SPOTWIFI END USER LICENSE AGREEMENT
Last updated: May 25, 2018
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT CLICK THE “ACCEPT” BUTTON OR DOWNLOAD, INSTALL OR USE THE APPLICATION.
THIS APPLICATION IS NOT INTENDED FOR PERSONS UNDER THE AGE OF 13. IF YOU ARE UNDER 13 YEARS OLD, YOU MAY NOT USE THIS APPLICATION OR PROVIDE SPOTWIFI WITH ANY PERSONALLY IDENTIFIABLE INFORMATION. IF YOU ARE 13 OR OLDER BUT NOT OF LEGAL AGE TO ENTER INTO A CONTRACT, YOU SHOULD REVIEW THESE TERMS AND CONDITIONS WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND THESE TERMS AND CONDITIONS.
BY CLICKING THE “ACCEPT” BUTTON OR DOWNLOADING, INSTALLING OR USING THE APPLICATION, YOU AFFIRM THAT YOU ARE EITHER OVER THE AGE OF MAJORITY IN YOUR JURISDICTION OF RESIDENCE, OR ARE AN EMANCIPATED MINOR, OR POSSESS LEGAL PARENTAL OR GUARDIAN CONSENT, AND THAT YOU ARE FULLY ABLE AND COMPETENT TO ENTER INTO THIS LICENSE AGREEMENT AND THE RELATED AGREEMENTS.
Please read this end user license agreement (“License”) carefully before clicking the “Accept” button or downloading or using the SpotWiFi app (the “Application”). As used herein, “Application” includes, without limitation, any services, software code, scripts, interfaces, text or graphic content specific to the Application. These terms are an agreement between You and SpotWiFi, including its affiliates. SpotWiFi is a brand and affiliate of BandwidthX Inc. “You” and “Your” in this License refer to You, an individual, and/or to the company on whose behalf You accept this License.
Your use of the Application also may be governed by terms and conditions required by (i) any applicable third party content and service providers, (ii) the manufacturer and other providers of Your Device and its hardware and software components, including its operating system, (iii) the online store or other applicable distributor through which You obtain the Application, including without limitation those listed in the “Third Party Terms” section of this License, and (iv) any applicable open source or third party software license (collectively, the “Related Agreements”). No Related Agreement, however, shall have the effect of limiting, encumbering or otherwise restricting SpotWiFi’s rights and remedies or Your obligations under this License, or waiving any restrictions on Your rights to use the Application under this License. This License shall not have the effect of limiting, encumbering or otherwise restricting SpotWiFi’s rights and remedies or Your obligations under any Related Agreement between You and SpotWiFi, or waiving any restrictions on Your rights under any Related Agreement between You and SpotWiFi.
If SpotWiFi makes any updates or upgrades to the Application available to You, such updates or upgrades shall be subject to the terms and conditions of this License unless the Application is expressly provided to You under other, or additional terms and conditions, in which case, those other, or additional terms and conditions (which may include the payment of additional fees), shall apply. This Application may be downloaded and used only by wireless customers of SpotWiFi.
- WI-FI CONNECTIVITY AND AUTOMATION
This Application automates the functionality of the Wi-Fi radio in Your Device by enabling/disabling the Wi-Fi radio and connecting You automatically to certain hotspots based upon the settings You choose and Your proximity to an available Wi-Fi hotspot. Based upon Your settings, the Application will automatically connect Your Device to hotspots (both secured and unsecured) and may also connect Your Device to other available unsecured Wi-Fi hotspots that appear to be intended for free public use. The Application will not record or share any security passwords or credentials You may be using to access Wi-Fi hotspots. Any attempt to manipulate the Application to share security settings or otherwise hack, damage, disrupt or disable the authentication protocols of a Wi-Fi hotspot is a violation of law and expressly prohibited.
The Application provides options for You in the “Settings” menu. In the “Manage Wi-Fi Radio” setting, You may select Your Wi-Fi radio preference. If You wish to have the Application manage the Wi-Fi radio of Your Device, then You should enable the setting. The “Manage Wi-Fi Radio” setting is enabled when upon clicking the “Accept” button for the Application.
