Hotspot Shield Software License and Terms of Service
Effective: October 30, 2020
IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AND TERMS OF SERVICE CAREFULLY BEFORE USING THE SOFTWARE (AS DEFINED BELOW).
This Hotspot Shield Software License and Terms of Service (the “Agreement”) for the Hotspot Shield software (including any associated documentation, the “Software”), any other software or service provided through hotspotshield.com website, and all other online properties and websites owned or operated by Aura through which the Software is made available (together with the Software, the “Service”) is a legal contract between the individual accepting and agreeing to this Agreement (“you”) and Aura. “Aura”, “we”, or “us” means (i) Pango Inc. or its US based affiliates, if you are a resident of the United States of America, or (ii) Pango GmbH if you are not a resident of the United States of America.
Please read carefully the terms and conditions of this Agreement. By clicking an “I accept” button (or any similar button), you acknowledge that you have read, understood, and agree to be bound by all of the terms and conditions of this Agreement including the requirement of binding arbitration for all legal disputes. If you do not agree to this Agreement, you must destroy, return or delete all copies of the Software in your possession.
As provided in greater detail in this Agreement (and without limiting the express language of this Agreement), you acknowledge the following:
- the Service is licensed, not sold to you, and you may use the Service only as set forth in this Agreement;
- the use of the Service may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator’s or Internet provider’s terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- we provide the Service to you on an “as is” basis without warranties of any kind and Aura’s liability to you is limited;
- disputes arising between you and Aura will be resolved by binding arbitration. By accepting this Agreement, as provided in greater detail in Section 15 below, you and Aura are each waiving the right to a trial by jury or to participate in a class action.
1. Eligibility. The Service is not available to persons who are not eligible or to any users previously suspended, terminated or removed from the Service by Aura. “Eligible” means 18 years of age or older. By downloading, using or accessing the Service, you represent and warrant that you are Eligible or have the permission of a parent or guardian to use the Service. Notwithstanding the foregoing, if you are under 13 years of age, then you must not use or access the Service at any time or in any manner.
3. Modification of this Agreement. Aura may make changes to this Agreement at any time for a variety of reasons, such as to reflect changes in applicable law or to account for additional features in the Service or functionality. If a revision materially alters your rights as determined by Aura in its sole discretion, we will use reasonable efforts to notify you in advance of the change becoming effective, including by sending a notification to the e-mail address(es) associated with your account or a pop-up or banner within the Service. The most current version of this Agreement for the Service will be posted on the Aura website. Changes will be effective no sooner than the day they are publicly posted. If you do not want to agree to any changes made to this Agreement, you should stop using the Service, because by continuing to use the Service after the date the changes become effective, you indicate your agreement to be bound by the updated Agreement.
Section 4. User Content
4.1 User Content Generally. Certain features of the Service, such as the Software Help Desk, may permit users to post content, including messages, reviews, data, text, and other materials (collectively, “User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
4.2 Limited License Grant to Aura. By posting or publishing User Content, you grant Aura a worldwide, non-exclusive, royalty-free, perpetual, irrevocable right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed) without any compensation paid to you.
4.3 User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting and publishing User Content, you affirm, represent, and warrant that:
(A) You are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize Aura and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 4 and in the manner contemplated by Aura and this Agreement; and
(B) your User Content, and the use thereof as contemplated herein, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, or libel any third party.
4.4 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users of the Service post or publish, and will not be in any way responsible or liable for User Content. Aura may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this Agreement or is otherwise objectionable. You understand that when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Aura with respect to User Content. To the fullest extent permitted by law, we expressly disclaim any and all liability in connection with User Content. If notified by a user of the Service or content owner that User Content allegedly does not conform to this Agreement, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Aura does not permit copyright-infringing activities on the Service.
4.5 Digital Millennium Copyright Act. It is Aura’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. For more information, please go to our DMCA Notification Guidelines.
