AT&T Wireless Service Contract
IMPORTANT PLEASE READ CAREFULLY
This is an agreement (“Agreement”) between you and the entity
licensed
by the Federal Communications Commission to provide wireless radio
and other
services (“Service”) in the area associated with your assigned
account
(“Account”) that is doing business as AT&T Wireless and/or
AT&T
Wireless Services (“AT&T Wireless” or “us” or “we”)
and governs Service provided by us to you through wireless receiving
and transmitting
equipment, SIM (Subscriber Identity Module) Card and any accessories
(each a
“Device”) that we have authorized to be programmed with a number
or identifier (an “Identifier”). This Agreement explains our
respective
legal rights concerning all aspects of our relationship,
including:
· Billing and charges
· Starting and ending service
· Account information
· Early cancellation fees
· Limitations of liability, damage awards and warranty
· Changes to this Agreement
· Resolution of past or future disputes by arbitration instead
of court
trials and class actions and limitations on the time periods for
bringing claims.
ARBITRATION NOTICE: The Resolution of Disputes provisions below
describe our mutual agreement to use mandatory arbitration for the
resolution
of most past or future disputes between us instead of a court trial or
class action
lawsuit.
IF YOU 1) USE THE SERVICE OR DEVICE, OR 2) ACCEPT ANY BENEFIT IN
EXCHANGE FOR
COMMITTING TO NEW TERMS AND CONDITIONS AND/OR A NEW CONTRACT TERM, OR
3) PAY
US ANY AMOUNT FOR THE SERVICE, YOU CONSENT TO THE TERMS AND
CONDITIONS SET FORTH
IN THIS AGREEMENT, ANY CORRESPONDING RATE PLAN, AND ALL POLICIES AND
GUIDELINES
INCORPORATED BY REFERENCE, ALL AS MAY BE CHANGED AS DESCRIBED IN
PARAGRAPH 6
BELOW. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS IN THIS
AGREEMENT,
DO NOT USE THE SERVICE OR DEVICE AND NOTIFY US WITHIN 30 DAYS OF THE
DATE OF
ORIGINAL ACTIVATION FOR EACH IDENTIFIER TO CANCEL THE SERVICE AND/OR
RETURN
THE DEVICE PURCHASED FROM US. YOUR RIGHTS TO TERMINATE THEREAFTER ARE
SET FORTH
BELOW. YOU ARE RESPONSIBLE FOR ALL CHARGES INCURRED PRIOR TO
NOTIFYING US OF
CANCELLATION.
DESCRIPTION OF SERVICES
1. Rate Plans. The price, features and options of the Service
available for each Identifier on your Account depends on the calling,
data or
mobile Internet plan, feature or promotion selected by you when you
activated
or changed your Service and are described in a separate AT&T
Wireless Calling
Plan, Service Plan or Rate Plan (“Rate Plan”) Brochure, in feature
or promotional materials, at attwireless.com and/or in an AT&T
Wireless Welcome
Guide (collectively, “Sales Information”), all of which are
incorporated
by reference, are a part of this Agreement and were available when you
activated
or changed Service. To receive copies of Sales Information contact
Customer Care.
*Puerto Rico residents only: Refer to the following web address:
attwireless.com/pr.
2. Authority. You represent that you are: (i) legally competent
to enter into this Agreement, (ii) in the case of an individual, over
18 years
old and a resident of the one of the fifty United States or 21 years
old or legally
emancipated and a resident of Puerto Rico, and (iii) not aware of any
disability
that would prevent you from entering into this Agreement. If you order
or activate
Service on behalf of an entity, you represent that you are authorized
to do so
and acknowledge that such entity is bound by the terms and conditions
of this
Agreement; however, all terms and conditions that relate to use of the
Service
by you as the end user of a Device will also bind you individually. If
you activate
Service on behalf of an entity but were unauthorized to do so, you will
be personally
responsible for all charges to the Account and will be fully bound by
this Agreement
as though you had activated Service on your own behalf.
3. Deposits/Service Limits/Credit Reports/Return of Balances.
You
authorize us to ask consumer reporting agencies or trade references to
furnish
us with employment and credit information, and you consent to our
rechecking and
reporting personal and/or business payment and credit history if, in
our sole
discretion, we so choose. If you believe that we have reported
inaccurate information
about your account to a consumer reporting agency, you may send a
written notice
describing the specific inaccuracy to the address provided in the
Notices section
below. For you to receive Service, we may require a deposit or set a
service limit.
The deposit will be held as a partial guarantee of payment. It cannot
be used
by you to pay your bill or delay payment. Unless otherwise required by
law, deposits
may be mixed with other funds and will not earn interest. We reserve
the right
to increase your deposit if we deem appropriate. You may request that
we reevaluate
your deposit on an annual basis, which may result in a partial or total
refund
of the deposit to you or credit to your account. If you default or this
Agreement
is terminated, we may, without notice to you, apply any deposit towards
payment
of any amounts you owe to us. After approximately 90 days following
termination
of this Agreement, any remaining deposit or other credit balance in
excess of
$10 will be returned without interest, unless otherwise required by
law, to you
at your last known address. You agree any amounts under $10 will not be
refunded
to cover our costs of closing your account. If the deposit balance is
undeliverable
and returned to us, we will hold it for you for one year from the date
of return
and, during that period, we may charge a service fee against the
deposit balance.