If You do not agree with the Application managing Your Wi-Fi radio, then You must turn off the “Manage Wi-Fi Radio” setting, select the “Suspend” option, or uninstall and remove the Application from Your Device.
If You do not agree with the Application’s process of accepting Wi-Fi Hotspot Terms, then You must turn off the “Sign In Automatically” setting, select the “Suspend” option, or uninstall and remove the Application from Your Device.
- LICENSE GRANT AND USE RESTRICTIONS
2.1 License Grant:
Subject to the restrictions set forth in Section 2.2, SpotWiFi grants You a personal, revocable, non-exclusive, non-transferable, limited right to install and use one copy of the Application on a single device owned and controlled by You (“Device”), and to access and use the Application on such Device solely for Your personal use, strictly in accordance with the terms and conditions of this License, the Related Agreements, and all applicable laws and regulations. You represent, warrant and agree that You are using the Application solely for Your own personal use and not for redistribution or transfer of any kind.
2.2 Restrictions on Use:
You shall not, and agree not to or enable others to:
- copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Application;
- make any modification, adaptation, improvement, enhancement, translation or derivative work from the Application;
- violate any applicable laws, rules or regulations in connection with Your access or use of the Application;
- remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of SpotWiFi;
- use the Application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended
- use the Application in a manner that derives revenue directly from such use, or use the Application for any other purpose for which it is not designed or intended;
- install, use, or permit the Application to exist on more than one device at a time or on any device without first accepting the License;
- install, use, or permit the Application to exist on more than one device at a time or on any other mobile device or computer without first specifically accepting the License for each of those devices;
- use the Application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by SpotWiFi;
- use the Application to send automated queries to any website or to send any unsolicited commercial e-mail;
- use any proprietary information or interfaces of SpotWiFi, or other intellectual property of SpotWiFi, in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Application;
- circumvent, disable or tamper with any security-related components or other protective measures applicable to the Application or the Device; or
- reproduce, archive, retransmit, distribute, disseminate, sell, lease, rent, exchange, modify, broadcast, synchronize, publicly perform, publish, publicly display, make available to third parties, transfer or circulate the Application.
You agree to abide by the rules and policies established from time to time by SpotWiFi. Such rules and policies may include, for example, required or automated updates, modifications, and/or reinstallations of the Application and obtaining available patches to address security, interoperability or performance issues.
- DATA COLLECTION, USE AND RETENTION
3.1 Personal Information
This Application collects some information that may be used to identify You, otherwise known as Personal Information. This Application collects two types of Personal Information. The Personal Information includes (a) device information and (b) location information. They are discussed in more detail in the following subsections within this Section.
3.2 Personal Information
3.3 Location Information
3.4 Non-Personal Information
This Application also collects and uses certain usage data that is not personally identifying (“Usage Data”). The Usage Data may consist, among other information, of the amount of data used, the name of a Wi-Fi hotspot (SSID), the status and duration of Wi-Fi session and whether Your Device is currently connected to a Wi-Fi hotspot. With respect to Wi-Fi use, the Application collects certain diagnostic information related to a Wi-Fi connection, such as signal strength and the encoding rate. The Application also collects certain cellular data information, such as amount of cellular data used and cell tower information. While in general Usage Data is not personally identifying, some Usage Data, either alone or when combined or linked with Your Personal Information, may allow Your identity to be discovered. In such cases, SpotWiFi treats the combined data as Personal Information.
3.5 Retention and Security of Personal Information
SpotWiFi retains Your Personal Information for as long as necessary and for other essential purposes such as complying with our legal obligations, maintaining business and financial records, resolving disputes, maintaining security, detecting and preventing fraud and abuse, and enforcing our agreements. SpotWiFi takes steps, including through contracts, to ensure that Personal Information continues to be protected in a manner consistent with the standards of protection required under applicable law. SpotWiFi uses various measures to protect the Personal Information. SpotWiFi regularly tests its data centers, systems, and other assets for security vulnerabilities. SpotWiFi uses commercially reasonable protection technology such as encryption, firewalls and other security procedures to help protect the accuracy and security of Your Personal Information and to help prevent unauthorized access or improper use. However, given that no method of transmitting information over the Internet or storing information is completely secure, SpotWiFi cannot guarantee the absolute security of any information.
