End User License Agreement for
AT&T Mark the Spot Application
AT&T Mark the Spot Application
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT CLICK THE "ACCEPT" BUTTON OR DOWNLOAD OR USE THE APPLICATION.
1. General. The Application is licensed, not sold, to You by AT&T for use strictly in accordance with the terms and conditions of this License, and the "usage rules" established by Apple, Inc. ("Apple") for licensed applications set forth in the App Store Terms of Service located at http://www.apple.com/legal/itunes/ww/ (the "Apple Usage Rules"), which are incorporated herein by this reference. The term "Application" shall refer to and consist of the following: (i) the mobile software application accompanying this License, including, without limitation, any software code, scripts, interfaces, graphics, displays, text, documentation and other components; (ii) any updates, modifications or enhancements to the items listed in subsection (i); and (iii) any specific AT&T website the Application directs you to via any browser located on an iPhone.
2. License Grant and Restrictions on Use.
2.1 License Grant. AT&T grants You a revocable, non-exclusive, non-transferable, limited right to install and use the Application on a single iPhone owned and controlled by You ("iPhone"), and to access and use the Application on such iPhone strictly in accordance with the terms and conditions of this License, the Apple Usage Rules and the AT&T wireless service agreement associated with your iPhone (collectively "Related Agreements").
2.2 Restrictions on Use. You shall use the Application strictly in accordance with the terms of the Related Agreements and shall not: (a) use the application while You are operating a motor vehicle; (b) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Application; (c) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Application; (d) violate any applicable laws, rules or regulations in connection with Your access or use of the Application; (e) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of AT&T or its affiliates, partners, suppliers or the licensors of the Application; (f) use the Application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (g) install, use or permit the Application to exist on more than one iPhone at a time or on any other mobile device or computer; (h) distribute the Application to multiple iPhones; (i) make the Application available over a network or other environment permitting access or use by multiple iPhones or users at the same time; (j) use the Application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by AT&T; (k) use the Application to send automated queries to any website or to send any unsolicited commercial e-mail; or (l) use any proprietary information or interfaces of AT&T or other intellectual property of AT&T in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Application.
3. Intellectual Property Rights.
3.1 Rights to Application. You acknowledge and agree that the Application and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of AT&T. Furthermore, You acknowledge and agree that the source and object code of the Applications and the format, directories, queries, algorithms, structure and organization of the Application are the intellectual property and proprietary and confidential information of AT&T and its affiliates, licensors and suppliers. Except as expressly stated in this License, You are not granted any intellectual property rights in or to the Application by implication, estoppel or other legal theory, and all rights in and to the Application not expressly granted in this License are hereby reserved and retained by AT&T.
3.2 Third Party Software. The Application 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 Application is subject to and governed by the terms 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 the terms of this License 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 Application or components thereof be deemed to be "open source" or "publically available" software.
3.3 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.
3.4 Infringement Acknowledgement. You and AT&T acknowledge and agree that, in the event of a third party claim that the Application or Your possession or use of the Application infringes any third party's intellectual property rights, You (and not AT&T or Apple) will be responsible for the investigation, defense, settlement and discharge of any such claim of intellectual property infringement. You will, however, promptly notify AT&T in writing of such a claim.
4. Restriction on Transfer. You may not rent, lease, lend, sublicense or transfer the Application, this License 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.
5. Use of Information.
5.1 Consent to Use Information. You hereby authorize and consent to the collection, storage and use, by AT&T and its affiliates, partners and agents, of any information and data related to, received from, or derived from Your use of the Application, including Your mobile telephone number, and any information or data that You provide to AT&T and its affiliates, partners and licensors ("Information"). Without limiting the generality of the foregoing, the Information shall include, without limitation, the following types of information and data, in an aggregate (not user level) form: search requests, search results, patterns, data and suggestions based on user actions. The Information will be treated as being non-confidential and nonproprietary, and AT&T assumes no obligation to protect confidential or proprietary information (other than personally identifiable information) from disclosure and will be free to reproduce, use, and distribute the Information to others without restriction. We will also be free to use any ideas, concepts, know-how or techniques contained in the Information for any purpose whatsoever including, without limitation, developing, manufacturing and marketing products and services incorporating such Information.
5.2 Consent to Use Location Information. This Application accesses and uses Your location information. By using this Application, You agree that AT&T may collect information about Your location and use such information. AT&T does not retain location information longer than is necessary for such use. AT&T may also aggregate Your location data, after removing or obscuring any of Your personally identifiable information, for purposes such as reporting usage as well as maintenance and improvement of the Application. This notice will serve as Your sole notice that the Application may collect Your location information, and You may not receive any reminders or further notice.
6. Third Party Content and Services.
6.1 General. You acknowledge that the Application 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").
6.2 Disclaimer. You acknowledge that AT&T does not investigate, monitor, represent or endorse the Third Party Content and Services (including any third party websites available through the Application). Furthermore, Your access to and use of the Third Party Content and Services is at Your sole discretion and risk, and AT&T and its affiliates, partners, suppliers and licensors 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. AT&T hereby disclaims 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.
6.3 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 located using the Application 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. For example, by using the Application in connection with an iTunes Store account, You agree to the latest Apple Usage Rules, which You may access and review at http://www.apple.com/legal/itunes/ww/. Furthermore, You acknowledge and agree that the Third Party Content and Services and any related third party terms of service are subject to change by the applicable third party at its sole discretion and without any notice. 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 affiliates, partners, 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 You are not being granted a 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.