You hereby grant us a security interest in any deposit we require and,
to the
extent of any property interest provided by law, in the Identifier and
Device
associated with your Account, to secure the performance of your
obligations hereunder.
4. Rates. Your Service rates and other charges and conditions
for each Identifier or Device are described in your Sales Information.
If you
lose your eligibility for a particular Rate Plan, we may change your
Rate Plan
upon prior notice to you. If you misrepresent your eligibility for any
Rate Plan,
you agree to pay us the additional amount you would have been charged
under the
most favorable Rate Plan for which you are eligible. If you select a
Rate Plan
that includes a predetermined allotment of Services (for example, a
predetermined
amount of airtime, megabytes or text messages), any unused allotment of
Services
from one billing cycle will not carry over to any other billing
cycle.
5. Business Agreement Benefits. You may receive or be eligible
for certain Rate Plans, discounts, features, promotions, and other
benefits (collectively,
“Benefits”) through a business or government customer’s agreement
with us (a “Business Agreement”). Any and all such Benefits are
provided
to you solely as a result of the corresponding Business Agreement and
such Benefits
may be modified or terminated without notice. If you receive Service
where a business
or government entity pays your charges or is otherwise liable for the
charges,
you authorize us to share your account information with that entity
and/or its
authorized agents. If you are on a Rate Plan and/or receive certain
Benefits tied
to a Business Agreement with us, but you are liable for your own
charges, then
you authorize us to share enough account information with that entity
and/or its
authorized agents to verify your continuing eligibility for those
Benefits and/or
the Rate Plan.
6. Changes to Agreement or Service. We may amend the terms of
this Agreement, including the Sales Information, upon advance notice
provided
to you in any manner we choose, including by notice contained with your
invoice
for the Service. In the event that we make such a change that has a
material adverse
impact on your rights or use of the Service, you may terminate the
Agreement by
giving us notice within 20 days of the date we notify you, and you will
not be
charged any cancellation fee. If you use the Service more than 20 days
after we
notify you of a change, you agree to that change. You have the option
to change
your Service at any time by notifying us, and you may take advantage of
those
of our Services for which you qualify, provided that you comply with
any requirements
of the Service, including, where applicable, extending the term of this
Agreement.
Any change will take effect by your next billing cycle, and your
continued use
of the Service will be deemed to constitute your express consent to the
changes.
If you transfer to a Rate Plan having a term that is shorter than your
previous
Rate Plan, you may remain obligated for the term of the previous Rate
Plan.
7. Availability/Interruption. Service is normally available to
your Device when it is within the operating range of our system but may
be available
outside of that area in other participating carrier service areas.
Service is
subject to transmission limitation, reduction in transmission speed, or
interruption
caused by weather, your equipment, terrain, obstructions such as trees
or buildings,
or other conditions. Service may be limited in some areas where
coverage is not
available or may be temporarily limited or interrupted due to system
capacity
limitations, system repairs or modifications, or in response to
suspected fraud,
abuse, misuse of the network, hacking or malicious viruses or
violations of our
Acceptable Use Policy. Interruption may also result from nonpayment of
charges
by you. We may block access to certain categories of numbers (e.g. 976,
900 and
certain international destinations) or certain web sites if, in our
sole discretion,
we are experiencing excessive billing, collection, fraud problems or
other misuse
of our network. We may, but do not have an obligation to, refuse to
transmit any
information through the Service and may screen and delete information
prior to
delivery to you or the Device as permitted by law. Some aspects of the
Service
may be temporarily unavailable if personal information is provided by a
child
under the age of 13. Without parental consent, children under the age
of 13 will
not be able to use certain aspects of the Service. Devices may be
incompatible
with TTY, so TTY users may be unable to make emergency calls. TTY
availability
on our network does not indicate compatibility while using another
carrier’s
network.
USE OF SERVICE
8. Acceptable Use. Your use of the Service must comply with our
Acceptable Use Policy, found at attwireless.com/acceptableuse, which
you should
read carefully. The Acceptable Use Policy is incorporated by reference
as a part
of this Agreement. Our Acceptable Use Policy may be updated from
time-to-time.
9. Account Access and Unauthorized Use. Any person able to
provide
information we deem sufficient to identify you and the Account is
authorized by
you to receive information about and make changes to your Account,
including adding
new Service. You are responsible for safeguarding your Device and
access information
(such as your Account number) and failure to do so may result in
expense to you.
