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  1. 1. Cingular Connection Manager EULA 9.9.04IMPORTANT LEGAL LICENSE AND WI-FI SERVICE TERMS AND CONDITIONS:IN ORDER TO ACCESS CINGULAR COMMUNICATION MANAGER OR CONNECTIONMANAGER (HEREINAFTER COLLECTIVELY REFERRED TO AS “COMMUNICATIONMANAGER”) OR USE THE SOFTWARE YOU MUST BE AT LEAST 18 YEARS OLD. THE“SOFTWARE” INCLUDES SOFTWARE FROM NEW CINGULAR WIRELESSHEADQUARTERS, LLC (“CINGULAR”). THIS INSTALLATION PROCESS (WHICH MAY BE VIAA CD-ROM OR A WEB-BASED DOWNLOAD) PERMITS YOU TO INSTALL THE CURRENTVERSION OF THE SOFTWARE.IN ORDER TO INSTALL THE SOFTWARE AND USE CINGULAR WI-FI SERVICE (“WI-FISERVICE”) YOU MUST AGREE TO THE FOLLOWING SOFTWARE LICENSE AGREEMENTAND WI-FI SERVICE AGREEMENT. THIS SOFTWARE LICENSE AND WI-FI SERVICEAGREEMENT IS A LEGALLY BINDING CONTRACT THAT SHOULD BE READ IN ITSENTIRETY. YOUR INSTALLATION OR USE OF THIS SOFTWARE AND/OR WI-FI SERVICESIGNIFIES YOUR ACCEPTANCE OF THIS AGREEMENT. THE WI-FI TERMS ANDCONDITIONS APPLY ONLY IF YOU ACCESS OR USE WI-FI SERVICE, AND THEY ARE INADDITION TO, AND NOT IN LIEU OF, THE SERVICE AGREEMENT OR GENERAL TERMSAND CONDITIONS YOU AGREED TO WHEN YOU ACTIVATED WIRELESS SERVICE.This License and Wi-Fi Service Agreement is a legal agreement between you (either an individualor a single entity) and Cingular for Communication Manager, which includes computer softwareand may include associated media, printed materials and “online” or electronic documentation,and for Wi-Fi Service as described at, as such descriptionmay be changed by Cingular from time to time.PART I. License Agreement:1. This License Agreement applies to all the software installed by this program that Cingularlicenses to you, together with each revised or updated version thereof (the "Software"). ThisLicense Agreement also applies to Cingular’s liability to you, if any, with respect to any softwarefor which Cingular does not grant you a license (i.e., software which you license directly from themanufacturer).THIS LICENSE AGREEMENT EXPLAINS HOW YOU MAY USE THIS SOFTWARE. BYCLICKING THE “YES” BUTTON, YOU CONSENT AND AGREE TO BE BOUND BY ALL OF THETERMS AND CONDITIONS BELOW AND YOU MAY, SUBJECT TO THOSE TERMS ANDCONDITIONS, INSTALL AND USE THE SOFTWARE.2. Single User License Grant. Cingular hereby grants you a limited, non-exclusive, non-transferable license to use the object code version of the Software and any relateddocumentation provided by Cingular solely for your individual, personal use and in accordancewith the terms and conditions of this Agreement. Any use of the Software under this LicenseAgreement shall be limited to one copy per device.3. You may use or copy the Software only as instructed herein, or otherwise instructed in writingby Cingular. You may copy the Software for archival purposes, provided any copy must containall of the original copyright and proprietary notices. Use or copying the Software for any otherpurpose is prohibited and is a breach of this License Agreement. As between you and Cingular,the Software files remain the property of Cingular at all times, and Cingular may make changes tothe number and/or content of these files directly while you are connected to the Service. Thislicense will terminate upon termination of your membership or right to use the Service. At thattime, you must stop using the Software and either return the Software to Cingular or destroy it.Cingular is not responsible in any way for any software, services, or devices used in connectionwith the Software, the Service or the Internet, unless such programs, software, services, ordevices are recommended or provided to you by Cingular under a separate written agreement. 1
  2. 2. Cingular Connection Manager EULA 9.9.04You acknowledge the Software is proprietary and confidential to Cingular or its suppliers. ThisLicense Agreement does not convey any rights of ownership to you; title to and ownership of allrights in trademarks, service marks, patents, copyrights, trade secrets and other intellectualproperty in the Software and any copy shall remain with Cingular or other third party owners. Youshall not transfer, lend, lease, sublicense or otherwise distribute, copy, make derivative works of,reverse engineer, decompile, disassemble, translate or otherwise alter or modify the Software.The Software is licensed, not sold.The initial user of the Software may make a one-time transfer of the Software to another enduser. The transfer must include all component parts, media, printed materials, this LicenseAgreement, and (if applicable) the Certificate of Authenticity. The transfer may not be an indirecttransfer, such as a consignment. Prior to the transfer, the end user receiving the transferredSoftware must agree to all the License Agreement terms.4. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS ATYOUR SOLE RISK. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY OFANY KIND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND CINGULARAND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDINGBUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR APARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CINGULAR AND ITSSUPPLIERS DO NOT WARRANT THAT THE SOFTWARE IS ERROR FREE, WILL OPERATEWITHOUT INTERRUPTION OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARECONFIGURATIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NOEVENT SHALL CINGULAR OR ITS SUPPLIERS BE LIABLE FOR INDIRECT, INCIDENTAL ORCONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION, LOSS OF INCOME, DATA,OR USE OF INFORMATION, EVEN IF CINGULAR OR ANY SUPPLIER HAS BEEN ADVISEDOF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DONOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL ORINCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, CINGULARS ENTIRELIABILITY TO YOU FOR DIRECT DAMAGES YOU SUFFER AS A RESULT OF YOUR USE OFTHE SOFTWARE SHALL BE LIMITED TO THE GREATER OF THE AMOUNT YOU PAID FORTHE SOFTWARE OR US $100.00.5. You acknowledge that the Software is subject to U.S. export jurisdiction. You agree to complywith all applicable international and national laws that apply to the Software, including the U.S.Export Administration Regulations, as well as end-user, end-use and destination restrictionsissued by U.S. and other governments. None of the Software or underlying information ortechnology may be downloaded or otherwise exported or re-exported (i) into (or to a national orresident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S.Treasury Departments list of Specially Designated Nationals or the U.S. CommerceDepartments Table of Deny Orders. By downloading or using the Software, you are agreeing tothe foregoing and you are representing and warranting that you are not located in, under thecontrol of, or a national or resident of any such country or on any such list.The Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by theGovernment is subject to restrictions as set forth in subparagraphs (a) through (d) of theCommercial Computer Restricted Rights clause at FAR 52.227-19 when applicable, or insubparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause of DFARSand in similar clauses in the NASA FAR Supplement.6. Performance or Benchmark Testing. You may not disclose the results of any benchmark test using the Software to any third party without Cingular’s prior written approval.7. Reservation of Rights. Cingular reserves all rights not expressly granted to you in this License Agreement. 2
  3. 3. Cingular Connection Manager EULA 9.9.048. Data Charges. Cingular Communication Manager contains a feature that tracks estimated byte usage. Actual billing will be higher.9. Termination. Without prejudice to any other rights, Cingular may cancel this agreement if you do not abide by the terms and conditions, in which case you must destroy all copies of the Software and all of its component parts. In addition, Cingular may, without further notice to you, cancel this Agreement and disable your use of the Software if you do not restore or reestablish a Cingular service account within 30 days after the expiration of your then-current Cingular service account. This software license will expire if you do not use the Communication Manager software to connect to a Cingular network for 90 consecutive days.10. Consent to Use of Data. You agree that Cingular and its affiliates may collect and use technical information you provide as a part of support services, if any, related to the Software Cingular agrees not to use this information in a form that personally identifies you.11. This License Agreement shall be governed by the laws of the State of New York, except conflict of law rules. The United Nations Convention on the International Sale of Goods shall not apply to this License Agreement. This License Agreement contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. This License Agreement may only be modified, or any rights under it waived by a written document executed by both parties.12. If, for any reason, a court of competent jurisdiction finds any provision of this License Agreement, or portion thereof, unenforceable, then the remainder of the License Agreement shall continue in full force and effect and will be read to give maximum effect to the intention of the parties as reflected by its plain language.13. Cingular’s failure, in any instance, to exercise any of its rights under this License Agreement will not constitute a general waiver of such or any other rights hereunder.14. Sections 2 - 14 will survive any termination of this License Agreement.PART II. Wi-Fi Service Agreement:1. In order for you to obtain or continue using the Cingular Wi-Fi Service as described at, as such description may be changed by Cingular fromtime to time, you must agree to and accept the terms and conditions related to the Wi-Fi Serviceas set forth in this PART 2 (the "Wi-Fi Terms and Conditions"). By clicking on the "YES" buttonbelow and using the Wi-Fi Service, you agree to the Wi-Fi Terms and Conditions. The Wi-FiTerms and Conditions are in addition to, and not in lieu of, the Service Agreement or GeneralTerms and Conditions to which you agreed when you activated wireless service (the "GeneralTerms and Conditions"). By clicking on the "YES" button below and using the Wi-Fi Service, youagree that the definition of Service(s) set forth in the General Terms and Conditions shall includethe Wi-Fi Service.2. Wi-Fi Device/ Wi-Fi Service Availability/Interruption. An 802.11b-compatible computer,card and/or device (collectively, the “Wi-Fi Device”) is required to enable the Wi-Fi Service tooperate. You are responsible for ensuring