Last Update: December 27, 2021
THESE TERMS CONTAIN IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS AND REQUIRE THAT CERTAIN DISPUTES BE RESOLVED THROUGH ARBITRATION INSTEAD OF A COURT TRIAL. FOR MORE INFORMATION SEE SECTION 18 BELOW.
BY USING THE SERVICE PROVIDED BY CYBER DIVE YOU AGREE TO RECEIVE COMMUNICATIONS CONCERNING YOUR SERVICE VIA E-MAIL AND/OR THROUGH TEXT MESSAGE. YOU ALSO EXPRESSLY CONSENT TO RECEIVE ADDITIONAL MARKETING OR CUSTOMER SERVICE RELATED COMMUNICATIONS CYBER DIVE MAY SEND ITS CUSTOMERS FROM TIME TO TIME VIA E-MAIL AND/OR THROUGH TEXT MESSAGE. IF YOU WISH TO OPT-OUT FROM RECEIVING ANY OF THESE COMMUNICATIONS PLEASE CONTACT CUSTOMER CARE OR EMAIL US AT SUPPORT@CYBERDIVE.CO.
I. WIRELESS SERVICE
Please read these Terms and Conditions of Service carefully. These Terms and Conditions of Service are a legally binding agreement (“Agreement”) between you and CYBER DIVE CORP.By visiting our website (“Website”) purchasing, activating, and/or using any CYBER DIVE product (“Product”) or the wireless services provided by CYBER DIVE (“Service”), you acknowledge and agree to these Terms and Conditions of Service. CYBER DIVE reserves the right to change or modify any of this Agreement at any time. Any changes or modifications to this Agreement and Conditions of Service are effective and will be binding upon you when posted on our Website CYBERDIVE.CO. Because these Terms and Conditions of Service are subject to change at any time you should always check our Website for the most current Terms and Conditions of Service. For assistance or more information, please contact CYBER DIVE Customer Care at firstname.lastname@example.org.
1. ACTIVATING YOUR SERVICE
To use CYBER DIVE Service, you must first purchase and activate a CYBER DIVE device or mobile device. To activate your device or mobile device, you must follow the on-screen prompts. you do not need to purchase a separate wireless talk/text/data plan (the “Plan”). CYBER DIVE includes a Plan with the purchase of the device. For more information about our devices and Plan visit our Website.
You will require a second wireless device (the “Master Device”) to activate the CYBER DIVE device. To authenticate your setup, we will send a unique authentication code to the Master Device. The Master Device cannot be a CYBER DIVE device and must be connected to any United States wireless carrier. Should the number on the Master Device change, or if the Master Device is lost or stolen, please contact CYBER DIVE customer service as soon as possible. When you activate your Service, you will be provided a telephone number unless you elect to transfer or “port-in” an existing telephone number you are using with another provider. In certain instances, you may not be able to transfer your existing telephone number for reasons outside of our control. Please note that you have no ownership rights to any device, telephone number, IP address or any other identifier associated with your Service and you acknowledge and agree that we may change any such number, IP address or other identifier associated with your Service at any time without prior notice or liability to you.
When you activate your Service, you will also be required to create an account (“Account”) by providing your name, address, email address, and alternative contact telephone number. In addition, you will need to provide additional information about the family member to whom you are providing a device.
CYBER DIVE Service can only be activated where CYBER DIVE Service is offered and supported by CYBER DIVE. The wireless telecommunications networks used to transmit the voice, text, and data services that support the Service offered by CYBER DIVE are owned and operated by licensed commercial mobile radio service providers (“Carriers”), and not CYBER DIVE. Some Carriers differentiate the wireless service they sell by prioritizing the data traffic of their customers over the data traffic of customers on a non-Carrier brand at times and at locations where there are competing customer demands for network resources. Where the network is lightly loaded, a CYBER DIVE customer will notice little, if any, effect from having lower priority. This will be the case in the vast majority of times and locations. At times and at locations where the network is heavily loaded in relation to available capacity, however, a CYBER DIVE customer will experience increased latency during a data session, particularly, if the customer is engaged in a data-intensive activity. When network loading goes down or if a customer moves to a location that is less heavily loaded in relation to available capacity, the latency associated with a customer’s data connection will improve.