3.6 Sharing of Personal Information
Usage Data may be shared with shared third parties, but as mentioned above any Usage Data that contains Personal Information will be treated as Personal Information. If any Usage Data is provided to a third party, it will only be done in cases in which the Usage Data is aggregated and de-identified such that it is not personally identifying in any way.
3.7 Transfer of Data
This Application serves devices on a global basis. As such, Your Personal Information may be transferred to, and maintained on, computer servers located outside of Your state, province, country or other governmental jurisdiction where the privacy laws may not be as protective as those in Your jurisdiction. If You are located outside the United States and choose to provide Your Personal Information to SpotWiFi, You should be aware that SpotWiFi may transfer Your Personal Information to the United States and process it there. By accepting this License and using this Application, You agree that SpotWiFi may transfer Your data as provided herein. SpotWiFi will comply with any applicable regulations regarding any international transfer of Your Personal Information.
3.8 Data Questions and Requests
If you have any questions, comments, complaints or requests regarding how SpotWiFi collects and uses data, including Your Personal Information, please contact:
Attn: Data Support
5796 Armada Drive, Suite 175
Carlsbad, California 92008
- THIRD PARTY WI-FI NETWORK SECURITY
You acknowledge and agree that Your communications sent over the Internet or Wi-Fi networks are only secure if You are using a specific communication protocol intended for securing such communications. Further, You acknowledge and agree that communications sent over third-party unsecured Wi-Fi networks are not private and may be seen and used by others. For these reasons, SpotWiFi does not recommend that You disclose personal information over third-party unsecured Wi-Fi networks without ensuring that adequate security precautions are taken prior to transmittal.
- INTELLECTUAL PROPERTY RIGHTS
5.1 Rights to Application:
You acknowledge and agree that the Application, any copies thereof (including without limitation any copy that You download, install, or use on Your Device), and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of SpotWiFi. Further, You acknowledge and agree that the source and object code of the Application and the format, directories, queries, algorithms, structure and organization of the Application are the intellectual property and proprietary and confidential information of SpotWiFi. Title to the Application shall remain with SpotWiFi. SpotWiFi reserves the right to change, suspend, terminate, remove, impose limits on the use of or access to, disable access to, or require the return of the Application (or any copy thereof) at any time without notice and will have no liability for doing so. Except as expressly stated in this License, You are not granted any intellectual property rights in or to the Application by implication, estoppel or other legal theory, and all rights in and to the Application not expressly granted in this License are hereby reserved and retained by SpotWiFi.
You acknowledge and agree that the following names and their related logos and all related product and service names, design marks and slogans are trademarks and service marks owned by SpotWiFi: “SpotWiFi” and “SpotWiFi Wi-Fi” (the “Marks”). You are not authorized to use the Marks in any advertising, publicity or in any other commercial manner without the prior written consent of SpotWiFi, which may be withheld for any or no reason.
5.3 Open Source Software:
The Application may utilize or include third party software that is subject to open source license terms (“Open Source Software”). You acknowledge and agree that Your right to use such Open Source Software as part of the Application is subject to and governed by the terms and conditions of any applicable open source license, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein (collectively, the “Open Source License Terms”). In the event of a conflict between the terms of this License and the Open Source License Terms, the Open Source License Terms shall control.
- THIRD PARTY CONTENT AND SERVICES
You acknowledge that the Application may permit access to products, services, websites, advertisements, promotions, recommendations, advice, information, and materials created and provided by advertisers, publishers, content vendors, marketing agents, vendors and other third parties (“Third Party Content and Services”).
You acknowledge that SpotWiFi does not investigate, monitor, represent, endorse or guarantee the availability of any Third Party Content and Services (including any third party websites accessed through the Application). As a result, You understand that by accessing and using the Third Party Content and Services, You may encounter information, materials and subject matter (i) that is incomplete or inaccurate; (ii) that You or others may deem offensive, indecent, or objectionable; (iii) which may or may not be identified as having explicit language, and (iv) that automatically and unintentionally appears in search results, as a link or reference to objectionable material. Notwithstanding the foregoing, Your access to and use of the Third Party Content and Services is at Your sole discretion and risk, and SpotWiFi shall have no liability to You for (a) Your access to and use of the Third Party Content and Services or (b) any Third Party Content or Service that is found to be incomplete, inaccurate, offensive, indecent, or objectionable.
To the extent You choose to use or access such Third Party Content and Services, You are responsible for compliance with any applicable laws, including but not limited to applicable local laws and privacy and data collection laws. Further, SpotWiFi reserves the right to restrict or deny access to any Third Party Content and Services otherwise accessible through the Application, although SpotWiFi has no obligation to restrict or deny access even if requested by You.
6.3 Third Party Terms of Service:
In addition, You acknowledge and agree that Your access to and use of the Third Party Content and Services and any correspondence or business dealings between You and any third party using the Application may be governed by and require Your acceptance of the terms of service of such third party, including, without limitation, any terms, privacy policies, conditions, representations, warranties or disclaimers contained therein. You assume all risks arising out of or resulting from Your transaction of business over the Internet and with any third party, and You agree that SpotWiFi is not responsible or liable for any loss or result of the presence of information about or links to such advertisers or service providers.
Furthermore, You acknowledge and agree that this License does not grant You any license to (i) the Third Party Content and Services; (ii) any products, services, processes or technology described in or offered by the Third Party Content and Services; or (iii) any copyright, trademark, patent or other intellectual property right in the Third Party Content or Services or any products, services, processes or technology described or offered therein. You agree that You will not use Third Party Content or Services in a manner that would infringe or violate the rights of any other party, and that SpotWiFi is not in any way responsible for any such use by You.
- TERM AND TERMINATION
This License shall be effective until terminated. SpotWiFi may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this License and the rights afforded to You hereunder with or without prior notice. Furthermore, if You fail to comply with any terms and conditions of this License, then this License and any rights afforded to You hereunder shall terminate automatically, without any notice or other action by SpotWiFi. Upon the termination of this License, You shall cease all use of the Application and uninstall the Application. SpotWiFi may, without notice to You, disable the Application. SpotWiFi will not be liable to You or any third party for compensation, indemnity, or damages of any sort as a result of SpotWiFi terminating this License in accordance with its terms, and termination of this License will be without prejudice to any other right or remedy SpotWiFi may have, now or in the future.
- DISCLAIMER OF WARRANTIES
YOU ACKNOWLEDGE AND AGREE THAT THE APPLICATION, INCLUDING ALL CONTENT CONTAINED THEREIN, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE APPLICATION AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION.
SPOTWIFI HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE APPLICATION AND THIRD PARTY CONTENT AND SERVICES, WHETHER ORAL, EXPRESS, IMPLIED OR STATUTORY, AND WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE OF THE PARTIES, OR THE NATURE OR CONTEXT OF THIS LICENSE, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
SPOTWIFI MAKES NO WARRANTY AS TO THE SECURITY OF YOUR COMMUNICATIONS VIA THE APPLICATION OR THAT THIRD PARTIES WILL NOT GAIN UNAUTHORIZED ACCESS TO OR MONITOR YOUR DEVICE OR ONLINE WIRELESS COMMUNICATIONS. YOU AGREE THAT SPOTWIFI WILL NOT HAVE ANY LIABILITY FOR ANY SUCH UNAUTHORIZED ACCESS. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE APPLICATION IS AT YOUR SOLE RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR SECURING YOUR EQUIPMENT AND COMMUNICATIONS.
FURTHERMORE, SPOTWIFI MAKES NO WARRANTY THAT (I) THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL BE UNINTERRUPED, ACCURATE, RELIABLE, TIMELY, SECURE, FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE APPLICATION WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SPOTWIFI OR FROM THE APPLICATION SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE THAT SPOTWIFI HAS NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE APPLICATION. YOU ACKNOWLEDGE THAT THE APPLICATION IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE PERFORMANCE OF, USE OR MISUSE OF, FAILURE OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY, THE APPLICATION COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY, OR ENVIRONMENTAL DAMAGE.
