AT&T App Select Terms of Service and End User License Agreement

Please read these Terms of Service and End User License Agreement ("License") carefully before clicking the "Agree" or "Accept" button or downloading or using AT&T App Select ("Application"). As used herein, "Application" includes, without limitation, any websites and services specific to the Application (excluding, however, Your applicable wireless service plan), software code, scripts, interfaces, graphics, displays, text, images, artwork, music or video clips, documentation and other components or content and any updates, modifications or enhancements to these items accompanying the Application or this License. These terms are an agreement between You and AT&T Mobility LLC and its affiliates (individually and collectively, "AT&T"). "You" and "Your" in this License refer to you, an individual, and/or to the company on whose behalf you accept this License.

BY CLICKING "I AGREE" OR "ACCEPT", OR BY USING THIS APPLICATION, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO ITS TERMS; (B) ACKNOWLEDGE THAT YOU ARE 18 YEARS OF AGE OR OLDER; (C) ACKNOWLEDGE THAT IN NO EVENT IS THIS APPLICATION TO BE USED BY PERSONS UNDER THE AGE OF 13; (D) AGREE TO ABIDE BY THE AT&T ACCEPTABLE USE POLICY, http://www.att.com/legal/terms.aup.html, (E) AGREE TO TERMS OF THE AT&T PRIVACY POLICY, http://www.att.com/gen/privacy-policy?pid=2506, AND (F) AGREE TO THE TERMS OF THE MOST CURRENT AT&T WIRELESS CUSTOMER AGREEMENT, http://www.att.com/legal/terms.wirelessCustomerAgreement-list.html ("WCA"), WHICH REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, FULLY APPLIES TO YOUR USE OF THIS APPLICATION. IN THE EVENT OF A CONFLICT BETWEEN THIS LICENSE AND THE WCA, THE APPLICABLE PROVISION OF THE WCA SHALL CONTROL.

If at any time after reviewing or using the Application You wish to terminate such use or this License, You can disable notifications from the Application in Your Device settings or opt-out of future notifications in the Application settings at any time. The permissions granted to you under this License will automatically terminate if You stop using this Application or are not, or are no longer, an AT&T subscriber subject to the terms of the WCA.

1. THE APPLICATION:

1.1 General.

The Application allows You to download and install certain applications that You have the ability to choose from a list. Any application You choose to download and install through the Service can be uninstalled at any time. The Service will periodically send You notifications when a new list of applications is available. You can disable the new application notifications through the Application settings or at any time by disabling push notifications for the Application through your device settings.

1.2 Data plan impacts.

Data rates do not apply to application downloads initiated through the Application, but data and messaging rates may apply when You use this Application or when you use applications that are downloaded through the Application.

1.3 Information used by the Application to generate application lists.

In order to generate application lists You receive from the Application, the Application will use information from Your device to determine what applications are already installed on Your device and how you use them. That information includes:

1.3.1

Applications that are installed on Your device;

1.3.2

Applications that are un-installed from Your device;

1.3.3

First launch of an application on Your device;

1.3.4

Applications that have shortcuts installed on Your device.

1.4 CONSENT TO COLLECTION OF INFORMATION:

By use of the Application you acknowledge and agree that the Application may automatically collect and disclose to AT&T and its applicable suppliers certain information from Your Device and the Application, including without limitation Your phone number, device ID, device type, manufacturer, software and operating system type, and usage information regarding the Application or applications on your device. AT&T may use such information, after removing or obscuring Your personally identifiable information, to create statistical reports designed to help maintain, provide and improve the services and to customize content provided in the Service, among other legal purposes.

1.5 CONSENT TO DISCLOSE PERSONAL INFORMATION:

BY USING THE APPLICATION, YOU CONSENT TO DISCLOSURE OF PERSONAL INFORMATION AS DESCRIBED IN THIS PARAGRAPH. AT&T will disclose Your IMEI or phone number to our vendor to determine eligibility and send application lists to your device. To generate application lists that will be sent to you, AT&T may also disclose to our vendor information regarding the applications You have already installed on Your device and how those applications are used, as set forth in Section 2.3.

1.6 PUSH NOTIFICATIONS.

You may receive push notifications from the Application. Push notifications are a way for an application to deliver information, including alerts, sounds and icon badges, to your mobile device. Push notifications can be delivered whether or not you are currently using the Application and whether or not your device is in locked and/or sleep mode. The following are examples of the types of push notifications we may send: "A new app list is ready for you." You may also disable push notifications for the Application at any time through your device notification settings.

