Terms and Conditions for the
AT&T MOBILE TRANSFER APP™
Powered by Asurion®
AT&T MOBILE TRANSFER APP™
Powered by Asurion®
PLEASE READ THIS AGREEMENT CAREFULLY AND COMPLETELY BEFORE CLICKING "ACCEPT" AND USING THE AT&T MOBILE TRANSFER APP("MTA"). THIS AGREEMENT LIMITS THE LIABILITY OF ASURION MOBILE APPLICATIONS ("ASURION") AND AT&T MOBILITY, LLC ("AT&T") AND CONTAINS A BINDING ARBITRATION PROVISION IN SECTION 23 THAT GOVERNS DISPUTES BETWEEN YOU AND ASURION. DISPUTES BETWEEN YOU AND AT&T ARE GOVERNED BY THE ARBITRATION CLAUSE OF YOUR APPLICABLE AT&T WIRELESS SERVICE AGREEMENT, AS AMENDED FROM TIME TO TIME. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE MTA.
THE MTA IS NOT INTENDED FOR USE BY PERSONS UNDER THE AGE OF 13. IF YOU ARE UNDER 13 YEARS OLD, YOU MAY NOT USE THE MTA OR PROVIDE US 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.
BY CLICKING THE "ACCEPT" BUTTON OR USING THE MTA, YOU ALSO ARE AFFIRMING THAT YOU ARE EITHER OVER THE AGE OF MAJORITY IN YOUR JURISDICTION OF RESIDENCE, OR ARE AN EMANCIPATED MINOR, OR POSSESS LEGAL PARENTAL OR GUARDIAN CONSENT, AND THAT YOU ARE FULLY ABLE AND COMPETENT TO ENTER INTO THE TERMS, CONDITIONS, OBLIGATIONS, AFFIRMATIONS, REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT AND IN THE RELATED AGREEMENTS, AND TO ABIDE BY AND COMPLY WITH THIS AGREEMENT AND THE RELATED AGREEMENTS.
A COMPLETE COPY OF THE CURRENT VERSION OF THIS AGREEMENT MAY BE ACCESSED BY VISITING WWW.ATT.COM/MOBILETRANSFER AT ANY TIME.
1. General. The MTA is licensed, not sold, to You by Asurion for use strictly in accordance with the terms and conditions of this Agreement. The MTA may be downloaded and used only by wireless customers of AT&T. The MTA may be used only with certain, compatible phones, and a list of those compatible phones is located at www.att.com/mobiletransfer. The MTA allows You to transfer contacts, pictures and video ("Your Data") from one compatible phone owned and controlled by You to another compatible phone owned and controlled by You (each a "Device"). You should complete the transfer of Your Data within seven (7) days. Any of Your Data that is not transferred will be deleted and not recoverable. You can transfer a total of 2GB of Your Data using the MTA, and Your contacts are not counted towards that total. Any data that you transfer using the MTA must be data that You own or that You generated. You are responsible for obtaining the equipment or services required to access and use the MTA and for paying any fees or charges related to the access and use of the MTA. It is recommended that You use a WiFi connection when using the MTA. For the purpose of this Agreement, references to "We", "Us" and "Our" include Asurion and AT&T and their respective parents, subsidiaries, affiliates, agents, employees, successors and assigns.
2. License Grant. Subject to Your ongoing compliance with this Agreement, Asurion hereby grants You a personal, revocable, non-transferable, non-exclusive limited right to install the MTA only on Your Device and to access and use the MTA in the United States on Your Device.
3. Related Agreements. Your use of the MTA also may be governed by terms and conditions required by (i) any applicable third party content and service providers, (ii) the manufacturer and other providers of Your Device and its hardware and software components, including its operating system, (iii) the online store or other applicable distributor through which You obtain the MTA, including without limitation those listed in the "Third Party Terms" section of this Agreement, (iv) Your applicable AT&T wireless service agreement, (v) any applicable open source or third party software license, and (vi) the terms or conditions governing Your personal accounts for web content services You access through the MTA (subparagraphs (i) through (vi) collectively, the "Related Agreements"). No Related Agreements, however, shall have the effect of limiting, encumbering or otherwise restricting Our rights and remedies or Your obligations under this Agreement, or waiving any restrictions on Your rights to use the MTA under this Agreement. This Agreement shall not have the effect of limiting, encumbering or otherwise restricting AT&T's rights and remedies or Your obligations under any Related Agreement between You and AT&T, or waiving any restrictions on Your rights under any Related Agreement between you and AT&T.
