AT&T Mobile Backup Terms and Conditions
Below are the subscriber terms and conditions ("Agreement") for using the AT&T Mobile Backup application ("Mobile Backup") provided by Asurion Mobile Applications, Inc. ("Provider") in connection with your service from AT&T Mobility LLC and its affiliates (collectively, "Carrier"). Please read this Agreement carefully before installing, electronically downloading or using Mobile Backup. By installing, electronically downloading or using Mobile Backup, you, the user of Mobile Backup ("You"), are agreeing to be legally bound by all of the terms and conditions set forth in this Agreement. If You do not agree to (or cannot comply with) all of the terms and conditions of this Agreement, You do not have the right to use Mobile Backup and must not install, download or use Mobile Backup.
GRANT OF LICENSE FOR NON-COMMERCIAL USE
Subject to the terms and conditions of this Agreement, the Provider grants to You a personal, non-exclusive, non-transferable, non-sublicensable and non-commercial limited license to install one object code version of Mobile Backup on one wireless communications device ("Device") and to use Mobile Backup on such Device in accordance with the Documentation (as defined below). Such license includes the use of information, materials and documentation related to Mobile Backup that are provided or made available to You by Provider or Your Device carrier at the time You install Mobile Backup ("Documentation"). All rights not expressly granted in this Agreement are reserved by Provider.
You agree not to rent, lease, lend, share, reproduce, translate or sublicense Mobile Backup or any portion thereof or otherwise use or allow others to use Mobile Backup for the benefit of any third party. You agree to use Mobile Backup only in connection with Carrier's service and Provider's automatic backup network and not with any other backup or similar or related service. You agree not to (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, underlying ideas or algorithms of Mobile Backup or any other trade secrets or proprietary information of Provider by any means whatsoever; (b) create any derivative works of or otherwise modify Mobile Backup or incorporate any portion of Mobile Backup into or with any other software; (c) remove any product identification, copyright or other proprietary notice from Mobile Backup; (d) copy or otherwise reproduce the Documentation; or (e) install, download or use Mobile Backup or any portion thereof on or with any device or product other than Your Device.
Subject to the limited license granted to You above in this Agreement, Provider retains all right, title and interest in and to Mobile Backup and the Documentation worldwide, including, without limitation, any copies thereof. The structure, organization and code of Mobile Backup are the valuable trade secrets of Provider and are protected by United States copyright and other laws, international treaty provisions and applicable laws (including, without limitation, intellectual property laws) of the country(ies) in which Mobile Backup is used. Mobile Backup is licensed, and not sold, to You.
TERM AND TERMINATION
This Agreement is effective for the term of the Mobile Backup subscription purchased by You from Carrier and may be terminated by You at the end of a billing cycle by notifying Carrier. This Agreement may terminate automatically without notice from Provider or Carrier if You fail to comply with any term(s) of this Agreement, the Carrier's terms and conditions of service, or if the Provider no longer provides Mobile Backup to Carrier. Upon any termination of this Agreement: (a) You will not have access to or be able to recover any Archived Data; (b) Provider shall have the right to immediately remove all Archived Data from Provider Storage Systems and destroy any such Archived Data; (c) Provider or Carrier shall not be obligated to refund any monies paid; (d) the license granted to You in this Agreement will immediately terminate, and You agree to immediately cease all use of Mobile Backup and the Documentation; and (e) except for the license granted to You in this Agreement, the terms of this Agreement shall survive such termination.
All fees related to Your subscription to and use of Mobile Backup shall be charged to You by Carrier. You agree to pay Carrier the applicable fees for Your Mobile Backup subscription in accordance with Carrier's payment terms and conditions. You acknowledge that Carrier will continue to charge You for Mobile Backup as long as Your Mobile Backup subscription remains active and regardless of whether or how often You actively use Mobile Backup. If You fail to pay such subscription fees to Carrier, Your Mobile Backup service provided pursuant to this Agreement may be terminated.
As defined in FAR 2.101, DFAR 252.227-7014(a)(1) and DFAR 252.227-7014(a)(5) or otherwise, Mobile Backup and the Documentation are "commercial items," "commercial computer software" and/or "commercial computer software documentation" developed at private expense and provided subject to Provider's terms and conditions. Pursuant to FAR 12.212 and DFARS 227.7202 and their successor provisions, as applicable, the use, modification, reproduction, release, performance, display, disclosure or distribution of Mobile Backup or the Documentation by or for the U.S. government is governed solely by the terms and conditions of this Agreement.
You acknowledge there are specific restrictions and complex laws and regulations regarding the export of certain software, technology and information outside the United States. You agree not to export, or allow the re-export of Mobile Backup, any Documentation, or any direct product thereof, in violation of any such laws or regulations (or any other applicable laws or regulations). Among other restrictions, such export laws and regulations prohibit You from downloading or otherwise exporting or re-exporting Mobile Backup, any Documentation, or any direct product thereof: (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country subject to United States trade embargo; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals, Terrorists and Narcotics Traffickers or the U.S. Commerce Department's Table of Denial Orders or the U.S. State Department's Proliferation Entity List. By using Mobile Backup, You are representing and warranting that You are not located in, under control of, or a national or resident of any such country or on any such list.