2. LICENSE GRANT AND USE RESTRICTIONS.

2.1 License Grant.

Subject to the restrictions set forth in Section 2.2, AT&T grants You a personal, revocable, non-exclusive, non-transferable, limited right to install and use one copy of the Application on a single device owned and controlled by You ("Device"), and to access and use the Application on such Device, strictly in accordance with the terms and conditions of this License, and all applicable local, national, and international laws and regulations.

2.2 Restrictions on Use.

You shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Application, for any purpose; (b) modify, adapt, improve, or create any derivative work from the App; (c) violate any applicable laws, rules or regulations in connection with Your access or use of the Application; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of AT&T or its collaborators, suppliers or licensors; (e) use the Application in a manner that derives revenue directly from such use, or use the Application for any other purpose for which it is not designed or intended; (f) install, use or permit this copy of the Application to exist on more than one Device at a time or on any other mobile device or computer; (g) distribute the Application to multiple Devices; (h) make the Application available over a network or other environment permitting access or use by multiple Devices or users at the same time; (i) use the Application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by AT&T; (j) use the Application to send automated queries to any website or to send any unsolicited commercial e-mail; (k) use any proprietary information or interfaces of AT&T or other intellectual property of AT&T in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Application; (l) circumvent, disable or tamper with any security-related components or other protective measures applicable to the Application or the Device or (m) reproduce, archive, retransmit, distribute, sell, lease, rent, exchange, modify, broadcast, synchronize, publicly perform, publish, publicly display, make available to third parties, transfer or circulate the Application. You agree to abide by the rules and policies established from time to time by AT&T. Such rules and policies may include, for example, required or automated updates, modifications, and/or reinstallations of the Application and obtaining available patches to address security, interoperability, or performance issues. These obligations survive termination of this License.

3. INTELLECTUAL PROPERTY RIGHTS.

3.1 Rights to Application.

The Application (including its source and object code), any copies thereof (whether or not present on Your Device), and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of AT&T or its collaborators, licensors, or suppliers. The source and object code of the Application are the proprietary and confidential information of AT&T and its collaborators, licensors and suppliers. The Application is licensed, not sold, to You. Title to the Application shall remain with AT&T. AT&T and its collaborators, licensors, and suppliers reserve the right to change, suspend, terminate, remove, impose limits on the use of or access to, disable access to, or require the return of the Application (or any copy thereof) at any time without notice and will have no liability for doing so. Except as expressly stated in this License, You are not granted any intellectual property rights in or to the Application by implication, estoppel or other legal theory, and all rights in and to the Application not expressly granted in this License are hereby reserved and retained by AT&T. These obligations survive termination of this License.

3.2 AT&T Marks.

The following company names and their related logos and all related product and service names, design marks and slogans are trademarks and service marks owned by and used under license from AT&T: "AT&T" and "AT&T App Select" (the "AT&T Marks"). You are not authorized to use the AT&T Marks in any advertising, publicity or in any other commercial manner without the prior written consent of AT&T, which may be withheld for any or no reason. These obligations survive termination of this License.

3.3 Open Source Software.

The Application may include third party software that is subject to open source license terms ("Open Source Software"). You acknowledge and agree that Your right to use such Open Source Software as part of the Application is subject to and governed by the terms and conditions of any applicable open source license (the "Open Source License Terms"). In the event of a conflict between the terms of this License and the Open Source License Terms, the Open Source License Terms shall control.

4. NO RESPONSIBILITY FOR THIRD PARTY APPLICATIONS, CONTENT AND SERVICES.

The Application permits you to download third party applications and may permit access to products, services, websites, advertisements, and content from advertisers, publishers, vendors and other third parties ("Third Party Applications, Content and Services"). Your download and/or use of Third Party Applications, Content and Services is subject to any and all additional terms of use and privacy policies set by the third parties. YOUR USE OF THIRD PARTY APPLICATIONS, CONTENT AND SERVICES IS AT YOUR SOLE RISK AND DISCRETION. AT&T does not investigate, monitor, represent, endorse or publish the Third Party Applications, Content and Services. AT&T reserves the right to restrict or deny access to any Third Party Applications, Content and Services otherwise accessible through the Application. AT&T shall have no liability to You arising out of or in connection with Your access to and use (or misuse) of the Third Party Applications, Content and Services.