5. The Software
5.1 Software License. The Service, including the Software, is licensed, not sold, to you. Subject to this Agreement and any other agreements that apply to the Service or Software and to which you are a party, Aura grants you a limited, revocable, nonexclusive, personal, nontransferable license during the term of this Agreement to install and use the Software in object code format, to access the Service for internal and personal purposes only, and subject to Usage Limits. The Software is “in use” on a Device for purposes of this paragraph when it is loaded into the temporary memory (e.g., RAM) or installed into the permanent memory (e.g., hard disk, CD-ROM or other storage device) of a Device. You understand and agree that, from time to time and without liability to you, Aura may establish and/or modify its general practices and usage limits regarding Aura’s products and services (such practices and usage limits, the “Usage Limits” ). Usage Limits may include the features included in a certain package, limits on the number of devices that can be associated with an account and storage limits. The latest Usage Limits are generally available in our documentation or in the Services itself.
5.2 Software License Restrictions. You may not (and may not allow a third party to):(a) reverse engineer, decompile, disassemble or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatsoever, except to the extent that such restriction is expressly prohibited by applicable law; (b) remove or destroy any copyright notices or other proprietary markings; (c) attempt to circumvent any use restrictions; (d) modify or adapt the Software, merge the Software into another program or create derivative works based on the Software; (e) use, copy or distribute the Software without Aura’s written authorization, except that you may make one (1) copy of the Software for archival or backup purposes only. (f) use the Software to provide, alone or in combination with any other software, product or service, any software/product/service to any person or entity, whether on a fee basis or otherwise or on websites where you have agreed "not to use any ad blocking solutions", for instance by agreeing to the terms of services on the respective websites or to circumvent technological measures that control access to websites; (g) repackage, modify, adapt, tamper with, alter, translate, or create derivative works of the Software; (h) combine or merge any part of the Software with or into any other software or documentation, or refer to or otherwise use the Software as part of an effort to develop software (including, without limitation, any routine, script, code, or program) having any functional attributes, visual expressions, or other features similar to those of the Software or to compete with Aura; (i) except with Aura’s prior written permission, publish any performance or benchmark tests or analysis relating to the Software; or (j) rent, lease, sublicense, sell, assign, loan, use for timesharing or service bureau purposes or otherwise transfer the Software or any of your rights and obligations under this Agreement.
5.3 Content Restrictions. You may not (and may not allow a third party to) copy, reproduce, capture, store, retransmit, distribute, or burn to CD (or any other format) any copyrighted content that you access or receive while using the Software or the Service. You assume all risk and liability for any such prohibited use of copyrighted content.
5.4 Recurring Payments for Service. Our Service is billed on a subscription basis (“Subscription(s)"). You will be billed in advance on a recurring and periodic basis (“Billing Cycle”). Billing cycles are set on a regular basis, typically monthly or yearly. You agree to pay for the subscription that you select for the Service and you authorize us to automatically charge the payment method our service provider has on file for your recurring payments.
At the end of each Billing Cycle, your Subscription will automatically renew under the same conditions as your existing subscription unless you cancel it or we cancel it. Several methods of cancelling the automatic renewal of your paid Service subscription are available to you, and are described at https://support.hotspotshield.com/hc/en-us/articles/203412120. or such other support pages as Aura may publish from time to time . Once you have cancelled your automatic renewal, recurring subscription fees for Service fees will no longer be charged to the payment method we have on file for your account, and your subscription will remain active only until the end of the term for which you have fully paid the Service fee.