SPOTWIFI DOES NOT WARRANT THAT THE APPLICATION WILL BE COMPATIBLE OR INTEROPERABLE WITH YOUR DEVICE OR ANY OTHER PIECE OF HARDWARE, SOFTWARE, EQUIPMENT OR DEVICE INSTALLED ON OR USED IN CONNECTION WITH YOUR DEVICE. FURTHERMORE, YOU ACKNOWLEDGE THAT COMPATIBILITY AND INTEROPERABILITY PROBLEMS CAN CAUSE THE PERFORMANCE OF YOUR DEVICE TO DIMINISH OR FAIL COMPLETELY, AND MAY RESULT IN PERMANENT DAMAGE TO YOUR DEVICE, LOSS OF THE DATA LOCATED ON YOUR DEVICE, AND CORRUPTION OF THE SOFTWARE AND FILES LOCATED ON YOUR DEVICE. YOU ACKNOWLEDGE AND AGREE THAT SPOTWIFI, AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, SHALL HAVE NO LIABILITY TO YOU FOR ANY LOSSES SUFFERED, RESULTING FROM OR ARISING IN CONNECTION WITH COMPATIBILITY OR INTEROPERABILITY PROBLEMS. SHOULD THE APPLICATION PROVE DEFECTIVE, YOU ASSUME THE ENTIRE BURDEN OF ALL NECESSARY EXPENSES, SERVICING, REPAIR, OR CORRECTION.
NOTWITHSTANDING AND WITHOUT WAIVING THE FOREGOING, THE TERMS AND CONDITIONS OF THE RELATED AGREEMENTS MAY PROVIDE LIMITED REMEDIES TO YOU.
- LIMITATION OF LIABILITY
EXCEPT TO THE EXTENT PROHIBITED BY LAW, UNDER NO CIRCUMSTANCES SHALL SPOTWIFI, NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS BE LIABLE FOR ACCIDENTS, PROPERTY DAMAGE, PERSONAL INJURY, DEATH, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SALE OR DISTRIBUTION OF, THE PERFORMANCE OR NON-PERFORMANCE, OR YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE APPLICATION AND ANY THIRD PARTY MATERIALS, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SUCH PARTY WAS 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 SPOTWIFI’S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE, OR OTHERWISE) EXCEED FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You shall indemnify, defend, and hold harmless SpotWiFi, and its officers, directors, agents, and employees (the “Indemnified Parties”) from and against any claim, proceeding, loss, damage, fine, penalty, interest, and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of or in connection with the following: (i) Your access to or use of the Application or Third Party Materials; (ii) Your breach of this License; (iii) Your violation of law; (iv) Your negligence or willful misconduct; or (v) Your violation of the rights of a third party or any Wi-Fi Hotspot Terms. You will promptly notify SpotWiFi in writing of any third party claim arising out of or in connection with Your access to or use of the Application.
- DISPUTE RESOLUTION BY BINDING ARBITRATION
Most customer concerns can be resolved quickly and to the customer’s satisfaction by contacting Customer Care at email@example.com. Before taking any formal action, You agree that You will first contact us with any dispute and provide a written description of the nature of the dispute, all relevant documents, and other information concerning the dispute and Your proposed resolution before taking any legal action. If we are unable to reach a resolution of Your dispute within 60 days of Your notice to us, You agree that instead of filing a lawsuit or small claims action in a court of law, You will submit the dispute to binding arbitration as set forth in this Section 10. Please forward Your dispute to SpotWiFi, Attn: Legal Department, 5796 Armada Drive, Suite 175, Carlsbad, California 92008.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF ALL DISPUTES AND CLAIMS BETWEEN SPOTWIFI AND YOU THROUGH ARBITRATION INSTEAD OF SUING IN COURT IN THE EVENT THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE OR CLAIM. ARBITRATION IS BINDING AND SUBJECT TO ONLY A VERY LIMITED REVIEW BY A COURT. YOU AGREE THAT YOU ARE AWARE THAT THERE IS NO JUDGE NOR JURY IN ARBITRATION BUT THAT AN ARBITRATOR MAY AWARD YOU THE SAME DAMAGES AND RELIEF THAT YOU MAY BE ABLE TO RECOVER IN A COURT OF LAW. YOU AND SPOTWIFI FURTHER AGREE THAT THE ARBITRATOR MUST HONOR THE TERMS OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY BRING A CLAIM IN SMALL CLAIMS COURT.
