Case 1:17-cv-24712-XXXX Document 1 Entered on FLSD Docket 12/28/2017
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
Case No. _______________
YAEL ABUROS, individually and
on behalf of others similarly-situated,
Plaintiff, Yael Aburos, individually and on behalf of others similarly situated, brings this
class action lawsuit against Defendant, Apple Inc. (“Apple”), for its unlawful conduct in pushing
a software “upgrade” onto existing iPhone device owners which seriously degraded the battery
life of the device, dramatically reducing its use as a mobile device.
NATURE OF THE ACTION
1. This action is brought on behalf of owners of Apple iPhone devices who accepted Apple’s invitation to download one or more iOS 11 Software Updates onto their existing iPhone
device which had the effect of seriously degrading the battery life on their device.
2. As a result of the deleterious effect of the iOS 11 “upgrade,” many such owners, like Plaintiff, junked their existing iPhone and purchased newly available iPhone 8 or X series devices in order to have a reliable mobile device.
3. Apple knew or should have known of the serious negative impact iOS 11 would have on the battery life of existing iPhones, yet the company took no action to warn owners against downloading the software update, nor to provide a fix such as allowing a downgrade to purge the offending iOS 11 software from affected devices.
4. Plaintiff, Yael Aburos, is a resident of the Town of Bay Harbor Islands, located in Miami-Dade County, Florida.
5. Defendant, Apple Inc., is a California corporation headquartered in Cupertino, California, which designs and markets its iPhone devices throughout the United States.
JURISDICTION AND VENUE
6. This is a class action, on behalf of more than one hundred putative class members,
for damages that exceed $5,000,000.00, exclusive of interest and costs.
7. This Court has jurisdiction pursuant to 28 U.S.C. § 1332(d).
8. Defendant is subject to personal jurisdiction in Florida because it directed its flawed iOS 11 Software Update to existing iPhone device owners whom it knew were located in Florida, with the intent that the software “update” Plaintiff’s iPhone in Florida – an unlawful act – and because Apple engages in substantial, continuous, systematic, and non-isolated business
activity within the state of Florida.
9. Venue is proper within this District because a substantial part of the events giving
rise to the claims occurred in this District, namely that Apple pushed its iOS 11 Software Update
to Plaintiff’s iPhone in Florida.
10. Beginning sometime in 2016, by its own recent admission, Apple secretly began including a feature which had the effect of throttling the performance of iPhone devices in the iOS Software Updates, also known as “Apple security updates,” that it offered to iPhone users.
11. When Defendant releases a new operating system, it pushes the software directly to the customers’ iPhones through a red signal that notifies users of the existence of an available
“software update.” Within minutes, device owners can click on the prompt and download the
new operating system.
12. Apple knew of the adverse effects its throttling software had on iPhone performance but did not disclose its existence until December 20, 2017, well after Plaintiff, along with millions of other users, downloaded the software.
13. At all times material, Apple’s push messages and other product information was disseminated by Apple from its corporate headquarters in California.
A. Apple’s iOS 11 contains a concealed battery-life killer.
14. Apple released iOS 11 on September 19, 2017.
15. Apple represented on its website, and generally, that “iOS 11 is compatible with” the following iPhone devices which predated the release of iOS11: iPhone 5s, iPhone SE, iPhone 6, iPhone 6 Plus, iPhone 6s, iPhone 6s Plus, iPhone 7, and iPhone 7 Plus.
https://support.apple.com/en-us/KM207938 (last visited December 21, 2017). (These iPhone
devices shall be referred to as “existing iPhones.”)
16. On or about September 15, 2017, Apple began accepting orders for its latest generation of iPhone devices, the iPhone 8 and iPhone 8 Plus. Those devices were first made available for sale on or about September 22, 2017. Apple released the iPhone X for sale on or about November 3, 2017.
17. Immediately upon downloading iOS 11, existing iPhone users, like Plaintiff, began to experience a marked decrease in battery life on their devices.
18. One study of thousands of iPhone users within a monitored network compared the relative battery life of existing iPhones operating on iOS 10 versus iOS 11. The chart below shows the rate at which an iPhone with a fully charged battery loses battery power:
19. This study revealed that existing iPhones operating on the iOS 10 software on average drained to 0% battery after 240 minutes (4 hours), whereas those operating on iOS 11 on average drained to 0% battery after only 96 minutes (just over 1½ hours). In other words, iOS 11 reduced the average iPhone’s battery life by more than 60%.
20. Apple’s brief description of the software update for iOS 11 said nothing about the effect of the update on battery life. Apple did not disclose this serious adverse effect iOS 11 would have on the battery life of existing iPhones.
21. In fact, during the relevant time period, Apple misleadingly represented that its operating system updates would improve iPhone battery life.
22. Apple maintained on its website, at all relevant times, the following “Performance Tip” for “Maximizing Battery Life and Lifespan”:
Update to the latest software.
Apple software updates often include advanced energy-saving technologies, so always make sure your device is using the latest version of iOS . . .
https://www.apple.com/batteries/maximizing-performace/ (last visited December 21, 2017)
23. Apple knew, or should have known, that iOS 11 would have the exact opposite effect on existing iPhones.
24. Shortly after the release of iOS11, complaints from existing iPhone users mounted about newfound, terrible battery life.
25. On information and belief, Apple was aware of these complaints, yet did not admit to the software problem.
26. Nor did Apple notify users of the option of purchasing a new battery for their existing iPhone, at a typical cost of $79.
27. Instead, Apple welcomed owners of existing iPhones to upgrade to a new iPhone 8 or X, at a cost between $699 to over $1000.
28. Apple subsequently released several subsequent versions of its iOS 11 software update: iOS 11.0.1 on September 26, 2017; iOS 11.0.2 on October 3, 2017; iOS 11.0.3 on October 11, 2017; iOS 11.1 on October 31, 2017; iOS 11.1.1 on November 9, 2017; iOS 11.1.2 on November 16, 2017; iOS 11.2 on December 2, 2017; and iOS 11.2.1 on December 13, 2017.
29. On information and belief, the battery-life problem which iOS 11 caused in existing iPhones is the same or similar for the subsequently released versions of iOS 11. Therefore, all references in this Complaint to “iOS 11” also include these subsequent versions of
the operating software.