A valid payment method, including credit card, is required to process the payment for your Subscription. You shall provide us or our third-party payment processor, with accurate and complete billing information including full name, address, state, zip code, and valid payment method information. By submitting such payment information, you automatically authorize us to charge all Subscription fees incurred through your account to any such payment instruments. All amounts paid are non-refundable. You further agree to be responsible for all taxes associated with the Service, along with any transaction fees and currency conversions added by your financial institution and intermediaries. All amounts are in US Dollars. If the billing method we agree is by credit or debit card (“Payment Card”), you: (a) represent that you are authorized to use such Payment Card; (b) authorize us to charge your Payment Card on a periodic basis for the Fees when due, including upon sign up for the Service and upon renewal; (c) agree to keep your Payment Card details valid and current and (d) agree to pay any processing fees that are charged by the third-party payment processors or Payment Card issuer. If your Payment Card is declined when we attempt to charge it, we may try to charge it again at a later time. If we do not receive payment, we may suspend or terminate your paid Service subscription.
5.5 Open Source. The Open-Source code components that are included with the Software are redistributed by Aura under the terms of the applicable Open-Source Code license for such component. Your receipt of Open-Source code components from Aura under this Agreement neither enlarges nor curtails your rights or obligations defined by the Open-Source Code license applicable to the Open-Source Code component. Copies of the Open-Source Code licenses for the Open-Source Code components that are included with the Software are included with or referenced in the Software’s Documentation.
5.6 Free Trials. Aura may, at its sole discretion, offer a Subscription with a free trial for a limited period of time (“Free Trial”). You may be required to enter your billing information in order to sign up for the Free Trial. If you do enter your billing information when signing up for the Free Trial, you will not be charged by us until the Free Trial has expired. On the last day of the Free Trial period, unless you cancelled your Subscription, you will be automatically charged the applicable Subscription fees for the type of Subscription you have selected. At any time and without notice, we reserve the right to (i) modify the terms and conditions of the Free Trial offer, or (ii) cancel such Free Trial offer.
5.7 Price Changes. We may change the fees that we charge for the Service, at any time in our sole discretion, provided that we will give you at least thirty (30) days’ prior notice of such changes. Unless otherwise specified in such notice to you, any changes to the subscription fees will take effect in the billing period immediately following our notice to you.
6. The Service
6.1 Free or Paid Service. You may choose whether to use the free Service or the subscription-based or Premium Service. If you choose to use the free Service, we may deliver third-party advertisements (“Advertisements”) to you. If you choose to use the paid Service, we will not deliver any Advertisements to you.
6.2 Availability. You may use the Software solely to access the Service. A computer or other equipment enabled to access the Internet (a “Device”) is required to utilize the Service. You are solely responsible for ensuring that your Device is sufficient and compatible for use with the Service. The speed and quality of the Service may vary and the Service is subject to unavailability, including emergencies, third party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and maintenance and repair, and may be interrupted, refused, limited or curtailed.
6.3 Suspension or Termination of the Service. Aura may, from time to time, temporarily suspend your access to the Service or any component thereof: (a) for maintenance; (b) to address any emergency security concerns; or (c) if required to do so by a governmental or regulatory authority or as a result of a change in applicable law. We may even suspend or terminate the Services entirely, in which event we will notify you in advance unless extenuating circumstances, such as safety or security concerns, prevent us from doing so.
6.4 Changes to the Service. Aura continually changes and improves the Service. Aura will provide you with prior written notice if Aura makes a change to the Service resulting in a material decrease in core functionality used by Aura's general customer base.
6.5 Additional Services. Aura may offer you additional services such as Aura Antivirus, Dedicated Servers or other Aura products and services from time to time for purchase or sign up through your Hotspot Shield account. Unless stated expressly otherwise, these terms will apply to all such additional services as well, subject to any Usage Limits set by Aura and displayed to you.