We may, at any time and without prior notice to you, modify, cancel, and/or deactivate your Service and/or take other corrective action, for any reason in our sole discretion, including, your, or any authorized device user, violation of these Terms and Conditions of Service. Further, we may remotely change your device’s software, applications, or programming without notice. This could affect information stored on your device, your device’s programming, and how you are able to use your device.All aspects of the Service, including, but not limited to, device pricing, Plans, offerings, features, functionality and other product specifications are subject to change without notice or obligation. All talk and standby times are quoted in digital mode and are approximate.
Your Service (i.e., voice, text, or data services) and any device or mobile device using CYBER DIVE Service may only be used for the following purposes: (a) person to person voice calls, text, and picture messaging, (b) personal web browsing, email, ordinary content downloads and uploads, video and audio streaming without excessively contributing to network congestion, and (c) personal application downloads and use.
You may use the Service only if you can form a binding contract with CYBER DIVE, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Anyone under 18 (or the age of majority in their jurisdiction of residence) is strictly prohibited from creating an account for the Service. By providing consent for a minor to use or operate a CYBER DIVE device, parents and guardians agree to exercise oversight of the minor’s use of the Service. The Service is not available to any Users previously removed from the Service by us.
B. Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the CYBER DIVE servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
C. License to Use the Service
Subject to the terms and conditions of this Agreement, we hereby grant you a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only and as permitted by the features of the Service. CYBER DIVE reserves all rights not expressly granted herein in the Service and the CYBER DIVE Content (as defined below). CYBER DIVE may terminate this license at any time for any reason or no reason.
Accounts that you are able to establish with the Service give you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion.
You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. you are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. you must notify us immediately of any breach of security or unauthorized use of your account. CYBER DIVE will not be liable for any losses caused by any unauthorized use of your account.
You may control your account profile and how you interact with the Service by changing settings that are made available to you.
2. TERMINATION OF SERVICE
Either party may terminate this Agreement at any time. Termination of this Agreement will result in the immediate termination of your Service which may be reactivated if you elect to do so. Each time you activate your Service or purchase a new Product you agree that you are consenting to the latest CYBER DIVE Terms and Conditions of Service. Any Service which remains unused at the time of termination, including, promotional balances, cannot be refunded or transferred to another person.
We may terminate this Agreement at any time without notice if we cease to provide Service in your area. We may interrupt, suspend, cancel, or terminate your Service without immediate notice to you for any conduct that we believe violates this Agreement, including, but not limited to, the following:
• using or directing abusive, vulgar, derogatory, intimidating, or harassing language or conduct towards a CYBER DIVE representative, officer, employee, agent, or authorized retailer;
• using your Service for any unlawful, fraudulent, or illegal purpose;
• using your Service in any way that adversely affects our ability to manage the Service provided to other customers or the Carrier’s network;
• violating any Term or Condition contained in this Agreement.
3. UNAUTHORIZED USE OF SERVICE
Your Service and any device using CYBER DIVE Service may not be used for any unauthorized uses that may adversely impact other customers using our Service or the Carriers’ networks. Examples of some unauthorized uses include, but are not limited to, the following:
• continuous uninterrupted voice calls or otherwise using your voice service to provide monitoring services, data transmission, transmission of broadcasts, transmission of recorded material, interconnection to other networks, telemarketing activity, autodialed calls, or robocalls; automated text or picture messaging;
• uninterrupted and continuous uploading, downloading, or streaming of audio or video; as a server device or to host computer applications, including, but not limited to, web camera posts or broadcasts, automatic data feeds, automated machine-to-machine connections or peer-to-peer file sharing; as a substitute or backup for private lines or dedicated data connections; any applications that allow your device to act as an internet access point or Wi-Fi for other devices and computers unless such use is allowed under your Plan.