4. Registration Obligations. In consideration of Your access to and use of the MTA, You agree and represent that You are not a person barred from receiving the MTA under the laws of the United States or other applicable jurisdiction. In order to access and use the MTA, You are required to provide Your mobile phone number, and You may be required to verify such information, as part of Your continued access to and use of the MTA. You agree to: (a) provide true, accurate, current and complete information as prompted by the MTA; and (b) maintain and promptly update the information to keep it true, accurate, current and complete. If You provide any information that is untrue, inaccurate, non-current or incomplete, or We have reasonable grounds to suspect that such information is untrue, inaccurate, non-current or incomplete, We have the right to suspend or terminate Your use of the MTA.
5. Password. In order to access and use the MTA, You are required to create a password, and You are solely responsible for keeping Your password confidential. Anyone with knowledge of or access to Your password can use that information to access or use the MTA. You are solely liable for any claims, damages, losses, costs or other liabilities resulting from or caused by any failure to keep Your password confidential, whether such failure occurs with or without Your knowledge or consent. You will immediately notify Us of any suspected or actual unauthorized access to or use of Your password or the MTA. You are also solely responsible for remembering Your password, since We cannot provide You with a lost or forgotten password. If You use an incorrect password six (6) times when attempting to access the MTA, You will be locked out of the MTA and will not be able to access the MTA for the next 24 hours.
6. Provision of the MTA. You acknowledge and agree that We may provide the MTA through one or more subsidiaries, affiliates or third parties.
7. Restrictions on Use. You shall use the MTA strictly in accordance with this Agreement and shall not directly or through a third party: (i) attempt to decompile, reverse engineer, disassemble, derive the source code of or decrypt the MTA; (ii) make any modification, adaptation, improvement, enhancement, translation or derivative work from the MTA; (iii) violate any applicable laws, rules or regulations in connection with Your access to or use of the MTA; (iv) rent, lease, sell, redistribute or sublicense the MTA or any aspect thereof; (v) remove, obscure, or alter any proprietary notices (including any notice of copyright or trademark) of Asurion or AT&T or their respective affiliates, partners, suppliers or the licensors of the MTA ("Providers"); (vi) install, use or permit the MTA to exist on more than one Device at a time; (vii) distribute the MTA to multiple Devices; (viii) make the MTA available over a network or other environment permitting access or use by multiple Devices or users at the same time; (ix) use any of Our proprietary information, interfaces or other intellectual property in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the MTA; (x) use any part of the MTA while operating heavy machinery or engaging in any activity where insufficient attention on your part could result in personal injury, death or property damage; (xi) misuse the MTA including, without limitation, using the MTA in any manner that: (a) interferes with or interrupts the MTA or any hardware, software, system or network connected with the MTA; (b) infringes copyright, trademark or any intellectual property rights or discloses a trade secret or confidential information in violation of a confidentiality or non-disclosure agreement; (c) stalks, harasses, threatens or harms any person or is otherwise invasive of another's privacy rights; (d) is fraudulent or unlawful or contains defamatory or illegal information, images, materials or descriptions; (e) promotes or provides instructions for illegal activities; (f) encourages any conduct that would constitute a criminal offense or that gives rise to civil liability; (g) uses the MTA on a Device without permission; (h) tampers with or makes an unauthorized connection to the network of any wireless service provider; (i) involves reselling any part of the MTA to any other individual or entity; or (j) disseminates viruses or other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware.
8. Collection, Storage and Use of Information.
b. Failure In Functionality. You acknowledge and agree that We shall not be responsible for any failure in the functionality of the MTA caused by or resulting from uninstalling the MTA or disabling the MTA, whether uninstalled or disabled by You or a third party, with or without Your consent.