ACCOUNT AND SECURITY
To access and use Mobile Backup, You must create a login and/or password during account creation. You are exclusively responsible for all activities that occur under Your account, whether or not it occurs with Your knowledge. You are also exclusively responsible for maintaining the confidentiality of Your account login and password, and are exclusively responsible for any failure to do so and any results thereof. You agree to immediately notify Carrier of any suspected or actual unauthorized access to or use of Your account or any other breach of security known to You. You have the capability to change Your password at any time.
You agree that You will use Mobile Backup solely for the purpose of making an archival backup copy of Your personal contact information, any content created solely by You, or any other content You have the legal right to copy and store ("Data") contained on Your Device ("Archived Data"), and You grant Provider the right to store the Archived Data on storage systems operated by or for Provider ("Provider Storage Systems"). You agree that You will only store Archived Data on Provider Storage Systems and that You will NOT store any other content or data, including content or data that You do not have legal right to use and/or copy. You agree to use the Archived Data solely for Your own personal use, including the purpose of restoring all or a portion of the Data on Your Device, and shall not use Mobile Backup to share, reproduce or distribute any Data to any other person, Device or equipment. You agree not to store any Data or any other data or content through the use of Mobile Backup that violates any law or that infringes any copyrights or other intellectual property rights of any third party. You agree Provider and/or Carrier, each in their sole discretion, may disable access to, remove and/or destroy any or all Archived Data from Provider Storage Systems that it believes (a) constitutes an infringement, misappropriation or violation of any third party right (including, without limitation, any right of privacy, copyright, trademark, trade secret or other intellectual property right), (b) could otherwise damage, harm or tarnish Provider and/or Carrier or their reputation or (c) could make Provider and/or Carrier liable in any manner to any third party (including, without limitation, any governmental entity). You acknowledge and agree that Provider and/or Carrier may access, preserve and disclose Your account information and Archived Data if required to do so by law or if Provider and/or Carrier in good faith believes that such access, preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the terms and conditions of this Agreement; (iii) respond to claims that any Archived 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 Carrier, Provider, its customers, distributors, licensees or end users, or the public.
You acknowledge that Provider may establish general practices and limits concerning the use of Mobile Backup, including, without limitation, the type of Data that may be archived, the maximum size of available server space for Your Archived Data, the maximum number of days that Archived Data may be stored, and the maximum number of times and the maximum duration for which You may access Mobile Backup in a given period of time. Provider reserves the right to modify these and other general practices in its sole discretion and without any notice to You. You agree that Carrier and Provider have no responsibility or liability for any removal, loss or destruction of, or failure to store or provide access to, any Archived Data or any other content transmitted through the use of Mobile Backup.
You shall indemnify, defend and hold harmless Carrier, Provider and its officers, directors, employees, affiliates and agents from and against any claim, loss, liability, cost or expense, including, but not limited to, reasonable attorneys' fees and costs (collectively, "Claim") to the extent such Claim arises or results from or is based upon: (a) Your breach of any of the terms and conditions of this Agreement; (b) Your breach of any applicable policy or agreement between You and Carrier; (c) Your subscription to Mobile Backup; (d) any allegation that any Data, Archived Data, any other content You attempt to archive through the use of Mobile Backup, or Your use (or Provider's provision) of Mobile Backup infringes, is a misappropriation of or violates any third party right, including, without limitation, any intellectual property right or right of privacy (except to the extent such allegation is that the Mobile Backup application itself, as provided by Provider, infringes or is a misappropriation of any third party intellectual property right); or (e) Your failure to comply with any applicable laws with respect to any Data, Archived Data, any other content You attempt to archive through the use of Mobile Backup, or Your use of Mobile Backup or the Documentation.
DISCLAIMER OF WARRANTY
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MOBILE BACKUP, THE DOCUMENTATION AND ALL SERVICES PROVIDED BY CARRIER, PROVIDER AND ITS AFFILIATES OR ANY OF THEIR SUPPLIERS OR LICENSORS ARE PROVIDED "AS IS," AND CARRIER, PROVIDER AND ITS AFFILIATES OR ANY OF THEIR SUPPLIERS OR LICENSORS DISCLAIM ALL WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY TYPE, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PROVIDER DOES NOT WARRANT THAT THE OPERATION OF MOBILE BACKUP WILL BE UNINTERRUPTED OR ERROR FREE. SOME STATES LIMIT OR DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THIS DISCLAIMER (OR PORTIONS OF THIS DISCLAIMER) MAY NOT APPLY TO YOU. THIS DISCLAIMER OF WARRANTY PROVISION SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY LAW.