A customer engaged in any unauthorized use may have their Service suspended or terminated in our sole discretion. We reserve the right to interrupt, suspend, cancel, or terminate your Service to protect a Carrier’s network from harm due to any cause including, without limitation, the excessive and/or unauthorized use of the Service. We further reserve the right to limit, deny, or terminate Service to anyone we believe is using it in an unauthorized manner or whose usage, in our sole discretion, adversely impacts a Carrier’s network or customer service levels. We will presume you are engaging in an unauthorized use in violation of this Agreement, if in our sole discretion, you are placing an abnormally high number of calls, or repeatedly placing calls of unusually long duration, or if your talk, text or data usage is abnormally high, or harmful, or disruptive to the Carrier’s network or to our customer service levels. If we determine, in our sole discretion, that you are using your Service in violation of this Agreement or in any other manner that we deem to be unreasonable or excessive, we may interrupt, suspend, cancel, or terminate your Service.
4. DATA ACCESS
You authorize CYBER DIVE to collect the data required to provide you with the Services. CYBER DIVE will provide the account holder with access to the data authorized for collection through the device. The data collected may include, but is not limited to, information of a sensitive nature, be considered harmful, include profanity and obscene words or phrases, information about health or wellbeing, and provide location details.
5. TERMS SPECIFIC TO MOBILE SOFTWARE
A. Mobile Software.
As part of the Service, we make available software and/or applications designed for mobile devices (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Software. CYBER DIVE hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one CYBER DIVE account owned solely by you, for your personal use. You may not:
(i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law;
(ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party;
(iii) make any copies of the Mobile Software;
(iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or
(v) delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that CYBER DIVE may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades.
Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and CYBER DIVE or third-party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof).
Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. CYBER DIVE reserves all rights not expressly granted under this Agreement. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Mobile Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. The Mobile Software originates in the United States, and is subject to United States export laws and regulations.
The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the CYBER DIVE Service.
B. Mobile Software from Google Play Store.
The following applies to any Mobile Software you acquire from the Google Play Store (“Google-Sourced Software”):
(i) you acknowledge that the Agreement is between you and CYBER DIVE only, and not with Google, Inc. (“Google”);
(ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service;
(iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software;
(iv) CYBER DIVE, and not Google, is solely responsible for its Google-Sourced Software;
(v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and
(vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to CYBER DIVE’s Google-Sourced Software.
6. PRICING FOR SERVICES
CYBER DIVE determines the types of Service and pricing that we offer to you. Different devices may be offered to different groups or entities or based on specific geographic locations. The device you choose will determine the charges and fees you must pay for the Services. We reserve the right to change pricing at any time. For monthly recurring charges and fees, we will provide you with thirty (30) days written notice of such changes.
7. ACCOUNT BALANCES
You are responsible for maintaining your account and keeping your account balance current. You agree to pay all charges incurred. If multiple devices are associated with your account, you agree to pay all charges incurred by users of those devices. Our charges may also include Federal Universal Service, Regulatory and Administrative Charges, and we may also include other charges related to our governmental costs. We set these charges; they aren't taxes, they aren't required by law, they are not necessarily related to anything the government does, they are kept by us in whole or in part, and the amounts and what they pay for may change.
You must pay all taxes, fees and surcharges set by federal, state and local governments. Please note that we may not always be able to notify you in advance of changes to these charges.
You can dispute your bill in accordance with the Product and/or Service Terms.
8. WHAT IF MY DEVICE GETS LOST OR STOLEN?
We're here to help. It's important that you notify us right away, so we can suspend your Service to keep someone else from using it. You may be held responsible for charges if you delayed reporting the loss or theft without good reason, but you don't have to pay any charges you dispute while they are being investigated.
If you are a California customer and we haven't given you a courtesy suspension of recurring monthly charges during the past year, we'll give you one for 30 days or until you replace or recover your wireless device, whichever comes first.
9. COVERAGE MAPS
You will find coverage maps on our Website. These maps are for general informational purposes only and depict the general coverage area of CYBER DIVE. CYBER DIVE does not guarantee coverage or Service availability and the coverage maps are not a guarantee of coverage. Coverage is not available everywhere.
The coverage maps display only the predicted and approximate optimal wireless coverage, while outdoors, of the network on which your device may be activated including, the coverage area of the network’s roaming partners, if applicable. The coverage areas shown do not guarantee service availability and may include locations with limited or no coverage. Within coverage areas, there may be significant limitations or interruptions in coverage that may impact Service and result in dropped and blocked connections, slower data speeds, no data connectivity, and call interference.
