AIRFOX END-USER LICENSE AGREEMENT AND TERMS OF SERVICE

1. ABOUT THIS AGREEMENT

​Last updated: October 17, 2016

The following terms and conditions govern your use of the AirFox mobile device application (the “Application”), and your use of the AirFox.io website (the “Site”) and all content, products, promotions, services and functionality available at or through the Application and the Site (collectively, together with the Application and the Site, the “Services”). The Services are owned and operated by CarrierEq, Inc., a Delaware corporation DBA AirFox, (“AirFox”, “we”, “us” or “our”).

The AirFox Application allows businesses and advertisers (collectively, “Advertisers”) to deliver ads, deals, news, and other advertising content (collectively, “Ad Content”) on the mobile lockscreen of consumers who have either downloaded and installed the AirFox Application or opted-in to receive a phone with the AirFox Application pre-installed. The users of this Application are referred to collectively as “Users”, and each, a “User”. The Services are offered subject to the terms and conditions contained herein and in all other operating rules, policies and procedures that may be published from time to time through the Services by AirFox (collectively, the “Agreement”). PLEASE NOTE THAT THIS AGREEMENT CONTAINS MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS IN SECTION 18 BELOW. Without limiting the foregoing, the Agreement also incorporates by reference (1) the AirFox Privacy Policy, as it may be amended from time to time and posted on the Site, and (2) if you are an Advertiser, a written agreement between you and AirFox setting forth the terms of the specific monetization activities you are requesting in connection with the Services (each such agreement with an Advertiser, an “Advertising Agreement”). If you wish to become an Advertiser with us, please email us at care@airfox.io.

PLEASE READ THIS END-USER LICENSE AGREEMENT AND TERMS OF SERVICE AND OUR PRIVACY POLICY CAREFULLY BEFORE DOWNLOADING AND USING THE APPLICATION OR USING A MOBILE PHONE WITH THE APPLICATION PRE-INSTALLED. By clicking on or pressing “I accept”, “I agree” or similar verbiage during the download and/or signup progress, or by accessing or using any other part of the Services, you agree to become bound by the terms and conditions of this Agreement, which form a legally binding contract between you and AirFox. If you do not agree to all the terms and conditions of this Agreement, then you may not download the Application, activate and use a phone with AirFox pre-installed, or access or use any AirFox Services. If you are using the Services on behalf of an employer or another entity, you represent and warrant that you have the authority and capacity to bind such entity to the Agreement.

The Services are available only to individuals who are at least 13 years old.

If you are less than 13 years old, you may not download the Application or use the Services.

2. ACCEPTABLE USE POLICY

Whether or not you register for an account with us, the Services are only available for access and use by you for lawful purposes. You understand that when using the Site or Application, you may be exposed to user content (including, without limitation, Ad Content) provided by other users or third parties, and you agree that AirFox is not responsible for the accuracy, safety, appropriateness or intellectual property rights in or related to such user content. Any action by you or associated with your account that we believe, in our sole and absolute discretion: (a) violates the Agreement; (b) restricts, inhibits, disrupts, interferes with, limits, or prevents access or use of the Services; or (c) through the use of the Services, abuses, defames, harasses, disparages or threatens another user of the Services or any other third party, is strictly forbidden.

Advertisers also may NOT:

  • solicit for commercial purposes other users of the Services, unless permitted by and in accordance with an Advertising Agreement;
  • use the Services to distribute or post solicitations, promotional materials, spam, junk mail, chain letters, or pyramid schemes, unless permitted by and in accordance with an Advertising Agreement;
  • use metatags or any other “hidden text” utilizing any of our or any third party’s product names or trademarks;
  • harvest or otherwise collect personal information about users, including e-mail addresses, without their consent;
  • use any robot, spider, crawler, scraper or other automated means to access the Services, unless permitted by and in accordance with an Advertising Agreement;
  • take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; or
  • bypass any measures we may use to prevent or restrict access to the Services or certain features or modules of the Services.
  • We reserve the right to immediately block or disable your ability to advertise in the Application, and/or otherwise terminate your access to the Services, if, in our sole and absolute discretion, we believe that you have engaged in any of the foregoing activities or that they have occurred in association with your account or password.