If your Device, user name or password is stolen or Service is
fraudulently used,
you must immediately notify us and provide us with such documentation
and information
as we may request (including affidavits and police reports). You will
remain responsible
for all charges incurred before you notify us. You agree to cooperate
with us
in any fraud investigation and to use any fraud prevention measures we
prescribe.
Failure to reasonably cooperate may result in your liability for all
fraudulent
usage.
10. Your Content and Use of Service. You are solely responsible
for all content that you permit to be posted or transmitted onto or
through the
Service or any of our systems, including materials, code, data, text
(whether
or not perceptible by users), multimedia information (including, but
not limited
to sound, data, audio, video, graphics, photographs, or artwork),
e-mail, chat
room content, bulletin board postings, or any other items or materials
accessible
through the Service or any of our systems (“Content”). YOUR USE OF
THE SERVICE IS ENTIRELY AT YOUR OWN RISK. YOU ASSUME FULL
RESPONSIBILITY FOR AND
RISK OF LOSS RESULTING FROM YOUR DOWNLOADING, ACCESS TO, OR USE OF ANY
THIRD-PARTY
CONTENT, OR FROM YOUR ACCESS TO OR USE OF THE SERVICE OR THE INTERNET,
IN ANY
MANNER AND FOR ANY PURPOSE WHATSOEVER. In providing Service, we may
permit our
subscribers to transmit, receive and host content over our network and
the Internet
and may act as a “services provider” as defined in the Digital
Millennium
Copyright Act. Please see our Acceptable Use Policy found at
attwireless.com/acceptableuse
for additional information.
11. Use of Service/Device/Identifier. Reproduction,
retransmission,
dissemination or resale of Service is prohibited without prior written
contractual
arrangements with us and any required regulatory approvals. You are
responsible
for ensuring that your Device is compatible with our Service and meets
federal
standards. You are responsible for the purchase and maintenance of any
additional
hardware, software and/or Internet access from your PC required to use
the Service.
Internet Protocol (“IP”) addresses for services provided on the
AT&T
Wireless GSM/GPRS network will be assigned dynamically per session from
a private
pool and not all protocols will be supported. Other IP addressing
options are
available for additional cost. Except as provided otherwise by law, you
have no
property rights to any Identifier, including, without limitation, any
IP address,
any e-mail address or any other identifier, provisioned by us, our
agents or the
manufacturer of your Device to be used with the Service, and you agree
we may
change any such Identifier at any time with or without prior notice to
you. In
the event we are required by law to transfer any Identifier to you on
termination
of this Agreement, we may charge you a fee. Your Device has been
manufactured
to operate exclusively with Service provided by us. The Device cannot
be activated
with any other wireless carrier and if your Device utilizes a SIM card
it will
only accept a SIM card provided by us. Devices not purchased from us or
our authorized
distributors (a) may not provide you with some or all of the features
included
in your Service (b) may not allow you to use features and functions
while off
our network, including those that work while on our network, and (c)
calls to
911 may not go through on any network. Call timers included on your
Device are
not an accurate representation of actual billed usage. By using the
Service, you
agree to abide by the terms and conditions of any applicable software
license.
TERM OF SERVICE AND TERMINATION
12. Term. The term of this Agreement for each Identifier begins
on the date we activate Service for that Identifier or the date you
accept a benefit
that extends or renews the term and ends when Service for that
Identifier is terminated.
UNLESS WE AGREE OTHERWISE, YOU AGREE TO AN INITIAL TERM OF ONE YEAR AND
AGREE
TO PURCHASE SERVICE FOR THE FULL INITIAL TERM. If we allow you to
suspend your
account for a temporary period, we may extend the term of your
Agreement by the
length of the temporary suspension. After the initial one year term
expires, this
Agreement will continue on a month to month basis until terminated by
either party
as provided herein. IF YOU TERMINATE SERVICE FOR ANY IDENTIFIER MORE
THAN 30 DAYS
AFTER YOUR ORIGINAL ACTIVATION DATE FOR THAT IDENTIFIER, BUT BEFORE THE
END OF
YOUR TERM, OR WE TERMINATE FOLLOWING YOUR DEFAULT, YOU WILL BE IN
MATERIAL BREACH
OF THIS AGREEMENT. YOU AGREE OUR DAMAGES WILL BE DIFFICULT OR
IMPOSSIBLE TO DETERMINE
AND AGREE TO PAY US, AS A REASONABLE ESTIMATE OF OUR DAMAGES AND IN
ADDITION TO
ALL OTHER AMOUNTS OWING, A CANCELLATION FEE IN AN AMOUNT EQUAL TO THE
GREATER
OF $175 PER IDENTIFIER OR THE CANCELLATION FEE SET FORTH IN YOUR RATE
PLAN AND
YOU MAY NOT BE ELIGIBLE FOR NEW CUSTOMER PROMOTIONS IN THE FUTURE.
Payment of
the cancellation fee will not relieve you of any obligations owed to us
prior
to the termination date, including payment of fees and costs. Any
termination,
other than your cancellation within 30 days of initial activation, or
porting
of any Identifier to another carrier will be effective at the end of
the billing
cycle in which cancellation occurs.