that your Wi-Fi Device is compatible with the Wi-FiService and meets federal standards. The availability and performance of the Wi-Fi Service issubject to all memory, storage and other limitations in the Wi-Fi Device. Wi-Fi Service isavailable to your Wi-Fi Device only when it is within the operating range of the Cingular Wi-Finetwork or that of an operator with which Cingular has a roaming agreement. Wi-Fi Serviceaccess location lists and/or maps may be updated from time to time; actual Wi-Fi Servicecoverage, locations and quality may vary. Wi-Fi Service is subject to unavailability, includingunavailability due to emergencies, collocation failures, transmission and equipment limitations, ormaintenance and repair, and may be interrupted, refused, limited, or curtailed. Cingular is not 3
  4. 4. Cingular Connection Manager EULA 9.9.04responsible for data, messages or pages that you may lose or that become misdirected becauseof interruptions or performance issues with the Wi-Fi Service or wireless communicationsnetworks more generally. Cingular may impose usage or Wi-Fi Service limits, suspend access tothe Wi-Fi Service, or block certain kinds of usage in our sole discretion to protect users or ourbusiness. Network speed is no indication of the speed at which your Wi-Fi Device or the Wi-FiService sends or receives data. Actual network speed will vary based on Wi-Fi Deviceconfiguration, compression and network congestion. The accuracy and timeliness of datareceived is not guaranteed; delays or omissions may occur.3. Use of Wi-Fi Service. Unless otherwise set forth by Cingular in writing, you are receivinga single user account solely for your use of the Wi-Fi Service through one Wi-Fi Device per login.You agree not to access the Wi-Fi Service simultaneously through multiple Wi-Fi Devices or toauthorize any other entity or individual to use the Wi-Fi Service. Reproduction, retransmission,dissemination or resale of Wi-Fi Service is prohibited without prior written contractualarrangements with Cingular and any required regulatory approvals. You are responsible for thepurchase and maintenance of any additional hardware, software and/or Internet access from yourWi-Fi Device required to use the Wi-Fi Service. Your use of the Wi-Fi Service must comply withCingular’s Acceptable Use Policy, found at,which you should read carefully. The Acceptable Use Policy is incorporated by reference as partof this Agreement. Our Acceptable Use Policy may be amended from time to time. In addition,you agree to comply with the applicable Acceptable Use Policy when using the Service whileroaming on the network of a company with whom Cingular has a roaming arrangement.4. Term; Termination. Your access to the Wi-Fi Service begins after you click on the “YES”button below and begin using the Wi-Fi Service; your access terminates at the termination orexpiration of your selected service plan, unless earlier terminated in accordance with thisAgreement. If you do not use the Communication Manager software to connect to a Cingularnetwork for 90 consecutive days, or if your license to use the software is otherwise terminatedpursuant to this Agreement, you will not be able to access the Wi-Fi Service. Any violation of thisAgreement by you may result in the suspension, limitation, or earlier termination of your right touse and access the Wi-Fi Service or such other action as Cingular deems appropriate. Youagree that Cingular will have no liability to you for any restriction or termination of your access tothe Wi-Fi Service pursuant to such violation or the expiration or termination of yourCommunication Manager software license.5. Content Disclaimer. Cingular does do not control, nor is Cingular in any way liable for,data or content that you access or receive via the Wi-Fi Service. The Internet contains uneditedmaterials, some of which are sexually explicit or may be offensive to you. Cingular has no controlover and accept no responsibility for such materials. Cingular is not a publisher of third-partycontent that can be accessed through the Wi-Fi Service, and is not responsible for any opinions,advice, statements, services or other information provided by third parties and accessible throughthe Wi-Fi Service. You are responsible for evaluating such content. You are responsible forpaying all fees and charges from third-party vendors whose sites, products or services youaccess, buy or use via the Wi-Fi Service. Cingular does not guarantee the accuracy,completeness or usefulness of information that is obtained through the Wi-Fi Service, and delaysor omissions may occur. If you choose to use the Wi-Fi Service to access web sites or Contentprovided by third parties or purchase products from third parties, then your personal informationmay be available to the third-party provider. The way third parties handle and use your personalinformation related to the use of their services is governed by their policies and Cingular has noresponsibility for their policies, or third parties compliance with them.6. Release of Information. You consent to Cingular’s release of information about you whenwe believe release is appropriate to comply with the law (e.g. a lawful subpoena); or to protectusers of the Wi-Fi Service and other carriers from fraudulent, abusive, or unlawful use of, orsubscription to, the Wi-Fi Service; or if we reasonably believe that an emergency involvingimmediate danger of death or serious physical injury to any person requires disclosure ofcommunications or justifies disclosure of records without delay. 4
