AT&T Digital Life Personal Security Terms of Service and End User License Agreement
AT&T DIGITAL LIFE PERSONAL SECURITY IS NOT 911. IN AN ACTUAL EMEGENCY, CALL 911.
THIS APP USES YOUR LOCATION AND PERSONAL INFORMATION, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
AT&T Digital Life, Inc. ("AT&T"), licenses the Personal Security application (the "App") to You, conditioned upon Your acceptance of these Terms of Service and End User License Agreement ("Agreement").
THIS APP IS NOT INTENDED FOR USE BY PERSONS UNDER THE AGE OF 13. IF YOU ARE UNDER 13 YEARS OLD, YOU MAY NOT USE THIS APP OR PROVIDE AT&T WITH ANY PERSONALLY IDENTIFIABLE INFORMATION. IF YOU ARE 13 OR OLDER BUT NOT OF LEGAL AGE TO ENTER INTO A CONTRACT, YOU SHOULD REVIEW THIS AGREEMENT WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND THIS AGREEMENT.
If at any time after reviewing or using the App You wish to terminate such use or this Agreement, You must un-install and remove the App from Your smartphone, and delete any copy in Your possession.
(a) "AT&T," "We," "Our" and "Us" mean AT&T Digital Life, Inc. and its parents, subsidiaries, affiliates, agents, employees, successors and assigns; (b) the "App" includes any website, software, content or services provided in connection with the App, and any updates to these items; (c) "You," "Your" and "Licensee" mean an individual who downloads or uses the App and any person or entity represented by that individual.
3. THE AT&T DIGITAL LIFE PERSONAL SECURITY APPLICATION:
The App is a smartphone application that allows users to (a) access an AT&T monitoring center agent for live assistance using a smartphone; (b) share smartphone location information with monitoring center agents and with friends and family; (c) talk to monitoring center agents using the microphone function of the smartphone; (d) share the camera function of the smartphone which will allow monitoring center agents to see live streaming images from the smartphone; (e) see the location of other family members on a map, if such family members also have the App, have agreed to share location information, are running the App on their smartphone, and have sufficient battery power on their smartphone; (d) set a timer at the start of a trip, such as walking to a car at night, which will trigger an alert to AT&T's monitoring center unless cancelled; and (e) send messages with location information to Your smartphone contacts. IF YOU AGREE TO SHARE YOUR CAMERA AND MICROPHONE WHEN USING THE APP, A MONITORING CENTER AGENT WILL BE ABLE TO SEE WHAT IS ON YOUR SMARTPHONE CAMERA AND LISTEN TO AUDIO FROM YOUR SMARTPHONE MICROPHONE. IF YOU DO NOT AGREE TO SHARE YOUR LOCATION, AT&T'S MONITORING CENTER AGENTS WILL NOT BE ABLE TO LOCATE YOU.
3.1 CHARGES AND PAYMENT:
The App allows You to purchase a monthly subscription for an individual or family plan. If You are an AT&T Digital Life account holder, any applicable monthly subscription charge will be charged to and appear on Your AT&T Digital Life bill. In addition, AT&T Digital Life home security customers may receive or be eligible for certain discounts, credits, or promotions, and other benefits "Benefits"), which Benefits may reduce the monthly subscription charge. If You are not an AT&T Digital Life customer, any monthly subscription will be charged to the credit card You provide AT&T. You will receive specific information about Your applicable monthly subscription charges, as well as any applicable credits, at the time You purchase the App subscription. You agree to pay all fees charged to Your AT&T Digital Life account or to Your credit card (including applicable state and local taxes and applicable surcharges). You will be charged such fees each month, even if You do not use the App; however, You may terminate Your monthly subscription at any time and following termination AT&T will stop charging any monthly subscription fee and will issue any applicable credit the following month. In addition, AT&T reserves the right to change the fees for the App at any time, upon prior notice to You. Further You are responsible for any fees assessed to access the App, including voice, data and messaging rates. THE USE OF YOUR SMARTPHONE MICROPHONE AND CAMERA FOR VIDEO AND AUDIO STREAMING WITH A MONITORING CENTER AGENT COULD REQUIRE SIGNIFICANT DATA USAGE. YOU ARE RESPONSIBLE FOR ANY DATA USAGE FEES.