13. Default/Termination. You will be in default of this
Agreement
if you (a) fail to pay any amount owed to us or an affiliate of ours or
any amount
appearing on your invoice within 20 days after the date of the
invoice,* (b) have
amounts still owing to us or an affiliate of ours from a prior account,
(c) breach
any representation to us or fail to perform any of the promises you
made in this
Agreement, (d) violate any policy applicable to the Service, or (e) are
subject
to any proceeding under the Bankruptcy Code or similar laws. If you are
in default,
we may, without notice to you, suspend Service, withhold equipment or
other refunds
and/or terminate this Agreement, in addition to all other remedies
available to
us. We may require reactivation charges to renew Service after
termination or
suspension. Upon termination and/or porting any Identifier to another
carrier,
you are responsible for paying all amounts and charges you owe to us,
including
any applicable cancellation fee. Third party promotions and/or
discounts may end
upon termination of this Agreement.
*Puerto Rico residents only: See Billing and Payment paragraph
regarding when
your payment is due. This paragraph constitutes notice that your
Service may be
suspended in the event of a default or termination of this
Agreement.
CHARGES AND BILLING
14. Usage Charges. You are responsible for paying all charges
in accordance with your Rate Plan for use of the Service associated
with the Identifier(s)
and Device(s) assigned to you, even if you did not use, or authorize
the use of,
the Device. The network name or type of service displayed on your
Device does
not determine how Service will be billed. Charges may be associated
with airtime,
access, features, voice mail access, voice mail delivery, data usage,
text and
multi-media messages, downloadables, alerts, roaming, long distance,
directory
and operator assistance, listing or un-listing charges, the price of
Devices and
accessories, premium content, software, charges for other goods and
services,
including shipping and handling, that are charged through your
bill.
15. Voice Charges. You will be billed at domestic* airtime or
roaming rates for 800, 866, 877, 888, and other “toll free” calls.
AT&T Wireless will be your wireless long distance provider. When
using the
AT&T Wireless Next Generation (GSM/GPRS) network, for all incoming
and outgoing
voice Service, the length of the call will be measured during the time
that the
call is connected to our system, which is approximately from the time
you press
the button that initiates or answers a call until approximately the
time the first
party terminates the call. When using any other AT&T Wireless
network, for
all incoming and outgoing voice Service, the length of the call will be
measured
during the time that the call is connected to our system, which is
approximately
from the time you press the button that initiates an outgoing call or
approximately
when the Device starts ringing for incoming calls until approximately
the time
you press the button that terminates the call. On all of our networks,
voice Service
on each call is billed in full minute increments, with partial minutes
of use
rounded up to the next full minute. When you place a call on our
network in your
local area and it is dropped by our system, if you replace the call
within a reasonable
period of time, we will automatically credit your account for one
minute of airtime.
When using the TDMA or analog networks you will only be provided a
credit if your
included minutes have been depleted. For any other dropped calls,
contact Customer
Care. If an incoming call has been forwarded to another phone number,
you will
be charged for the entire time that our switch handles the call. While
on our
network, there is no charge for busy, incomplete or unanswered calls if
you end
the call within 30 seconds. Service may be billed in a subsequent month
due to
delayed reporting between carriers and will be charged as if used in
the month
billed.
* Puerto Rico residents only: You will be billed based on the rate
plan, features
and/or promotion selected by you.
16. Data Charges. You are responsible for all data usage sent
through our network and associated with the Device, regardless of
whether the
Device actually receives the information. Utilizing compression
solutions may
or may not impact the amount of kilobytes for which you are billed.
Mobile Internet
service will be calculated and billed in kilobytes. One megabyte equals
1024 kilobytes.
One kilobyte equals 1024 bytes. All data usage will be compiled once
every 24
hours. Our system will then create individual billing records
representing (a)
the data usage for each data gateway accessed (e.g. WAP, RIM) while on
our network
(b) the combined usage for other carrier's domestic networks and (c)
the data
usage for international networks. Each billing record will be rounded
up to the
next kilobyte and the charge will be rounded up to the nearest cent. In
some situations
billing for data usage may be delayed; any delayed usage will create
additional
billing records for the actual day of the usage.
17. Taxes, Surcharges and Other Fees. Various taxes, surcharges,
fees, and other assessments are imposed by governments relating to the
Service
we provide to you, goods or services you purchase, and the wireless
network and
equipment used in providing the Service. We will determine, in our
reasonable
discretion, the taxes and other assessments that you are responsible to
pay and
the amounts of such charges. You are responsible for paying these taxes
and other
assessments, regardless of whether they are assessed on you or us. To
determine
which jurisdictions’ wireless telecommunications service taxes and
other
assessments to collect, federal law requires us to obtain your Place of
Primary
Use (“PPU”), which must be your residential or business street address
and must be within our licensed service area. You agree to provide us
your PPU
and to notify us of any changes in your PPU. If you do not provide us
with an
appropriate PPU, we may reasonably designate one for you. On certain
Rate Plans,
your PPU must be your residential address.