This could occur due to many factors including, but not limited to, your device, network changes, network traffic volume, network prioritization, network outages, technical limitations, signal strength, the terrain and your proximity to buildings, foliage and other obstructions, weather and other conditions. You will not be able to operate your device or make 911 calls if service is not available. If you travel outside of your coverage area, your device will not work. The coverage depicted on the CYBER DIVE’s coverage maps is based on the information provided by other carriers and public sources and we cannot guarantee their accuracy.
Coverage maps for your network may also vary based on your home location so please refer to our Website for the most up-to-date coverage map applicable to your device and geographic area. CYBER DIVE is not responsible for any Service outages, interruptions in service or decline in the quality of service regardless of the cause.
Depending on the Carrier network, it is possible that under certain circumstances your device may roam if you are outside of your network coverage area and within the United States. Roaming occurs when a subscriber of one wireless service provider uses the facilities of another wireless service provider. Although there are no additional charges for using the Service while roaming domestically, CYBER DIVE does not guarantee your ability to roam nor the availability and/or the quality of Service. Domestic roaming may be discontinued or changed at any time without notice. Due to Carrier restrictions, CYBER DIVE reserves the right to terminate the Service of any customer whose roaming usage exceeds 50% of their total usage in any three (3) Plan cycles within a 12-month period. International roaming is not offered by CYBER DIVE and is strictly prohibited.
11. WI-FI CALLING
Wi-Fi Calling may be available only on devices or mobile devices that are Wi-Fi Calling capable. Wi-Fi Calling provides you the ability to make and receive device calls and text messages over a Wi-Fi connection. Wi-Fi Calling enhances your coverage in buildings and other locations. If you use a Wi-Fi network for making or receiving calls and text messages or for any other reason, you acknowledge and agree that your use of such Wi-Fi network is permissible and that you are solely responsible for such use. Using your Wi-Fi Calling feature may provide you with access to an unsecured Wi-Fi network which could impact your data security. You can disable Wi-Fi Calling by toggling it off in your device settings menu.Although we recommend that you use your wireless service as your primary method of contacting 911, you may be able to use Wi-Fi Calling for dialing 911 if your device is equipped with this feature and you have access to the internet through your device’s W-Fi connection. When you use Wi-Fi Calling to dial 911 information about your location may not be accurate or available. As such, always be prepared to report your precise location to emergency responders.Please be aware that dialing 911 via Wi-Fi Calling requires access to the internet and operates differently than traditional 911 calling services. For example, 911 service via Wi-Fi Calling may be limited or not available due to various circumstances, including, relocation of equipment, loss or disruption of power, internet or wireless service, internet congestion or a connection failure, delays in availability of registered location information, and/or other technical problems.
TTY Limitations for 911 Calls
Due to technical limitations, Wi-Fi Calling cannot be used with TTY devices and will not support 911 calls over TTY devices. Persons with communications disabilities can still reach 911 services by either (1) calling 911 directly using a TTY over the cellular network or from a landline telephone, (2) sending a text message to 911 directly (in areas where text-to-911 is available) from a wireless device, (3) using relay services to place a TTY or captioned telephone service (CTS) call from a wireless device over the cellular network or from a landline telephone, or (4) using relay services to place a IP Relay or IP CTS call over a cellular data or other IP network.
12. EMERGENCY CALLS
If you are in an area where your device is searching for a wireless signal or there is no wireless signal or wireless service, it is highly probable that a call to 911 will not go through. Do not rely solely on your CYBER DIVE service in an emergency situation. In an emergency, locate the nearest landline device and call for help.
13. DISCLAIMER OF WARRANTIES
CYBER DIVE PRODUCTS AND SERVICE ARE PROVIDED ON AN “AS IS” AND “WHERE IS” BASIS AND BY USING ANY PRODUCT OR SERVICE YOU AGREE THAT CYBER DIVE WILL HAVE NO LIABILITY EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT FOR ANY FAILURE, DEFECTS, MALFUNCTIONS, OR ERRORS IN THE PRODUCTS OR SERVICE. EXCEPT AS SET FORTH IN SECTION III (LIMITED WARRANTY), CYBER DIVE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, REGARDING TITLE, MERCHANTABILITY, SUITABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE IN RELATION TO ANY PRODUCT OR SERVICE.
