subscribers or potential Subscribers to directly or indirectly contact or communicate with Subscribers or potential Subscribers concerning the Company or its Service.  Dealer and its Personnel further agree they shall: (i) hold all such Confidential Information in confidence using the same degree of care that Dealer uses to protect its own confidential and proprietary information (but in no event less than reasonable care); (ii) use the Confidential Information only for the purpose of performing obligations under this Agreement; (iii) reproduce any Confidential Information only to the extent necessary to perform such obligations; (iv) restrict disclosure of, and access to, such Confidential Information only to those personnel who are directly concerned with, and who agree to maintain the confidentiality of, the Confidential Information; and (e) take all precautions necessary and appropriate to guard the confidentiality of the Confidential Information, including informing employees who handle such information that it is confidential and not to be disclosed to others.  Upon termination of this Agreement, all Confidential Information in the possession or control of Dealer or its personnel (including all originals and copies of all or any portion of any Confidential Information) shall be promptly returned to Company.  Dealer shall be responsible for ensuring compliance with this Section by all of its personnel.  Any conduct violating the provisions of this Section shall constitute a material breach of this Agreement.

6.  Subscriber Information.
T-Mobile will be the owner of all information relating to any Subscriber collected by or for Dealer in connection with use of the Software and/or Hardware (including, without limitation, names, addresses, e-mail addresses, telephone numbers, information regarding purchasing habits and other personally-identifying information) (collectively, “Subscriber Information”), along with all associated intellectual property rights, and Dealer shall treat the same as Confidential Information.  Dealer shall adopt policies to protect such Confidential Information with respect to Subscribers and potential Subscribers as T-Mobile may specify from time to time.  To the extent that Dealer at any time has or obtains any right, title or interest with respect to any Subscriber Information or any associated intellectual property rights, Dealer hereby assigns and agrees to assign the same to T-Mobile.  Dealer shall take such actions (including, without limitation, execution of affidavits and other documents) as T-Mobile may request to effect, perfect or confirm T-Mobile's ownership interests as set forth in this Section.  Upon T-Mobile's request, and in any event upon the expiration or termination of this Agreement, Dealer shall deliver to T-Mobile all copies of any Subscriber Information in its possession or control, upon such media as T-Mobile may reasonably request, along with such supporting documentation and information as T-Mobile may reasonably request in order to effectively make use of the same.

Dealer shall not use any Subscriber Information other than as expressly permitted by this Agreement.  Without limiting the generality of the foregoing, Dealer shall not  (a) use the Hardware and/or Software to access any Subscriber’s account without such Subscriber’s prior consent; (b) upgrade, renew, refill, cancel, alter, disrupt or disable Service for any Subscriber without such Subscriber’s prior consent; (c) store, copy, analyze, monitor, or otherwise use any Subscriber Information unless the Parties have entered into a separate written agreement governing the use of Subscriber Information; or (d) use any Subscriber Information to promote and sell Service and/or related equipment through telephone sales or telemarketing activities, direct mail activities, broadcast faxing activities, catalog sales activities, internet sales activities, text messaging to consumers, or any other similar direct sales activity without the prior written approval of T-Mobile, which approval shall be in T-Mobile’s sole discretion.  Such direct sales activity is damaging to the T-Mobile brand and goodwill and can result in violations of state and federal law.  In addition to any penalties or fines that may be imposed by state and federal agencies, Dealers who engage in direct sales activities will be liable for significant damages to T-Mobile, which include, without limitation, liquidated damages, plus attorneys’ fees and costs.  In addition, any violation of the prohibition on direct sales activities may result in the immediate termination of this Agreement and Dealer’s Dealer Agreement or Sub-Dealer Agreement (as applicable) for cause.
 
7. Records. 
Dealer shall maintain at its principal place of business complete and accurate records of its business conducted pursuant to this Agreement.  Records will include, but are not limited to, proper customer Service agreements of all Subscribers for which Service is activated, renewed and/or refilled by Dealer or its personnel.  Such records constitute Confidential Information that shall be returned to T-Mobile upon termination or expiration of this Agreement, or as otherwise required by T-Mobile.  T-Mobile shall have the right to audit Dealer’s records maintained according to this Section at Dealer’s business office during normal business hours upon prior written notice to Dealer.  Dealer shall provide T-Mobile with original Subscriber Service agreements upon T-Mobile’s request and according to policies and procedures that may be issued by T-Mobile from time to time in its sole discretion.