30. Apple prevented owners of existing iPhones from escaping the problem caused by iOS 11 by removing the option of downgrading the operating system back to iOS 10.3.3. While that solution was feasible, Apple stopped “signing” code for iOS 10.3.3, thereby blocking the software escape route from iOS 11.
B. Plaintiff’s similar experience.
31. Plaintiff Yael Aburos’s experience was consistent with that depicted in the study referenced above.
32. In 2017, she owned an iPhone 6. Prior to accepting Apple’s iOS 11 software update, the battery on her iPhone 6 could charge to 100% and lasted for hours before losing its charge.
33. After downloading the iOS 11 software, however, the battery life on her iPhone 6 dropped precipitously. Her iPhone would now only charge to 80% capacity, and the battery would plummet during the course of a single phone call down to 0% and “die.”
34. As a result of the inconvenience of not having a reliable cellular telephone, Plaintiff felt compelled to purchase a new iPhone 8 Plus, at a cost of around $800.
35. Plaintiff was content with the functionality of her iPhone 6 prior to downloading iOS 11 and would not have purchased the iPhone 8 Plus but for the battery-life problems caused by iOS 11.
CLASS ACTION ALLEGATIONS
36. Under Rules 23(a), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure, Plaintiff bring this action on behalf of herself and a class of all those similarly situated defined as follows:
National Class: All owners or former owners of existing iPhone devices in the United States who downloaded iOS 11, or a subsequent version thereof.
37. Plaintiff also brings this action on behalf of herself and all those similarly situated within the following subclasses:
Florida Subclass: All Florida-resident owners or former owners of existing iPhone devices who downloaded iOS 11, or a subsequent version thereof.
National Unjust Enrichment Subclass: All former owners of existing iPhone devices in the United States who downloaded iOS11, or a subsequent version thereof, and then purchased a replacement iPhone 8, iPhone 8 Plus, or iPhone X.
38. Excluded from the Class and Subclasses are Apple and its employees, officers,directors, legal representatives, successors and wholly or partly owned subsidiaries or affiliated companies; class counsel and their employees; and the judicial officers and their immediate family members and associated court staff assigned to this case.
39. The Class and Subclasses can be readily identified from Apple’s records of iPhone owners. For instance, when iPhones are activated, and when various functions are performed on them, including downloading an iOS Software Update, the device transmits and Apple receives, collects and maintains, both a “unique hardware identifier” for the iPhone as well as “unique account identifiers” associated with the owner’s Apple ID. See, e.g., Ex. A at 2, § 2(b).
40. There are millions of existing iPhone device owners in the United States. As of December 4, 2017, according to Apple, 59% of all Apple devices are running iOS 11. See https://developer.apple.com/support/app-store/ (last visited December 27, 2017).
41. Consequently, the number of Class members is great enough that joinder is impracticable.
42. Plaintiff’s’ claims are typical of the claims of the Class and the Subclasses. Like members of the Class, Plaintiff owned an existing iPhone and downloaded iOS 11. Like all members of the Class, Plaintiff then experienced a reduction in the battery life of her iPhone.
43. Like all members of the Florida Subclass, Plaintiff suffered actual damages when the functionality of her existing iPhone was severely impaired by downloading iOS 11 in Florida.
44. And like the members of the Unjust Enrichment Subclass, Plaintiff responded to the newfound battery problem caused by iOS 11 by junking her existing iPhone and purchasing a
new one from Apple, conferring upon Apple an unjustly earned monetary benefit.
Adequacy of Representation
45. Plaintiff will fairly and adequately protect the Class and Subclasses’ interests and has retained counsel competent and experienced in class-action litigation. Plaintiffs’ interests are coincident with, and not antagonistic to, absent Class and Subclass members’ interests because by proving her individual claims, she will necessarily prove the liability of Apple to the Class and Subclasses as well. Plaintiff is also cognizant of, and determined to, faithfully discharge her fiduciary duties to the absent Class and Subclass members as their representative.
46. Plaintiffs’ counsel have substantial experience in prosecuting class actions.
Plaintiff and counsel are committed to vigorously prosecuting this action, have the financial
resources to do so, and do not have any interests adverse to the Class or Subclasses.
Commonality and Predominance
47. There are numerous questions of law and fact the answers to which are common to each Class and Subclass and predominate over questions affecting only individual members, including the following:
a) Whether iOS 11 degraded the battery life of all existing iPhones;
b) Whether Apple breached its iOS Software License Agreement by providing a software “update” that degraded the battery life of existing iPhones to the point that they could not reasonably be used as mobile devices;
c) Whether Apple’s pushing of iOS 11 to owners of existing iPhone devices constitutes a breach of the covenant of good faith and fair dealing;
d) Whether Apple’s pushing of iOS 11 to owners of existing iPhones constitutes an unfair or deceptive act or practice;
e) Whether Apple’s failure to warn owners of existing iPhones that acceding to Apple’s push to iOS 11 would substantially degrade the battery life of existing iPhones constitutes a deceptive, unfair, or unlawful business practice proscribed by Florida and/or California law;
f) Whether Apple’s failure to notify owners of existing iPhones who downloaded iOS 11 that replacing the battery on their device offers a cheaper remedy than purchasing a new Phone constitutes an unfair or deceptive act or practice;
g) Whether Apple’s decision to preclude owners of existing iPhone devices who downloaded iOS 11 to downgrade their devices back to iOS 10.3.3. constitutes an unfair or deceptive act or practice; and
h) Whether Plaintiff and the National Unjust Enrichment Subclass members are entitled to disgorgement or restitution of the monies paid to Apple for the purchase of a replacement iPhone which they would not otherwise have purchased but for the deleterious effect
of iOS 11 on their then-existing iPhones.
Superiority and Manageability
48. A class action is superior to other available methods for the fair and efficient adjudication of this controversy since joinder of all the individual Class and Subclass members is impracticable. Likewise, because the damages suffered by each individual Class member are relatively small, the expense and burden of individual litigation would make it very difficult or impossible for individual Class or Subclass members to redress the wrongs done to each of them individually, and the burden imposed on the judicial system would be enormous.
49. The prosecution of separate actions by the individual Class or Subclass members would also create a risk of inconsistent or varying adjudications. The conduct of this action as a class action presents far fewer management difficulties, conserves judicial resources and the parties’ resources, and protects the rights of each Class or Subclass member.