You acknowledge and agree that the use of any CYBER DIVE Product or Service is at your sole risk and that your Service may be unavailable, interrupted, delayed, or limited for a variety of reasons outside of our control. Not all Products or Services are available for purchase or use in all sales channels, in all areas, or with all devices. Service is subject to transmission limitations caused by certain equipment and compatibility issues, network prioritization, atmospheric, topographical and other conditions. Further, Service may be temporarily refused, limited, interrupted or curtailed due to system capacity limitations, technology migration or limitations imposed by the Carrier, or because of equipment modifications, upgrades, repairs or relocations or other similar activities necessary or proper for the operation or improvement of the Carrier's network.
At any time, CYBER DIVE reserves the right to substitute and/or replace any CYBER DIVE equipment (including devices and SIM cards) with other CYBER DIVE equipment of comparable quality. CYBER DIVE does not warrant or guarantee the availability of your Service at any specific time or in any specific geographic location or that the Service will be provided without interruption.
Neither CYBER DIVE, nor any Carrier, shall have any liability for Service failures, outages, or limitations of Service. Because of the risk of being struck by lightning, you should not use your device outside during a lightning storm. You should also unplug the device’s power cord and charger to avoid electrical shock and/or fire during a lightning storm. Certain device features may not be available with the Service or their functionality may be limited. All Plan rates, features, functionality and other product specifications are subject to change without notice or obligation.
14. LIMITATION OF LIABILITY
IN NO EVENT SHALL CYBER DIVE OR ITS VENDORS, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU OR ANY OTHER USER OF YOUR CYBER DIVE PRODUCT OR SERVICE FOR ANY ACTUAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES CLAIMED FOR LOST PROFITS, REVENUE, INCOME, SALES, BUSINESS, GOODWILL, DATA OR INFORMATION, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY AND REGARDLESS IF CYBER DIVE OR ITS RESPECTIVE VENDORS, SUPPLIERS, OR LICENSORS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITH RESPECT TO JURISDICTIONS THAT MAY NOT ALLOW THE EXCLUSION OF LIABILITY, BUT MAY ALLOW LIABILITY TO BE LIMITED IN SOME CASES, CYBER DIVE, ITS VENDORS, SUPPLIERS, OR LICENSORS’ LIABILITY SHALL BE LIMITED TO U.S. $50.
You agree that neither we nor our vendors, suppliers, or licensors are responsible for any damages you may suffer or incur resulting from:
(a) any Product or Service provided to you by or manufactured by a third party;
(b) any act or omission by another party;
(c) providing or failing to provide any Service, including, but not limited to, deficiencies or problems with a Device or network coverage (for example, dropped, blocked, interrupted Service, etc.);
(d) accidents or any health-related claims arising from or related to our Service;
(e) content or information accessed on your Device while using our Service;
(f) an interruption or failure in accessing or attempting to access emergency services from a device, including through 911, enhanced 911 or otherwise;
(g) interrupted, failed, or inaccurate location information services,
(h) content or information that is blocked by a spam filter,
(i) damage to your device or any computer or equipment connected to your device, or damage to or loss of any information stored on your device, computer or equipment from your use of the Services or from viruses, worms, or downloads of malicious content, materials, data, text, images, video or audio; or
(j) things beyond our control, including acts of God (for example, weather-related phenomena, fire, earthquake, hurricane, etc.), riot, strike, war, terrorism or government orders or acts.
You should implement appropriate safeguards to secure your device, computer or equipment and to back-up your information stored on each.
15. UNAUTHORIZED USE OF PRODUCTS
CYBER DIVE Products and Service are sold exclusively for use by you, the end consumer, or your authorized users. The unauthorized unlocking or resale of your CYBER DIVE device constitutes a violation of your agreement with CYBER DIVE and will invalidate the Limited Warranty associated with your CYBER DIVE device. You agree not to unlock, root, re-flash, jailbreak, tamper with or alter the build state of your CYBER DIVE device in a manner. You also agree not to use unauthorized PINs with CYBER DIVE device or engage in any other unauthorized or illegal use of your device or the Service, or assist others in such acts, or to sell and/or export CYBER DIVE devices outside of the United States.