  5. 5. Cingular Connection Manager EULA 9.9.047. Charges. You are responsible for paying all charges, including but not limited to: (i) amonthly fee for the right to use the Wi-Fi Service an unlimited number of times (except as notedbelow) during a 30-day period, and (ii) the price of any Wi-Fi Devices and accessories required touse the Wi-Fi Service. To ensure that the Wi-Fi Service is not being used fraudulently, yourusage of the Wi-Fi Service is limited to 150 uses per month. You also must pay applicable Wi-Fiaccess fees directly to a third party Wi-Fi service provider for non-Cingular Wi-Fi hotspot usage.8. Limitation of Liability. In addition to the limitations set forth in the General Terms andConditions applicable to all Cingular services, which are hereby incorporated by reference,Cingular is not responsible for any computer virus or related problems that may be attributable toactivities conducted while using the Wi-Fi Service.9. Copyright Complaints. Cingular respects the intellectual property rights of others. If youbelieve that your rights under the copyright law have been infringed through use of the Wi-FiService, please provide Cingular’s copyright agent with the following written information so thatCingular can respond in accordance with the procedure specified in the Digital MillenniumCopyright Act, 17 U.S.C. § 512: (1) an electronic or physical signature of the person authorized toact on behalf of the owner of the copyright, (2) identification of the material that is claimed to havebeen infringed, (3) identification of information to permit Cingular to locate the material that isclaimed to be infringing, (4) your contact information, including address, telephone number, ande-mail address, (5) your statement that you have a good faith belief that use of the material in themanner complained of is not authorized by the copyright owner, its agents, or the law, and (6)your 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 isallegedly infringed.Cingular’ copyright agent for notice of claims of copyright infringement:CingularP.O. Box 97061 – RTC316221 NE 72nd WayRedmond, WA 98052Attn: Copyright Infringement Agent/Ruby TarrPhone: 425-580-6214Fax: 425-580-1767copyright@attws.com10. Privacy. Please refer to the Cingular Privacy Policy for information about our collection, use, disclosure andprotection of information relating to your use of the Wi-Fi Service.11. Security. Wireless systems use radio channels to transmit data communicationsover a complex network. Security cannot be guaranteed, and Cingular shall not be liableto you for any lack of security you experience while using the Wi-Fi Service. Cingular hasthe right to monitor, intercept and disclose any transmissions over or using our facilities,and to provide usage records and related information under certain circumstances (forexample, in response to lawful process, orders, subpoenas, or warrants, or to protect ourrights or property). You acknowledge that the Wi-Fi Service is not inherently secure andthat wireless communications can be intercepted by equipment and software designedfor that purpose. The Cingular Wi-Fi Service is not part of the Cingular TDMA, CDPD,GSM, or GPRS/EDGE/UMTS networks and, therefore, does not have the encryption,authentication or other security features that may be available on those networks.Cingular strongly encourages and supports certain customer-provided security solutions,such as virtual private networks (VPNs), but does not provide these to its Wi-Fi users andis not responsible for their effectiveness.12. Consent to Monitoring and Disclosure. Cingular has no obligation to monitor theContent that is available or transmitted to or by you through the Wi-Fi Service. However, 5
  6. 6. Cingular Connection Manager EULA 9.9.04we may monitor these materials periodically to (1) comply with any applicable laws,regulations or other governmental orders; and (2) operate the Wi-Fi Service properly or toprotect itself and its users. Cingular has the right, but not the obligation, to suspend orterminate your access and use of the Wi-Fi Service, and block or remove (in whole or inpart) any communications and materials transmitted through our Wi-Fi Service that webelieve in our sole discretion may violate applicable law, this Agreement or a third partysrights, or is otherwise inappropriate or unacceptable.13. We reserve the right to modify this Agreement from time-to-time on notice to you.Continued use of the Wi-Fi Service subsequent to notice of such modification means youwill be bound by the terms and conditions of the then-current Wi-Fi Terms andConditions.YOU ACKNOWLEDGE THAT YOU HAVE READ THE ABOVE LICENSE AND WI-FI SERVICEAGREEMENT AND UNDERSTAND IT. BY CLICKING ON THE "YES" BUTTON, YOUCONSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT WITHRESPECT TO YOUR USE OF THE COVERED SOFTWARE PRODUCT AND WI-FI SERVICE.IF YOU DO NOT AGREE WITH EACH AND EVERY TERM SET FORTH ABOVE, CLICK ONTHE "NO" BUTTON. THEREAFTER, DO NOT INSTALL OR USE THE LICENSED SOFTWAREOR OTHERWISE ATTEMPT TO ACCESS THE WI-FI SERVICE. 6