7. Prohibited Conduct and Third Party Transactions.
7.1 BY USING THE SOFTWARE OR THE SERVICE YOU AGREE NOT TO:
(a) use the Software or the Service for any fraudulent, harassing or abusive purpose, or so as to damage or cause risk to our business, reputation, employees, subscribers, facilities, or to any person;
(b) rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the Service, the Software or any Materials (as defined in Section 10, below);
(c) delete the copyright or other proprietary rights on the Software or the Service;
(d) use the Software or the Service for any illegal purpose, or in violation of any local, state, national, or international law;
(e) use the Service or the Software for any commercial use, it being understood that the Software and the Service is for personal, non-commercial use only;
(f) use the Software or the Service if you are not Eligible;
(g) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Software or the Service, features that prevent or restrict use or copying of the Software, or features that enforce limitations on the use of the Service;
(h) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service or the Software or any part thereof, except to the extent that such restriction is expressly prohibited by applicable law;
(i) modify, adapt, translate or create derivative works based upon the Software or the Service or any part thereof; or
(j) intentionally interfere with or damage operation of the Service, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.
7.2 Advertisements. If you are using the free Service, Aura may deliver third-party Advertisements. You hereby acknowledge and consent that Aura may deliver third party Advertisements to overlay a page or as an interstitial. Aura reserves the right to prevent your access to the Service or continued use thereof if you violate this Agreement, engage in fraud or copyright infringement, or employ an ad-blocking product or other software or mechanism that prevents you from participating in advertising programs, surveys, or other activities that involve delivery of Advertisements or other monetization of the Service. Aura does not endorse any information, materials, products, or services contained in or accessible through Advertisements. Accordingly, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service are solely between you and such advertiser. Access and use of Advertisements, including the information, materials, products, and services on or available through Advertisements sites is solely at your own risk.
7.3 Third Party Policies. If You choose to access and use third-party websites, services or content, or purchase products from third parties, including without limitation through third-party payment vendors while using the paid Service, or through Advertisements while using the free Service, your personal information may be available to a third-party content provider. If you choose to visit or use any third-party products or services, Aura policies and this Agreement will not apply to your activities or any information you disclose while using third-party products or services or otherwise interacting with third parties. How third parties handle and use your personal information related to their sites and services is governed by their security, privacy and other policies, if any, and not our policies. Aura has no responsibility for any third party’s policies, or any third party’s compliance with them.
8. User Accounts and Data
8.1 When you create an account with us, you must provide us information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of this Agreement. You are responsible for safeguarding the password that you use to access the Service and for any activities or actions under your password, whether your password is with our Service or a third party service.
8.2 You agree not to disclose your password to any third party. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.
8.3 You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene.
8.4 You are fully and solely responsible and liable for the content and data you enter into our Service. By using the Service, you guarantee that you have all required permissions – including copyright and other intellectual property rights – to copy, distribute, transfer, store or make the content available online through the Services.
9. Termination and Refunds
9.1 Termination by Aura. Aura may terminate your use of the Service or the Software or discontinue providing access to the Service at any time. You agree that any termination of your access to the Service may be effected without prior notice and you agree that Aura will not be liable to you or any third party for any such termination.
If such termination or discontinuation occurs during a period for which you are a paid subscriber, you may be entitled to a pro-rated refund of your current subscription payment amount in connection with your use of the Service. If your account is terminated due to your breach of this Agreement during the relevant cancelation period, you will not be eligible for a refund. All refunds are issued at Aura’s sole discretion and any request for refund may be denied for any or no reason. If you have been terminated from the Service and wish to request a refund, please email customer service at [email protected] and describe the circumstances relating to the termination or discontinuation of your use of the Service. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Aura may have at law or in equity.
9.2 Termination by You. You may terminate this Agreement at any time by discontinuing use of the Service, deleting your account on the Service and uninstalling the Software.
10. Ownership; Proprietary Rights. The Software and the Service are owned and operated by Aura and its partners. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Service or the Software provided by Aura (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained on the Software or Service (excluding any Materials on third-party websites) are the property of Aura or its Affiliates and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Aura or its Affiliates and/or third-party licensors. As used in this Agreement, “Affiliate” means any entity directly or indirectly controlling, controlled by, or under common control with Intersections Inc. dba Aura, where “control” means ownership of more than 50% of the voting equity or membership interests of an entity or the ability to direct an entity. Except as expressly authorized by Aura, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. Aura reserves all rights not expressly granted in this Agreement.