Any attempt to unlock your CYBER DIVE device in an unauthorized manner or to root, re-flash, jailbreak, tamper with or alter the build state of your CYBER DIVE device may result in the inability to unlock your device, maintain your device’s unlocked state, or otherwise cause your device to malfunction. Such use along with any other unauthorized use of your CYBER DIVE device may result in the immediate suspension or termination of your Service without notice and legal action. CYBER DIVE will strictly enforce its rights under this provision and will prosecute violators to the full extent of the law.
You agree that any violation of this provision through your improper, illegal, or unauthorized use or sale of your CYBER DIVE device shall entitle CYBER DIVE to recover liquidated damages from you in the amount of not less than $5,000 per CYBER DIVE device purchased, sold, acquired or used in violation of this provision. For more information about the unauthorized use of CYBER DIVE devices refer to www.stopcellphonetrafficking.com.
If your CYBER DIVE device has a SIM Card, then you agree to safeguard your SIM Card and not to allow any unauthorized person to use your SIM Card. You agree not to, directly or indirectly alter, bypass, copy, deactivate, remove, reverse-engineer or otherwise circumvent or reproduce the encoded information stored on, or the encryption mechanisms of your SIM Card or to allow any other person to do so. Any violation of the restrictions on the use of your SIM Card that are contained in this section may result in the immediate termination of your Service without notice. CYBER DIVE and its Carriers or service providers, may, from time to time, remotely update or change the encoded information on your SIM card or your device.
In the event of termination for any other unauthorized usage, you will forfeit your unused Service and you will not be entitled to receive a refund for your CYBER DIVE device or for any unused Service.
You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, Services, devices, information provided to you as a result of your use of the Services, violation of this Agreement, or any third party using your device or Cyber Dive Account or identity in the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
17. INTELLECTUAL PROPERTY RIGHTS
Ownership. We own or are licensees of all intellectual and industrial property rights in the technology underlying the Services. Access to and use of our Services does not imply any transfer of all or part of these rights to you. The CYBER DIVE Service and its underlying technology shall remain the exclusive property of CYBER DIVE, or it’s licensor, and all rights therein, including all rights in patents, copyrights, trademarks and trade secrets applicable thereto, shall remain vested in CYBER DIVE and/or our licensors.
You shall do nothing inconsistent with our title. You shall not transfer, sell, assign, sublicense, pledge, or otherwise dispose of, encumber, or suffer a lien or encumbrance upon or against any interest in the CYBER DIVE Plan, Product, Service, or Website without our prior written consent. You shall not remove any trademark, trade name, copyright notice, or other proprietary notice without our prior written consent.
You will not use our trademarks, trade names, logos, domain names, other distinctive brand features, or any copyrighted material which are associated with CYBER DIVE, without our prior written consent which can be withheld at our discretion.
18. ARBITRATION CLAUSE & CLASS ACTION WAIVER IMPORTANT–PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
This section shall be referred to as the “Agreement to Arbitrate Disputes.” This Agreement to Arbitrate Disputes shall be deemed a contract entered into under the law of the State of Delaware. The operative version of the Agreement to Arbitrate Disputes is the version that applied or applies at the time you Accepted the Agreement to Arbitrate Disputes, as defined herein, below, or in the event that you have never activated your Service, the most recent time of purchase of any Product or Service that is at issue in your dispute with CYBER DIVE.
Time of Acceptance of Agreement to Arbitrate Disputes. Your agreement with CYBER DIVE to arbitrate disputes starts when you accept the CYBER DIVE Terms of Service. You accept the CYBER DIVE Terms of Service by doing the earliest of any of the following actions (i) receive notice or a copy of the CYBER DIVE Terms of Service; (ii) give CYBER DIVE a written or electronic signature, or tell CYBER DIVE orally that you accept; (iii) use a CYBER DIVE Product or Service; (iv) activate or continue Service; (v) register your Account with CYBER DIVE; (vi) use your Service after your Service is activated; (vii) make any addition or change to Your Service; or (viii) pay for your Service or any Product.
Dispute Resolution and Arbitration.
CYBER DIVE AND YOU AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL CLAIMS OR DISPUTES IN ANY WAY RELATED TO OR CONCERNING THE AGREEMENT, OUR SERVICE, DEVICES OR PRODUCTS, WILL BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL, NON-REPRESENTATIVE, BASIS.