This provision is intended to encompass all disputes or claims with SpotWiFi, arising out of Your use of the Application. References to You and SpotWiFi include our respective subsidiaries, affiliates, predecessors in interest, successors, and assigns. References to SpotWiFi also include SpotWiFi’s affiliates.
All claims will be resolved by binding arbitration where permitted by law. You must first present any claim or dispute to SpotWiFi by contacting SpotWiFi’s Legal Department, as set out above, to allow an opportunity to resolve the dispute prior to initiating arbitration. The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association (“AAA”) under the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, the “AAA Rules”), as modified by this agreement. The AAA Rules are available online at www.adr.org, by calling the AAA a 1-800-778-7879, or by contacting SpotWiFi’s Legal Department as set out above. You and SpotWiFi agree that use of the Application evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. Additionally, for claims of $10,000 or less, You can choose to proceed with arbitration being decided on the documents submitted in an effort to minimize costs and the time it may take for an arbitrator to reach his or her decision.
You and SpotWiFi agree that any arbitration will be conducted on an individual basis and not on a consolidated, class wide, or representative basis. Further, You and SpotWiFi agree that the arbitrator may not consolidate proceedings or more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If the preclusion of consolidated, class wide, or representative proceedings is found to be unenforceable, then this entire arbitration clause shall be null and void.
Absent a finding that Your demand is frivolous, brought for an improper purpose, or malicious as set forth by the standards of Federal Rule of Civil Procedure 11(b), SpotWiFi will pay the filing, administration, and arbitrator fees of an arbitration initiated in accordance with this License. If, however, the arbitrator does deem that Your demand was frivolous, was brought for an improper purpose, or was malicious under the same standard used in a court of law, payment of all fees will be divided between You and SpotWiFi in accordance with AAA Rules. Additionally, SpotWiFi hereby waives any right to seek its attorney’s fees from You in the event that it prevails in the arbitration, except where Your demand is deemed frivolous, brought for an improper purpose, or malicious under the standard set out above. Nothing in this section shall be construed by an arbitrator as barring an award of attorney’s fees to You, the customer, where the law would so provide. If You initiate an arbitration in which You seek more than $50,000 in damages, the payment of fees will be governed by the AAA rules.
If SpotWiFi made You a settlement offer that You rejected prior to entering arbitration and the arbitrator ultimately finds in Your favor in any respect with an award that is greater than the last written offer made to You by SpotWiFi, SpotWiFi will pay You the amount of the award or a minimum of $5,000, whichever is greater. If SpotWiFi opted not to make You a written settlement offer, these same terms apply, meaning that You are guaranteed a minimum award of $5,000 if the arbitrator finds in Your favor.
Unless You and SpotWiFi agree otherwise and in an effort to reduce the burden of arbitration on You, the location of any arbitration shall be in the county of Your, the customer’s, residence for those customers located within the United States. For customers residing outside of the United States, the location of arbitration shall be San Diego, California, unless You and SpotWiFi agree otherwise. Either or both parties may participate in the proceedings by telephone.
If for any reason this arbitration provision is deemed inapplicable or invalid, or to the extent this arbitration provision allows for litigation of disputes in court, You and SpotWiFi waive to the fullest extent permitted by law, (i) any right to pursue any claims on a class or consolidated basis and (ii) Your right to serve in a representative capacity in any class or consolidated basis. Neither You nor SpotWiFi shall disclose the existence, contents, or results of any arbitration except to the extent required by law. Judgment on the award rendered may be entered by any court of competent jurisdiction.
