AT&T Music Store Terms and Conditions
The AT&T Music Store Terms and Conditions represent an agreement(“Agreement”) between You and AT&T Services, Inc. (hereinafter referred to as “AT&T” or “We” or “Us”) governing your use of the AT&T Music Store including all information, content, products, materials, and services made available to You on your wireless device by Us or third parties through the service (the “Service”). Please read this Agreement carefully prior to using the AT&T Music Store. By using or otherwise accessing the Service, You are consenting to become a party to this Agreement and agreeing to be bound by and comply with these Terms and Conditions. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD, INSTALL OR USE THE SERVICE.
THIS SERVICE IS NOT INTENDED FOR USE BY PERSONS UNDER THE AGE OF 13. IF YOU ARE UNDER 13 YEARS OLD, YOU MAY NOT USE THIS SERVICE 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 THESE TERMS AND CONDITIONS WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND THESE TERMS AND CONDITIONS.
BY DOWNLOADING, INSTALLING OR USING THE SERVICE, YOU AFFIRM 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.
IF YOU ARE AN AT&T WIRELESS SERVICE SUBSCRIBER, THIS AGREEMENT IS SUBJECT TO THE ARBITRATION CLAUSE OF YOUR APPLICABLE WIRELESS SERVICE AGREEMENT, AS AMENDED FROM TIME TO TIME. IF YOU ARE NOT AN AT&T WIRELESS SERVICE SUBSCRIBER, THIS AGREEMENT IS SUBJECT TO THE ARBITRATION PROVISIONS WHICH ARE INCLUDED IN SECTION 9 OF THIS AGREEMENT.
Your use of the Service 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 Service, (iv) Your applicable 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 Service ((i) through (vi) collectively being referred to as the “Related Agreements”). No Related Agreement, however, shall have the effect of limiting, encumbering or otherwise restricting AT&T’s rights and remedies or Your obligations under this Agreement, or waiving any restrictions on Your rights to use the Service. 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.
If AT&T makes any updates or upgrades to the Service available to You, such updates or upgrades shall be subject to this Agreement unless the Service is expressly provided to You under other, or additional terms and conditions, in which case, those other, or additional terms and conditions (which may include the payment of fees), shall apply. This Service may be downloaded and used only by wireless customers of AT&T.
1. THE SERVICE: The Service allows You to preview and purchase ringtones ringback tones, songs and albums. The Service also allows you to manage ringback tones via RBT Management. Standard data charges apply while downloading and using the Service. When We refer to the “use” of the Service in this Agreement, We mean any actual or attempted access or use of the Service, including, without limitation, any transmission, exchange of information or communication associated with the Service.
We may add, delete, or modify any of the aspects of our Service or any terms and conditions at any time in our sole discretion with or without notice to you. Your continued use of the Service following the effective date of any modifications will constitute Your binding acceptance of and agreement to be bound by any such changes. If any new products or services become available, they will be considered a part of the Service and Your use of them will be governed by the terms and conditions of this Agreement unless we notify You that different terms and conditions apply.
AT&T derives its rights to use the content available through the Service, including all software, design, logos, graphics, artwork, images, photographs, audio clips, video clips, and other material, including the selection and arrangements thereof, copyrights, trademarks, service marks, and trade names (“Content”) from artists, record labels, publishers, and other third parties for fixed periods of time. As well, AT&T is sometimes required to remove certain Content from the Service (or otherwise restrict access to such Content) for legal or commercial reasons. Therefore, certain content offered or advertised by AT&T may not be available when you try to access such Content.
All content sales are final. You bear all risk of loss after purchase and for any loss of Content you have downloaded.
2. LICENSE GRANT AND USE RESTRICTIONS.
2.1 License Grant. Subject to the restrictions set forth in Section 2.2, The Service may be used for your personal, non-commercial use only. The Service including any underlying software and Content available through the Service are the property of AT&T or its licensors and is protected by copyright and other intellectual property laws. AT&T hereby grants to you a limited personal, non-exclusive, non-transferable license to use the Service. AT&T reserves all rights not expressly granted hereunder. You shall promptly notify AT&T in writing upon Your discovery of any unauthorized use or infringement of the Service (or its Content) or AT&T's or any of its vendors' or licensors' patent, copyright, trade secret or other intellectual property rights.