Violation of the Florida Deceptive and Unfair Trade Practices Act
50. Plaintiff repeats and re-alleges the allegations in paragraphs 1 to 49 above as if fully set forth herein.
51. The Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) prohibits persons from engaging in “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Fla. Stat. § 501.204(1).
52. Apple’s pushing of its iOS 11 software update to owners of existing iPhones constitutes an “unfair,” “deceptive,” and/or “unconscionable” act or practice in violation of Fla. Stat. § 501.204.
53. Specifically, Apple’s conduct was “unfair,” “deceptive,” and/or “unconscionable” in one or more of the following ways:
a) Pushing a software “upgrade” on owners of existing iPhones that renders their device effectively useless because the software so markedly degrades its battery life;
b) Despite knowing, of being in a position where it should have known, of this harmful effect of iOS 11, Apple did not warn owners of existing iPhones of the risk that the their device’s battery life would be severely impaired by downloading the software update;
c) Affirmatively misrepresenting that its operating system updates have “energy-saving technologies,” so that to “[m]aximize [b]attery [l]ife,” owners of existing iPhones should “always make sure [their] device is using the latest version of iOS,” when that is
not true for iOS 11;
d) Blocking owners of existing iPhone devices who downloaded iOS11 from escaping the deleterious effects of iOS 11 on their device’s battery through a downgrade back to iOS 10.3.3; and
e) Marketing new iPhone 8 and X devices without also marketing the availability of replacement batteries as a cheaper fix for an adversely affected existing iPhone.
54. The above-referenced statements and/or omissions would be material to a reasonable person, like Plaintiff, and would likely affect their decisions to accept Apple’s suggestion to download iOS 11 and/or to purchase a new iPhone as a replacement. As a result, Apple has engaged in deceptive acts or practices in violation of the FDUTPA.
55. Based on the foregoing, Apple’s actions or omissions caused or are likely to cause substantial injury to persons that they could not reasonably avoid themselves and that is not outweighed by countervailing benefits to persons or competition; or Apple’s actions or omissions offend established public policy and are unethical, oppressive, unscrupulous or substantially injurious to persons. As a result, Apple has engaged in unfair acts or practices in violation of the FDUTPA.
56. As a result of Apple’s unfair, deceptive and/or unconscionable practices, Plaintiff and the Class and Subclass members have been aggrieved and have suffered, or will suffer, actual damages resulting from their loss of use of their existing iPhones and subsequent purchase of a new replacement iPhone.
57. In addition to their actual monetary damages, Plaintiff and the Class are also entitled, pursuant to Fla. Stat. § 501.211(1), to the following non-monetary relief:
a) a permanent injunction to prevent Apple from continuing to push iOS 11 to existing iPhone device owners without appropriate warnings concerning the deleterious effect on battery life;
b) a permanent injunction to compel Apple to notify owners of existing iPhones that the battery problem caused by iOS 11 can be remedied by replacing the existing battery;
c) a declaratory judgment that Apple’s conduct violates the FDTUPA.
58. Plaintiff and members of the Class and Subclasses are entitled to actual damages and all other relief allowable under the FDUTPA, including the recovery of costs and reasonable attorneys’ fees in pursuing these claims.
59. Plaintiff repeats and re-alleges the allegations in paragraphs 1 to 49 above as if fully set forth herein.
60. When Plaintiff and members of the National Unjust Enrichment Subclass purchased a new iPhone as a replacement for their existing device that was ruined by downloading iOS 11, they conferred a benefit upon Apple.
61. Apple accepted and retained this benefit.
62. Under the circumstances described above, it would be inequitable for Apple to be permitted to retain the benefit of the revenue it has received from the same of replacement iPhones to Plaintiff and members of the National Unjust Enrichment Subclass.
63. Accordingly, Plaintiff and the National Unjust Enrichment Subclass seek disgorgement and/or restitution of these unjustly conferred financial benefits.
Breach of Contract
64. Plaintiff repeats and re-alleges the allegations in paragraphs 1 to 49 above as if fully set forth herein.
65. Apple requires everyone who downloads iOS 11 to agree to the terms of a contract: its iOS Software License Agreement. See Exhibit A.
66. In the iOS Software License Agreement, Apple permits the iPhone device owner “to use the iOS Software on a single Apple-branded iOS Device.” Ex. A at 1, § 2(a) (emphasis added). In addition to Apple’s promise that the software can be “use[d]” on the iPhone device, which is in part a “mobile phone,” Apple also promises that the iOS Software Updates will “update or restore the software” on the iPhone device. Id. at 2, §§ 2(b), (j).
67. Plaintiff performed her obligations under the iOS Software License Agreement for iOS 11.
68. Apple breached its iOS Software License Agreement for iOS 11 by providing software that could not be “used” as intended since the operating system software killed the battery life of the device, rendering it effectively inoperable, particularly as a “mobile” device.
69. Apple further breached its iOS Software License Agreement for iOS 11 by providing software that could did not “restore” the software on existing iPhones. Rather, the iOS 11 software degraded the software on the existing iPhones, rendering the devices incapable of retaining a charge for any reasonable amount of time.
70. As a result of Apple’s breach of its promises in the iOS Software License Agreement, Plaintiff, and all those similarly situated, have suffered damages in the form of the loss of the value of their existing iPhone.
71. Accordingly, Plaintiff, and all those similarly situated, seek damages for Apple’s breach of contract.
Breach of the Covenant of Good Faith and Fair Dealing
72. Plaintiff repeats and re-alleges the allegations in paragraphs 1 to 49 above as if fully set forth herein.
73. Apple requires everyone who downloads iOS 11 to agree to the terms of a contract, its iOS Software License Agreement.
74. In the iOS Software License Agreement, Apple promised to provide a software “update” that would facilitate the “use” of existing iPhones.
75. Implied in every such contract, as a matter of law, is a covenant of good faith and fair dealing, by which parties to the contract promise not to violate the spirit of the bargain or to act in such a way that denies the other party the expected the benefit of the contract.
76. Implied in the iOS Software License Agreement is a promise by Apple that the software update will improve the performance of the existing iPhone device or at least not seriously harm its functionality.
77. iOS 11 seriously degraded the functionality of existing iPhones to the point of rendering them virtually useless as a mobile device.