In addition to your monthly subscription, in the event a responder or representative is dispatched by us, by a governmental authority, or by a third party to respond to any event in which no emergency condition exists (a false "alarm"), You shall be solely responsible for and pay any and all fees, including service charges, assessed with respect to the false alarms. In the event that AT&T is assessed any fees or fines in connection with a false alarm concerning You, You agree to reimburse and indemnify AT&T for any such fees or fines.
3.2 CONSENT TO DISCLOSE LOCATION INFORMATION:
This App accesses and uses Your personally identifiable location information ("Your Location Information"). Your Location Information is provided to AT&T's monitoring center agents to provide service and dispatch emergency responders if appropriate. You can share Your Location Information via text message to any contact in Your smartphone address book. You can share Your Location Information with other family members on a map in the App. To share Your Location Information in the App, the App must be running on Your smartphone, Your smartphone must have sufficient battery power, and the person locating You must also have the App. By using this App, You agree that AT&T may collect and use Your Location Information and may collect, use and disclose geographic location to provide service and such services may also include functions that are incidental and necessary to the service and for improvements such as improving location accuracy when using the App. AT&T may aggregate and use Your Location Information to report usage or to maintain and improve the App. This notice may serve as Your sole notice that the App may collect Your Location Information and You may not receive any reminders or further notice. If You wish to stop allowing Your Location Information to be tracked and shared by this App, You must uninstall the App. FOR AT&T TO REQUEST EMERGENCY RESPONDERS TO ASSIST YOU, YOU MUST TURN ON LOCATION SERVICES.
3.3 CONSENT TO DISCLOSE PERSONAL INFORMATION:
This App may disclose or allow the disclosure to third parties of Your personal information from Your user profile; i.e., Your name, gender, hair color, eye color, health conditions, or allergies. This information may assist emergency responders identify You if You require assistance. By using this App, You agree that AT&T may collect and use Your Personal Information and may collect, use and disclose Personal Information to provide services. This notice may serve as Your sole notice that the App may collect Your Personal Information and You may not receive any reminders or further notice. If You wish to stop allowing Your Personal Information to be tracked and shared by this App, You may modify Your user profile to remove such Personal Information or You must uninstall the App.
3.4 AT&T CONTACT:
It is important that AT&T be able to contact You to provide Personal Emergency service. To allow AT&T to reach You, You agree to provide the number of the smartphone where you can be reached in Your user profile. YOU AGREE THAT AT&T MAY CALL YOU AT THE PHONE NUMBER YOU SUPPLY US, AND YOU AGREE THAT CALLS MAY BE MADE USING ANY METHOD, INCLUDING AUTODIALING EQUIPMENT, AN ARTIFICIAL OR RECORDED VOICE, OR VIA TEXT OR EMAIL MESSAGES SENT TO YOUR SMARTPHONE. If Your wireless provider charges You for text or email messages, You are responsible for any such charges. You must notify us immediately if Your phone number changes. You agree to regularly check for calls, voicemail, and texts from AT&T.
3.5 REGISTRATION, ACTIVATION AND PASSWORD SECURITY:
By activating the App, You acknowledge and agree that information concerning the location of Your smartphone may be disclosed to others as part of the service, and You further, agree to notify any users of Your smartphone(s) concerning this disclosure of location information. You also represent and warrant that You have the authority to agree to the terms and conditions specified in this Agreement on behalf of Yourself and users on Your account. You may go to Settings to modify aspects of the App, including location services which can be accessed by: (a) opening the App; (b) going to Settings; then (c) going to location services.
When You register for the App, You will be asked to provide a password, and by providing such, You agree to be responsible for all activities occurring under Your account. You will also be responsible for keeping Your password secure. Keep Your account password confidential, do not use others' accounts and do not let others use Your account. You are responsible for activity on Your account and for any liability or damages resulting from any failure to protect the confidentiality of the account password. You are also solely and fully responsible and liable for all activities that occur under the account password. If You suspect any breach of security, immediately notify us by calling 1-855-288-2727, option 4 and close down Your account. There is a risk that other users may attempt to access the App through the Internet or connected networks. You acknowledge this risk as inherent to the nature of the App and You agree to accept full responsibility for taking adequate security precautions and safeguarding Your data from loss.