11. Indemnification. To the fullest extent permitted by law, you agree to indemnify, save, and hold Aura and its Affiliates, and each of their respective contractors, subcontractors, officers, directors, shareholders, employees, agents and its third-party suppliers, licensors, and partners (collectively, the “Aura Entities”) harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use and misuse of the Software or Service, any violation by you of this Agreement, or any breach of the representations, warranties, and covenants made by you herein. Aura reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Aura Entities, and you agree to cooperate with Aura’s defense of these claims. Aura will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
12. Export. The Software and the Service may be subject to United States export controls. You may not export or re-export the Software without: (a) the prior written consent of Aura, (b) complying with any applicable export control laws, and (c) obtaining all appropriate permits and licenses. In any event, you may not remove or export from the United States or allow the export or re-export of any part of the Software or the Service in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and the Service are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by this Agreement and will be prohibited except to the extent expressly permitted by this Agreement. The Software and the Service may contain information that is controlled and restricted from export by the United States export controls restrictions, regulations, and laws described above (the “Controlled Information”). If Aura, in its sole discretion, determines that it cannot implement the Service in a manner to exclude access to Controlled Information where required, if you are in a country or territory that is subject to such regulation, you shall not be provided access to the Software or the Service.
13. Disclaimers; No Warranties. The following provisions of this Section 13 apply to the fullest extent permitted by law:
13.1 No Warranties. The Aura Entities disclaim all warranties, statutory, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. No information, whether oral or written, obtained by you from Aura or through the Service will create any warranty not expressly stated herein. You expressly acknowledge that as used in this Section 13 the term Aura includes the Aura Entities.
13.2 “As is” and “As available” and “With All Faults”. You expressly agree that use of the Service and the Software is at your sole risk. The Service, the Software and any data, information, third-party software, services, or applications made available in conjunction with or through the Service are provided on an “as is” and “as available”, “with all faults” basis and with no assurances that the Software or the Service will be continuous, error-free, fail-safe, or withstand attempts to evade security mechanisms or that there will be no cracks, bugs, disablements or other circumvention. The Aura Entities do not warrant that the Service will be uninterrupted or free of errors, viruses or other harmful components and do not warrant that any of the foregoing will be corrected. You understand and agree that you use, access, download the Software and otherwise obtain or transmit materials, data, or other content while using the Service at your own discretion and risk.
14. Limitation of Liability and Damages. The following provisions of this Section 14 apply to the fullest extent permitted by law:
14.1 Limitation of Liability. Under no circumstances, including, but not limited to, negligence, will Aura or the Aura Entities be liable for any special, indirect, incidental, consequential, punitive, reliance, or exemplary damages (including without limitation damages arising from any unsuccessful court action or legal dispute, lost business, lost revenues, or loss of anticipated profits or any other pecuniary or non-pecuniary loss or damage of any nature whatsoever) arising out of or relating to this Agreement or that result from your use of or your inability to use the Service or Software, or any other interactions with Aura, even if Aura or an Aura authorized representative has been advised of the possibility of such damages.
14.2 Limitation of Damages. In no event will the total liability of Aura or its affiliates, contractors, employees, agents, or third-party partners, licensors, or suppliers to you for all damages, losses, and causes of action arising out of or relating to this Agreement or your use of the Service or the Software (whether in contract, tort including negligence, warranty, or otherwise), exceed the amount paid by you, if any, for accessing the Software and the Service during the twelve months immediately preceding the date of the claim or twenty five United States dollars, whichever is greater.