In the event that any claim proceeds in a court of law rather than through arbitration, You and SpotWiFi agree that there will not be a jury trial. You and SpotWiFi unconditionally waive any right to a trial by jury in any action, proceeding, or counterclaim arising out of or relating to this License in any way. You and SpotWiFi further agree that in the event of litigation, this section of the License may be filed as an exhibit illustrating a knowing and written consent of any right to a trial by jury.
YOU HAVE THE RIGHT TO OPT OUT OF THIS PROVISION COVERING DISPUTE RESOLUTION BY BINDING ARBITRATION WITHIN 30 DAYS OF INSTALLING THE APPLICATION. IN THE EVENT YOU INSTALL THE APPLICATION AND DO NOT OPT OUT OF THIS PROVISION WITHIN 30 DAYS, YOUR INACTION SHALL BE DEEMED TO BE CONSENT TO THIS PROVISION COVERING DISPUTE RESOLUTION. YOU MAY OPT OF THIS PROVISION BY CONTACTING SPOTWIFI AT INFO@BANDWIDTHX.COM OR BY WRITING TO SPOTWIFI, ATTN: LEGAL DEPARTMENT, 5796 ARMADA DRIVE, SUITE 175, CARLSBAD, CALIFORNIA 92008. ANY OPT-OUT RECEIVED AFTER THE OPT-OUT DEADLINE (OR, IN THE CASE OF THOSE MAILED, POSTMARKED AFTER THE OPT-OUT DEADLINE) WILL BE INVALID, AND YOU MUST PURSUE YOUR CLAIM IN ARBITRATION.
- GOVERNING LAW AND FORUM
This License shall be deem to take place in the State of California and shall 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. To the maximum extent permitted by applicable law, You and SpotWiFi agree that any cause of action arising out of or relating to the Application or Your use of the Application must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
- JURISDICTIONAL ISSUES, EXPORT CONTROL
You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction(s) in which the Application was obtained. In particular, but without limitation, the Application 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. By using the Application, 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 Application for any purposes prohibited by United States law or the law of any country location or jurisdiction where You may be using the Application.
- U.S. GOVERNMENT RESTRICTED RIGHTS
The Application is commercial computer software. If the user or licensee of the Application is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Application, or any related documentation of any kind, is restricted by the terms of this License Agreement with only those rights as are granted to all other end users pursuant to the terms and conditions herein in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Application was developed fully at private expense. All other use is prohibited. Unpublished-rights reserved under the copyright laws of the United States.
- THIRD PARTY BENEFICIARIES
Except as explicitly provided in this License or in the Third Party Agreements, nothing contained in this License is intended or shall be construed to confer upon any person (other than the parties hereto) any rights, benefits, or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person. Notwithstanding the above, You acknowledge and agree that SpotWiFi’s vendors, suppliers and licensors are intended third party beneficiaries under this Agreement.
- COMPLETE AGREEMENT; GOVERNING LANGUAGE
This License including the documents incorporated herein by reference constitutes the entire agreement between You and SpotWiFi relating to the Application and supersedes all prior or contemporaneous understandings regarding such subject matter. SpotWiFi may modify or amend the terms of this License at any time, with or without notice to You, by posting a copy of the modified or amended License available through the Application. You will be deemed to have agreed to any such modification or amendment by Your decision to continue using the Application following the date in which the modified or amended License is made available through the Application or the referenced website.
- NO TRANSFER BY YOU
You may not rent, lease, lend, sublicense, assign or transfer the Application, this License or any of the rights granted hereunder. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect. SpotWiFi may assign this License without restriction.
If any provision of this License is held to be invalid or unenforceable with respect to a party, the remainder of this License, or the application of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this License shall be valid and enforceable to the fullest extent permitted by law.
Except as provided herein, the failure to exercise a right or require performance of an obligation under this License shall not affect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach.
Sections 2.2, 3, 5 and 7-20 of this License shall survive termination of the License. Further, any other provisions that by their context are intended to survive the termination of this License shall survive such termination.