3.6 SAFE AND LAWFUL USE OF THE APP
You agree not to use or permit others to use the App while driving a motor vehicle. You agree to use the App, the location information provided thereby, and the messaging feature only for lawful purposes, and You agree to comply with all applicable laws and rules and any additional terms that AT&T may incorporate into this Agreement. You agree that You will not misuse the App. You will be responsible for any costs incurred by AT&T or any other party (including attorney's fees) as a result of Your misuse or fraudulent use of the App. Misuse or fraudulent use includes, but is not limited to,
- Using the App in such a manner so as to interfere unreasonably with the use of the App by one or more other users or wireless customers or to interfere unreasonably with AT&T's ability to provide the App;
- Subscription fraud or unauthorized access;
- Using the App to defame, harass, stalk, threaten or otherwise violate the legal rights of others;
- Using the App to disseminate or convey inappropriate, defamatory, obscene, or unlawful information, images or materials;
- Using the App without permission on a stolen or lost smartphone;
- Attempting or assisting another to access, alter, or interfere with the communications and/or information about another user or wireless customer;
- Tampering with or making an unauthorized connection to a wireless network;
- Reselling or re-billing the App provided to You to any other individual or entity;
- Sending spam or misusing the messaging features of the App.
3.7 GEOGRAPHIC RESTRICTIONS:
The App is intended for use within the continental United States only, which means that the App should not be used in Alaska, Hawaii and any other country or region outside the United States. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE NOT TO USE THE APP OUTSIDE OF THE CONTINENTAL UNITED STATES.
3.8 SERVICE LIMITATIONS:
YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT THE APP DOES NOT PROVIDE ANY ACCESS TO 911 SERVICES AND IS NOT A REPLACEMENT FOR 911 SERVICE. IN AN ACTUAL EMERGENCY, CALL 911 AND DO NOT RELY ON THE APP FOR ACCESS TO EMERGENCY SERVICES.
TO USE THE APP, YOUR SMARTPHONE MUST HAVE WIRELESS DATA COVERAGE (VIA WI-FI OR VIA AT&T MOBILITY OR ANOTHER WIRELESS PROVIDER). FOR AT&T TO REQUEST EMERGENCY RESPONDERS TO ASSIST YOU, YOU MUST TURN ON LOCATION SERVICES ON YOUR SMARTPHONE.
WARNING ABOUT LOCATION ACCURACY: YOUR SMARTPHONE IS MOBILE AND IS NOT ASSOCIATED WITH ONE FIXED LOCATION. LOCATION INFORMATION OBTAINED FROM A WIRELESS PHONE IS TYPICALLY NOT AS RELIABLE AS THE FIXED LOCATION INFORMATION ASSOCIATED WITH A WIRELINE PHONE. IF YOU ARE USING THE APP OVER A WI-FI DATA CONNECTION INSTEAD OF A CELLULAR DATA CONNECTION, AT&T MAY BE UNABLE TO CONFIRM YOUR LOCATION, OR IF LOCATION INFORMATION IS DELIVERED, IT MAY NOT BE SPECIFIC ENOUGH FOR EMERGENCY RESPONDERS TO LOCATE YOU.
3.9 EMERGENCY RESPONSE LIMITATIONS:
AT&T's monitoring center agents responding to an alert through the App will use commercially reasonable efforts to assess the nature and location of Your situation. AT&T MAY ELECT, IN OUR REASONABLE DISCRETION, NOT TO REQUEST EMERGENCY AUTHORITIES TO DISPATCH FIRST RESPONDERS IF WE HAVE REASON TO BELIEVE THAT NO EMERGENCY EXISTS. AT&T WILL NOT REQUEST FIRST RESPONDERS TO BE DISPATCHED UNLESS WE CAN CONFIRM: (A) YOUR LOCATION; AND (B) THAT AN ACTUAL EMERGENCY EXISTS. AT&T cannot guarantee that any emergency personnel will respond in a timely manner or at all, or that the most appropriate personnel will respond. You understand and agree that the ability of AT&T to respond to an alert may be interrupted, delayed, or otherwise limited for a variety of reasons, including insufficient wireless (Wi-Fi and/or cellular) coverage, environmental conditions, unavailability of radio frequency channels, system capacity, and priority access by emergency responders in the event of a disaster or emergency. You understand that insufficient wireless (Wi-Fi and/or cellular) coverage or other network-related problems may result in your inability to place or receive a call, detect an emergency condition, or properly locate You in the event of an emergency. You understand that no form of monitoring is error-free and that we are not responsible for any interruption of services due to network outages, faulty equipment, faulty transmission, power outages, other interruptions in wireless service or broadband service, systems that have been tampered with, or any damage or destruction to our equipment or facilities. We are not required to supply monitoring service to You while any such interruption continues. YOU UNDERSTAND AND AGREE THAT WE WILL NOT RECEIVE ALERTS FROM THE APP IF SIGNALS ARE INTERRUPTED, OR IF THE APP CANNOT COMMUNICATE WITH OUR MONITORING CENTER. You agree to immediately notify us if You are having any problems with the App. You are also responsible for ensuring that Your smartphone has adequate power and is properly charged; low battery may result in the inability to send an alert or properly locate You in the event of an emergency. You acknowledge that the App is not a replacement for regular contact with caregivers and that monitoring is not a substitute for an emergency 911 call. You further acknowledge that neither AT&T nor its employees or agents provide medical advice. You should always consult Your physician or other healthcare professional with any questions regarding any physical or mental health condition.