78. Accordingly, Plaintiff seeks damages, for herself and all those similarly situated.
Violation of California Business & Professions Code ‘ 17200 et seq.
79. Plaintiff repeats and re-alleges the allegations in paragraphs 1 to 49 above as if fully set forth herein.
80. Plaintiff asserts this cause of action on behalf of herself and the Nationwide Class.
81. Plaintiff, as a non-California resident, is entitled to assert this cause of action for Apple’s violations of California Business and Professions Code § 17200 et seq. because Apple is a California corporation whose violations of this consumer protection law occurred in California, resulting in harm to Plaintiff and other members of the Nationwide Class outside of California, as well as harm to numerous members of the Nationwide Class within California.
82. California Business & Professions Code § 17200 et seq. (the “UCL”) prohibits unfair competition that is any unfair, unlawful, or a fraudulent business practice.
83. Apple violated the “unlawful” prong of the UCL by making material misrepresentations, or by making material omissions of facts, that, if downloaded, Apple’s iOS 11 update would not impair or degrade the functioning of existing iPhones, when in fact Apple knew that such impairment or degradation would result, in violation of California’s Consumer Legal Remedies Act, Cal. Civ. Code § 1750 et seq.
84. Apple’s conduct violated the “unfair” prong of the UCL because it was immoral, unethical, oppressive, unscrupulous, unconscionable, and/or substantially injurious to Plaintiff and members of the Nationwide Class. Apple’s practice was also contrary to legislatively declared and public policy and the harm it caused to consumers outweighed its utility, if any.
85. Apple violated the “fraudulent” prong of the UCL by making material misrepresentations and actively concealing material information regarding its practice that, if downloaded, Apple’s iOS 11 update would not impair or degrade the functioning of existing iPhones, when in fact Apple knew that such impairment or degradation would result. These material misrepresentations and nondisclosures were likely to mislead consumers.
86. Apple’s misrepresentations and nondisclosures deceive or have a tendency to deceive the general public.
87. Apple’s misrepresentations and nondisclosures are material, in that a reasonable person would attach importance to the information and would be induced to act on the information in making purchase and product-updating decisions.
88. Plaintiff and the Nationwide Class members reasonably relied on Apple’s material misrepresentations and/or nondisclosures, in that, had they known the truth, they would not have elected to download the iOS 11 update and/or would not have purchased new or additional iPhone items after their existing iPhone had been impaired and degraded by having downloaded the iOS 11 update.
89. As a direct and proximate result of Apple’s unfair, unlawful, and fraudulent conduct, Plaintiff and the members of the Nationwide Class have lost money and/or property. Specifically, as a proximate result of Apple’s violations, Plaintiff and the members of the Nationwide Class have, among other things, paid more for their affected iPhones than they would have had Apple not engaged in its violative conduct, and/or have purchased new or additional iPhones or related battery-life products that they would not have otherwise purchased had Apple not engaged in its violative conduct.
90. Apple’s conduct caused substantial injury to Plaintiff and the members of the Nationwide Class. Accordingly, Plaintiff seeks an order enjoining Apple from committing such unlawful, unfair, and fraudulent business practices immediately and in the future; to provide all potentially-affected iPhone owners with reasonable notice that the poor performance of those devices is caused by Apple=s own modifications; to reimburse all Nationwide Class members the full purchase price they paid for those affected and potentially-affected devices; to provide all class members with new iPhone batteries for those devices, free of charge; and/or to make full restitutionary disgorgement of profits wrongfully obtained, including all applicable pre- and post-judgment interest. Plaintiff also seek attorneys’ fees and costs, for herself and the
Nationwide Class members, under Cal. Code Civ. Proc. ‘ 1021.5.
Violation of California Business & Professions Code § 17500 et seq.
91. Plaintiff repeats and re-alleges the allegations in paragraphs 1 to 49 above as if fully set forth herein.
92. Plaintiff asserts this cause of action on behalf of herself and the Nationwide Class.
93. Plaintiff, as a non-California resident, is entitled to assert this cause of action for Apple’s violations of California Business and Professions Code § 17500 et seq. because Apple is a California corporation whose violations of this consumer protection law occurred in California, resulting in harm to Plaintiff and other members of the Nationwide Class outside of California, as well as harm to numerous members of the Nationwide Class within California.
94. Apple has committed acts of untrue and misleading advertising, as defined by California Business and Professions Code § 17500 et seq., including by making material misrepresentations that battery life would not be impaired or degraded if a customer downloaded Apple’s iOS 11 update on his or her existing iPhone, and by failing to disclose and/or actively concealing material information regarding the battery-life effect of a customer downloading the operating system update.
95. Apple’s misrepresentations and nondisclosures deceive or have a tendency to deceive the general public.
96. Apple’s misrepresentations and nondisclosures are material, in that a reasonable person would attach importance to the information and would be induced to act on the information in making the decision whether to download an operating system update and/or whether to make subsequent iPhone-related purchase decisions from Apple.
97. Plaintiff and members of the Nationwide Class reasonably relied on Apple’s material misrepresentations and/or nondisclosures, and had they known the truth, would not have elected to download iOS 11 and/or would not have purchased new or additional iPhone items after their existing iPhone had been impaired and degraded by their having downloaded the operating system update on their existing iPhone.
98. As a direct and proximate result of Apple’s conduct, Plaintiff and the members of the Nationwide Class lost money or property.
99. Apple’s conduct caused substantial injury to Plaintiff and members of the Nationwide Class. Accordingly, Plaintiff seeks an order enjoining Apple from committing such unlawful, unfair, and fraudulent business practices immediately and in the future; to provide all potentially-affected iPhone owners with reasonable notice that the poor battery-life of their devices is caused by Apple’s own modifications; to reimburse all Nationwide Class members the full purchase price they paid for those affected and potentially-affected devices; to provide all class members with new iPhone batteries for those devices, free of charge; and/or to make full restitutionary disgorgement of profits wrongfully obtained; including all applicable pre- and post-judgment interest. Plaintiff also seeks attorneys’ fees, for herself and the Nationwide Class, and costs under Cal. Code Civ. Proc. § 1021.5.