9. Limitations of the MTA. You acknowledge and agree that the MTA is intended for Your personal use only. Certain limitations may prevent the MTA from working on Your Device. For the MTA to function, Your Device must, among other things, be turned on and charged. We hereby disclaim any representation, warranty or guarantee, whether express or implied, as to the accuracy, completeness or correctness of the results of the MTA. The function of the MTA is subject to uncontrollable factors associated with wireless networks, such as environmental and atmospheric conditions, buildings and geography. When you access or use the MTA, the battery life of Your Device may diminish more quickly.
10. Compatibility. We do not warrant that the MTA will be compatible or interoperable with Your Device any piece of hardware, software, equipment or device installed or Your Device or used by You to access and use the MTA in connection with Your Device ("Accessories"). Furthermore, You acknowledge that compatibility and interoperability problems can cause the performance of the MTA, Your Device and any Accessories to diminish or fail completely and may result in permanent the damage to Your Device and any Accessories, loss of data located on Your Device or Accessories, and corruption of software and files located on Your Device and any Accessories. You acknowledge and agree that We and Our Providers shall have no liability to You for any losses suffered resulting from or arising in connection with compatibility or interoperability problems.
11. Product Claims. You acknowledge that You are responsible for addressing any third party claims relating to Your access to or use of the MTA, and agree to notify Us of any third party claims relating to the MTA of which You become aware. Furthermore, You hereby release Us and Our Providers from any liability resulting from Your access or use of the MTA, including, without limitation, the following: (i) any product liability claims; (ii) any claim that the MTA fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation.
12. Safe and Lawful Use of the MTA. When using the MTA, You shall: (i) observe all traffic laws and otherwise drive safely; (ii) use Your own personal judgment while driving a vehicle, operating any machinery, or otherwise engaging any activity that poses a risk to the health or safety of you or any other persons; (iii) not interact with the MTA unless You are in a safe, secure and stationary environment (e.g., a parked vehicle); (iv) not use the MTA for any illegal, unauthorized, unintended, unsafe, hazardous, or unlawful purposes or in any manner inconsistent with this Agreement; and (v) arrange all wireless devices and cables necessary for use of the MTA in a secure manner in Your vehicle so that they will not interfere with Your driving and will not prevent the operation of any safety device (e.g., an airbag).
13. Third Party Content and Services.
a. General. You acknowledge that the MTA permits access to products, services, web-sites, advertisements, promotions, recommendations, advice, information, and materials created and provided by advertisers, publishers, content partners, marketing agents, vendors and other third parties ("Third Party Content and Services").
b. Disclaimer. You acknowledge that We do not investigate, monitor, represent or endorse the Third Party Content and Services available through the MTA. Furthermore, Your access to and use of the Third Party Content and Services is at Your sole discretion and risk, and We and Our Providers shall have no liability to You arising out of or in connection with Your access to and use of the Third Party Content and Services. We hereby disclaim any representation, warranty or guaranty regarding the Third Party Content and Services, whether express, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and any representation, warranty or guaranty regarding the availability, quality, reliability, features, appropriates, accuracy, completeness, or legality of the Third Party Content and Services.
d. Endorsements. You acknowledge and agree that the provision of access to and the listing of any Third Party Content and Service including, without limitation any third party websites, business listings, data, end-user content (including suggestions, comments and recommendations) available through the MTA shall not constitute or imply any endorsement by Us or Our Providers of such Third Party Content and Services. We reserve the right to restrict or deny access to any Third Party Content and Services otherwise accessible through the MTA, although We have no obligation to restrict or deny access even if requested by You.
e. Inappropriate Materials. You understand that by accessing and using the Third Party Content and Services, You may encounter information, materials and subject matter (i) that You or others may deem offensive, indecent, or objectionable; or (ii) which may or may not be identified as having explicit language. Notwithstanding the foregoing, You agree to use the Third Party Content and Services at Your sole risk and that We and Our Providers shall have no liability to You for information, material or subject matter that is found to be offensive, indecent, or objectionable.
f. Use of Third Party Content and Services. You agree that the Third Party Content and Services contain proprietary information and material that is owned by Us and Our Providers and is protected by applicable intellectual property and other laws, including, without limitation, pursuant to copyright, and that You will not use such proprietary information or materials in any way whatsoever except for permitted use of the Third Party Content and Services. No portion of the Third Party Content and Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Third Party Content and Services, in any manner, and You shall not exploit the Third Party Content and Services in any unauthorized way whatsoever, including, without limitation, by trespass or burdening network capacity. You agree that You will not use any Third Party Content and Services in a manner that would infringe or violate the rights of any other party, and that We are not in any way responsible for any such use by You.