14.3 Basis of the Bargain. You acknowledge and agree that Aura has offered the Software and the Service, set its prices, and entered into this Agreement in reliance upon the warranty disclaimers and the limitations of liability set forth herein, that the warranty disclaimers and the limitations of liability set forth herein reflect a reasonable and fair allocation of risk between you and Aura, and that the warranty disclaimers and the limitations of liability set forth herein form an essential basis of the bargain between you and Aura. Aura would not be able to provide the Service or the Software to you on an economically reasonable basis without these limitations.
14.4 Consumer End Users (Outside of the USA). This Section 14.4 applies only if you reside and use the Service and Software outside of the United States.
(a) Warranties. The limitations or exclusions of warranties and liability contained in this Agreement do not affect or prejudice (or purport to affect or prejudice) the statutory rights of a consumer, i.e., a person acquiring goods for solely personal use otherwise than in the course of business outside of the U.S.A. The limitations or exclusions of warranties, remedies or liability contained in this Agreement apply to you to only the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.
(b) Data Transfer. If you are accessing the Service from any region with laws or regulations governing personal data collection, use, and disclosure, that differ from United States laws, please be advised that through your continued use of the Software and the Service, you may be transferring your personal information to the United States and you consent to that transfer.
15. Dispute Resolution and Arbitration
15.1 Generally. In the interest of resolving disputes between you and Aura in the most expedient and cost-effective manner, you and Aura agree that any and all disputes arising out of or relating in any way to this Agreement or your use of the Service shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this Agreement.
15.2 No class actions or jury trials. This Arbitration Agreement involves interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”), and not by state law. If you or we elect to resolve a dispute by arbitration, neither you nor we will be able to have a court or jury trial or participate in a class action or class arbitration. Other rights that you and we would have if you or we went to court will not be available or will be more limited in arbitration, including discovery and appeal rights. You and we each understand and agree that by allowing each other to elect to resolve any dispute through individual arbitration, WE ARE EACH WAIVING THE RIGHT TO A COURT OR JURY TRIAL. IF ANY PARTY ELECTS ARBITRATION, THAT DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY SIMILAR PROCEEDING. The arbitrator(s) may not consolidate the claims of multiple parties, and may not otherwise preside over any form of a representative or class proceeding.
15.3 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Aura may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Aura shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
15.4 Procedure Generally. Arbitrations shall be administered by the JAMS (“JAMS”) pursuant to the applicable JAMS rules in effect at the time the arbitration is initiated. You may obtain information about arbitration, arbitration procedures and fees from JAMS by calling 800-352-5267 or visiting http://www.jamsadr.com/. If JAMS is unable or unwilling to arbitrate a dispute, then the dispute may be referred to any other arbitration organization or arbitrator we both agree upon in writing or that is appointed pursuant to section 5 of the FAA. The arbitrator shall be authorized to award any relief that would have been available in court, provided that the arbitrator’s authority is limited to you and us alone, except as otherwise specifically stated herein. No arbitration decision will have any preclusive effect as to non-parties. The arbitrator’s decision shall be final and binding. You and we agree that this Arbitration Agreement extends to any other parties involved in any Claims, including but not limited to affiliated companies and vendors. This Arbitration Agreement shall take precedence over the rules of the arbitration organization or arbitrator in the event of any conflict.
15.5 Fees. In the event that you commence arbitration in accordance with this Agreement, Aura will reimburse you for your payment of the filing fee, unless your claim is for greater than US $10,000, in which case the payment of any fees shall be decided by the Rules. Any arbitration hearings will take place at a location to be agreed upon in Herndon, Virginia for United States residents, and at a location to be mutually agreed upon for all other persons, provided that if the claim is for US $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in the United States Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the Rules. In such case, you agree to reimburse Aura for all monies previously disbursed by it that are otherwise your obligation to pay under the Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
15.6 Enforceability. If Section 15.2 above is found to be unenforceable or if the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 will be null and void.
16.1 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Aura without restriction. Any assignment attempted to be made in violation of this Agreement shall be void.