5. TERM AND TERMINATION.

This License shall be effective until terminated. AT&T may, in its sole and absolute discretion, at any time and for any or no reason, disable the Application, or suspend or terminate this License and the rights afforded to You hereunder, with or without prior notice or other action by AT&T. Upon the termination of this License, You shall cease all use of the Application and uninstall the Application. AT&T will not be liable to You or any third party for compensation, indemnity, or damages of any sort as a result of terminating this License in accordance with its terms, and termination of this License will be without prejudice to any other right or remedy AT&T may have, now or in the future. These obligations survive termination of this License.

6. DISCLAIMER OF WARRANTIES.

YOU ACKNOWLEDGE AND AGREE THAT THE APPLICATION, INCLUDING ALL CONTENT CONTAINED THEREIN OR ACCESSED THEREBY, IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE APPLICATION IS AT YOUR SOLE RISK AND DISCRETION. TO THE EXTENT NOT PROHIBITED BY LAW, AT&T AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE APPLICATION, WHETHER ORAL, EXPRESS, IMPLIED OR STATUTORY, AND WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE OF THE PARTIES, OR THE NATURE OR CONTEXT OF THIS LICENSE, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, AT&T AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE APPLICATION WILL MEET YOUR REQUIREMENTS; (II) THE APPLICATION WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE, FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE APPLICATION WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE APPLICATION WILL BE CORRECTED OR THAT THE APPLICATION WILL BE MAINTAINED. YOU ACKNOWLEDGE THAT THE APPLICATION IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE PERFORMANCE OF, USE OR MISUSE OF, FAILURE OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY, THE APPLICATION COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY, OR ENVIRONMENTAL DAMAGE. AT&T AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE APPLICATION WILL BE COMPATIBLE OR INTEROPERABLE WITH YOUR DEVICE OR ANY OTHER PIECE OF HARDWARE, SOFTWARE, EQUIPMENT OR DEVICE INSTALLED ON OR USED IN CONNECTION WITH YOUR DEVICE. FURTHERMORE, YOU ACKNOWLEDGE THAT COMPATIBILITY AND INTEROPERABILITY PROBLEMS CAN CAUSE THE PERFORMANCE OF YOUR DEVICE TO DIMINISH OR FAIL COMPLETELY, AND MAY RESULT IN PERMANENT DAMAGE TO YOUR DEVICE, LOSS OF THE DATA LOCATED ON YOUR DEVICE, AND CORRUPTION OF THE SOFTWARE AND FILES LOCATED ON YOUR DEVICE. YOU ACKNOWLEDGE AND AGREE THAT AT&T AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, SHALL HAVE NO LIABILITY TO YOU FOR ANY LOSSES SUFFERED, RESULTING FROM OR ARISING IN CONNECTION WITH COMPATIBILITY OR INTEROPERABILITY PROBLEMS. SHOULD THE APPLICATION PROVE DEFECTIVE, YOU ASSUME THE ENTIRE BURDEN OF ALL NECESSARY EXPENSES, SERVICING, REPAIR, OR CORRECTION. THIS SECTION 7 SHALL SURVIVE TERMINATION OF THIS LICENSE.

NOTWITHSTANDING AND WITHOUT WAIVING THE FOREGOING, THE TERMS AND CONDITIONS OF THE WCA MAY PROVIDE LIMITED REMEDIES TO YOU.

7. LIMITATION OF LIABILITY.

EXCEPT TO THE EXTENT PROHIBITED BY LAW, UNDER NO CIRCUMSTANCES SHALL AT&T, ITS COLLABORATORS, SUPPLIERS OR LICENSORS, NOR THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE FOR ACCIDENTS, PROPERTY DAMAGE, PERSONAL INJURY, DEATH, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH OR RELATING TO THE SALE OR DISTRIBUTION OF, THE PERFORMANCE OR NON-PERFORMANCE, OR YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE APPLICATION, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AT&T'S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE GREATER OF (i) THE INITIAL PURCHASE PRICE PAID BY YOU FOR THE APPLICATION, (ii) THE AGGREGATE AMOUNT YOU PAID TO AT&T FOR THE APPLICATION DURING THE ONE MONTH PRECEDING THE DATE THAT THE CLAIM ARISES, OR (iii) TWO DOLLARS ($2.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THIS SECTION 8 SHALL SURVIVE TERMINATION OF THIS LICENSE.