2.2 Restrictions on Use. You shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the underlying software, even for research purposes; (b) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Service; (c) violate any applicable laws, rules or regulations in connection with Your access or use of the Service; (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 Service in a manner that derives revenue directly from such use, or use the Service for any other purpose for which it is not designed or intended; (f) use the Service 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; (g) use the Service to send automated queries to any website or to send any unsolicited commercial e-mail; (h) use any proprietary information or interfaces of AT&T or other intellectual property of AT&T in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Service; (i) circumvent, disable or tamper with any security-related components or other protective measures applicable to the Service or the Device or (j) reproduce, archive, retransmit, distribute, disseminate, sell, lease, rent, exchange, modify, broadcast, synchronize, publicly perform, publish, publicly display, make available to third parties, transfer or circulate the Service. 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 and obtaining available patches to address security, interoperability or performance issues. These obligations survive termination of this Agreement.
3.1 Rights to Service. You acknowledge and agree that the Service including any underlying software and content, any copies thereof (including without limitation any copy that You download, install, or use on Your Device), and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of AT&T or its collaborators, licensors, or suppliers. Furthermore, You acknowledge and agree that the source and object code of the Service and underlying software and the format, directories, queries, algorithms, structure and organization of the Service are the intellectual property and proprietary and confidential information of AT&T and its collaborators, licensors and suppliers. Title to the Service 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, the Service 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 Service by implication, estoppel or other legal theory, and all rights in and to the Service not expressly granted in this Agreement are hereby reserved and retained by AT&T. These obligations survive termination of this Agreement.
3.2 AT&T Marks. You acknowledge and agree that 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" (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.
3.3 Open Source Software. The Service may utilize or include third party software that is subject to open source license terms ("Open Source Software"). You acknowledge and agree that Your right to use such Open Source Software as part of the Service is subject to and governed by the terms and conditions of any applicable open source license, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein (collectively, the "Open Source License Terms"). 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.
4. NO RESPONSIBILITY FOR THIRD PARTY CONTENT AND SERVICES.
4.1 General. You acknowledge that the Service may permit access to products, services, websites, advertisements, promotions, recommendations, advice, information, and materials created and provided by advertisers, publishers, content collaborators, marketing agents, vendors and other third parties ("Third Party Content and Services").
4.2 Disclaimer. You acknowledge that AT&T does not investigate, monitor, represent or endorse the Third Party Content and Services (including any third party websites accessed through the Service). Furthermore, Your access to and use of the Third Party Content and Services is at Your sole discretion and risk, and AT&T 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.
4.3 Third Party Terms of Service. You acknowledge and agree that Your access to and use of the Third Party Content and Services and any correspondence or business dealings between You and any third party using the Service are governed by and require Your acceptance of the terms of service of such third party, including, without limitation, any terms, privacy policies, conditions, representations, warranties or disclaimers contained therein. You assume all risks arising out of or resulting from Your transaction of business over the Internet and with any third party, and You agree that AT&T and its collaborators, suppliers, and licensors are not responsible or liable for any loss or result of the presence of information about or links to such advertisers or service providers. Furthermore, You acknowledge and agree that this Agreement does not grant You any license to (i) the Third Party Content and Services; (ii) any products, services, processes or technology described in or offered by the Third Party Content and Services; or (iii) any copyright, trademark, patent or other intellectual property right in the Third Party Content or Services or any products, services, processes or technology described or offered therein. You agree that You will not use Third Party Content or Services in a manner that would infringe or violate the rights of any other party, and that AT&T and its collaborators, suppliers, and licensors are not in any way responsible for any such use by You.
4.4 Endorsements. You acknowledge and agree that the provision of access to any Third Party Content and Service shall not constitute or imply any endorsement by AT&T of such Third Party Content and Services. AT&T reserves the right to restrict or deny access to any Third Party Content and Services otherwise accessible through the Service, although AT&T has no obligation to restrict or deny access even if requested by You.
