AT&T TOGGLE TRIAL SERVICE AGREEMENT
This is a Trial Agreement by You to obtain on a limited trial basis, access to and use of the Trial Service identified below from AT&T (“Trial Service”). The Trial Agreement does not apply to any other service(s) you obtain or purchase from AT&T under a separate agreement, and is not intended and does not modify any other agreement you may have with AT&T. Nor is any other agreement you may have with AT&T applicable to Your use of the Trial Service. Please read the entire Trial Agreement. The Trial Agreement is between you or the company or legal entity for which you are authorized to act and AT&T Corp. (“AT&T”). You or the company you are authorized to act for will be referred to in this Trial Agreement as “You” or “Customer.” The “Effective Date” of this Trial Agreement shall be the day You accept the terms of the Trial Agreement.
BY CLICKING THE “I ACCEPT” OR “ORDER” BUTTON DURING REGISTRATION OR BY OTHERWISE ORDERING THE TRIAL SERVICE YOU ARE INDICATING THAT YOU HAVE READ AND AGREE TO THE TERMS OF THIS TRIAL AGREEMENT OR ARE ACCEPTING ANY MODIFICATION OR REVISION TO THIS TRIAL AGREEMENT, IF APPLICABLE, IN ACCORDANCE WITH THE TERMS BELOW, AND YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THE TRIAL AGREEMENT INCLUDING ANY REVISIONS THERETO. IF YOU ARE ENTERING INTO THIS TRIAL AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH COMPANY OR LEGAL ENTITY TO THIS TRIAL AGREEMENT AS A CUSTOMER. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS TRIAL AGREEMENT, YOU MUST CANCEL THE ORDERING OR REGISTRATION PROCESS AND YOU MAY NOT USE THE TRIAL SERVICE.
The date this Trial Agreement was posted on http://www.wireless.att.com/businesscenter/en_US/orp/toggle-free-trial.jsp and was last modified on 2/21/2014.
This Trial Agreement provides the terms under which Customer shall obtain on a limited trial basis, access to and use of the services identified:
AT&T Toggle Service, which enables a Customer to implement a custom Bring Your Own Device (BYOD) solution for employees and other designated users. AT&T Toggle enables Customers to manage employee access to corporate data on their personal devices and works across multiple carriers on compatible devices.
All of the foregoing shall be referred to as the “Trial Service” in this document and shall apply to all features or functions described as part of the Trial Service herein and in the following additional documents or at the following locations, and shall not apply to an order or purchase of any other product or service from AT&T or its affiliates.
The terms and conditions applicable to the Trial Service that AT&T provides to You under this Trial Agreement are contained in this document and in the following additional documents or at the following locations (and these additional documents or the applicable terms found at the locations identified are incorporated by reference as is fully set forth herein):
(i) Subject to the Trial Service limitations herein, the AT&T Toggle Service Guide, which may be found at http://serviceguidenew.att.com/sg_CustomPreviewer?attachmentId=00PC000000DvdwFMAR; and
(ii) The promotional terms and restrictions specified at the time You registered for the Trial Service and selected the configuration of options for Your Trial Service; and
(iii) at such other URLs as AT&T may designate.
Revisions to Agreement and Applicable Term: AT&T may modify the AT&T Toggle Service Guide and any documents incorporated therein by sending You a revised version of such documents, or by posting revised versions of such documents at the sites referenced above or in the AT&T Toggle Service Guide, or by directing You to such other location as AT&T may designate to You.
AT&T may modify this Trial Agreement at any time by sending You a revised version of this document, by posting revised versions of this document at http://www.wireless.att.com/businesscenter/en_US/orp/toggle-free-trial.jsp, or by directing You to such other location as AT&T may designate to You. Any revised terms shall become effective upon the Effective Date shown in the revised Trial Agreement. By continuing to access, use or receive Trial Service after the Effective Date of any revisions to this Trial Agreement, You agree to be bound by the revised Trial Agreement. It is Your responsibility to check periodically the URLs for the AT&T Toggle Service Guide and the other URLs identified by AT&T therein and in this Trial Agreement, for changes to the terms and conditions in this Trial Agreement or otherwise applicable to Your use of the Trial Service.