6.4 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 or its affiliates 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 Application, although AT&T has no obligation to restrict or deny access even if requested by You.
6.5 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; (ii) which may or may not be identified as having explicit language, and (iii) 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 affiliates, partners, suppliers and licensors shall have no liability to You for information, material or subject matter that is found to be offensive, indecent, or objectionable.
6.6 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 AT&T and its affiliates, partners, suppliers and licensors 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 AT&T is not in any way responsible for any such use by You.
7. Term and Termination.
7.1 Term. This License shall be effective until terminated.
7.2 Termination. AT&T may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this License 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 License, then this License and any rights afforded to You hereunder shall terminate automatically, without any notice or other action by AT&T. Upon the termination of this License, You shall cease all use of the Application and uninstall the Application.
8. Disclaimer of Warranties. YOU ACKNOWLEDGE AND AGREE THAT THE APPLICATION IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE APPLICATION AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. AT&T AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRSENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE APPLICATION 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, AT&T AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL BE UNINTERRUPED, ACCURATE, RELIABLE, TIMELY, SECURE OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE APPLICATION WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE APPLICATION OR THIRD PARTY CONENT AND SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM AT&T OR FROM THE APPLICATION SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE THAT AT&T AND APPLE HAVE NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE APPLICATION.
IN THE EVENT OF ANY FAILURE OF THE APPLICATION 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 APPLICATION. APPLE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APPLICATION, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY WILL BE YOUR SOLE RESPONSIBILITY.
9. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL AT&T OR ITS AFFILIATES, PARTNERS, SUPPLIERS OR LICENSORS 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 APPLICATION AND ANY THIRD PARTY CONTENT AND SERVICES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT AT&T 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 AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10. Indemnification. You shall indemnify, defend and hold harmless AT&T and its affiliates, partners, suppliers and licensors, and each of their respective 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 Application or Third Party Content and Services; (ii) Your breach of this License; (iii) Your violation of law; (iv) Your negligence or willful misconduct; or (v) Your violation of the rights of a third party, including the infringement by You of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity. These obligations will survive any termination of the License.
11. Compatibility. AT&T does not warrant that the Application will be compatible or interoperable with Your iPhone or any other piece of hardware, software, equipment or device installed on or used in connection with your iPhone. Furthermore, You acknowledge that compatibility and interoperability problems can cause the performance of your iPhone to diminish or fail completely, and may result in permanent the damage to Your iPhone, loss of the data located on Your iPhone, and corruption of the software and files located on Your iPhone. You acknowledge and agree that AT&T and its affiliates, partners, suppliers and licensors shall have no liability to You for any losses suffered resulting from or arising in connection with compatibility or interoperability problems.
12. Product Claims. You acknowledge that You (not AT&T or Apple) are responsible for addressing any third party claims relating to Your use or possession of the Application, and agree to notify AT&T of any third party claims relating to the Application of which You become aware. Furthermore, You hereby release AT&T and Apple from any liability resulting from Your use or possession of the Application, including, without limitation, the following: (i) any product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation.
13. Miscellaneous. The following provisions survive termination of this License:
13.1 Governing Law. This License shall be deemed to take place in the State of New York and shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law principles. Any disputes arising from this License shall be adjudicated in the courts of the City of New York. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
13.2 Contact Information. Please direct any questions, complaints or claims related to this License or Your use of the Application to the following:
AT&T Services, Inc.
Address: Obtainable from Customer Support line.
13.3 Severability. If any provision of this License is held to be invalid or unenforceable with respect to a party, the remainder of this License, 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 License shall be valid and enforceable to the fullest extent permitted by law.
13.4 Waiver. Except as provided herein, the failure to exercise a right or require performance of an obligation under this License 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.
13.5 Export Control. You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction(s) in which the Application was obtained. You represent and warrant that You are not (x) 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 (y) listed on any U.S. 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 Person's List or Entity List. You also agree that You will not use the Application for any purposes prohibited by United States law.
13.6 Modification or Amendment. AT&T may modify or amend the terms of this License by posting a copy of the modified or amended License on the AT&T iPhone Application EULA website, at http://www.att.com/. You will be deemed to have agreed to any such modification or amendment by Your decision to continue using the Application following the date in which the modified or amended License is posted on the AT&T iPhone Application EULA website.
13.7 Survival. The following sections of this License and any other provisions of this License which by their express language or by their context are intended to survive the termination of this License shall survive such termination: 1, 2.2, 3, 4, 5, 7, 8, 9, 10, 12 and 13.
13.8 Third Party Beneficiaries. Except as provided in this Section 12.8, nothing contained in this License is intended or shall be construed to confer upon any person (other than the parties hereto) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person. You and AT&T acknowledge and agree that Apple and its subsidiaries are third party beneficiaries to this License, and that, upon Your acceptance of the terms and conditions of this License, Apple will have the right to enforce this License against You in its capacity as a third party beneficiary to the License.
13.9 Assignment. Except as permitted in Section 4, You shall not assign this License or any rights or obligations herein without the prior written consent of AT&T and any attempted assignment in contravention of this provision shall be null and void and of no force or effect.
13.10 Entire Agreement. This License including the documents incorporated herein by reference constitute the entire agreement with respect to the use of the Application licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter.