re: terms and conditions
thehelper, I am marketer, not a lawyer, so while it’s not my job to defend our company in legal matters, I will still try to address your comments, as long as this discussion doesn’t get too technical.
Even though our TOS were written by lawyers, they were still meant to be read and understood by normal people... and I think you have interpreted the document correctly, in that it basically states that we are not liable for anything. It means that if you choose to become one of our clients, you will never file suit against us, for any reason, at any time, forever. I am sure that you are aware that people in this county can sue you, and win, for some of the stupidest things imaginable. So instead of trying to write a document that outlines every possible scenario (for example, a customer’s battery ran out and they missed an important call, which caused them some form of damage... and because we provided them with the phone, they believe it is our fault and decide we should pay for their loss) we have universally stated that you can’t hold us liable for anything, across the board. If we assumed responsibility for anything, or certain things, it would open us up to all sorts of lawsuits which would cost us time and money, even if we won them. No lawyer in their right mind would write up a document that made us liable, nor would we post such a document online if one were presented to us.
But I think if you are going to look at our terms of service, I think it is important that you also look at ATT’s terms of service located here:
http://www.attws.com/terms/
... because it is quite long, I am going to post a few excerpts that apply....
-----------------------------
From ‘Disclaimers’
THIS SITE AND THE MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND [....] AS TO THE OPERATION OF THIS SITE OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON THIS SITE. YOU EXPRESSLY AGREE THAT USE OF THIS SITE [....] IS AT YOUR SOLE RISK AND RESPONSIBILITY.
WARRANTY DISCLAIMER. AT&T WIRELESS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE INFORMATION, MATERIALS, CONTENT, SERVICES AND PRODUCTS ON THE SITE. AT&T Wireless DOES NOT REPRESENT OR WARRANT THAT MATERIALS IN THIS SITE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, SUBJECT TO CORRECTION [....] AT&T Wireless is not responsible for typographical errors or omissions relating to pricing, TEXT, OR photography. WHILE AT&T WIRELESS ATTEMPTS TO ENSURE YOUR ACCESS AND USE OF THE SITE IS SAFE, AT&T WIRELESS CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THIS SITE OR ITS SERVER(S) WILL BE ERROR-FREE [....] OR OTHERWISE MEET CUSTOMER'S REQUIREMENTS.
From ‘Limitation of Liability’
IN NO EVENT SHALL AT&T WIRELESS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND [....] ARISING OUT OF OR IN ANY WAY CONNECTED WITH (I) THE USE OR INABILITY TO USE THE SITE OR THE CONTENT, MATERIALS, INFORMATION OR TRANSACTIONS PROVIDED ON OR THROUGH THE SITE, OR (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS OR OTHER INACCURACIES IN THE SITE OR THE CONTENT, MATERIALS, INFORMATION, PRODUCTS OR SERVICES ON OR AVAILABLE THROUGH THE SITE, EVEN IF AT&T WIRELESS OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
From ‘Indemnification’
You agree to indemnify, defend and hold harmless AT&T Wireless, its officers, directors, employees, agents, licensors, suppliers and any third party information providers to the Site from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of this Agreement by you.
-----------------------------
...my point here is not just that much of this language is (not coincidentally) very similar to ours, but also, that as a dealer, we aren’t going to take responsibility for anything that is not only out of our own control, but is also out of the control of the service provider/carrier. Basically we are involved in an industry which relies on someone else doing something, and if they don’t do it, then the system can break down, and someone will end up holding the bag... and that ‘someone’ is not going to be us. Nor is it going to be the customer. We have our returns policy (on the same page you referenced) if the customer is not satisfied with the product or the service which was provided to them... so they are not without their own rights. I would encourage you to look at other sites in the Cellular Phones category and see what their TOS say. If you do, I am confident that you will see very similar contracts, as this is the standard in this industry and others. Take a look at ODP’s disclaimer.
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Disclaimer / Limitation of Liability
WE MAKE NO REPRESENTATIONS AS TO THE ACCURACY, QUALITY, TIMELINESS, AVAILABILITY, OR COMPLETENESS OF THE INFORMATION, SOFTWARE, PRODUCTS, OR OTHER MATERIALS AVAILABLE THROUGH THE ODP, AND YOU SHOULD NOT RELY UPON THEM. WE PROVIDE THE ODP ON AN "AS IS, AS AVAILABLE" BASIS. YOU USE IT AT YOUR OWN RISK, AND NETSCAPE, ITS EMPLOYEES, DISTRIBUTORS, DIRECTORS, AND AGENTS ARE NOT LIABLE FOR ANY ERRORS OR OMISSIONS IN ITS CONTENT OR DELIVERY, OR FOR ANY FORM OF LOSS OR DAMAGE (INCLUDING ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, EVEN IF KNOWN TO US) THAT MAY RESULT FROM ITS USE. WE EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO WARRANTY NOT SET FORTH IN THIS AGREEMENT WILL BE VALID. IF ANY OF THE ABOVE PROVISIONS ARE VOID UNDER GOVERNING LAW, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
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I think, however, that there is a larger issue at hand that thehelper is trying to point out, namely that we are somehow not an Authorized Dealer. As we are talking about http://www.attws.com/terms/ I would like to point out the following paragraph on the same page:
“You may not use, frame or utilize framing techniques to enclose any AT&T Wireless trademark, logo or other proprietary information (including the images found at this Site, the content of any text or the layout/design of any page or form contained on a page) without AT&T Wireless' express written consent. [.....] All violators will be prosecuted to the fullest extent of the law.”
Now if we weren’t an Authorized Dealer, our site would be in complete violation of their terms, on a number of levels, and we would be completely open to a massive lawsuit which we would undoubtably lose. But this isn’t the case. Not only are we allowed to use the ATT logos, but we HAVE to use these logos as part of our agreement with them. Their legal team is extremely aggressive and will go after you if you FRAME their page. Imagine what would happen to us if we had somehow mined their entire updated zip code database, along with their logos, plans, pricing, etc., and put all of this on our servers, blatantly misrepresented ourselves as one of their dealers, and then promoted ourselves all over the internet using the description we supplied you with. But I am done arguing this fact. I already offered to fax, and will still fax, an ODP decision maker our agreement, which would unequivocally prove that we have an Authorized Dealer Status with ATT, which would explain how we have permission to use their content to sell their products and services. So basically this point is not a subjective matter, nor is it disputable. The category we applied for is specifically for cellular dealers, not providers or carriers, and lists distribution dealers and affiliates for a number of larger parent companies. We have followed the guidelines for submitting a site to your directory, using the company name and single web address that is listed on our contract, and have been denied a listing for an unknown reason. I have attempted to satisfy all the comments made by editors here, and so far I believe that I have addressed every issue. As I stated in the letter to poncedeleon, I am aware that even though I have made a valid appeal against unknown charges, the site can still be rejected for any reason. But so far, no reason has been given. So if you are going to reject the site for ‘no reason’, then I guess I have no other arguments, but as far as implying that we are not authorized, or that you don’t list dealer sites, you have no grounds for your claims... not that you need any. So at this point I’m just going to wait for a review. Please let me know the status when it changes from being unreviewed. Thank you.
Steven
thehelper, I am marketer, not a lawyer, so while it’s not my job to defend our company in legal matters, I will still try to address your comments, as long as this discussion doesn’t get too technical.
Even though our TOS were written by lawyers, they were still meant to be read and understood by normal people... and I think you have interpreted the document correctly, in that it basically states that we are not liable for anything. It means that if you choose to become one of our clients, you will never file suit against us, for any reason, at any time, forever. I am sure that you are aware that people in this county can sue you, and win, for some of the stupidest things imaginable. So instead of trying to write a document that outlines every possible scenario (for example, a customer’s battery ran out and they missed an important call, which caused them some form of damage... and because we provided them with the phone, they believe it is our fault and decide we should pay for their loss) we have universally stated that you can’t hold us liable for anything, across the board. If we assumed responsibility for anything, or certain things, it would open us up to all sorts of lawsuits which would cost us time and money, even if we won them. No lawyer in their right mind would write up a document that made us liable, nor would we post such a document online if one were presented to us.
But I think if you are going to look at our terms of service, I think it is important that you also look at ATT’s terms of service located here:
http://www.attws.com/terms/
... because it is quite long, I am going to post a few excerpts that apply....
-----------------------------
From ‘Disclaimers’
THIS SITE AND THE MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND [....] AS TO THE OPERATION OF THIS SITE OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON THIS SITE. YOU EXPRESSLY AGREE THAT USE OF THIS SITE [....] IS AT YOUR SOLE RISK AND RESPONSIBILITY.
WARRANTY DISCLAIMER. AT&T WIRELESS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE INFORMATION, MATERIALS, CONTENT, SERVICES AND PRODUCTS ON THE SITE. AT&T Wireless DOES NOT REPRESENT OR WARRANT THAT MATERIALS IN THIS SITE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, SUBJECT TO CORRECTION [....] AT&T Wireless is not responsible for typographical errors or omissions relating to pricing, TEXT, OR photography. WHILE AT&T WIRELESS ATTEMPTS TO ENSURE YOUR ACCESS AND USE OF THE SITE IS SAFE, AT&T WIRELESS CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THIS SITE OR ITS SERVER(S) WILL BE ERROR-FREE [....] OR OTHERWISE MEET CUSTOMER'S REQUIREMENTS.