Conflicting Terms: If there are conflicting terms contained in these documents, the order of priority of the interpretation shall be in order, the promotional terms and restrictions specified at the time You registered for the Trial and selected the configuration of options for Your Trial Service, this Trial Agreement, and the AT&T Toggle Service Guide and documents incorporated therein.
Trial Service: AT&T will either provide or arrange to have an affiliate of AT&T provide Trial Service to Customer under this Trial Agreement, subject to availability and operational limitations of systems, facilities, and equipment. AT&T will not charge You a fee for Your access to and use of the Trial Service as set forth herein. If an AT&T vendor or supplier necessary for the delivery of the Trial Service ceases to provide all or a portion of the relevant software or services, AT&T may terminate the affected portion of the Trial Service.
Trial Service Limitations: You agree that the Trial Service is subject to the restrictions specified at the time You registered for the Trial Service and selected the configuration of options for Your Trial Service. Such restrictions may include but are not limited to the following:
a. The Trial Service may be used only by Customer and Customer’s employees;
b. The Trial Service may only be used in the United States and its Territories and in such other countries and/or jurisdictions where such use is expressly permitted in the AT&T Toggle Service Guide; and
c. The Pricing set forth in the Service Guide will not apply to this Trial Agreement.
Term of Trial Agreement: This Trial Agreement shall be effective as of the Effective Date and shall apply to Your access to and use of the Trial Service and shall continue in effect for the earlier of: (i) the last date of the term as specified at the time You registered for the Trial Service and selected the configuration of options for Your Trial Service (except where expressly noted that a term survives following termination of service); (ii) until terminated as allowed under the terms of the Trial Agreement; or (iii) until the Trial Agreement is revised by AT&T, in which case the revised Trial Agreement shall thereafter apply.
Termination: Either You or AT&T may terminate this Trial Agreement at any time with or without cause. AT&T reserves the right to terminate the Trial Service immediately if You violate any term of this Trial Agreement. Upon such termination of this Trial Agreement, AT&T shall terminate Your access to and use of the Trial Service. You agree that upon termination of Your access to and use of the Trial Service, You will cease all access and use of the Trial Service and will destroy all related software code, in whatever form, including fragments, excerpts and any material containing such code.
Compliance with Laws: You agree that You will use the Trial Service in compliance with all applicable laws and regulations, and in compliance with any orders issued by courts or other governmental bodies of competent jurisdiction. You and Your Users (anyone who uses or accesses a Trial Service provided by AT&T to Customer under this Trial Agreement) must cooperate with AT&T and/or governmental authorities in investigations alleging a violation or prohibited use of the Trial Service.
(i) Customer shall cooperate with AT&T during the term of the Trial Service, as reasonably required by AT&T. Such cooperation shall include evaluating the Trial Service and providing feedback to AT&T concerning the Trial Service.
(ii) Customer has sole responsibility for adequately protecting and maintaining its own equipment, software, data and other property used in connection with the Trial Service.
(iii) Customer shall bear its own expenses associated with the Trial Service.
(iv) Customer acknowledges that nothing in this Trial Agreement shall be construed as a commitment by AT&T to offer the Service to Customer following the termination of the Trial Service.
(v) ) With regard to use of the Trial Service on devices located outside the United States and its Territories, Customer agrees:
- that it will not use or permit the use of the Anti-Virus/Anti-Malware functionality of AT&T Toggle; and
- not to use or incorporate Customer Personal Data into its use of the Trial Service. “Customer Personal Data” includes, without limitation, name, phone number, email address, wireless account details and status, wireless location information or any other information that identifies or could reasonably be used to identify Customer or its end users.
Permitted Use: You agree that You will cause Users to comply with this Trial Agreement, and Customer is responsible for a User’s use of the Trial Service. Customer agrees to use the Trial Service solely for its intended purposes. If Customer violates or exceeds the permitted use as described herein, AT&T may immediately terminate the Trial Service (in addition to pursuing any other remedies available to AT&T). It is Your responsibility to ensure all use of the Trial Service complies with Your internal IT and security procedures, and AT&T shall have no liability to You for any failure to comply with such policies.