14. Security of the MTA. The MTA is intended for Your personal use only. You understand that the MTA may be disabled or uninstalled from Your Device at any time. You further understand and acknowledge that the MTA may not function properly, may contain errors or bugs and is susceptible to breach, corruption or failure. If the MTA malfunctions or fails or is disabled or uninstalled from Your Device, with or without Your knowledge or consent, the MTA will not operate. You are solely responsible for any claims, liability, losses or damages arising out of the unauthorized disclosure, transfer or use of any personal content, data or materials stored on Your Device for any reason, even if occurring as a result of a failure in the MTA or from disabling or uninstalling the MTA, with or without Your knowledge or consent.
15. Data Restrictions. The MTA allows You to transfer Your Data. You grant Us the right to copy, transfer, store and use an archival copy of Your Data on data storage systems operated by or for Us ("Our Storage Systems"). You agree that You will use the MTA solely for the purpose of transferring Your Data to Our Storage Systems and You will not attempt to (i) transfer any other data or content that You do not have a legal right to transfer; or (ii) transfer any other data or content in a manner that infringes any copyrights or other intellectual property rights of any third party or misappropriates any proprietary or confidential information of any third party. You agree that We, in Our sole discretion, may disable Your access to Your Data or delete Your Data from Our Storage Systems if We have received written notification of claimed infringement or misappropriation or otherwise has a reasonable belief that any part of Your Data (i) constitutes an infringement, misappropriation or violation of any third party intellectual property right; (ii) could damage, harm or tarnish Our reputations; or (iii) could cause Us to be liable to any third party, including any governmental entity. You acknowledge and agree that We may access, preserve and disclose Your Data to anyone, if it is required to do so by law or as necessary to: (i) comply with the orders or instruction of any government, governmental authority, court or tribunal; (ii) enforce the terms of this Agreement; (iii) respond to claims that Your Data violates the rights of any third party; (iv) respond to Your requests for customer service; or (v) protect the rights, property or personal safety of Us, Our licensees, end users or members of the public. Notwithstanding the foregoing, to the maximum extent permitted by applicable law, We hereby disclaim any duty or obligation, stated or implied, to monitor or review any aspect of Your Data. We have no responsibility or liability for any loss or destruction of Your Data or any failure to store or to provide access to Your Data through the MTA and may change the size and form of data that You can transfer, the number of days that Your Data may be stored and the number times Your Data may be accessed or transferred.
16. Data Deletion. We will automatically delete all of Your Data that is transferred to Our Storage Systems after fourteen (14) days. If Your Data is deleted by Us, it cannot be recovered. To avoid the permanent loss of You Data, You should not delete Your Data from Your old Device until the transfer of Your Data to Your new Device has been completed successfully.
17. Payment. DATA AND MESSAGING CHARGES MAY APPLY. You agree to pay all fees for the MTA that may be charged by Us and any associated data usage charges regardless of whether You have electronically downloaded, installed or used MTA. MTA may utilize SMS messaging as part of its functionality. You acknowledge that We may charge additional fees for SMS services, that any such additional fees charged by Us are solely Your responsibility and that Your failure to pay such additional fees may result in Your ability to use the MTA being disabled until such fees have been paid. Additional payment terms are contained in Your AT&T wireless service agreement. We shall not be liable for any liabilities, losses or damages resulting from any failure in the functionality of the MTA caused by or resulting from Your failure to pay any amounts when due. We reserve the right to change the applicable fees, if any, for the MTA or the related service package at any time and will take reasonable efforts to provide You with prior notice of any such change.