WHEREFORE, Plaintiff, individually and on behalf of all others similarly situated, hereby demands:
a) certification of the proposed Class and Subclasses;
b) appointment of the Plaintiff as a representative of the Class and Subclasses;
c) appointment of the undersigned counsel as class counsel;
d) an order enjoining Apple from engaging any further in the unlawful conduct set forth herein;
e) a declaration that Apple’s actions described above violate the FDUPTA;
f) restitutionary disgorgement of all profits wrongfully obtained;
g) an award to Plaintiff, the Class and Subclasses of all damages, including attorneys’ fees, recoverable under applicable law;
h) such other relief as this Court deems just and equitable.
DEMAND FOR JURY TRIAL
Plaintiff hereby demands a trial by jury on all applicable claims.
Dated: December 28, 2017
s/ Richard B. Rosenthal
Richard B. Rosenthal
Florida Bar No. 0184853
California Bar No. 203089
THE LAW OFFICES OF
RICHARD B. ROSENTHAL, P.A.
1581 Brickell Avenue, Suite 1408
Miami, FL 33129
s/ Stephen F. Rosenthal
Stephen F. Rosenthal
Florida Bar No. 0131458
Matthew P. Weinshall
Florida Bar No. 84783
PODHURST ORSECK, P.A.
One S.E. 3rd Avenue, Suite 2300
Miami, FL 33131
IMPORTANT: BY USING YOUR iPHONE, iPAD OR iPOD TOUCH (“iOS DEVICE”), YOU ARE AGREEING TO BE BOUND BY THE FOLLOWING TERMS:
A. APPLE iOS SOFTWARE LICENSE AGREEMENT
B. APPLE PAY SUPPLEMENTAL TERMS
C. NOTICES FROM APPLE
iOS SOFTWARE LICENSE AGREEMENT
Single Use License
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING YOUR iOS DEVICE OR DOWNLOADING THE SOFTWARE UPDATE ACCOMPANYING THIS LICENSE. BY USING YOUR iOS DEVICE OR DOWNLOADING A SOFTWARE UPDATE, AS APPLICABLE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE iOS DEVICE OR DOWNLOAD THE SOFTWARE UPDATE.
IF YOU HAVE RECENTLY PURCHASED AN iOS DEVICE AND YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN THE iOS DEVICE WITHIN THE RETURN PERIOD TO THE APPLE STORE OR AUTHORIZED DISTRIBUTOR WHERE YOU OBTAINED IT FOR A REFUND, SUBJECT TO APPLE’S RETURN POLICY FOUND AT http://www.apple.com/legal/sales_policies/.
(a) The software (including Boot ROM code, embedded software and third party software),
documentation, interfaces, content, fonts and any data that came with your iOS Device (“Original iOS Software”), as may be updated or replaced by feature enhancements, software updates or system restore software provided by Apple (“iOS Software Updates”), whether in read only memory, on any other media or in any other form (the Original iOS Software and iOS Software Updates are collectively referred to as the “iOS Software”) are licensed, not sold, to you by Apple Inc. (“Apple”) for use only under the terms of this License. Apple and its licensors retain ownership of the iOS Software itself and reserve all rights not expressly granted to you. You agree that the terms of this License will apply to any Apple-branded app that may be built-in on your iOS Device, unless such app is accompanied by a separate license, in which case you agree that the terms of that license will govern your use of that app.
(b) Apple, at its discretion, may make available future iOS Software Updates. The iOS Software Updates, if any, may not necessarily include all existing software features or new features that Apple releases for newer or other models of iOS Devices. The terms of this License will govern any iOS Software Updates provided by Apple, unless such iOS Software Update is accompanied by a separate license, in which case you agree that the terms of that license will govern.
(c) If you use the express setup feature to set up a new iOS Device based on your existing iOS Device, you agree that the terms of this License will govern your use of the iOS Software on your new iOS Device, unless it is accompanied by a separate license, in which case you agree that the terms of that license will govern your use of that iOS Software.
2. Permitted License Uses and Restrictions.
(a) Subject to the terms and conditions of this License, you are granted a limited non-exclusive license to use the iOS Software on a single Apple-branded iOS Device. Except as permitted in Section 2(b) below, and unless as provided in a separate agreement between you and Apple, this License does not allow the
iOS Software to exist on more than one Apple-branded iOS Device at a time, and you may not distribute or make the iOS Software available over a network where it could be used by multiple devices at the same time. This License does not grant you any rights to use Apple proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third party devices and accessories, or third party software applications, for use with iOS Devices. Some of those rights are available under separate licenses from Apple. For more information on developing third party devices and accessories for iOS Devices, please visit https://developer.apple.com/programs/mfi/. For more information on developing software applications for iOS Devices, please visit https://developer.apple.com.
(b) Subject to the terms and conditions of this License, you are granted a limited non-exclusive license to download iOS Software Updates that may be made available by Apple for your model of the iOS Device to update or restore the software on any such iOS Device that you own or control. This License does not allow you to update or restore any iOS Device that you do not control or own, and you may not distribute or make the iOS Software Updates available over a network where they could be used by multiple devices or multiple computers at the same time. If you download an iOS Software Update to your computer, you may make one copy of the iOS Software Updates stored on your computer in machinereadable form for backup purposes only, provided that the backup copy must include all copyright or other proprietary notices contained on the original.
(c) To the extent that Apple has preinstalled Apple-branded apps from the App Store on your iOS Device at the time of purchase (“Preinstalled Apps”), you will need to log into the App Store and associate these Preinstalled Apps with your App Store account in order to use them on your iOS Device. When you associate a Preinstalled App with your App Store account, you will at the same time be automatically associating all other Preinstalled Apps on your iOS Device. By choosing to associate the Preinstalled Apps with your App Store account, you agree that Apple may transmit, collect, maintain, process and use both the Apple ID used by your App Store account and a unique hardware identifier collected from your iOS Device, as unique account identifiers for the purpose of verifying the eligibility of your request and providing you access to the Preinstalled Apps through the App Store. If you do not wish to use a Preinstalled App, you can delete it from your iOS Device at any time.
(d) You may not, and you agree not to or enable others to, copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the iOS Software or any services provided by the iOS Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of open-source components that may be included with the iOS Software).
(f) You agree to use the iOS Software and the Services (as defined in Section 5 below) in compliance with all applicable laws, including local laws of the country or region in which you reside or in which you download or use the iOS Software and Services. Features of the iOS Software and the Services may not be available in all languages or regions, some features may vary by region, and some may be restricted or unavailable from your service provider. A Wi-Fi or cellular data connection is required for some features of the iOS Software and Services.