From ‘Limitation of Liability’
IN NO EVENT SHALL AT&T WIRELESS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND [....] ARISING OUT OF OR IN ANY WAY CONNECTED WITH (I) THE USE OR INABILITY TO USE THE SITE OR THE CONTENT, MATERIALS, INFORMATION OR TRANSACTIONS PROVIDED ON OR THROUGH THE SITE, OR (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS OR OTHER INACCURACIES IN THE SITE OR THE CONTENT, MATERIALS, INFORMATION, PRODUCTS OR SERVICES ON OR AVAILABLE THROUGH THE SITE, EVEN IF AT&T WIRELESS OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
From ‘Indemnification’
You agree to indemnify, defend and hold harmless AT&T Wireless, its officers, directors, employees, agents, licensors, suppliers and any third party information providers to the Site from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of this Agreement by you.
-----------------------------
...my point here is not just that much of this language is (not coincidentally) very similar to ours, but also, that as a dealer, we aren’t going to take responsibility for anything that is not only out of our own control, but is also out of the control of the service provider/carrier. Basically we are involved in an industry which relies on someone else doing something, and if they don’t do it, then the system can break down, and someone will end up holding the bag... and that ‘someone’ is not going to be us. Nor is it going to be the customer. We have our returns policy (on the same page you referenced) if the customer is not satisfied with the product or the service which was provided to them... so they are not without their own rights. I would encourage you to look at other sites in the Cellular Phones category and see what their TOS say. If you do, I am confident that you will see very similar contracts, as this is the standard in this industry and others. Take a look at ODP’s disclaimer.
---------
Disclaimer / Limitation of Liability
WE MAKE NO REPRESENTATIONS AS TO THE ACCURACY, QUALITY, TIMELINESS, AVAILABILITY, OR COMPLETENESS OF THE INFORMATION, SOFTWARE, PRODUCTS, OR OTHER MATERIALS AVAILABLE THROUGH THE ODP, AND YOU SHOULD NOT RELY UPON THEM. WE PROVIDE THE ODP ON AN "AS IS, AS AVAILABLE" BASIS. YOU USE IT AT YOUR OWN RISK, AND NETSCAPE, ITS EMPLOYEES, DISTRIBUTORS, DIRECTORS, AND AGENTS ARE NOT LIABLE FOR ANY ERRORS OR OMISSIONS IN ITS CONTENT OR DELIVERY, OR FOR ANY FORM OF LOSS OR DAMAGE (INCLUDING ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, EVEN IF KNOWN TO US) THAT MAY RESULT FROM ITS USE. WE EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO WARRANTY NOT SET FORTH IN THIS AGREEMENT WILL BE VALID. IF ANY OF THE ABOVE PROVISIONS ARE VOID UNDER GOVERNING LAW, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
--------------
I think, however, that there is a larger issue at hand that thehelper is trying to point out, namely that we are somehow not an Authorized Dealer. As we are talking about http://www.attws.com/terms/ I would like to point out the following paragraph on the same page:
“You may not use, frame or utilize framing techniques to enclose any AT&T Wireless trademark, logo or other proprietary information (including the images found at this Site, the content of any text or the layout/design of any page or form contained on a page) without AT&T Wireless' express written consent. [.....] All violators will be prosecuted to the fullest extent of the law.”
Now if we weren’t an Authorized Dealer, our site would be in complete violation of their terms, on a number of levels, and we would be completely open to a massive lawsuit which we would undoubtably lose. But this isn’t the case. Not only are we allowed to use the ATT logos, but we HAVE to use these logos as part of our agreement with them. Their legal team is extremely aggressive and will go after you if you FRAME their page. Imagine what would happen to us if we had somehow mined their entire updated zip code database, along with their logos, plans, pricing, etc., and put all of this on our servers, blatantly misrepresented ourselves as one of their dealers, and then promoted ourselves all over the internet using the description we supplied you with. But I am done arguing this fact. I already offered to fax, and will still fax, an ODP decision maker our agreement, which would unequivocally prove that we have an Authorized Dealer Status with ATT, which would explain how we have permission to use their content to sell their products and services. So basically this point is not a subjective matter, nor is it disputable. The category we applied for is specifically for cellular dealers, not providers or carriers, and lists distribution dealers and affiliates for a number of larger parent companies. We have followed the guidelines for submitting a site to your directory, using the company name and single web address that is listed on our contract, and have been denied a listing for an unknown reason. I have attempted to satisfy all the comments made by editors here, and so far I believe that I have addressed every issue. As I stated in the letter to poncedeleon, I am aware that even though I have made a valid appeal against unknown charges, the site can still be rejected for any reason. But so far, no reason has been given. So if you are going to reject the site for ‘no reason’, then I guess I have no other arguments, but as far as implying that we are not authorized, or that you don’t list dealer sites, you have no grounds for your claims... not that you need any. So at this point I’m just going to wait for a review. Please let me know the status when it changes from being unreviewed. Thank you.
Steven