18. Intellectual Property Rights.
a. Proprietary Rights in the MTA. You acknowledge and agree that (i) all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated with the MTA are, and shall remain, the property of Asurion or AT&T, as applicable, or Our respective Providers, as applicable; (ii) the MTA, the source and object code of the MTA and the format, directories, queries, algorithms, structure, design, organization, processes, methods and functionality of the MTA are and shall remain the sole property and confidential information of Asurion or its Providers, as applicable; (iii) except for the limited license granted hereunder, You are not granted any right, title, interest in or to, whether by implication, estoppel or other legal theory, the MTA or any software or intellectual property provided through or in conjunction with the MTA; and (iv) all rights not expressly granted in this Agreement are hereby reserved and retained by Us.
b. Third Party Software. The MTA may utilize or include third party software that is subject to open source and third party license terms ("Third Party Software"). You acknowledge and agree that Your right to use such Third Party Software as part of the MTA is subject to and governed by this Agreement and conditions of the open source or third party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between this Agreement and the terms of such open source or third party licenses, the terms of the open source or third party licenses shall control with regard to Your use of the relevant Third Party Software. In no event, shall the MTA or components thereof be deemed to be "open source" or "publically available" software.
c. Marks. You acknowledge and agree that the following company names and logos and all related product and service names, design marks and slogans are trademarks and service marks owned by and used under license from Asurion and AT&T respectively: "Asurion" (the "Asurion Marks") and "AT&T" (the "AT&T Marks"). You are not authorized to use the Asurion Marks or the AT&T Marks in any advertising, publicity or in any other commercial manner without the prior written consent of Asurion or AT&T, which may be withheld for any or no reason.
d. Infringement Acknowledgement. You acknowledge and agree that, in the event of a third party claim that the MTA or Your possession or use of the MTA infringes the intellectual property rights or misappropriates the proprietary information of any third party, You shall be responsible for the investigation, defense, settlement, and discharge of any such claim.
e. Restriction on Transfer. You may not rent, lease, lend, sublicense or transfer the MTA, this Agreement, or any of the rights granted hereunder. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect.
f. Copyright Infringement Notification. We have a policy of removing data or content that violates applicable copyright law. Pursuant to Section 512 of Title 17 of the United States Code, Asurion has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with the law. To file a copyright infringement notification with us, You will need to send a written communication to Asurion's Designated Agent, listed below, containing substantially the following information or such other information as may be required by Section 512(c)(3) of the Copyright Act: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material; (iv) information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (v) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Please direct any such notice to Asurion Mobile Applications, Inc. (Attention: General Manager), 1400 Fashion Island Boulevard, Suite 450, San Mateo, CA 94404, or contact by phone or e-mail at (650) 581-2777 or DMCAnotification@asurion.com. The foregoing contact information is for use solely with notice of copyright infringement and You may not receive a response to any other communications, feedback, comments or requests for technical support delivered to the foregoing address or e-mail.
19. Suspension and Termination. This Agreement, including the rights and licenses granted herein, is effective until terminated. You may terminate the MTA at any time by uninstalling the MTA. Without prejudice to any other rights, We reserve the right to suspend and/or terminate Your access to the MTA at any time for any or no reason and without notice to You. Upon any termination for any reason, We shall have no liability to You and no further obligations under this Agreement.
20. DISCLAIMER OF WARRANTIES. YOU ACKNOWLEDGE AND AGREE THAT THE MTA IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE MTA AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY ARE AT YOUR SOLE RISK AND DISCRETION. WE AND OUR PROVIDERS HEREBY DISCLAIM ANY AND ALL REPRSENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE MTA AND THIRD PARTY CONTENT AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, WE AND OUR AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE MTA OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE MTA OR THIRD PARTY CONTENT AND SERVICES WILL BE AVAILABLE, TIMELY, CURRENT, ACCURATE, RELIABLE, COMPLETE, SECURE OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE MTA WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE MTA OR THIRD PARTY CONENT AND SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR FROM THE MTA SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE AND AGREE THAT WE HAVE NO OBLIGATION TO SUPPORT OR MAINTAIN THE MTA. YOU ACKNOWLEDGE AND AGREE THAT WE MIGHT NOT BE ABLE TO OFFER THE MTA AT ALL, IN THE ABSENCE OF THE FOREGOING DISCLAIMERS AND LIMITATIONS. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