Related Use of Wireless Networks: Wireless coverage is not available in all areas. Due to wireless coverage and system limitations, the Trial Service may not be accessible at all times. Wireless service and Wi-Fi service are subject to transmission limitations and terrain, systems, and other limitations. Availability, security, speed, timeliness, accuracy and reliability are not guaranteed by AT&T.
No Resale: Except where required by law, You are not permitted to resell a Trial Service to third parties (excluding Customer’s affiliates) without AT&T’s written consent.
Intellectual Property: Each of AT&T and Customer retains all right, title and interest in and to their respective trade secrets, inventions, copyrights, and other intellectual property. Unless otherwise agreed with Customer in writing in advance of the commencement of the Trial Service, any intellectual property developed by AT&T during the performance of the Trial Service(s) using information provided by AT&T or derived from the Trial Service, and any and all inventions, ideas and know-how resulting from the Trial Service insofar as they relate to the Service or modifications of or improvements to the Service, shall belong to AT&T.
Privacy: If Customer does not want AT&T or AT&T personnel to comprehend Customer data to which they may have access in the course of providing Services, AT&T recommends that Customer encrypt such data so that it will be unintelligible. Customer shall be responsible for obtaining any consent from or providing notice to a User regarding AT&T’s access to, use or processing of the User's information in connection with providing Trial Service.
Disclaimer of Warranties and Liability: CUSTOMER UNDERSTANDS THAT THE TRIAL SERVICE IS OFFERED ON AN "AS IS" BASIS. AT&T MAKES NO WARRANTY, GUARANTEE, OR REPRESENTATION, EXPRESS OR IMPLIED, RELATING TO THE RELIABILITY, EFFECTIVENESS, ACCURACY, COMPLETENESS, PERFORMANCE, OR OPERATION OF THE TRIAL SERVICE, THE SERVICE, OR OF THE EQUIPMENT AND SERVICES FURNISHED TO CUSTOMER FOR PURPOSES OF THE SERVICE OR THE TRIAL SERVICE, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability; Indemnification: CUSTOMER SHALL NOT BE ENTITLED TO DAMAGES, INCLUDING WITHOUT LIMITATION ANY GENERAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE OR SPECIAL DAMAGES, ON ACCOUNT OF ANY ACT OR OMISSION OF AT&T RELATED IN ANY WAY: TO THE TRIAL SERVICE; TO THE SERVICE; TO EQUIPMENT OR SERVICES PROVIDED TO THE CUSTOMER FOR PURPOSES OF THE TRIAL SERVICE OR OF THE SERVICE; OR TO THIS AGREEMENT. THIS SECTION SHALL APPLY (i) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OF ANY KIND, WHETHER ACTIVE OR PASSIVE) OR OTHERWISE, AND (ii) WHETHER OR NOT DAMAGES WERE FORESEEABLE.
b. As used in this Section, "AT&T" and "Customer" shall be deemed to include parents, subsidiaries, and affiliates, and the directors, officers, employees, agents, representatives, and subcontractors of all of them.
c. This Agreement does not provide any third party any remedy, claim, liability, cause of action or other right or privilege.
d. Customer agrees at its expense to defend and either to settle any third-party claim against AT&T, its affiliates and its and their respective employees, directors, subcontractors and suppliers, or to pay all damages that a court finally awards against such parties with respect to any claim that arises out of Customer’s, its affiliates’ or its Users’ access to or use of the Trial Service.