    3. OUR INTELLECTUAL PROPERTY RIGHTS

    The proprietary software associated with the Application and the Services, including any enhancements or modifications thereto and any related documentation, as well as the visual and textual elements and the selection, arrangement and compilation of data embodied in (and/or displayed during the execution of) the software, are copyrighted works and exclusively owned by AirFox. In addition, the Services, including all software, AirFox content, inventions, technology, products, services and AirFox data provided on the Site or through the Services, are protected under United States and international copyright, patent, trademark and/or other intellectual property laws and incorporate valuable confidential information and trade secrets of AirFox, and are the exclusive property of AirFox and its licensors. All suggestions, requests and feedback you may communicate to us regarding the Services, and all inventions, improvements, modifications, product or service ideas, and concepts contained therein (collectively, “Feedback”), shall become the exclusive property of AirFox. You hereby assign all worldwide rights, title and interest in such Feedback to AirFox and agree to execute and deliver any assignments or other instruments or documents that we may request in order to confirm, perfect, record or enforce our rights with respect to the Feedback.

    4. LIMITED LICENSE

    Subject to your compliance with all of the terms and conditions of this Agreement, and in consideration of your promises reflected in this Agreement, AirFox grants to you a limited, personal, non-exclusive, revocable, non-sublicensable, non-transferable license to (a) use the Application on a single mobile device, (b) use the Services, in each case for your internal personal or commercial purposes but not for commercial resale, sublicensing, time-sharing or service bureau usage. All rights not expressly granted to you by the foregoing sentence are reserved by AirFox. Without limiting the generality of the foregoing, you may not interfere with the Services in any way, or copy, modify, distribute or reverse engineer, decompile or disassemble Application or the Services, or make any derivative works based on the Application or other Services (including any customization, translation, or localization). Your compliance with the requirements in this Section 4 is a condition to, and material inducement and consideration for, our granting you the right to access and use the Application and the Services. Any unauthorized use ​ or other activity by you in violation of the Agreement will cause the licenses granted to you by AirFox in this Section 4 to terminate automatically.

    This Agreement does not transfer from AirFox to you any AirFox or third party intellectual property, and all right, title and interest in such property will remain solely with AirFox or such third party, as applicable. All rights not expressly granted in this Agreement are reserved to AirFox, AirFox.io, the AirFox logo, and all other trademarks, service marks, graphics and logos used or displayed in connection with the Services are trademarks or registered trademarks of AirFox or AirFox’s licensors. Your use of the Services grants you no right or license to reproduce or otherwise use any AirFox or third-party trademarks.

    5. USER ACCOUNTS

    If you sign up for the Services, you are responsible for maintaining the security of your account, and you are fully responsible for all activities that occur under the account. You agree to immediately notify AirFox of any unauthorized uses of your account or any other breaches of security. AirFox will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. Our current policy limits you to only one AirFox account per mobile device.

    A. AirFox Application

    We register AirFox application with an identifiable AirFox ID that once activated will begin displaying Ad Content on the lockscreen of your mobile phone. After that, all of your interactions with AirFox will be recorded, stored in our servers, and associated with your User Account.

    B. Application Generally

    You may close your User Account at any time by calling your carrier service provider and requesting to be opted out.

    In addition, we also reserve the right to terminate your User Account at any time for breach of this Agreement. We may do this without prior notice, but may attempt to notify you afterward where feasible.

    6. ADVERTISER ACCOUNTS

    Advertisers may access details pertaining to the performance of advertising campaigns managed by AirFox in connection with the Services by requesting such information from AirFox during and after the advertising campaign. You agree not to use any of the information accessed or obtained from AirFox except for internal business purposes in connection with this agreement.

    Advertisers’ use of the Services is subject to all of the terms and conditions in their respective Advertising Agreements with AirFox. In the event of any conflict between this User License Agreement and Terms of Service and the Advertising Agreement, the Advertising Agreement shall control solely with respect to the specific advertising campaigns and other activities described in the Advertising Agreement.

    7. COLLECTION OF INFORMATION

    For details about our data collection and data use practices, please see our Privacy Policy. As explained in the Privacy Policy, the Application may collect, store and share geolocation information (i.e., information about your current location) that you choose to make available to AirFox and our Advertisers and others through the Services as well as collecting and storing anonymized, aggregated geolocation data from your mobile device’s GPS function. To deactivate the Application, please call your mobile phone carrier and request to have the Application deactivated.

    If you are downloading or using the Application or the Services from outside the United States, please be aware that your information (including geolocation information collected through the Application) will be transferred to, stored and processed in the United States where our servers are located and our central database is operated. The data protection and other laws of the United States and other countries might not be as protective as those in your country. By downloading and using the Application, which are provided exclusively from the United States, you hereby consent to the transfer of your information to the United States and its collection, storage, sharing and use as described in the Privacy Policy. You further agree that all transactions relating to the Application and the Services shall be deemed to have occurred in the United States. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with all local laws, statutes, rules, regulations and codes.