IN THE EVENT OF ANY FAILURE OF THE MTA TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY US AND WE WILL, AS YOUR SOLE AND EXCLUSIVE REMEDY, REFUND TO YOU THE PURCHASE PRICE PAID, IF ANY, FOR THE MTA. WE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE MTA, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY WILL BE YOUR SOLE RESPONSIBILITY. THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
21. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL WE OR OUR PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE MTA AND ANY THIRD PARTY CONTENT AND SERVICES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR REVENUES, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, LOSS, MISUSE OR DISCLOSURE OF CONFIDENTIAL INFORMATION, BUSINESS INTERRUPTION, LOSS OF PRIVACY, CORRUPTION OR LOSS OF DATA, FAILURE TO RECEIVE OR BACKUP YOUR DATA (OR ARCHIVED DATA) OR ANY OTHER PECUNIARY LOSS WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE MTA, ANY THIRD PARTY CONTENT AND SERVICES, OR THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OUR AGGREGATE LIABILITY TO YOU (WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, STATUTE OR OTHER THEORY OF LIABILITY) SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID TO US BY YOU FOR THE MTA, IF ANY. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
22. Indemnification. You agree to indemnify, defend and hold harmless Us, Our Providers, and each of their respective officers, directors, employees, agents, contractors, suppliers, successors and assigns (the "Indemnified Parties") from and against any claim, proceeding, loss, damage, liability, fine, penalty, interest, cost or expense (including, but not limited to, reasonable fees of attorneys and other professional advisors and related expenses) of any kind arising out of or in connection with the following: (i) Your access to or use of the MTA or any 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 including, without limitation (a) any infringement of any intellectual property, (b) any misappropriation of any proprietary or confidential information or trade secret of any person or entity, or (c) violation of any privacy or consumer protection right that is implicated herein. We reserve the right, at Your expense, to assume the exclusive defense and control of any matter which You are required to indemnify against, and You agree to cooperate in Our defense of such matter. This obligation shall survive any termination of this Agreement.
23. Arbitration Agreement. You acknowledge and agree that You have carefully reviewed the following Arbitration Agreement, understand the impact of this Arbitration Agreement on Your rights (including the waiver of Your right to require trial by jury or to participate in a class action proceeding), and agree to be bound by the terms of this Arbitration Agreement. For the purpose of this Arbitration Agreement only, references to "We", "Us" and "Our" include Asurion and its parents, subsidiaries, affiliates, agents, employees, successors and assigns.
a. Most of Your concerns about this Agreement or the MTA can be addressed simply by contacting Us at 1-866-862-3397. In the unlikely event We cannot resolve any disputes, including any claims under this Agreement, that You or We may have, YOU AND WE AGREE TO RESOLVE THOSE DISPUTES THROUGH BINDING ARBITRATION OR SMALL CLAIMS COURT INSTEAD OF THROUGH COURTS OF GENERAL JURISDICTION. YOU AND WE AGREE THAT ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS ONLY. YOU AND WE AGREE TO WAIVE OUR RIGHTS TO A TRIAL BY JURY AND TO PARTICIPATE IN CLASS ARBITRATIONS AND CLASS ACTIONS. EACH PARTY TO THIS AGREEMENT WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, MATTER OR PROCEEDING REGARDING THIS AGREEMENT OR ANY PROVISION HEREOF. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury. It has more limited discovery than in court and is subject to limited review by courts. Arbitrators can award the same damages and relief that a court can award but any damages awarded in connection with a claim arising under or in connection with this Agreement shall be subject to the limitations on types and amounts of damages set forth in Sections 19 and 20, above.
b. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. This Arbitration Agreement shall survive the termination of this Agreement.
c. This Arbitration Agreement is intended to be interpreted broadly, and it includes any dispute: (1) arising out of or relating in any way to the MTA or to the relationship between You and Us, whether based in contract, tort, statute, fraud, misrepresentation or otherwise; (2) that arose either before this Arbitration Agreement or this Agreement was entered into by You and Us or that arises after this Arbitration Agreement or this Agreement is terminated; and (3) that currently is the subject of a purported class action litigation in which You are not a member of a certified class. Notwithstanding the foregoing, this Arbitration Agreement does not preclude You from bringing an individual action in small claims court or from informing any federal, state or local agencies or entities of Your dispute. Such agencies or entities may be able to seek relief on Your behalf.