Use of Confidential Information: Subject to the provisions of the Publicity section herein, for purposes of this Trial Agreement, “Confidential Information” includes: this Trial Agreement and the existence of this Trial Agreement; any trade secrets, proprietary information and other information which the disclosing party believes in good faith to be its confidential information and is clearly marked “Confidential” or the like, or if disclosed orally or in any other intangible form, if at the time of the disclosure, the disclosing party tells the receiving party that the information is confidential; and any information disclosed that the receiving party knows to be the proprietary and confidential information of the other party. A disclosing party’s Confidential Information will, for a period of 3 years following its disclosure to the other party (except in the case of software, for which the period is indefinite): (a) not be disclosed, except to the receiving party’s employees, agents and contractors having a need-to-know (but only if such agents and contractors are not direct competitors of the other party and agree in writing to use and disclosure restrictions as restrictive as this section) or to the extent authorized to be revealed by law, governmental authority or legal process (but only if such disclosure is limited to that which is so authorized and prompt notice is provided to the disclosing party to the extent practicable and not prohibited by law, governmental authority or legal process); (b) be held in confidence; and (c) be used only for purposes of using the Trial Service, evaluating proposals for new services or performing this Trial Agreement (including in the case of AT&T to detect fraud, to check quality and to operate, maintain and repair the Trial Service). The restrictions in this section will not apply to any information that: (a) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (b) is lawfully received by the receiving party free of any obligation to keep it confidential; or (c) becomes generally available to the public other than by breach of this Trial Agreement. Until directed otherwise by Customer in writing, if AT&T designates a dedicated account representative as Customer’s primary contact with AT&T, Customer authorizes that representative to discuss and disclose Customer’s customer proprietary information to any employee or agent of Customer without a need for further authentication or authorization.
Arbitration: ALL CLAIMS AND DISPUTES ARISING FROM THIS TRIAL AGREEMENT SHALL BE SETTLED BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES (SUBJECT TO THE REQUIREMENTS OF THE FEDERAL ARBITRATION ACT). ANY JUDGMENT ON ANY AWARD RENDERED MAY BE ENTERED AND ENFORCED IN A COURT HAVING JURISDICTION. THE ARBITRATOR SHALL NOT HAVE THE AUTHORITY TO AWARD ANY DAMAGES DISCLAIMED BY THIS TRIAL AGREEMENT OR IN EXCESS OF THE LIABILITY LIMITATIONS IN THIS TRIAL AGREEMENT, SHALL NOT HAVE THE AUTHORITY TO ORDER PRE-HEARING DEPOSITIONS OR DOCUMENT DISCOVERY, BUT MAY COMPEL ATTENDANCE OF WITNESSES AND PRODUCTION OF DOCUMENTS AT THE HEARING. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY AND WAIVE ANY RIGHT TO PARTICIPATE IN OR INITIATE CLASS ACTIONS; IF THE PARTIES CANNOT WAIVE THESE RIGHTS, THIS ENTIRE SECTION IS VOID.
a. This Trial Agreement may not be assigned by either party without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed, except that AT&T may: (i) assign in whole or relevant part its rights and obligations under this Trial Agreement to an affiliate of AT&T, or (ii) subcontract work to be performed under this Trial Agreement, provided that AT&T will in each such case remain financially responsible for the performance of such obligations.
b. Any claim or dispute arising out of this Trial Agreement must be filed within two years after the cause of action arises.
c. This Trial Agreement will be governed by the law and regulations of the State of New York, without regard to its conflict of law principles. The United Nations Convention on Contracts for International Sale of Goods will not apply.
d. Force Majeure: Neither party nor its affiliates, subsidiaries, subcontractors, parent corporation or any of its parent's affiliates or subsidiaries shall be liable in any way for delay, failure in performance, loss or damage due to any of the following force majeure conditions: fire, strike, embargo, explosion, power blackout, earthquake, flood, war, labor disputes, civil or military authority, acts of God or the public enemy, inability to secure raw materials, acts or omissions of other carriers or suppliers, or other causes beyond its reasonable control, whether or not similar to the foregoing.
e. Publicity: Customer agrees that AT&T may use the results of Customer’s evaluations of the Trial Service to market the Service. Customer also agrees to provide, at AT&T’s request, written testimonials that may be used by AT&T for marketing purposes. Customer shall be given a reasonable opportunity to review and approve the proposed use of any testimonials before use by AT&T; such approval not to be unreasonably withheld. Except as stated above, neither party shall use the name or logo of the other party in any advertising or publicity related to this Agreement or its subject matter without the express written consent of the other party.
f. This Trial Agreement constitutes the entire agreement between the parties concerning the Trial Service provided under this Trial Agreement and supersedes all other written or oral agreements.