    8. MOBILE AND INTERNET SERVICES

    Whenever you utilize the Services from your mobile phone, you thereby agree to receive such services on the device you designate for such purposes and understand that your wireless or internet services provider’s standard data rates may apply to these services. By using the Services, you agree to be responsible for any fees that we may impose or that are incurred as a result of your use of the Services. You hereby represent and warrant that you are the owner or authorized user of any smartphone or other wireless device that you use to access the Services, and that you are authorized to approve all associated data charges.

    9. THIRD PARTY LINKS AND SITES

    We have not reviewed, and cannot review, all of the material, including the Ad Content made available through the Services, or websites, webpages and Applications to which such Ad Content, the Application or the Site links, or with which they are integrated (such as Facebook and Twitter), or that link to the Application or the Site (“Third Party Sites”). AirFox does not have any control over those Third Party Sites, does not endorse them, and is not responsible for their contents or their use. We have no responsibility for or control over such privacy or security practices or any Third Party Site’s collection, storage, use or disclosure of information from you. You should read and are responsible for abiding by the privacy policies, use or service agreements or terms of use, and any other policies of Third Party Sites.

    10. COPYRIGHT AND OTHER INTELLECTUAL PROPERTY INFRINGEMENT

    As AirFox asks others to respect its intellectual property rights, it respects the intellectual property rights of others, and requires its users and customers to do so. If you are a copyright owner or an agent thereof and believe that any user content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services or available through our services are covered by a single notification, a representative list of such works at those locations;
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit AirFox to locate the material;
  • Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
  • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  • A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  • AirFox’s designated Copyright Agent to receive notifications of claimed infringement is Sara Choi, Copyright Agent, e-mail: sara@airfox.io, address: Harvard Innovation Launch Lab, 114 Western Ave., Allston, MA 02134. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to AirFox customer service at care@airfox.io. You acknowledge that if you fail to comply with all of the requirements of this Section 10, your DMCA notice may not be valid.

    11. UPDATES AND CHANGES.

    From time to time, the Application may automatically download and install, or may prompt you to download and install, updates from AirFox. These updates are designed to improve, enhance and further develop the Application and may take the form of bug fixes, enhanced functions, new software modules and/or completely new versions. You agree to receive such updates (and permit AirFox to deliver these to you) as part of your continued use of the Application.

    We are constantly innovating in order to provide the best possible experience for our users. You acknowledge and agree that the form, features and/or nature of the Application and the Services which we provide may change from time to time without prior notice to you. We may also cease or discontinue providing the Application or the Services, or support or upgrades for the Application, at any time. Such new features and/or services shall be subject to the terms and conditions of the then-current version of the Agreement as well as any additional terms and conditions that AirFox may post on the Site or make available through the Services. AirFox may also modify or eliminate services, modules or features of the Application or Services; your sole and exclusive remedy, and AirFox’s sole liability, in connection with any such change, modification or elimination is to terminate your account with us.

    AirFox reserves the right, at its sole discretion, to amend or update any part of the Agreement by posting the amended or updated Agreement on the Site. While we may attempt to notify you when major changes are made to the Agreement, it is your responsibility to check the Agreement periodically for changes, and you should check the “Last Updated” dates at the top of this End-User License Agreement and Terms of Service and our Privacy Policy to familiarize yourself with the latest version of the Agreement. Your continued use of or access to the Services following the posting or distribution of any changes to the Agreement constitutes acceptance of those changes.

    12. TERMINATION

    AirFox may terminate your access to all or any part of the Services, or block or disable your access or use of the Application, at any time, with or without cause, with or without notice, effective immediately. Without limiting the foregoing, AirFox may terminate your access to all or any part of the Services, stop displaying Ad Content on your lockscreen, or block or disable your access or use of the Application, if (a) AirFox believes that you have breached any provision of the Agreement (or have acted in manner which shows that you do not intend to, or are unable to comply with the provisions of the Agreement); (b) AirFox is required to do so by law (for example, where the provision of the Application to you is, or becomes, unlawful); (c) AirFox is transitioning to no longer providing the Application to users in the state or country in which you are resident or from which you use the Application; or (d) AirFox believes that your use of the Application may infringe or violate the rights of a third party or subject AirFox to civil or criminal liability or reputational harm. Termination may result, in AirFox’s sole discretion, in the forfeiture and destruction of all information associated with your account and any Rewards or any advertising revenue earned prior to such date. All provisions of this Agreement which by their nature should survive termination of this Agreement, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability, and miscellaneous terms, shall do so. If your account is cancelled or terminated for any reason, you will no longer be able to access information you have stored under your account.

    13. DISCLAIMER OF WARRANTIES

    YOU AGREE THAT USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. AIRFOX AND ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, REPRESENTATIVES AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND/OR YOUR USE THEREOF INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, FREEDOM FROM VIRUSES, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS.

    AIRFOX MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES AND/OR THEIR CONTENT OR THE CONTENT OF ANY PRODUCTS OR SERVICES LINKED TO OR INTEGRATED WITH THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE AD CONTENT) AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) ERRORS, MISTAKES, OMISSIONS OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES, YOUR ACCOUNT OR OUR SERVERS, AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (V) ANY BUGS, VIRUSES, TROJAN HORSES, MALWARE, ADWARE AND/OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, (VI) ANY LOSS OR DAMAGE TO CONTENT OR DATA (WHETHER STORED THROUGH THE SERVICES OR OTHERWISE), OR (VII) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, IMPORTED, TRANSMITTED, DISTRIBUTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. AIRFOX DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT, SERVICE OR OPPORTUNITY ADVERTISED OR OFFERED BY AN ADVERTISER OR THIRD PARTY THROUGH THE SERVICES, OR ANY HYPERLINKED OR INTEGRATED WEBSITE OR SERVICES, AND AIRFOX WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING OR ENFORCING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTY (INCLUDING ANY ADVERTISER OR OTHER THIRD PARTY WHICH OFFERS OR ATTEMPTS TO TAKE ADVANTAGE OF A DEAL OR PROMOTION THROUGH THE SERVICES).

    Some states do not allow the disclaimer of implied warranties in some circumstances, so if the laws of such a state apply to your dealings with us and if the requisite circumstances exist in your case, then some portion or all of the foregoing disclaimer may not apply to you. The law of warranty varies from state to state and the law applicable in your particular case may give you specific legal rights.

    14. LIMITATION OF LIABILITY; RELEASE

    UNDER NO CIRCUMSTANCES SHALL AIRFOX OR ITS DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, OR SUPPLIERS BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO USE THE SERVICES) WHATSOEVER, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT AIRFOX OR ANY OF THE FOREGOING PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    YOU AGREE THAT THE LIABILITY OF AIRFOX AND ITS AFFILIATES, DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, AND SUPPLIERS FOR ANY CLAIM OR SERIES OF CLAIMS WILL BE LIMITED IN THE AGGREGATE TO THE GREATER OF (i) THE AMOUNT PAID BY YOU TO US FOR THE RELEVANT SERVICES TO WHICH THE CLAIM OR CLAIMS RELATE DURING THE PREVIOUS SIX (6) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIM OR SERIES OF CLAIMS OR (ii) FIFTY U.S. DOLLARS ($50.00).

    YOU HEREBY AGREE TO RELEASE, REMISE AND FOREVER DISCHARGE THE SITE, THE APPLICATION, THE SERVICES AND AIRFOX AND ITS DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, AND SUPPLIERS, AND ITS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND ALL OTHER RELATED PERSONS OR ENTITIES, FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, SUITS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO, OR ARE CONNECTED WITH YOUR USE OF THE SITE, APPLICATION OR THE SERVICES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR” (OR ANY EQUIVALENT STATUTORY PROVISION WITH A SIMILAR IMPORT OR INTENT). IF YOU ARE A RESIDENT OF A STATE OTHER THAN CALIFORNIA, YOU EXPLICITLY WAIVE THE TERMS AND PROTECTIONS OF ANY STATUTE OF YOUR OWN STATE THAT HAS A SIMILAR IMPORT OR INTENT.

    The foregoing limitations of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.

    15. REPRESENTATIONS AND WARRANTIES

    You represent and warrant that (i) your use of the Services will be in strict accordance with the Agreement and with all applicable laws and regulations (including, without limitation, any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and all applicable laws regarding the transmission of technical or personal data exported from or into the United States or the country in which you reside, and all applicable laws pertaining to privacy, consumer rights, and unfair and deceptive advertising practices); and (ii) your use of the Services will not infringe or misappropriate the intellectual property rights or any other rights of AirFox or of any other user or third party.