3.10 PRIVACY AND DATA COLLECTION:
To provide You service, and for employee training and quality control, we may monitor and/or record calls between You and AT&T and between You and AT&T's employees and agents. If we receive an alert we may monitor, record and maintain audio communication with You and the monitoring agents responding to the alert. We may share information, including personal information and/or recordings of calls with emergency responders or as we reasonably believe is necessary or would be helpful in providing You with assistance. We do not record the camera streaming video You may elect to share with us during an alert.
4. LICENSE GRANT AND USE RESTRICTIONS.
4.1 License Grant.
Subject to the restrictions set forth in Section 4.2, AT&T grants You a personal, revocable, non-exclusive, non-transferable, limited right to install and use one copy of the App on a single smartphone owned and controlled by You, and to access and use the App on such smartphone, strictly in accordance with the terms and conditions of this Agreement, and all applicable local, national, and international laws and regulations.
4.2 Restrictions on Use.
You shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the App, 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 App; (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 App in a manner that derives revenue directly from such use, or use the App for any other purpose for which it is not designed or intended; (f) install, use or permit this copy of the App to exist on more than one smartphone at a time or on any other mobile device or computer; (g) distribute the App to multiple smartphones; (h) make the App available over a network or other environment permitting access or use by multiple smartphones or users at the same time; (i) use the App 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 App 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 Apps, accessories or smartphones for use with the App; (l) circumvent, disable or tamper with any security-related components or other protective measures applicable to the App or the smartphone 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 App. 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 App and obtaining available patches to address security, interoperability, or performance issues. These obligations survive termination of this Agreement.
5. INTELLECTUAL PROPERTY RIGHTS.
5.1 Rights to App.
The App (including its source and object code), any copies thereof (whether or not present on Your smartphone), 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 App are the proprietary and confidential information of AT&T and its collaborators, licensors and suppliers. The App is licensed, not sold, to You. Title to the App 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 App (or any copy thereof) at any time without notice and will have no liability for doing so. Except as expressly stated in this Agreement, You are not granted any intellectual property rights in or to the App by implication, estoppel or other legal theory, and all rights in and to the App not expressly granted in this Agreement are hereby reserved and retained by AT&T. These obligations survive termination of this Agreement.
5.2 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" "AT&T DIGITAL LIFE" "DIGITAL LIFE" (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 Agreement.
5.3 Open Source Software.
The App includes third party software that is subject to open source license terms ("Open Source Software"), including the license terms located at the following link: http://www.apache.org/licenses/LICENSE-2.0. You acknowledge and agree that Your right to use such Open Source Software as part of the App is subject to and governed by the terms and conditions of any applicable open source license (the "Open Source License Terms"), which in relevant part, require the Disclaimer of Liabilities and Limitation of Liability in paragraphs 9 and 10. In the event of a conflict between the terms of this Agreement and the Open Source License Terms, the Open Source License Terms shall control.
6. NO RESPONSIBILITY FOR THIRD PARTY CONTENT AND SERVICES.
7. User-Submitted Content and Messaging.
The App may contain features that allow You to submit, post or display content through the App. You agree not to use or allow others to use the App, directly or indirectly through Your smartphone or wireless number in a way that violates AT&T's Acceptable Use Policy. You are solely responsible for any liability arising out of any user-submitted content.