18. Regulatory Programs Fee. In addition to other charges, you
may also be assessed a Regulatory Programs Fee, which is a monthly
charge created,
assessed and collected by AT&T Wireless to help defray our costs
for compliance
with various regulatory requirements which include, but are not limited
to, the
capability to provide wireless number portability, number pooling and
911 enhancements
in our network. This fee is not a tax or a government-required charge.
In our
discretion, we may change the amount of the Regulatory Programs
Fee.
19. Billing and Payment. We will provide your bill in a format
we choose, which may change from time to time. Payment of all charges
is due upon
receipt of invoice.* A fee may be charged for additional copies of
bills, or billing
in another format, including the detailed billing option, and certain
services
rendered at our stores. You will receive one bill for all Service
associated with
each Device and any charges of a third party on whose behalf we bill.
Billing
cycle end dates may change from time to time. When a billing cycle
covers less
than or more than a full month, we may make reasonable adjustments and
prorations.
If you have authorized payment by credit card, no additional notice or
consent
will be required for billings to that credit card for all amounts
(including late
charges and cancellation fees). You must promptly notify us of any
change in your
invoicing address or changes related to the credit card used for
payment. Your
payment obligations survive any termination of this Agreement.
*Puerto Rico residents only: Payment of undisputed charges is due
fifteen (15)
days after the date your invoice is sent, i.e., deposited in the U.S.
mail or
sent to you by other means. Any dispute, or objection to charges
contained in
your bill, claims, or requests for investigation must be made on or
before the
due date as provided below.
20. Late Payments/Disputes. Time is of the essence for payment.
Therefore, you agree to pay us a late fee for amounts unpaid 20 days
after the
date of the invoice of 1.5% [Note to Printer, “1.5%” must be at least
10 point bold type](AK 0.875%, AR 0.42%, NE 1.33%, WI 1.0%) per month.
Acceptance
of late or partial payments (even if marked “Paid in Full”) shall
not waive any of our rights to collect the full amount you owe to us.
For any
check or electronic payment returned for nonpayment or for any credit
card chargebacks,
we will assess an additional fee not to exceed $25, or such lower
amount as permitted
by applicable law* and we may, without notice to you, suspend Service
and/or terminate
this Agreement, in addition to all other remedies. All amounts due,
including
disputed amounts, must be paid by the due date regardless of the status
of any
objection (Puerto Rico residents, see Billing and Payment paragraph).
Payments
will be applied first to amounts owed to us and then to amounts owed to
third
parties. All communications concerning disputed amounts owed, including
any instrument
tendered as full satisfaction of the amounts owed, or stipulating any
other conditional
action, agreement or proposed resolution of any dispute must be (i) in
writing,
(ii) marked “Billing Dispute” on the outside of the envelope, (iii)
sent to the address provided in the Notices section below, and (iv)
received by
us within 60 days** after receipt of the invoice.
*Puerto Rico residents only: This paragraph constitutes notice that
you will
be assessed a fee for returned checks. It also constitutes notice
that your
Service may be suspended if any undisputed amount remains unpaid more
than 35
days after the date your invoice was sent.
**Puerto Rico residents only: You must notify us of a billing dispute
no later
than 15 days after the date your invoice was sent. We will provide
you with
a determination regarding the dispute within 15 days after we receive
it. You
may appeal our determination to the Telecommunications Board of the
Commonwealth
of Puerto Rico ("Telecommunications Board") by filing a
petition for
review up to 30 days after the date of our determination. Your
petition for
review shall be made through the filing of a document containing the
following
information: (i) your name and address; (ii) our company name; (iii)
the pertinent
facts; (iv) any applicable legal provisions that you are aware of;
and (v) the
remedy you are requesting. The document may be filed handwritten or
typewritten
and must be signed by you. You must send us a copy of your document
to the address
in the Notices section below. You must send your petition for review
to the
Telecommunications Board at the following address: 235 Arterial
Hostos Avenue,
Capital Center Bldg., North Tower, Suite 901, Hato Rey, Puerto Rico.
The Telecommunications
Board will only review our determination on appeal. You are advised
of the provisions
regarding suspension of service that appear in Law 33 of July 7,
1985, Law 213
of September 12, 1996 and Regulation 5940 promulgated by the
Telecommunications
Board. You are also advised of Regulation 5939 of March 12, 1999
promulgated
by the Telecommunications Board regarding the procedures for
resolution of customer
disputes.
PRIVACY
21. Our Privacy Policy. In addition to the specific terms of
this Agreement, we encourage you to learn more about our general
privacy practices
by reading our Privacy Policy at attwireless.com/privacy.
22. Consents.
a. You consent to our release of information about you and your
use of Service when we believe release is appropriate to (i) comply
with the law
(e.g. a lawful subpoena, E911 information); (ii) enforce or apply our
customer
agreements; (iii) initiate, render, bill and collect for Services; (iv)
protect
our rights or property, or to protect users of those Services and other
carriers
from fraudulent, abusive, or unlawful use of, or subscription to, such
Services;
or (v) facilitate or verify the appropriate calculation of taxes, fees
or other
obligations due to a local, state or federal government.
b. We may also release information about you if we reasonably
believe that an emergency involving immediate danger of death or
serious physical
injury to any person requires disclosure of communications or justifies
disclosure
of records without delay. You consent to our monitoring of any
communication to
or from you or your Device to protect our rights or property or those
of our customers,
as well as for quality control and service related purposes.
c. You consent to our use and disclosure of your name, address
and Identifier (e.g. mobile phone number including area code) for any
lawful purpose,
including without limitation the provision of directory assistance and
publication
of directories. We may charge a fee for inclusion in directory listings
or publications
or to be unlisted or unpublished. To remove your consent to be listed
or published,
notify us in writing at the address provided in the Notices section
below, providing
your (1) name, (2) Service billing address, (3) Identifier (i.e. mobile
phone
number including area code), and (4) Service account number. You
consent to our
use of predictive or autodialing equipment, email, SMS or facsimile to
contact
you to advise you about our services or other matters we believe may be
of interest
to you. In any event, we reserve the right to contact you by any means
regarding
customer service-related notifications, or other such information. You
consent
to receiving advertising, alerts and other broadcast messages from us
or our authorized
agents.
23. CPNI Consent. Under federal law, you have a right, and we
have a duty, to protect the confidentiality of information about the
amount, type,
and destination of your wireless service usage and the location of your
device
on our network (CPNI) when you use voice service. You consent to us
sharing your
CPNI with our affiliates who provide communications-related services,
joint venture
partners and independent contractors, to develop or bring to your
attention communications-related
products and services. This consent survives the termination of your
Service and
is valid until you revoke it. To remove this consent, notify us in
writing at
the address provided in the Notices section below, providing your (1)
name, (2)
Service billing address, (3) Identifier (e.g. mobile phone number
including area
code), and (4) Service account number. Removing consent will not affect
your current
Service or the provisions of paragraphs 5, 22 or 24.
24. Business Transfer. You consent to disclosure of your CPNI
or other personal information, in connection with any merger,
acquisition or sale
of our assets or transition of service to another provider, as well as
in the
event of an insolvency, bankruptcy or receivership in which personal
information
would be transferred as one of our business assets.
RESOLUTION OF DISPUTES
PLEASE READ. IT IS IMPORTANT THAT YOU READ THIS SECTION CAREFULLY.
THIS SECTION
PROVIDES FOR RESOLUTION OF MOST DISPUTES THROUGH FINAL AND BINDING
ARBITRATION
INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION.
THIS ARBITRATION
CLAUSE SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
25. Binding Arbitration. The arbitration process established
by this section is governed by the Federal Arbitration Act (the
“FAA”)
(9 U.S.C. §§ 1-16). The FAA, not state law, governs whether
a claim
related to this Agreement is subject to arbitration. This provision
is intended
to be interpreted broadly to encompass all disputes or claims,
including those
against any subsidiary, parent or affiliate companies, arising out of
any aspect
of our relationship (including but not limited to this Agreement, our
Privacy
Policy, Acceptable Use Policy or the Service or any equipment used in
connection
with the Service). All such disputes or claims whether based in
contract, tort,
statute, fraud, misrepresentation or any other legal theory, will be
resolved
by binding arbitration except that (1) you may take claims to small
claims court
if they qualify for hearing by such a court, or (2) you or we may
choose to
pursue claims in court if the claims relate solely to the collection
of any
debts you owe to us.
26. Arbitration Procedures. You must first present any claim
or dispute to us by contacting Customer Care to allow us an
opportunity to resolve
the dispute. You may request arbitration if your claim or dispute
cannot be
resolved within 60 days. The arbitration of any dispute or claim
shall be conducted
in accordance with the American Arbitration Association (“AAA”)
under the Wireless Industry Arbitration Rules (“WIA Rules”), as
modified by this Agreement. The WIA Rules and information about
arbitration
and fees are available upon request from the AAA online at
www.adr.org. Unless
you and we agree otherwise, any arbitration will take place in the
county seat
for the county in which your billing address is located. At either
party’s
election, the arbitration shall be held telephonically. An arbitrator
may award
any relief or damages (including injunctive or declaratory relief)
that a court
could award, except an arbitrator may not award relief in excess of
or contrary
to what this Agreement provides and may not order relief on a
consolidated,
class wide or representative basis. In any arbitration applying the
WIA Rules
applicable to large/complex cases, the Arbitrators must also apply
the Federal
Rules of Evidence, and the losing party may have the award reviewed
in accordance
with the review procedures set forth in the WIA Rules. Judgment on
any arbitration
award may be entered in any court having proper jurisdiction. If any
portion
of this arbitration clause is determined by a court to be
inapplicable or invalid,
then the remainder shall still be given full force and effect.