8. Termination; Revocation of License. 
T-Mobile may revoke or modify the License granted under Section 1 herein and may terminate this Agreement at any time and in its sole discretion.  This Agreement shall automatically terminate upon termination or expiration of Dealer’s Dealer Agreement or Sub-Dealer Agreement (as applicable).

9. Dealer's Obligations Upon Termination and/or Revocation. 
Upon termination of this Agreement and/or revocation of the License, Dealer and its Personnel will immediately cease all use of the Hardware and Software.  Dealer will immediately return the Hardware (if applicable) to T-Mobile in good condition and at its own expense.  Should Dealer fail to return the Hardware in good working order upon any termination or expiration of this Agreement, Dealer shall be liable to T-Mobile for the cost of the Hardware and Software.

10. No Representations Or Warranties
TO THE EXTENT PERMITTED BY LAW, THE SYSTEMS AND RELATED INFORMATION ARE PROVIDED "AS IS," AND WITHOUT WARRANTY, AND ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED, AND DEALER HEREBY WAIVES ALL SUCH WARRANTIES.

11. Indemnification. 
Dealer agrees to indemnify, defend, protect, and hold T-Mobile and its parent, subsidiaries and affiliates, and each of their officers, directors, employees, agents, and insurers, harmless from and against any and all claims, costs, suits, liabilities, damages, losses, demands, and expenses of every kind, including, but not limited to, attorneys’ fees and disbursements, arising out of or in connection with any breach by Dealer of any of its obligations under this Agreement.

12. Limitation of Liability. 
EXCEPT WITH RESPECT TO DEALER’S INDEMNIFICATION OBLIGATIONS DESCRIBED ABOVE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO LOST REVENUE OR PROFITS, IN CONNECTION WITH THIS AGREEMENT OR ITS BREACH, OR ARISING FROM THE RELATIONSHIP OF THE PARTIES OR THE CONDUCT OF BUSINESS BETWEEN THEM, EVEN IF A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, NOT EXPLICITLY STATED IN THIS AGREEMENT, AND IN PARTICULAR DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

13. Governing Law/Venue. 
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington, without regard to the conflicts of law provisions thereof.  The parties mutually consent and submit to the jurisdiction of the federal and state courts for King County, and agree that any action, suit or proceeding concerning this Agreement will be brought only in the federal or state courts of such county and that they will not raise, in connection therewith, any defense or objection based on lack of personal jurisdiction, improper venue, inconvenience of forum or the like. 

14. Resolution of Disputes.
Any controversy or claim arising out of or relating to this Agreement (including whether a particular dispute is arbitrable hereunder) shall be resolved by submission to binding arbitration.  Controversies or claims shall be submitted to arbitration regardless of the theory under which they arise, including without limitation contract, tort, common law, statutory, or regulatory duties or liability.  Any arbitration hearing shall be held in Seattle, Washington, before a single neutral arbitrator.  Such arbitration shall be submitted to the Seattle, Washington offices of Judicial Arbitration & Mediation Services, Inc. (“JAMS”) or to such other arbitration service and in such other location as Company, in its sole discretion, shall select. The arbitration shall be administered pursuant to the JAMS Comprehensive Rules and Procedures then in effect. The parties shall equally bear the fees of the arbitrator.  The Federal Arbitration Act, 9 U.S.C. Secs. 1-15, not state law, shall govern the arbitrability of all disputes under this Agreement.

WHETHER DISPUTES BETWEEN COMPANY AND DEALER ARE RESOLVED BY ARBITRATION OR SOME OTHER PROCEEDING, COMPANY AND DEALER HEREBY WAIVE (1) ANY RIGHT TO A JURY TRIAL; (2) ANY CLAIMS TO RECOVER PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES; AND (3) ANY RIGHT TO PURSUE, OR PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN, CLAIMS ON A CLASSWIDE, CONSOLIDATED, OR REPRESENTATIVE BASIS.