If You provide content through the App ("User Submission"), You grant AT&T a royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable and transferable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display Your User Submission (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed and to exercise the same rights with respect to such works without compensation or attribution to You. You also hereby waive any moral rights in Your User Submission. AT&T may remove Your User Submission at any time in its sole discretion. AT&T is not under any obligation of confidentiality, express or implied, with respect to Your User Submission. You represent and warrant that You own or otherwise control all necessary rights, consents and permissions to Your User Submission necessary to submit such material and to grant AT&T all of the Agreement rights granted herein.
You agree to follow all applicable laws and agree that your smartphone settings to share Your camera or microphone do not violate such laws. You are responsible for any content sent to or from Your smartphone.
You agree that the messaging function of the App allows for the notification via text message to and from smartphones and other devices listed as contacts in Your smartphone. You will not use the messaging feature of the App to transmit, either directly or indirectly, any bulk messages, spam, or unsolicited commercial messages. Your communications through the messaging feature are solely between You and the recipient. You agree that AT&T shall not be responsible for any loss, personal harm, or damage of any kind incurred as the result of any messages, the delivery or failure to deliver any messages, or any response or lack of response by message recipients. The use of the messaging feature may be limited by the capabilities of Your smartphone, any smartphone plan, and wireless data coverage. You are responsible for checking to see if Your smartphone plan includes messaging.
8. TERM AND TERMINATION.
This Agreement 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 App, or suspend or terminate this Agreement and the rights afforded to You hereunder, with or without prior notice or other action by AT&T. Upon the termination of this Agreement, any monthly subscription charges set forth in Section 3.1 will end. Upon termination, You shall cease all use of the App and uninstall the App. 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 Agreement in accordance with its terms, and termination of this Agreement 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 Agreement.
9. DISCLAIMER OF WARRANTIES.
YOU ACKNOWLEDGE AND AGREE THAT THE APP, 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 APP 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 APP, 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 AGREEMENT, 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 APP WILL MEET YOUR REQUIREMENTS; (II) THE APP 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 APP WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE APP WILL BE CORRECTED OR THAT THE APP WILL BE MAINTAINED.
AT&T AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE APP WILL BE COMPATIBLE OR INTEROPERABLE WITH YOUR SMARTPHONE OR ANY OTHER PIECE OF HARDWARE, SOFTWARE, EQUIPMENT OR SMARTPHONE INSTALLED ON OR USED IN CONNECTION WITH YOUR SMARTPHONE. FURTHERMORE, YOU ACKNOWLEDGE THAT COMPATIBILITY AND INTEROPERABILITY PROBLEMS CAN CAUSE THE PERFORMANCE OF YOUR SMARTPHONE TO DIMINISH OR FAIL COMPLETELY, AND MAY RESULT IN PERMANENT DAMAGE TO YOUR SMARTPHONE, LOSS OF THE DATA LOCATED ON YOUR SMARTPHONE, AND CORRUPTION OF THE SOFTWARE AND FILES LOCATED ON YOUR SMARTPHONE. 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 APP PROVE DEFECTIVE, YOU ASSUME THE ENTIRE BURDEN OF ALL NECESSARY EXPENSES, SERVICING, REPAIR, OR CORRECTION. THIS SECTION 9 SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
10. 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 APP, 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 APP, (ii) THE AGGREGATE AMOUNT YOU PAID TO AT&T FOR THE APP PRECEDING THE DATE THAT THE CLAIM ARISES. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THIS SECTION 10 SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
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 App or Third Party Content and Services; (ii) Your breach of this Agreement; (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 App. These obligations survive termination of this Agreement.
12. DISPUTE RESOLUTION BY BINDING ARBITRATION
12.1 Summary of Arbitration Agreement.
Please read this carefully. It affects Your rights.
Most customer concerns can be resolved quickly and to the customer's satisfaction by calling our customer service department at 1-800-331-0500. In the unlikely event that AT&T's customer service department is unable to resolve a complaint You may have to Your satisfaction (or if AT&T has not been able to resolve a dispute it has with You after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed $75,000, AT&T will pay all costs of the arbitration. Moreover, in arbitration You are entitled to recover attorneys' fees from AT&T to at least the same extent as You would be in court.
In addition, under certain circumstances (as explained below), AT&T will pay You more than the amount of the arbitrator's award and will pay Your attorney (if any) twice his or her reasonable attorneys' fees if the arbitrator awards You an amount that is greater than what AT&T has offered You to settle the dispute.