27. Costs of Arbitration. For claims of less than $1,000, you
will be obligated to pay $25 and we will pay all other administrative
costs
and fees. For claims over $1,000 but under $75,000, you will be
obligated to
pay your share of the arbitration fees, but no more than the
equivalent court
filing fee for a court action filed in the jurisdiction where your
billing address
is located. For arbitrations in excess of $75,000, all administrative
fees and
expenses of arbitration will be divided equally between you and us.
In all arbitrations,
each party will bear the expense of its own counsel, experts,
witnesses and
preparation and presentation of evidence at the arbitration.
28. Waiver of Class Actions and Jury Trials. By this
Agreement,
both you and we are waiving certain rights to litigate disputes in
court. You
and we both agree that any arbitration will be conducted on an
individual basis
and not on a consolidated, class wide or representative basis. If for
any reason
this arbitration clause is deemed inapplicable or invalid, or to the
extent
this arbitration clause allows for litigation of disputes in court,
you and
we both waive, to the fullest extent allowed by law, any rights to
trial by
jury and to pursue any claims on a consolidated, class wide or
representative
basis.
29. Limitations Period. Any arbitration or legal action with
respect to any and all claims or causes of action related to or
arising out
of this Agreement must be brought within TWO YEARS after the cause of
action
arises, or within the applicable statutory period of time, whichever
is shorter.
This limitations period does not apply to any cause of action when
the statutory
limitations period for that cause of action cannot be waived,
restricted or
otherwise limited by you.
LIMITATIONS
30. Limitations. The parties intend that the limitations on
liability, warranty and damage awards provided for in this Agreement
will apply
to the fullest extent allowed by law. Some jurisdictions do not allow
the exclusion
of certain warranties or the waiver, limitation or exclusion of
liability for
punitive, incidental or consequential damages, or for intentional or
willful
conduct in some circumstances. To the extent that any of these
limitations are
not permitted by applicable law, they will not apply to you.
31. Limitation of Liability. WE ARE NOT LIABLE FOR ACTS OR
OMISSIONS OF ANOTHER SERVICE PROVIDER OR ANY THIRD PARTY PROVIDERS OF
SERVICES
RELATED TO USE OF THE DEVICE OR SERVICE, FOR INFORMATION PROVIDED
THROUGH YOUR
DEVICE, LACK OF PRIVACY OR SECURITY EXPERIENCED WHEN USING THE
DEVICE, EQUIPMENT
FAILURE OR MODIFICATION, OR OTHER CAUSES BEYOND OUR REASONABLE
CONTROL, INCLUDING
WITHOUT LIMITATION ANY REPRESENTATIONS THAT THE SERVICE WILL BE
ERROR-FREE,
UNINTERRUPTED, OR FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD
PARTY HACKERS
OR DENIAL OF SERVICE ATTACKS). WE AND ANY UNDERLYING CARRIER ARE NOT
LIABLE
FOR SERVICE OUTAGES, LOSS OF DATA, INABILITY TO RETRIEVE DATA SERVICE
LIMITATIONS
OR INTERRUPTIONS, AS DESCRIBED ABOVE, ECONOMIC LOSS OR INJURIES TO
PERSONS OR
PROPERTY ARISING FROM USE OF THE SERVICE, THE DEVICE, OR ANY
EQUIPMENT USED
IN CONNECTION WITH THE DEVICE UNLESS ARISING FROM OUR SOLE AND GROSS
NEGLIGENCE.
OUR LIABILITY AND THE LIABILITY OF ANY UNDERLYING CARRIER ARISING
FROM ANY SUCH
SOLE AND GROSS NEGLIGENCE SHALL IN NO EVENT EXCEED OUR SERVICE
CHARGES DURING
THE AFFECTED PERIOD. WE AND ANY UNDERLYING CARRIER ARE NOT LIABLE FOR
ANY INCIDENTAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES SUCH AS LOST PROFITS. YOU AND WE
BOTH WAIVE
TO THE FULLEST EXTENT ALLOWED BY LAW, ANY CLAIMS TO RECOVER
INCIDENTAL, PUNITIVE
AND CONSEQUENTIAL DAMAGES. WE ARE NOT LIABLE FOR THE INSTALLATION OR
REPAIR
OF THE DEVICE BY ANY PARTIES WHO ARE NOT OUR EMPLOYEES. SOME STATES
DO NOT ALLOW
THE LIMITATIONS SET FORTH ABOVE SO THE LIMITATIONS MAY NOT APPLY TO
YOU, IN
WHOLE OR IN PART. YOU AGREE THAT THE INCLUSION OF THIS PARAGRAPH WAS
A MATERIAL
CONSIDERATION FOR US TO ENTER INTO THIS AGREEMENT. THIS PARAGRAPH
SHALL SURVIVE
TERMINATION OF THIS AGREEMENT.