LIMITATION OF LIABILITY
IN NO EVENT SHALL CARRIER, PROVIDER AND ITS AFFILIATES OR ANY OF THEIR SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY DATA, ARCHIVED DATA, THE USE OR INABILITY TO USE MOBILE BACKUP OR THE DOCUMENTATION, OR ANY SERVICES PROVIDED BY PROVIDER) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR FOR ANY INCIDENTAL, PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF BUSINESS INFORMATION OR DATA, OR OTHER PECUNIARY LOSS), EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. YOU AGREE THAT IN NO EVENT SHALL PROVIDER'S CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY, WHETHER UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNTS PAID BY YOU FOR THE USE OF MOBILE BACKUP, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THIS LIMITATION MAY NOT APPLY TO YOU. THIS LIMITATION OF LIABILITY PROVISION SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Provider shall not be liable for nonperformance, delay, errors, data loss or corruption or other loss caused by any event beyond Provider's reasonable control, including, but not limited to, acts of God, war, hostilities, terrorist acts, revolution, civil disorder, national emergency, strikes, lockouts, unavailability of supplies, non-use of product, epidemics, fire, flood, earthquake, force of nature, explosion, embargo or any law, proclamation, regulation, ordinance or other act or order of any court, government or governmental agency.
ENTIRE AGREEMENT; AMENDMENT
This Agreement constitutes the entire agreement between You and Provider with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings and agreements regarding the subject matter of this Agreement. With respect to Carrier, this Agreement shall be in addition to and not modify or amend Your agreement with Carrier's terms and conditions of service.
CONTROLLING LAW; SEVERABILITY; GENERAL
This Agreement shall be governed by the laws of the United States and the State of California without regard to conflicts of laws provisions thereof. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. If any provision contained herein is held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid or enforceable, and all other provisions shall not be affected thereby. No provision of this Agreement shall be deemed waived unless such waiver is in writing and signed by a duly authorized representative of Provider. Headings used in this Agreement are for convenience only and shall not be used in the interpretation of this Agreement. You may not assign any benefits or rights, or delegate any duties or obligations, under this Agreement to any other party.
Any claim, controversy or dispute arising out of or related to the marketing, advertising, or sale, or Your use of Mobile Backup between the Provider and You that cannot be settled by private negotiation shall be resolved solely and exclusively by final and binding arbitration ("Arbitration"). Such Arbitration shall be administered by the San Francisco, California office of the American Arbitration Association ("AAA") and conducted pursuant to the rules then in effect of the AAA governing commercial disputes ("Rules"). The Arbitration hearing shall take place in San Mateo, California, unless otherwise agreed by all parties to the Arbitration, before a single neutral arbitrator licensed to practice law selected by the parties or appointed in accordance with the Rules. The arbitrator shall be bound to apply the laws of the State of California, without regard to conflicts of laws provisions thereof, and, where applicable, federal statutory law. The arbitrator shall have authority to award compensatory damages only, and You expressly waive the right to seek any punitive damages in any Arbitration hereunder. To submit a matter to Arbitration, the party seeking redress shall notify in writing the party against whom such redress is sought, describe the nature of such claim and the material facts surrounding such claim. The arbitrator shall render a single written decision. The arbitrator's award shall be final and binding and may be entered in any court having jurisdiction thereof. Each party shall bear its own costs and attorney's fees in connection with any Arbitration arising hereunder, and the fees and expenses in connection with such Arbitration shall be borne equally be the parties. Notwithstanding anything to the contrary herein, neither party is precluded from seeking injunctive relief in any court of competent jurisdiction. All controversies, claims, or disputes, including any representative claims against us and/or related third parties shall be resolved by binding arbitration only on an individual basis. Therefore, You waive the right to file, participate in, or be a member of any class action lawsuit, representative action, or class arbitration. The arbitrator shall not allow You to serve as a representative, as a private attorney general, or in any other representative capacity for others in any arbitration arising hereunder. It is an indispensable condition of the arbitration that there will be no class arbitration. You may opt out of this Arbitration provision within 30 days of the date you download Mobile Backup by sending a letter with your request to the address below.
COPYRIGHT INFRINGEMENT NOTIFICATION
Provider has a policy of removing data or content that violates copyright law. Pursuant to Section 512 of Title 17 of the United States Code, Provider has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. To file a copyright infringement notification with us, you will need to send a written communication that includes substantially the following information (or such other additional information as may be required by Section 512(c)(3) of the Copyright Act):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- 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.
- 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.
- 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.
- 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.
- 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.
Asurion Mobile Applications, Inc.
1400 Fashion Island Blvd., Suite 450
San Mateo, CA 94404
Attention: General Manager
Phone Number: 650-581-2777
For clarity, only copyright infringement notifications should be sent to the designated agent above. You may not receive a response to any other feedback, comments, requests for technical support, or other communications delivered to the designated agent above.
The AT&T Mobile Backup service may be terminated immediately without liability. You may end Your use of the AT&T Mobile Backup service at any time by terminating service with Carrier. No refunds shall be granted for any fees paid in advance. Upon termination You will no longer have access to Data, messages, files and other material You previously stored using the AT&T Mobile Backup service.