d. If You or We intend to seek arbitration You and We must first send to the other a written Notice of Claim ("Notice") by certified mail. Your Notice to Us should be addressed to: Asurion Legal Department, P.O. Box 110656, Nashville, TN 37122-0656. The Notice must describe the dispute and state the specific relief sought. If You and We do not resolve the dispute within 30 days of receipt of the Notice, You or We may initiate an arbitration proceeding with the American Arbitration Association ("AAA"). You can obtain the forms necessary to initiate an arbitration proceeding by visiting www.adr.org or by calling 1-800-778-7879. After We receive notice that You have commenced arbitration, We will reimburse You for payment of any filing fee to the AAA. If You are unable to pay a required filing fee, We will pay it if You send a written request by certified mail to: Asurion Legal Department, P.O. Box 110656, Nashville, TN 37122-0656. The arbitration shall be administered by the AAA in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "Arbitration Rules") in effect at the time the arbitration is initiated and as modified by this Arbitration Agreement. You can obtain a copy of the Arbitration Rules by visiting www.adr.org or by calling 1-800-778-7879.
e. The arbitrator appointed by the AAA to decide the dispute is bound by the terms of this Arbitration Agreement. All issues are for the arbitrator to decide, including the scope of this Arbitration Agreement, with the exception that issues relating to the enforceability of this Arbitration Agreement may be decided by a court. Unless You and We agree otherwise, any arbitration hearings will take place in the county or parish where Your billing address is located, according to Our records, but not outside the United States of America. If Your dispute is for $10,000 or less, You may choose to conduct the arbitration hearings either by submitting documents to the arbitrator or by appearing before the arbitrator in person or by telephone. If Your dispute is for more than $10,000, the right to arbitration hearings will be determined by the Arbitration Rules. We will pay all filing, administration and arbitrator fees for any arbitration initiated pursuant to this Arbitration Agreement, unless Your dispute is found by the arbitrator to have been frivolous or brought for an improper purpose under Federal Rule of Civil Procedure 11(b). In that case, the payment of such fees shall be governed by the Arbitration Rules.
f. At the conclusion of the arbitration hearings, the arbitrator shall issue a written decision which includes an explanation of the facts and law upon which the decision is based. If the arbitrator finds in Your favor and issues a damages award that is greater than the value of the last settlement offer made by Us or if We made no settlement offer and the arbitrator awards You any damages, We will: (1) pay You the amount of the damages award or $7,500, whichever is greater; and (2) pay Your attorney, if any, twice the amount of the attorney's fees and the actual amount of any expenses reasonably incurred when pursuing Your dispute in arbitration. You and We agree not to disclose any settlement offers to the arbitrator until after the arbitrator has issued the written decision. The arbitrator may resolve any disputes regarding attorney's fees and expenses either during the arbitration hearings or, upon request, within 14 days of the arbitrator's written decision. While the right to the attorney's fees and expenses discussed above is in addition to any right You may have under applicable law, neither You nor Your attorney may recover duplicate awards of attorney's fees and expenses. Although We may have the right under applicable law to recover attorney's fees and expenses from You if We prevail in the arbitration, We hereby waive the right to do so.
g. To the extent either declaratory or injunctive relief is sought in the arbitration, such relief can be awarded only to the extent necessary to provide the relief warranted by a party's individual claim. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Unless You and We agree otherwise, the arbitrator may not consolidate the dispute of another person with Your or Our dispute and may not preside over any form of a representative or class proceeding. If this specific provision of this Arbitration Agreement is found to be unenforceable, then the entirety of this Arbitration Agreement shall be null and void.
24. No Right of Survivorship. You agree that Your right to use the MTA is non-transferable and that any rights to Your Data terminate upon Your death.
25. Notices. By using the MTA, You consent to receive all communications, notices and disclosures in connection with the MTA in SMS or electronic form. You understand and agree that the MTA may send certain communications from Us (e.g., service announcements, administrative messages and other information and alerts), and that these communications are considered part of the MTA, and You will not be able to opt out of receiving them.
a. Governing Law. 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. You and We agree that any cause of action arising out of or relating to the MTA or Your use of the MTA must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. This Section 25 is not intended to and does not alter any provisions of Your applicable AT&T wireless service agreement.
b. Contact Information. Please direct any questions, complaints or claims related to this Agreement or Your use of the MTA to the following: 1-800-331-0500.