(g) Use of the App Store requires a unique user name and password combination, known as an Apple ID. An Apple ID is also required to access app updates and certain features of the iOS Software and Services.
(h) You acknowledge that many features, built-in apps, and Services of the iOS Software transmit data and could impact charges to your data plan, and that you are responsible for any such charges. You can view and control which applications are permitted to use cellular data and view an estimate of how much data such applications have consumed under Cellular Data Settings. For more information, please consult the User Guide for your iOS Device.
(i) If you choose to allow automatic app updates, your iOS Device will periodically check with Apple for updates to the apps on your device and, if one is available, the update will automatically download and install onto your device. You can turn off the automatic app updates altogether at any time by going to Settings, tap iTunes & App Store, and under Automatic Downloads, turn off Updates.
(j) Using your iOS Device in some circumstances can distract you and may cause a dangerous situation (for example, avoid typing a text message while driving a car or using headphones while riding a bicycle). By using your iOS Device you agree that you are responsible for observing rules that prohibit or restrict the use of mobile phones or headphones (for example, the requirement to use hands-free options for making calls when driving).
3. Transfer. You may not rent, lease, lend, sell, redistribute, or sublicense the iOS Software. You may, however, make a one-time permanent transfer of all of your license rights to the iOS Software to another party in connection with the transfer of ownership of your iOS Device, provided that:
(a) the transfer must include your iOS Device and all of the iOS Software, including all its component parts and this License;
(b) you do not retain any copies of the iOS Software, full or partial, including copies stored on a
computer or other storage device; and (c) the party receiving the iOS Software reads and agrees to accept the terms and conditions of this License.
4. Consent to Use of Data. When you use your device, your phone number and certain unique
5. Services and Third Party Materials.
(a) The iOS Software may enable access to Apple’s iTunes Store, App Store, iBooks Store, Game Center, iCloud, Maps and other Apple and third party services and web sites (collectively and individually, “Services”). Such Services may not be available in all languages or in all countries. Use of these Services requires Internet access and use of certain Services may require an Apple ID, may require you to accept additional terms and may be subject to additional fees. By using this software in connection with an Apple ID, or other Apple Service, you agree to the applicable terms of service for that Service, such as the latest Apple Media Services Terms and Conditions for the country in which you access such Services, which you may access and review at http://www.apple.com/legal/internet-services/itunes/
(b) If you sign up for iCloud, certain iCloud features like “iCloud Photo Library”, “My Photo Stream”, “iCloud Photo Sharing”, “Back Up” and “Find My iPhone” may be accessed directly from the iOS Software. You acknowledge and agree that your use of iCloud and these features is subject to the latest terms and conditions of the iCloud service, which you may access and review at: http://www.apple.com/legal/internet-services/icloud/ww/.
c) News App Content. Your use of content accessed through the News application is limited solely to personal, noncommercial use, does not transfer any ownership interest to you in the content, and specifically excludes, without limitation, any commercial or promotional use rights in such content. Furthermore, you are prohibited from republishing, retransmitting and reproducing any images accessed through News as a stand-alone file.
(d) Maps. The maps service and features of the iOS Software (“Maps”), including map data coverage, may vary by region. When you use any location-based features within Maps, such as turn-by-turn navigation, traffic and local search, various location-related and usage information may be sent to Apple, including the real-time geographic location of your iOS Device, in order to process your request and help improve Maps. Such location and usage data is collected by Apple in a form that does not personally identify you. By using Maps, you agree and consent to Apple’s and its subsidiaries’ and agents’ transmission, collection, maintenance, processing, and use of this information, to provide and improve the Maps features and service, and other Apple products and services. Apple may also provide such information, in either an aggregated or non personally identifiable form, to its partners and licensees to help improve their map and location-based products and services. You may disable the location-based functionality of Maps by going to the Location Services setting on your iOS Device and turning off the individual location setting for Maps. Certain Maps features will however be unavailable if you disable the Location Services setting, such as turn-by-turn navigation.
(e) iBooks; Podcasts. If you choose to use the sync feature of the iBooks and Podcasts apps to
synchronize your bookmarks, notes, collections and podcast subscription data across your iOS Devices and computers, you acknowledge that such data will be sent to Apple and stored in conjunction with the Apple ID you use for the iBooks Store or iTunes Store, in order to sync such data to your other devices and computers that are authorized to access content through that Apple ID. You can turn off syncing at any time by going to Settings and changing the syncing options for the iBooks and Podcasts apps, respectively.
(f) You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Services at your sole risk and that Apple, its affiliates, agents, principals, or licensors shall have no liability to you for content that may be found to be offensive, indecent, or objectionable.
(g) Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, you acknowledge and agree that Apple is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Apple, its officers, affiliates and subsidiaries do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites
are provided solely as a convenience to you.
(h) Neither Apple nor any of its content providers guarantees the availability, accuracy, completeness, reliability, or timeliness of stock information, location data or any other data displayed by any Services. Financial information displayed by any Services is for general informational purposes only and should not be relied upon as investment advice. Before executing any securities transaction based upon information obtained through the Services, you should consult with a financial or securities professional who is legally qualified to give financial or securities advice in your country or region. Location data provided by any Services, including the Apple Maps service, is provided for basic navigational and planning purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate, time-delayed or incomplete location data may lead to death, personal injury, property or environmental damage. You agree that, the results you receive
from the Maps service may vary from actual road or terrain conditions due to factors that can affect the accuracy of the Maps data, such as, but not limited to, weather, road and traffic conditions, and geopolitical events. For your safety when using the navigation feature, always pay attention to posted road signs and current road conditions. Follow safe driving practices and traffic regulations, and note that walking directions may not include sidewalks or pedestrian paths.
(i) To the extent that you upload any content through the use of the Services, you represent that you own all rights in, or have authorization or are otherwise legally permitted to upload, such content and that such content does not violate any terms of service applicable to the Services. You agree that the Services contain proprietary content, information and material that is owned by Apple, the site owner or their licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for permitted use of the Services or in any manner that is inconsistent with the terms of this License or that infringes any intellectual property rights of a third party or Apple. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening
network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Apple is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Services.