This includes any claims against other parties relating to Service or Devices provided or billed to you (such as our suppliers, Dealers or third-party vendors) whenever you also assert claims against us in the same proceeding. Cyber Dive and you each also agree that the Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law apply (despite the choice of law provision in Section 20). THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR MUST FOLLOW THIS AGREEMENT AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS’ FEES).
For all disputes, you must first give us an opportunity to resolve your claim by sending a written description and supporting documentation of your claim to the address set forth below in Section 21. CYBER DIVE and you agree to negotiate your claim in good faith. If CYBER DIVE and you are unable to resolve the claim within sixty (60) days after CYBER DIVE receives your claim description and supporting documentation, you may pursue your claim in arbitration.
As an alternative to arbitration, CYBER DIVE may choose to resolve billing disputes in small claims court in the county of your most recent billing address. CYBER DIVE and you agree that if you fail to timely pay amounts due, CYBER DIVE may assign your account for collection, and the collection agency may pursue, in small claims court, claims limited strictly to the collection of the past due amounts and any interest or cost of collection permitted by law or the Agreement.
Either you or we may start arbitration proceedings. You must send a letter requesting arbitration and describing your claim to us, using the address below, to begin arbitration. The American Arbitration Association (“AAA”) will arbitrate all disputes. For claims of less than Seventy-five Thousand Dollars ($75,000.00), the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for claims over Seventy-five Thousand Dollars ($75,000.00), the AAA’s Commercial Arbitration Rules will apply. The AAA rules are available at www.adr.org. Upon filing of the arbitration demand, CYBER DIVE and you will share equally all filing, administration and arbitrator fees for claims that total less than Seventy-five Thousand Dollars ($75,000.00). For claims that total more than Seventy-five Thousand Dollars ($75,000.00), the payment of filing, administration and arbitrator fees will be governed by the AAA Commercial Arbitration Rules. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees.
CLASS ACTION WAIVER. CYBER DIVE AND YOU AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Neither you, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding against CYBER DIVE.
JURY TRIAL WAIVER. If a claim proceeds in court rather than through arbitration, CYBER DIVE AND YOU WAIVE ANY RIGHT TO A JURY TRIAL.
A. Entire Agreement and Severability.
This Agreement, along with any and all other terms, conditions, rules, guidelines, policies, and the like distributed to you by CYBER DIVE are the entire agreement between you and CYBER DIVE with respect to the Product, Plan, and/or Service and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
B. Force Majeure.
We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic, or communications failure or degradation.
C. Assignment. This Agreement is personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
D. Agency. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.
F. Notices. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if sent via email, personally delivered, or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to email@example.com.
G. No Waiver. Our failure to enforce any part of this Agreement shall not constitute a waiver of our right to later enforce that or any other part of this Agreement. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with this Agreement to be binding, we must provide you with written notice of such waiver.
The section and paragraph headings in this Agreement are for convenience only and shall not affect their interpretation.
I. Governing Law and Jurisdiction.
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, including its conflict of laws rules, and the United States of America. You agree that any dispute arising from or relating to the subject matter of this Agreement shall be governed by the Arbitration Clause and Class Action Waiver Section of this Agreement.
21. CONTACT US
4140 E Baseline Rd. #101
Mesa, AZ 85206
II. RETURN POLICY
CYBER DIVE owns the device you purchase. You are leasing the device. If your device breaks or is damaged, contact CYBER DIVE customer support at firstname.lastname@example.org to discuss the repair or replacement of the device.If your device is lost, contact CYBER DIVE customer support at email@example.com immediately. We have the ability to disable your device to protect your privacy.
III. LIMITED WARRANTY
All new CYBER DIVE devices are covered by a limited warranty administered by CYBER DIVE as set forth below. We will repair or replace your device if it is accidentally damaged. Lost or stolen devices will be replaced by CYBER DIVE at no expense to you if CYBER DIVE is notified within 72 hours of being lost or stolen. Stolen devices may require a police report.
Terms of Limited Warranty:
1. The limited warranty for any applicable Product begins on the date of your purchase and is only applicable for defects in material and workmanship that result in Product failure during normal usage.