c. Severability. If it shall be determined by a court order not subject to appeal or discretionary review that any provision or wording of this Agreement shall be invalid or unenforceable under applicable law, then the remainder of this Agreement, or the application of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and such invalidity or unenforceability shall be construed or modified so as to limit any term or provision so as to make it enforceable or valid within the requirements of applicable law, and, if such term or provision cannot be so limited, this Agreement shall be construed to omit such invalid or unenforceable provision.
d. Waiver. Except as provided herein, the failure to exercise a right or require performance of an obligation under this Agreement shall not effect 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.
e. Assignment. You shall not assign this Agreement or any rights or obligations herein without Our prior written consent and any attempted assignment in contravention of this provision shall be null and void and of no force or effect.
f. Export Control. You may not use or otherwise export or re-export the MTA, except as authorized by United States law and the laws of the jurisdiction in which the MTA was obtained. You agree (i) to comply with the requirements of the U.S. Department of Commerce ("DOC") Export Administration Regulations, the U.S. International Traffic in Arms Regulations, applicable U.S. sanctions and embargoes administered by the U.S. Department of Treasury, and all applicable international, national, state and local laws, and regulations, including without limitation any applicable import and use restrictions, to the extent that any of the foregoing apply to You; (ii) not to download or otherwise export, or re-export the MTA into U.S. embargoed countries or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the DOC's Denied Person's List or Entity List and that by using the MTA, you represent and warrant that you are not located in any such country or on any such list; and (iii) not to license, sell, provide or distribute the MTA for use in connection with chemical, biological, or nuclear weapons or missiles capable of delivering such weapons. Diversion of the MTA contrary to applicable law is prohibited.
g. Modification or Amendment. We may modify or amend the terms of this Agreement by posting a copy of the modified or amended License on www.att.com/mobiletransfer. You will be deemed to have agreed to any such modification or amendment by Your decision to continue using the MTA following the date in which the modified or amended Agreement is posted. If We make any updates or upgrades to the MTA available to You, such updates or upgrades shall be subject to this Agreement unless the updates or upgrades are expressly provided to You under other, or additional, terms and conditions.
h. Survival. 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.
i. Third Party Beneficiaries. Except as otherwise provided, 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. You acknowledge and agree that We are parties to this Agreement and that, upon Your acceptance of the terms and conditions of this Agreement, We will have the right to enforce this Agreement against You.
j. Entire Agreement. This Agreement, including the documents incorporated herein by reference, constitutes the entire agreement with respect to the use of the MTA and supersedes all prior or contemporaneous understandings regarding such subject matter.
The following THIRD PARTY TERMS are incorporated herein and made part of this Agreement:
APPLE: Additional provisions and Usage Rules required by Apple, Inc. ("Apple") may be found at http://www.apple.com/legal/itunes/appstore/us/terms.html. If Your Device is manufactured by Apple or if You obtain the MTA through iTunes, You and We acknowledge and agree that Apple and its subsidiaries are third party beneficiaries to this Agreement, and that, upon Your acceptance of this Agreement, Apple will have the right to enforce this Agreement against You in its capacity as a third party beneficiary to this Agreement. APPLE SHALL HAVE NO RESPONSIBILITY FOR ANY CLAIMS MADE BY YOU OR ANY THIRD PARTY RELATED TO THE MTA OR YOUR USE OR POSSESSION OF THE MTA, INCLUDING, BUT NOT LIMITED TO (i) PRODUCT LIABILITY CLAIMS, (ii) ANY CLAIM THAT THE MTA 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 MTA TO CONFORM TO ANY WARRANTY, EXPRESS OR IMPLIED. IF YOU HAVE PAID ANY FEE TO APPLE FOR USE OF THE MTA, IN THE EVENT OF ANY FAILURE OF THE MTA TO 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 MTA. APPLE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE MTA.
RIM: If Your Device is manufactured by Research In Motion Ltd. ("RIM") or if You obtain the downloadable MTA through the BlackBerry App World, You acknowledge and agree that RIM and any merchant of record ("MoR") that made this MTA available to You within the BlackBerry App World are third party beneficiaries to this Agreement, and that, upon Your acceptance of this Agreement, both RIM and any MoR will have the right to enforce this Agreement against You in its capacity as a third party beneficiary to this Agreement.