12.2 Arbitration Agreement
- AT&T and You agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);
- claims that are currently the subject of purported class action litigation in which You are not a member of a certified class; and
- claims that may arise after the termination of this Agreement.
References to "AT&T," "You," and "us" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or smartphones under this or prior Agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude You from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on Your behalf. You agree that, by entering into this Agreement, You and AT&T are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
- A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to AT&T should be addressed to: Office for Dispute Resolution, AT&T, 1025 Lenox Park Blvd., Atlanta, GA 30319 ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If AT&T and You do not reach an agreement to resolve the claim within 30 days after the Notice is received, You or AT&T may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by AT&T or You shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which You or AT&T is entitled. You may download or copy a form Notice and a form to initiate arbitration at att.com/arbitration-forms.
- After AT&T receives notice at the Notice Address that You have commenced arbitration, it will promptly reimburse You for Your payment of the filing fee, unless Your claim is for greater than $75,000. (The filing fee currently is $200 for claims under $10,000 but is subject to change by the arbitration provider. If You are unable to pay this fee, AT&T will pay it directly upon receiving a written request at the Notice Address.) The arbitration will be governed by the Consumer Arbitration Rules ("AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. (You may obtain information that is designed for non-lawyers about the arbitration process at att.com/arbitration-information.) The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless AT&T and You agree otherwise, any arbitration hearings will take place in the county (or parish) of Your billing address. If Your claim is for $10,000 or less, we agree that You may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If Your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as otherwise provided for herein, AT&T will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of Your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, You agree to reimburse AT&T for all monies previously disbursed by it that are otherwise Your obligation to pay under the AAA Rules. In addition, if You initiate an arbitration in which You seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
- If, after finding in Your favor in any respect on the merits of Your claim, the arbitrator issues You an award that is greater than the value of AT&T's last written settlement offer made before an arbitrator was selected, then AT&T will:
- pay You the amount of the award or $10,000 ("the alternative payment"), whichever is greater; and
- pay Your attorney, if any, twice the amount of attorneys' fees, and reimburse any expenses (including expert witness fees and costs) that Your attorney reasonably accrues for investigating, preparing, and pursuing Your claim in arbitration ("the attorney premium").
If AT&T did not make a written offer to settle the dispute before an arbitrator was selected, You and Your attorney will be entitled to receive the alternative payment and the attorney premium, respectively, if the arbitrator awards You any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
- The right to attorneys' fees and expenses discussed in paragraph (4) supplements any right to attorneys' fees and expenses You may have under applicable law. Thus, if You would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding You that amount. However, You may not recover duplicative awards of attorneys' fees or costs. Although under some laws AT&T may have a right to an award of attorneys' fees and expenses if it prevails in an arbitration, AT&T agrees that it will not seek such an award.
- The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND AT&T AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both You and AT&T agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
- Notwithstanding any provision in this Agreement to the contrary, we agree that if AT&T makes any future change to this arbitration provision (other than a change to the Notice Address) while this Agreement is in effect, You may reject any such change by sending us written notice within 30 days of the change to the Arbitration Notice Address provided above. By rejecting any future change, You are agreeing that You will arbitrate any dispute between us in accordance with the language of this provision.
The following provisions survive termination of this Agreement:
13.1 Governing Law, Limitation on Actions.
This Agreement 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 Agreement 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 Agreement, the App or Your use of the App must commence within one (1) year after the applicable cause of action accrues. Otherwise, such cause of action is permanently barred.
13.2 Contact Information.
You may reach AT&T Customer Service by dialing 1-855-288-2727.
If any provision of this Agreement 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.
Except as provided herein, the failure to exercise a right or require performance of an obligation under this Agreement 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.
13.5 Export Control; Lawful Use.
You may not export or re-export the App except as authorized by United States law and the laws of the jurisdiction(s) in which the App was obtained. You represent and warrant that You are not located and will not use the App 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 App in any manner or for any purpose prohibited (a) by United States law, regardless of where You use the App, or (b) by local law, in the jurisdiction(s) in which You use the App.
13.6 Performance or Benchmark Testing.
You may not disclose the results of any benchmark test using the App to any third party without AT&T's prior written approval.