    16. INDEMNIFICATION

    To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless AirFox, its affiliates and its and their respective members, managers, officers, employees, representatives and agents (the “Indemnified Parties”) from and against any and all claims, actions, lawsuits, damages, obligations, complaints, demands, allegations, losses, liabilities, costs or debt, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) arising out of or related to or in connection with your actual or alleged (a) use of and access to the Services, Site and the Application, (b) violation, breach or default of any term of the Agreement, (c) violation by you or your Ad Content of any third party right including, but not limited to, any patent, trademark, service mark, copyright, trade secret, publicity or privacy right, or (d) any claim that you or any content which you submit or transmit via the Services (including, without limitation, your Ad Content) caused damage to a third party.

    17. NOTICES

    All notices, demands and other communications hereunder shall be in writing and shall be effective upon receipt, provided that we may provide notice to you by posting announcements on the Site (or otherwise making them available through the Services) or sending an e-mail to you at the e-mail address that is currently associated with your account. Any such e-mail notice to you will be deemed given on the day it is sent. Except as specified in the next sentence, all notices to us of a legal nature shall be in writing and shall be sent by certified first-class U.S. mail, return receipt requested, to: AirFox., Harvard Innovation Launch Lab, 114 Western Ave., Allston, MA 02134. ​All notices regarding copyright or other intellectual property infringement issues shall be sent in accordance with our intellectual property policy described in Section 10 above. If you have any questions about the Agreement, or if you need to notify us about a non-legal matter, then please contact us at care@airfox.io or at the postal address set forth above.

    18. MISCELLANEOUS

    You agree that no joint venture, partnership, employment or agency relationship exists between you and us or any of our affiliates as a result of this Agreement or your use of the Services. This Agreement (including the Advertising Agreement, if applicable, the Privacy Policy and all other AirFox operating policies, rules and procedures posted on the Site or Application or made available through the Services from time to time) constitutes the entire agreement between AirFox and you concerning the subject matter hereof, and may only be modified by a written amendment signed by a duly authorized representative of AirFox, or by the posting by AirFox of a revised version of the Agreement on the Site, Application or otherwise through the Services.

    Except as provided in the next paragraph with respect to requests for injunctive relief relating to a breach of your license rights or our intellectual property rights, any controversy, claim or dispute arising out of this Agreement or your use of the Services shall be resolved by final and binding arbitration. Such arbitration shall take place in Boston, MA and shall be administered by a single arbitrator pursuant to the American Arbitration Association under its Commercial Arbitration Rules. The arbitrator shall be empowered to award any form of individual relief, including injunctive relief, and shall be instructed to apply the laws of the State of Massachusetts (excluding its applicable choice of law rules) to any interpretation or enforcement of this Agreement. In order to keep hearing costs down, hearings may, at your request, be conducted telephonically or entirely upon submissions. In addition, in the event that you prevail at the hearing, and the amount awarded to you by the arbitrator is greater than AirFox’s last written settlement offer to you, AirFox agrees to pay twice the amount of your reasonable attorney’s fees and costs, and a minimum award of five hundred dollars ($500).

    You expressly consent to the exercise of jurisdiction and venue by the state and federal courts located in Boston, MA. However, if we think you are violating your license to use the Services or our intellectual property or trade secret rights, we may bring an action for injunctive relief in any court of competent jurisdiction.

    In addition to the above, both you (and AirFox) waive the right to bring any claim or dispute related to this Agreement as a class action, consolidated, multi-district or collective action, or private attorney general action. You also agree not to participate in any class action, consolidated, multi-district or collective action, or private attorney general action regarding any claim or dispute related to this Agreement.

    If AirFox prevails in any arbitration or proceeding to enforce the Agreement or arising out of your access to or use of the Services, it shall be entitled to recover, in addition to all other available legal and equitable relief, its legal costs, including reasonable attorneys’ fees. If any part of the Agreement is held invalid or unenforceable, that part will be reformed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. The provisions of the Agreement are severable, and if any portion is adjudged invalid or unenforceable by a court of competent jurisdiction, the remaining portions will remain valid, enforceable and in effect. Any waiver by either party of any term or condition of the Agreement or any breach thereof shall be in writing, executed by the party to be charged, and any such waiver, in any one instance, will not waive such term or condition in any other instance or any subsequent breach thereof. The Agreement is not assignable by you, except by operation of law; AirFox may assign its rights under the Agreement without condition. The Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.

    19. THIRD PARTY TERMS

    Users agree that in addition to the Agreement, your use of the Application is subject to the usage rules set forth in Google Play’s terms of service, if you download the Application from Google Play, or any other third party platform, developer or distributor end-user license agreement and/or terms and conditions by which you agree to be bound when you download the Application or otherwise access the Services.

    20. HOW TO CONTACT US

    You may direct any questions, complaints or claims with respect to the Application, the Site or the Services to:

    AirFox
    E-mail: care@airfox.io