THE LIMITATIONS SET FORTH ABOVE WITH RESPECT TO LIMITATION OF DAMAGES
AND LIMITATION
OF REMEDY ARE INDEPENDENT OF ONE ANOTHER AND WILL SURVIVE ANY FAILURE
OF ALL
OR PARTS OF THE ESSENTIAL PURPOSE OF THE OTHER.
32. Indemnification. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD
US, OUR AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER,
HARMLESS FROM
CLAIMS OR DAMAGES RELATING TO THIS AGREEMENT OR YOUR PROMISES OR
STATEMENTS
MADE IN IT, CONTENT YOU STORE, PROCESS OR TRANSMIT USING THE SERVICE
AND ANY
OTHER USE OF THE DEVICE OR SERVICE UNLESS DUE TO OUR SOLE AND GROSS
NEGLIGENCE.
YOU ALSO AGREE TO PAY OUR REASONABLE ATTORNEYS’ AND EXPERT WITNESS
FEES
AND COSTS INCURRED IN ENFORCING THIS AGREEMENT, INCLUDING THROUGH ANY
APPEAL,
EXCEPT AS PROVIDED OTHERWISE IN THIS AGREEMENT. USE OF YOUR DEVICE
WHILE OPERATING
A MOTOR VEHICLE OR IN A DISTRACTED OR NEGLIGENT MANNER MAY BE
PROHIBITED OR
RESTRICTED BY LAW IN SOME AREAS. IT IS YOUR RESPONSIBILITY TO CONFORM
TO ALL
SUCH LAWS OR REGULATIONS AND YOU SHALL INDEMNIFY US FROM CLAIMS
ARISING FROM
ANY SUCH UNLAWFUL USE. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF
THIS AGREEMENT.
33. No Warranties. WE MAKE NO EXPRESS WARRANTY REGARDING THE
SERVICE OR THE DEVICE OR ANY SERVICES PROVIDED BY ANY THIRD PARTIES,
AND DISCLAIM
ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR
A PARTICULAR PURPOSE. WE DO NOT AUTHORIZE ANYONE TO MAKE ANY WARRANTY
ON OUR
BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. WE ARE NOT THE
MANUFACTURER
OF THE DEVICE AND ANY STATEMENT REGARDING IT SHOULD NOT BE
INTERPRETED AS A
WARRANTY. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS
AGREEMENT.
GENERAL
34. Assignment. We may assign all or part of this Agreement,
without notice to you, and such assignment will not be a change to
the Agreement.
We are then released from all liability. You may not assign this
Agreement without
our prior written consent.
35. Notices. We may send you notices by mail or electronic
means, in our sole discretion. Notices to you shall be effective 1) 3
days following
the date deposited in the U.S. Mail or delivered to a nationally
recognized
courier or delivery service to your address as kept in our files
and/or 2) immediately
upon our transmission using an electronic means such as e-mail or
text messaging
service. You are responsible for notifying us of any changes in your
mailing
or e-mail address. Written notice to us shall be effective when
directed to*
AT&T Wireless National Correspondence Team, P.O. Box 68055,
Anaheim Hills,
CA 92817-8055 and received by us. Your notice must contain specific
information
adequate to identify you and your Service. Oral and electronic
notices shall
be deemed effective on the date reflected in our records.
* Puerto Rico residents only: Please direct your notice to: AT&T
Wireless
Services, 654 Muñoz Rivera Avenue, Suite 2000, Hato Rey,
Puerto Rico
00918, Attn: Customer Care Manager.
36. Entire Agreement. This Agreement, together with the Sales
Information and all other documents and policies referenced herein,
represent
the entire agreement between you and us, which may only be amended as
described
in this Agreement. This Agreement supersedes any inconsistent or
additional
representations made to you by any of our representatives, agents or
dealers.
Subsequent purchases of additional services from us may require the
entry into
a separate agreement. If any term or condition of a Rate Plan
conflicts with
this Agreement, the terms of the Rate Plan will control. If any part
of this
Agreement is found invalid, the balance of the Agreement remains
enforceable.
If, at any time, we do not enforce any right or remedy available
under this
Agreement, that failure is not a waiver of our right to enforce the
right or
remedy at a later time. Copied, microfiched, scanned or other
duplicate or electronic
images of this Agreement are admissible for all purposes.
37. Governing Laws. This Agreement is subject to applicable
federal laws, federal or state tariffs, if any, and the laws of the
state associated
with the Identifier. Where our Service terms and conditions are
regulated by
a state agency or the FCC, the regulations are available for your
inspection
and if there is any inconsistency between this Agreement and those
regulations,
this Agreement shall be deemed amended as necessary to conform to
such regulations.
38. Translation. The original version of this Agreement is
in the English language. Any discrepancy or conflicts between the
English version
and the versions in any other language will be resolved with
reference to and
interpreting the English version, which will control.
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