4.5 Inaccurate or 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 are incomplete or inaccurate; (ii) that You or others may deem offensive, indecent, or objectionable; (iii) which may or may not be identified as having explicit language, and (iv) that automatically and unintentionally appears in search results, as a link or reference to objectionable material. Notwithstanding the foregoing, You agree to use the Third Party Content and Services at Your sole risk and that AT&T and its collaborators, suppliers, and licensors shall have no liability to You for information, material or subject matter that is found to be incomplete, inaccurate, offensive, indecent, or objectionable.
5. 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, suspend or terminate this Agreement and the rights afforded to You hereunder with or without prior notice. Furthermore, if You fail to comply with any terms and conditions of this Agreement, then this Agreement and any rights afforded to You hereunder shall terminate automatically, without any notice or other action by AT&T. Upon the termination of this Agreement, You shall cease all use of the Service. AT&T may, without notice to You, discontinue the Service. 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.
6. DISCLAIMER OF WARRANTIES. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE, INCLUDING ALL CONTENT CONTAINED THEREIN, IS PROVIDED ON AN "AS IS' AND "AS AVAILABLE" BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE SERVICE AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. AT&T AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE SERVICE AND THIRD PARTY CONTENT AND SERVICES, WHETHER ORAL, EXPRESS, IMPLIED OR STATUTORY, AND WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE OF THE PARTIES, OR THE NATURE OR CONTEXT OF THIS LICENSE, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, AT&T AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICE OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE SERVICE OR THIRD PARTY CONTENT AND SERVICES WILL BE UNINTERRUPED, 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 SERVICE WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE SERVICE OR THIRD PARTY CONTENT AND SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM AT&T OR FROM THE SERVICE SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE THAT AT&T AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS HAVE NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE SERVICE. YOU ACKNOWLEDGE THAT THE SERVICE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIROMENTS WHERE THE PERFORMANCE OF, USE OR MISUSE OF, FAILURE OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY, THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY, OR ENVIRONMENTAL DAMAGE. AT&T AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE SERVICE WILL BE COMPATIBLE OR INTEROPERABLE WITH YOUR DEVICE OR ANY OTHER PIECE OF HARDWARE, SOFTWARE, EQUIPMENT OR DEVICE INSTALLED ON OR USED IN CONNECTION WITH YOUR DEVICE. FURTHERMORE, YOU ACKNOWLEDGE THAT COMPATIBILITY AND INTEROPERABILITY PROBLEMS CAN CAUSE THE PERFORMANCE OF YOUR DEVICE TO DIMINISH OR FAIL COMPLETELY, AND MAY RESULT IN PERMANENT DAMAGE TO YOUR DEVICE, LOSS OF THE DATA LOCATED ON YOUR DEVICE, AND CORRUPTION OF THE SOFTWARE AND FILES LOCATED ON YOUR DEVICE. YOU ACKNOWLEDGE AND AGREE THAT AT&T AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, SHALL HAVE NO LIABILITY TO YOU FOR ANY LOSSES SUFFERED, RESULTING FROM OR ARISING IN CONNECTION WITH COMPATIBILITY OR INTEROPERABILITY PROBLEMS. SHOULD THE SERVICE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE BURDEN OF ALL NECESSARY EXPENSES, SERVICING, REPAIR, OR CORRECTION. THESE OBLIGATIONS SURVIVE TERMINATION OF THIS LICENSE.
NOTWITHSTANDING AND WITHOUT WAIVING THE FOREGOING, THE TERMS AND CONDITIONS OF THE RELATED AGREEMENTS MAY PROVIDE LIMITED REMEDIES TO YOU.
7. LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT PROHIBITED BY LAW, UNDER NO CIRCUMSTANCES SHALL AT&T, ITS COLLABORATORS, SUPPLIERS OR LICENSORS, NOR THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE FOR accidents, property damage, personal injury, death, or FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SALE OR DISTRIBUTION OF, THE PERFORMANCE OR NON-PERFORMANCE, OR YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE AND ANY THIRD PARTY CONTENT AND SERVICES, 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 SERVICE, (ii) THE AGGREGATE AMOUNT YOU PAID TO AT&T FOR THE SERVICE DURING THE ONE MONTH PRECEDING THE DATE THAT THE CLAIM ARISES, OR (iii) TWO DOLLARS ($2.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THESE OBLIGATIONS SURVIVE TERMINATION OF THIS LICENSE.