13.7 Modification or Amendment.
To the extent not prohibited by law, AT&T may modify or amend the terms of this Agreement at any time, with or without direct notice to You, by posting a copy of the modified or amended Agreement available through the App or at http://www.att.com/legal/digital-life.html. You will be deemed to have agreed to any such modification or amendment by Your decision to continue using the App following the date in which the modified or amended Agreement is made available through the App or http://www.att.com/legal/digital-life.html.
Any provisions of this Agreement which by their express language or by their context are intended to survive the termination of this Agreement shall survive such termination.
13.9 Third Party Beneficiaries.
Except as explicitly provided in this Agreement or in incorporated agreements, nothing contained in this Agreement 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.
13.10 No Transfer by You.
Any attempted transfer by You in contravention of this Agreement shall be null and void. These obligations survive termination of this Agreement. AT&T may assign this Agreement without restriction.
13.11 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 App 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.net/general-info/claims.html and directed to the designated agent listed below. AT&T's Copyright Agent for notice of claims of copyright infringement relating to the App 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: firstname.lastname@example.org.
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.net/general-info/claims.html.
13.12 Entire Agreement.
This Agreement including the documents incorporated herein by reference constitute the entire agreement with respect to the use of the App 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: APACHE, APPLE, MICROSOFT, MIT, WEBRTC, ZOS.
APACHE OPEN SOURCE LICENSE:
Copyright © 2016 AT&T Digital Life, Inc. Licensed under the Apache License, Version 2.0 (the "License"); you may not use this file except in compliance with the License. You may obtain a copy of the License at http://www.apache.org/licenses/LICENSE-2.0. Unless required under applicable law or agreed to in writing, software distributed under the License is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the License for the specific language governing permissions and limitations under the License.
Additional provisions and usage rules required by Apple, Inc. ("Apple") may be found at www.apple.com/legal/itunes/appstore/us/terms.html. If Your smartphone is manufactured by Apple or if You obtain the downloadable App through iTunes, You and AT&T acknowledge and agree that Apple and its subsidiaries are third party beneficiaries to this License, and that, upon Your acceptance of the terms and conditions of this License, Apple will have the right to enforce this License against You in its capacity as a third party beneficiary to the License. APPLE SHALL HAVE NO RESPONSIBILITY FOR ANY CLAIMS MADE BY YOU OR ANY THIRD PARTY RELATED TO THE APP OR YOUR USE OR POSSESSION OF THE APP, INCLUDING, BUT NOT LIMITED TO (i) PRODUCT LIABILITY CLAIMS, (ii) ANY CLAIM THAT THE APP FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT, (iii) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION, OR (iv) ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE OF THE APP TO CONFORM TO ANY WARRANTY, EXPRESS OR IMPLIED. IF YOU HAVE PAID ANY FEE TO APPLE FOR USE OF THE APP, IN THE EVENT OF ANY FAILURE OF THE APPTO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY APPLE, AND APPLE WILL, AS YOUR SOLE AND EXCLUSIVE REMEDY, REFUND TO YOU THE PURCHASE PRICE PAID, IF ANY, FOR THE APP. APPLE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APP.
Additional provisions required by Microsoft Corporation that apply to the use of Microsoft Bing maps feature of this Application may be found at: https://www.microsoft.com/maps/assets/docs/terms.aspx.
MIT OPEN SOURCE LICENSE:
Copyright © 2013 Naoyuki Kanezawa. Permission is hereby granted, free of charge, to any person obtaining a copy of The MIT License and associated documentation files (the "MIT Software"), to deal in the MIT Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the MIT Software, and to permit persons to whom the MIT Software is furnished to do so, subject to the following conditions. The above copyright notice and this permission notice shall be included in all copies or substantial portions of the MIT Software. Usage rules may be found at https://github.com/socketio/socket.io-client-java/blob/master/LICENSE
WEB RTC OPEN SOURCE LICENSE:
Copyright © 2011, The WebRTC project author. All rights reserved. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
- Redistribution of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
- Redistribution in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or materials provided with the distribution.
- Neither the name of Google nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSBILITY OF SUCH DAMAGE.
Usage rules may be found at https://webrtc.org/license/
Additional provisions required by ZOS Communications, LLC ("ZOS") may be found at: http://www.zoscomm.com/legal/. You and AT&T acknowledge and agree that ZOS shall be a third party beneficiary to this Agreement, and that, upon Your acceptance of this Agreement, ZOS will have the right to enforce this Agreement against You in its capacity as a third party beneficiary to the Agreement.