The arbitrator selected may grant discovery as required by the reasonable needs of the case, but shall do so in accordance with the parties' desire to economically and quickly resolve disputes between them.  Discovery shall be allowed only as the parties may agree or the arbitrator may permit.  The arbitrator shall also determine motions filed, including motions for preliminary, interim, or ancillary relief and motions for summary disposition.

In the event Dealer believes it has any claim against Company arising out of or relating to this Agreement, Dealer shall notify Company of any such claim against Company in writing within one hundred twenty (120) days from the date Dealer knows, or has reason to know, of any such claim (“Notification Period”).  All such claims shall be submitted to arbitration by initiating the arbitration not later than one (1) year after occurrence of the act or omission giving rise to the claim.  Any failure to notify Company of the claim within the Notification Period, or failure to initiate arbitration proceedings within one (1) year after occurrence of the act or omission giving rise to the claim, shall relieve Company of any liability or obligation with respect to the claim and shall constitute an absolute bar to the initiation of any proceedings (including without limitation legal, equitable, or arbitral proceedings pursuant to this Section) based on such act or omission.

The aggrieved party may initiate arbitration by sending written notice of an intention to arbitrate to all parties, such notice to include a description of the dispute, the amount involved, and the remedy sought.  Each party irrevocably agrees that service of process, notices or other communications relating to the arbitration procedure shall be deemed served and accepted by the other if given in accordance with the provisions of this Agreement.

Any award rendered in the arbitration shall be final, non-appealable, and binding on both parties, and judgment may be entered thereon in any court of competent jurisdiction.  Any award rendered shall be limited to actual damages sustained by the party in whose favor judgment is rendered, and no consequential, punitive, exemplary, special or multiplied damages, nor any award of attorney’s fees or out of pocket legal costs or expenses, shall be awarded.  The award of the arbitrator shall be in writing stating the reasons for the arbitrator’s ruling, with one counterpart delivered to each party.  An arbitrator may not award relief in excess of or inconsistent with the provisions of this Agreement, order consolidation or arbitration on a classwide basis, or award punitive, incidental, or consequential damages.

Where feasible, issues of preliminary and ancillary relief shall first be determined by an arbitrator selected in accordance with the provisions of this Agreement.  In an emergency, however, when irreparable injury may occur before an arbitrator can be appointed and/or hear the matter, the aggrieved party may apply to a court for preliminary or ancillary relief.  Any such application by Dealer shall be made in any state or federal court sitting in King County, Washington, having jurisdiction.  Any such application by Company shall be made in any state or federal court (a) sitting in King County, Washington; or (b) having jurisdiction. The parties irrevocably submit to the personal jurisdiction of such courts. The parties agree that violations or threatened violations of Sections 4, 5, 6 and 9 of this Agreement occurring when no arbitrator has been appointed shall presumptively be grounds for application to a court under this Section.  In such cases, the Company’s bond shall be unsecured unless good cause is shown.  Institution and prosecution of proceedings for preliminary or ancillary relief under this Section shall not be deemed to be a waiver of the parties’ agreement to arbitrate any claim not specifically addressed by this Section.  Any court asked to consider preliminary and ancillary relief by either party shall enter such orders as it deems appropriate, but such orders shall be effective only until the matter can be decided by an arbitrator selected pursuant to this clause.  Any claim asserted in such an action not seeking preliminary or ancillary relief shall be stayed or dismissed pending arbitration pursuant to this Section.
At the Company’s sole option, any arbitration under the provisions of this Agreement may be consolidated with any other arbitration proceeding involving the Company and presenting similar issues of fact or law.

15. Severability.
If any provision of this Agreement shall be held invalid under any applicable laws, such invalidity shall not affect any other provisions of this Agreement that can be given an effect without the invalid provision.  Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all terms or conditions to give them such effect.

16. Notices.
All notices and other communications required under this Agreement shall be given in writing and shall be deemed have been duly given in accordance with the terms and conditions of Dealer’s Dealer Agreement or Sub-Dealer’s Agreement (as applicable).