16.2 Entire Agreement. This Agreement (including any documents incorporated here by reference) constitutes the entire agreement between you and Aura concerning its subject matter, and it supersedes any other prior or contemporaneous agreements or terms, written or oral.
16.3 Force Majeure. Neither Aura nor you will be liable for inadequate performance to the extent caused by events beyond the reasonable control of a party, which may include denial-of-service attacks, internet disturbance, strikes, riots, pandemics or epidemics, natural disasters, acts of God, war, terrorism, and governmental action.
16.4 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, USA, exclusive of its choice of law principles except the payment disputes filed by customers domiciled in the European Community or Switzerland will be treated according to Swiss law.
16.5 Interpretation. This Agreement was prepared and written in English. Any non-English translations of this Agreement which may be made available are provided for convenience only and are not valid or legally binding. Use of section headings in this Agreement is for convenience only and will not have any impact on the interpretation of particular provisions. The use of the words "includes," "including," "such as," "for example," and similar terms are deemed not to limit what else might be included.
16.6 Jurisdiction. You agree that in the event of a dispute that is not subject to arbitration pursuant to Section 15, or if Section 15 is found to be unenforceable, any action at law or in equity arising out of or relating in any way to this Agreement or Aura will be filed only in the state or federal courts located in the Herndon, Virginia, and you hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.
16.7 Notice. All notices must be in writing and will be deemed given when: (a) personally delivered, (b) verified by written receipt, if sent by postal mail with verification of receipt service or courier, (c) received, if sent by postal mail without verification of receipt, or (d) verified by automated receipt or electronic logs if sent by email, provided that no bounce or other technical error message was received in response. Notices to Aura must be sent to Intersections Inc. dba Aura at 2553 Dulles View Drive, Suite 400, Herndon, VA 20171, marked to the attention of the Legal Department, with a copy emailed to [email protected] Email is insufficient for providing non-routine legal notices such as indemnification claims, breach notices, and termination notices (“Non-Routine Notices”) to Aura. You may grant approvals, permission, extensions and consents by email. Notices to you may be sent to the email address associated with your account for the Service. You consent to receiving certain electronic communications from us in connection with your use of the Service. You agree that any notices or other communications sent to you electronically will satisfy any legal notice requirements. You must keep contact details associated with your account and accurate, and you will notify Aura in writing of any changes to such details.
16.8 Severability. If any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from this Agreement to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
16.9 Survival. Upon termination or expiration of this Agreement for any reason, the following provisions will survive such termination or expiration: Sections 4, 5.3, and 10 through 18.
16.10 Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.
16.11 Waiver. The failure of Aura to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by Aura. Any cause of action arising out of or related to the Service by you against Aura must commence within 1 year after the cause of action accrues.
17. Apple App Store Additional License Terms
17.1 If the Software is provided to you through Apple Inc. (Apple Inc. together with all of its affiliates, “Apple”) App Store, the following terms and conditions apply to you in addition to all the other terms set forth herein:
(a) Apple is not responsible for the Services and has no obligation to furnish any maintenance or support services with respect to the Software or the Services.
(b) In the event of any failure of the Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Software (if any) to the Customer. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by the Customer Agreement.
(c) Any claim in connection with the Software related to product liability, a failure to conform to applicable legal or regulatory requirements, or claims under consumer protection or similar legislation is governed by this Agreement, and Apple is not responsible for such claim.
(d) Any third party claim that the Software or your possession and use of the Software infringes that third party’s Intellectual Property Rights will be governed by this Agreement, and Apple will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim.
(e) Apple shall be a third-party beneficiary of this Agreement and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you.
18. Contact Information.
Should you have any questions concerning this Agreement, or if you desire to contact Aura for any reason, please email [email protected] or write to:
Intersections Inc. dba Aura,
2553 Dulles View Drive, Suite 400,
Herndon, VA 20171
Attention: Chief Legal Officer
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