(j) In addition, Services and Third Party Materials that may be accessed, linked to or displayed on the iOS Device are not available in all languages or in all countries or regions. Apple makes no representation that such Services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to use or access such Services and Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws and privacy and data collection laws. Sharing or syncing photos through your iOS Device may cause metadata, including where and when the photo was taken, and depth information, to be transmitted with the photos. Use of Apple services (such as iCloud Photo Library) to share or sync such photos will involve Apple receiving and storing such metadata. Apple and its licensors reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Apple be liable for the removal of or disabling of access to any such Services. Apple may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
6. Termination. This License is effective until terminated. Your rights under this License will terminate automatically or otherwise cease to be effective without notice from Apple if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the iOS Software. Sections 4, 5, 6, 7, 8, 9, 12 and 13 of this License shall survive any such termination.
7. Disclaimer of Warranties.
7.1 If you are a customer who is a consumer (someone who uses the iOS Software outside of your trade, business or profession), you may have legal rights in your country of residence which would prohibit the following limitations from applying to you, and where prohibited they will not apply to you. To find out more about rights, you should contact a local consumer advice organization.
7.2 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE iOS SOFTWARE AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGH THE iOS SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
7.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE iOS SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APPLE AND APPLE’S LICENSORS (COLLECTIVELY REFERRED TO AS “APPLE” FOR THE PURPOSES OF SECTIONS 7 AND 8) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE iOS SOFTWARE AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
7.4 APPLE DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE iOS SOFTWARE AND SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE iOS SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE iOS SOFTWARE AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE iOS SOFTWARE OR SERVICES WILL BE CORRECTED, OR THAT THE iOS SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THIS iOS SOFTWARE MAY AFFECT THE AVAILABILITY AND USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES, AS WELL AS APPLE PRODUCTS AND SERVICES.
7.5 YOU FURTHER ACKNOWLEDGE THAT THE iOS SOFTWARE AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION
PROVIDED BY THE iOS SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS.
7.6 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLE OR AN APPLE AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE iOS SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING,REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
8. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT
SHALL APPLE, ITS AFFILIATES, AGENTS OR PRINCIPALS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA (INCLUDING WITHOUT LIMITATION COURSE INSTRUCTIONS, ASSIGNMENTS AND MATERIALS), BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE iOS SOFTWARE AND SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE iOS SOFTWARE OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF APPLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Apple’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of two hundred and fifty dollars (U.S.$250.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
9. Digital Certificates. The iOS Software contains functionality that allows it to accept digital certificates either issued from Apple or from third parties. YOU ARE SOLELY RESPONSIBLE FOR DECIDING WHETHER OR NOT TO RELY ON A CERTIFICATE WHETHER ISSUED BY APPLE OR A THIRD PARTY. YOUR USE OF DIGITAL CERTIFICATES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ACCURACY, SECURITY, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO DIGITAL CERTIFICATES.
10. Export Control. You may not use or otherwise export or re-export the iOS Software except as authorized by United States law and the laws of the jurisdiction(s) in which the iOS Software was obtained. In particular, but without limitation, the iOS Software may not be exported or re-exported (a)into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By using the iOS Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the iOS Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
11. Government End Users. The iOS Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
12. Controlling Law and Severability. This License will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law principles. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If you are a consumer based in the United Kingdom, this License will be governed by the laws of the jurisdiction of your residence. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
13. Complete Agreement; Governing Language. This License constitutes the entire agreement
between you and Apple relating to the iOS Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by Apple. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern, to the extent not prohibited by local law in your jurisdiction.
15. Use of MPEG-4; H.264/AVC Notice.
(a) The iOS Software is licensed under the MPEG-4 Systems Patent Portfolio License for encoding in compliance with the MPEG-4 Systems Standard, except that an additional license and payment of royalties are necessary for encoding in connection with (i) data stored or replicated in physical media which is paid for on a title by title basis and/or (ii) data which is paid for on a title by title basis and is transmitted to an end user for permanent storage and/or use. Such additional license may be obtained from MPEG LA, LLC. See http://www.mpegla.com for additional details.
(b) The iOS Software contains MPEG-4 video encoding and/or decoding functionality. The iOS Software is licensed under the MPEG-4 Visual Patent Portfolio License for the personal and non-commercial use of a consumer for (i) encoding video in compliance with the MPEG-4 Visual Standard (“MPEG-4 Video”) and/or (ii) decoding MPEG-4 video that was encoded by a consumer engaged in a personal and noncommercial activity and/or was obtained from a video provider licensed by MPEG LA to provide MPEG-4 video. No license is granted or shall be implied for any other use. Additional information including that relating to promotional, internal and commercial uses and licensing may be obtained from MPEG LA, LLC. See http://www.mpegla.com.
(c) The iOS Software contains AVC encoding and/or decoding functionality, commercial use of H.264/AVC requires additional licensing and the following provision applies: THE AVC FUNCTIONALITY IN THE iOS SOFTWARE IS LICENSED HEREIN ONLY FOR THE PERSONAL AND NON-COMMERCIAL USE OF A CONSUMER TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE AVC STANDARD (“AVC VIDEO”) AND/OR (ii) DECODE AVC VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND NON-COMMERCIAL ACTIVITY AND/OR AVC VIDEO THAT WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE AVC VIDEO. INFORMATION REGARDING OTHER USES AND LICENSES MAY BE OBTAINED FROM MPEG LA L.L.C. SEE HTTP://WWW.MPEGLA.COM.
16. Yahoo Search Service Restrictions. The Yahoo Search Service available through Safari is licensed for use only in the following countries and regions: Argentina, Aruba, Australia, Austria, Barbados, Belgium, Bermuda, Brazil, Bulgaria, Canada, Cayman Islands, Chile, China, Colombia, Cyprus, Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Finland, France, Germany, Greece, Grenada, Guatemala, Hong Kong, Hungary, Iceland, India, Indonesia, Ireland, Italy, Jamaica, Japan, Latvia, Lithuania, Luxembourg, Malaysia, Malta, Mexico, Netherlands, New Zealand, Nicaragua, Norway, Panama, Peru, Philippines, Poland, Portugal, Puerto Rico, Romania, Singapore, Slovakia, Slovenia, South Korea, Spain, St. Lucia, St. Vincent, Sweden, Switzerland, Taiwan, Thailand, The Bahamas, Trinidad and Tobago, Turkey, UK, Uruguay, US and Venezuela.