2. The limited warranty extends only to the original purchaser (“Purchaser”) of the Product and is not assignable or transferable to any subsequent purchaser. The limited warranty extends only to Purchasers who purchase the Product in its original packaging from CYBER DIVE or an authorized dealer or retailer. Upon request from CYBER DIVE, the Purchaser must prove the date of the original purchase of the Product by a dated bill of sale or dated itemized receipt.
3. During the limited warranty period, CYBER DIVE will replace or repair, at CYBER DIVE’s sole option, any defective Products or parts (except as excluded below) with new or refurbished Products or parts if such replacement or repair is needed because of Product malfunction or failure during normal usage. CYBER DIVE may, in its sole discretion, replace the Product with a different but comparable Product if the same exact Product is not available. The replacement Product may consist of refurbished equipment that contains used components, some of which have been reprocessed. All used components shall comply with Product performance and reliability specifications.
4. The limited warranty does not cover loss of personal information, passwords, contacts, music, ringtones, pictures, videos, applications or other content, memory cards, software, defects in appearance, cosmetic, decorative or structural items, including framing, and any non-operative parts. CYBER DIVE’s limit of liability under this limited warranty is the actual cash value of the Product at the time the Purchaser returns the Product to CYBER DIVE for repair, determined by the price paid by the Purchaser for the Product less a reasonable amount for usage. CYBER DIVE shall not be liable for any other losses or damages. These remedies are the Purchaser’s exclusive remedies for breach of warranty.
5. The Purchaser shall have no coverage or benefits under this limited warranty if any of the following conditions are applicable:
(a) The Product has been subjected to abnormal use, abnormal conditions, improper storage, voluntary exposure to moisture or dampness, unauthorized modifications, unauthorized connections, unauthorized repair, misuse, neglect, abuse, accident, alteration, improper installation, or other acts which are not the fault of CYBER DIVE.
(b) The Product has been damaged from external causes such as collision with an object, or from fire, flooding, sand, dirt, windstorm, lightning, earthquake or damage from exposure to weather conditions, an act of God, or battery leakage, theft, blown fuse, or improper use of any electrical source, damage caused by computer or internet viruses, bugs, worms, Trojan Horses, cancelbots or damage caused by the connection to other products not recommended for interconnection by CYBER DIVE.
(c) The Product serial number plate or the enhancement data code has been removed, defaced or altered.
6. CYBER DIVE shall not be liable for delay in rendering service under the limited warranty, loss of use of the service during the period that the product is returned for replacement or warranty service or for the loss or unauthorized use of customer passwords, personal information, contacts, pictures, videos, applications, music, ringtones and other content.
7. CYBER DIVE neither assumes nor authorizes any authorized service center or any other person or entity to assume for it any other obligation or liability beyond that which is expressly provided for in this limited warranty including the provider or seller of any extended warranty or service agreement.
8. This is the entire warranty between CYBER DIVE and the Purchaser, and supersedes all prior and contemporaneous agreements or understandings, oral or written, relating to the Product, and no representation, promise or condition not contained herein shall modify this Agreement.
9. This limited warranty allocates the risk of failure of the Product between the Purchaser and CYBER DIVE. The allocation is recognized by the Purchaser and is reflected in the fact that the Product device is merely leased and title is not transferred to the Purchaser but remains with CYBER DIVE. This limited warranty gives the Purchaser specific legal rights and the Purchaser may also have other rights which vary from state to state.
IV. UNLOCKING POLICY
CYBER DIVE may refuse any unlocking request. you shall not have the permission or authority to unlock a device without prior written authorization from CYBER DIVE. CYBER DIVE’s Unlocking Policy is subject to change at any time without advance notice.
The safety and privacy of your and your child’s information are paramount at Cyber-Dive Corp. To use our service, you must provide Cyber-Dive Corp authorization to access the designated accounts and profiles so we can provide you with the information to monitor and manage your child’s online safety and security. By your indication, you appoint Cyber-Dive Corp to be your agent and partner in monitoring the designated accounts and profiles established in your Cyber-Dive Corp account so we can provide you with the services you are requesting from us. By your indication, you declare that you designate Cyber-Dive Corp as your authorized agent for these limited purposes.