8. INDEMNIFICATION.

You shall indemnify, defend and hold harmless AT&T and its collaborators, suppliers and licensors, and their officers, directors, agents and employees (the "Indemnified Parties") from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of, in connection with or related to the following: (i) Your access to or use of the Application or Third Party Content and Services; (ii) Your breach of this License; (iii) Your violation of law; (iv) Your negligence or willful misconduct; or (v) Your violation of the rights of a third party. You will promptly notify AT&T in writing of any third-party claim arising out of or in connection with Your access to or use of the Application. These obligations survive termination of this License.

9. MISCELLANEOUS.

The following provisions survive termination of this License:

9.1 Governing Law, Limitation on Actions.

This License shall be deemed to take place in the State of New York and shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law principles. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. To the maximum extent permitted by applicable law, You and AT&T agree that any cause of action arising out of or relating to this License, the Application or Your use of the Application must commence within one (1) year after the applicable cause of action accrues in accordance with the dispute resolution provision of the WCA. Otherwise, such cause of action is permanently barred. This Section 9.1 is not intended to and does not alter any provisions of the WCA.

9.2 Contact Information.

You may reach AT&T Customer Service by dialing 611 from Your Device if You are an AT&T Wireless service subscriber or 1-800-331-0500 or visit http://www.att.com/myatt.

9.3 Severability.

If any provision of this License is held to be invalid or unenforceable, the remaining provisions shall not be affected and shall remain valid and enforceable to the fullest extent permitted by law.

9.4 Waiver.

Except as provided herein, the failure to exercise a right or require performance of an obligation under this License shall not affect a party's ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach.

9.5 Export Control; Lawful Use.

You may not export or re-export the Application except as authorized by United States law and the laws of the jurisdiction(s) in which the Application was obtained. You represent and warrant that You are not located and will not use the Application in any country that is (a) subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, or (b) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. You may not use the Application in any manner or for any purpose prohibited (a) by United States law, regardless of where You use the Application, or (b) by local law, in the jurisdiction(s) in which You use the Application.

9.6 Performance or Benchmark Testing.

You may not disclose the results of any benchmark test using the Application to any third party without AT&T's prior written approval.

9.7 Modification or Amendment.

To the extent not prohibited by law, AT&T may modify or amend the terms of this License at any time, with or without direct notice to You, by posting a copy of the modified or amended License available through the Application or at http://www.att.com/legal/legal-policy-center.html. You will be deemed to have agreed to any such modification or amendment by Your decision to continue using the Application following the date in which the modified or amended License is made available through the Application or the referenced website.

9.8 Survival.

Any provisions of this License which by their express language or by their context are intended to survive the termination of this License shall survive such termination.

9.9 Third Party Beneficiaries.

Except as explicitly provided in this License or in incorporated agreements, nothing contained in this License is intended or shall be construed to confer upon any person (other than the parties hereto) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person.

9.10 No Transfer by You.

Any attempted transfer by You in contravention of this License shall be null and void. These obligations survive termination of this License. AT&T may assign this License without restriction.

9.11 Copyright Complaints.

AT&T respects the intellectual property rights of others. If You believe that Your work has been copied and has been posted, stored or transmitted by or through the Application in a way that constitutes copyright infringement, please submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") in accordance with the process detailed at http://www.att.com/legal/terms.dmca.html and directed to the designated agent listed below. AT&T's Copyright Agent for notice of claims of copyright infringement relating to the Application can be reached as follows:

Manager of Security & Copyright Infringement, 1800 Perimeter Park Drive, Suite 100 Morrisville, NC 27560 Phone: (919) 319-5737 Fax: (919) 319-8154 E-mail: copyright@att.com.

For more information about AT&T's copyright protection practices under the DMCA and for information on how to contact AT&T's DMCA agent, please refer to www.att.com/legal/terms.dmca.html.

9.12 Entire Agreement.

This License including the documents incorporated herein by reference constitute the entire agreement with respect to the use of the Application licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter.

Third-Party Terms.

The below Third-Party Terms are incorporated herein and made part of this Agreement:

The following Open Source Software that the Application utilizes or includes is licensed as follows: http://www.apache.org/licenses/LICENSE-2.0.

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