17. Microsoft Exchange Notice. The Microsoft Exchange mail setting in the iOS Software is licensed only for over-the-air synchronization of information, such as email, contacts, calendar and tasks, between your iOS and Microsoft Exchange Server or other server software licensed by Microsoft to implement the Microsoft Exchange ActiveSync protocol.
Apple Pay Supplemental Terms and Conditions
These Apple Pay Supplemental Terms and Conditions (the “Supplemental Terms”) supplement the iOS Software License Agreement (the “License”); both the terms of the License and these Supplemental Terms govern your use of the Apple Pay feature, which shall be deemed a “Service” under the License. Capitalized terms used in these Supplemental Terms have the meanings set forth in the License.
1 Overview and Use Restrictions
Apple Pay allows you to store virtual representations of credit, debit and prepaid cards, including store credit, debit and prepaid cards, which are supported by the Apple Pay feature (“Supported Payment Cards”) and use supported iOS Devices to make contactless payments in select locations, or within apps or websites. Apple Pay also allows you to use rewards and gift cards that are saved in Wallet (“Apple Pay-Enabled Cards”, and together with Supported Payment Cards, “Supported Cards”) to make contactless rewards and gift card transactions in select stores as part of a contactless payment using Apple Pay. The Apple Pay features of the iOS Software may only be available in select regions, with select card issuers, and with select merchants. Features may vary by region, issuer, and merchant.
In order to use Apple Pay, you must have a card supported by the Apple Pay feature. Supported Cards may change from time to time. Supported Payment Cards are associated with an active iCloud account in order to use this feature. Supported Cards are only available to individuals aged 13 years or older, and may be subject to additional age-based restrictions imposed by iCloud or the Supported Card which you are trying to provision.
You agree not to use Apple Pay for illegal or fraudulent purposes, or any other purposes which are prohibited by the License and these Supplemental Terms. You further agree to use Apple Pay in accordance with applicable law and regulation. You agree not to interfere with or disrupt the Apple Pay service (including accessing the service through any automated means), or any servers or networks connected to the service, or any policies, requirements or regulations of networks connected to the service (including any unauthorized access to, use or monitoring of data or traffic thereon).
2 Apple’s Relationship With You
Apple Pay enables you to create a virtual representation of your Supported Cards on your supported iOS Device, however Apple does not process payments or other non-payment card transactions (such as reward accrual and redemption), or have any other control over payments, returns, refunds, rewards, value, discounts or other commerce activity that may arise out of your use of this feature. The terms of cardholder agreements you may have in place with your card issuer will continue to govern your use of your Supported Payment Cards and their use in connection with Apple Pay. Similarly, your participation in any merchant rewards or gift card programs and your use of Apple Pay-Enabled Cards in connection with Apple Pay will be subject to such merchant’s terms and conditions. Nothing in the License or these Supplemental Terms modifies the terms of any cardholder or merchant agreement, and such terms will govern your use of the applicable Supported Card and its virtual representation on your iOS Device. You agree that Apple is not a party to your cardholder or merchant agreements, nor is Apple responsible for the (a) content, accuracy or unavailability of any payment cards, rewards cards, gift cards, commerce activities, transactions or purchases while using Apple Pay functionality; (b) issuance of credit or assessing eligibility for credit; (c) accrual or redemption of rewards or stored value under a merchant’s program; or (d) funding or reloading of prepaid cards. For all disputes or questions about payment cards, rewards cards, gift cards, or associated commerce activity, please contact your issuer or the applicable merchant.
Apple Pay requires some information from your iOS Device in order to offer the full experience. You can find more information on the data collected, used or shared as part of your use of Apple Pay by reading About Apple Pay and Privacy (which can be accessed by going to Wallet & Apple Pay on your iOS Device, or within the Watch app on a paired iOS Device) or by visiting http://www.apple.com/privacy. By using Apple Pay, you agree and consent to Apple’s and its subsidiaries’ and agents’ transmission, collection, maintenance, processing, and use of all of the foregoing information, to provide Apple Pay functionality.
4 Security; Lost or Disabled Devices
Apple Pay stores virtual representations of your Supported Cards and should be protected as you would protect your physical credit, debit, prepaid, rewards and gift cards. Providing your device passcode to a third party or allowing a third party to add their fingerprint to use Touch ID may result in their ability to make payments and receive or redeem rewards or credit using Apple Pay on your device. You are solely responsible for maintaining the security of your device and of your passcode. You agree that Apple does not have any responsibility if you lose or share access to your device. You agree that Apple does not have any responsibility if you make unauthorized modifications to iOS (such as by way of a “jailbreak”).
If your device is lost or stolen and you have Find My iPhone enabled, you can use Find My iPhone to attempt to suspend the ability to pay with the virtual Supported Payment Cards on the device by putting it into Lost Mode. You can also erase your device, which will attempt to suspend the ability to pay with the virtual Supported Payment Cards on the device and will also attempt to remove the Apple PayEnabled Cards. You should also contact the issuer of your Supported Payment Cards and the merchant who issued your Apple Pay-Enabled Cards in order to prevent unauthorized access to your virtual Supported Cards.
If you report or Apple suspects fraudulent or abusive activity, you agree to cooperate with Apple in any investigation and to use any fraud prevention measures we prescribe.
5 Limitation of Liability
IN ADDITION TO THE DISCLAIMERS OF WARRANTIES AND LIMITATION OF LIABILITY SET FORTH IN THE LICENSE, APPLE DOES NOT ASSUME ANY LIABILITY FOR PURCHASES, PAYMENTS, TRANSACTIONS, OR OTHER COMMERCE ACTIVITY MADE USING THE APPLE PAY FEATURE, AND YOU AGREE TO LOOK SOLELY TO AGREEMENTS YOU MAY HAVE WITH YOUR CARD ISSUER, PAYMENT NETWORK, OR MERCHANT TO RESOLVE ANY QUESTIONS OR DISPUTES RELATING TO YOUR SUPPORTED CARDS, VIRTUAL SUPPORTED CARDS AND ASSOCIATED COMMERCE ACTIVITY.
NOTICES FROM APPLE
If Apple needs to contact you about your product or account, you consent to receive the notices by email. You agree that any such notices that we send you electronically will satisfy any legal