8. INDEMNIFICATION. You shall indemnify, defend and hold harmless AT&T and its collaborators, suppliers and licensors, and their officers, directors, agents and employees (the “Indemnified Parties”) from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of or in connection with the following: (i) Your access to or use of the Service 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 Service. These obligations survive termination of this Agreement.
9. DISPUTE RESOLUTION BY BINDING ARBITRATION
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
IF YOU ARE AN AT&T WIRELESS SERVICE SUBSCRIBER, THIS AGREEMENT IS SUBJECT TO THE ARBITRATION PROVISIONS OF YOUR APPLICABLE WIRELESS SERVICE AGREEMENT, AS AMENDED FROM TIME TO TIME. IF YOU ARE NOT AN AT&T WIRELESS SERVICE SUBSCRIBER, THIS AGREEMENT IS SUBJECT TO THE ARBITRATION PROVISIONS WHICH ARE INCLUDED IN THIS SECTION 9.
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.
9.1 Arbitration Agreement.
9.1.1 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 Agreement 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.
For purposes of this Section 9.1 only, references to “AT&T,” “You,” “Your” 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 this Service, or of services or devices under this Agreement 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.
9.1.2 .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 http://www.att.com/arbitration-forms.
9.1.3 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 Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "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 www.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 http://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.
9.1.4 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.
9.1.5 The right to attorneys' fees and expenses discussed in paragraph 9.1.4 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.
9.1.6 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.
9.1.7 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.
10. MISCELLANEOUS. The following provisions survive termination of this Agreement:
10.1 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 the Service or Your use of the Service must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. This Section 10.1 is not intended to and does not alter any provisions of Your applicable wireless service agreement.
10.2 Contact Information. In the event that You have a question, complaint or claim regarding Your use of the Service, please call AT&T Customer Service by dialing 611 from Your Device if you are an AT&T Wireless service subscriber or 1-800-331-0500 or visit att.com/db.
10.3 Severability. If any provision of this Agreement is held to be invalid or unenforceable with respect to a party, 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 each remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
10.4 Waiver. 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.
10.5 Jurisdictional Issues, Export Control. This Service is intended for use within the United States of America. AT&T makes no representation that this Service is appropriate or available for use in other locations. If You choose to access or use the Service from other locations, You do so on Your own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions in which the Service, in whole or in part, is illegal or penalized is prohibited. You may not use or otherwise export or re-export the Service except as authorized by United States law and the laws of the jurisdiction(s) in which the Service was obtained. You represent and warrant that You are not (a) located in any country that is 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 also agree that You will not use the Service for any purposes prohibited by United States law.
10.6 U.S. Government Restricted Rights. The Service was developed at private expense and is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraphs (a) through (d) of the Commercial Computer Software – Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS and in similar clauses in the NASA FAR Supplement, and their successors, and all other Federal laws and regulations that protect Licensor rights in privately developed commercial software.
10.7 Performance or Benchmark Testing. You may not disclose the results of any benchmark test using the Service to any third party without AT&T's prior written approval.
10.8 Modification or Amendment. AT&T may modify or amend the terms of this Agreement at any time, with or without notice to You, by posting a copy of the modified or amended Agreement available through the Service or at http://www.att.com/musicstoreterms. You will be deemed to have agreed to any such modification or amendment by Your decision to continue using the Service following the date in which the modified or amended Agreement is made available through the Service or the referenced website.
10.9 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.
10.10 Third Party Beneficiaries. Except as explicitly provided in this Agreement or in the Related 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.
10.11 No Transfer by You. You may not rent, lease, lend, sublicense, assign or transfer the Service, 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. These obligations survive termination of this Agreement. AT&T may assign this Agreement without restriction.
10.12 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 Service in a way that constitutes copyright infringement, please submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing AT&T's Copyright Agent the following written information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that You claim has been infringed upon;
- A specific description of where the material that You claim is infringing is located on the Sites;
- Your address, telephone number, and e-mail address;
- A statement by You that You have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner's behalf.
AT&T's Copyright Agent for notice of claims of copyright infringement on the Sites 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/legal/copyright.
10.13 Entire Agreement. This Agreement including the documents incorporated herein by reference constitute the entire agreement with respect to the use of the Service licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter.