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AnchorFree Hotspot Shield Software License and Terms of Service
Last Modified: April 2, 2015, Effective May 2, 2015
The following Hotspot Shield Software License and Terms of Service Agreement (“Terms” or the “Agreement”) for the Hotspot Shield Software and Service is a legal contract between you, an individual subscriber (“You”), and AnchorFree, Inc. if you are a resident or citizen of the United States of America, or between You and AnchorFree GmbH (together with AnchorFree, Inc., “AnchorFree”), if you are not a resident or citizen of the United States of America, regarding your use of the Hotspot Shield Software to create a virtual private network (“VPN”) connection (the “Service”).
PLEASE READ CAREFULLY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING THE “INSTALL” BUTTON TO INITIATE THE INSTALLATION OF THE HOTSPOT SHIELD SOFTWARE, YOU ACKNOWLEDGE THAT YOU ARE ACCEPTING A BENEFIT BY USING THE SERVICE, AND 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 ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE “I DECLINE” BUTTON AND THE HOTSPOT SHIELD SOFTWARE WILL NOT BE INSTALLED ON YOUR DEVICE. IF YOU DO NOT AGREE TO THE TERMS, YOU MUST DESTROY, RETURN OR DELETE ALL COPIES OF THE HOTSPOT SHIELD SOFTWARE IN YOUR POSSESSION.
THE SERVICE IS NOT AVAILABLE TO PERSONS UNDER THE AGE OF 21 OR TO ANY USERS PREVIOUSLY SUSPENDED, TERMINATED OR REMOVED FROM THE SERVICE BY ANCHORFREE.
By clicking the “Install” button or by otherwise registering for, accessing or using the Service, you represent that you are at least 21 years of age and have not been previously suspended or removed from the Service by AnchorFree.
1. The Service. AnchorFree provides the Service as a means of protecting your privacy by establishing a secure Virtual Private Network (“VPN”) connection when connecting to the Internet through unsecured networks or browsing unsecured websites. The Service’s VPN utilizes a proxy Internet Protocol (“IP”) address (a “Proxy IP Address”).
1.1 Free and Subscription Service. You may choose whether to use the free Service or the subscription-based Service (the “Elite Service”). If You choose to use the free Service, AnchorFree may deliver third-party advertisements (“Advertisements”). If You choose to use the Elite Service, AnchorFree will not deliver any Advertisements.
1.2 Traffic Protection. The Service was developed to provide protection against hacking and other potential privacy vulnerabilities when surfing the Internet on an unsecure network, or browsing the Internet by creating a VPN that encrypts traffic to and from your Device, as defined in Section 6.1, and utilizing a Proxy IP Address provided by AnchorFree. However, software is not perfect and due to defects, bugs, or other reasons, or for no reason at all, AnchorFree does not guarantee that the Service will create a VPN or utilize a Proxy IP Address on all websites.
2. Hotspot Shield Privacy Notice. Your privacy is important to AnchorFree. AnchorFree’s Hotspot Shield Privacy Notice is hereby incorporated into these Terms by reference. Please read this notice carefully for information relating to the Hotspot Shield’s collection, use, and disclosure of your personal information.
3. Modification of these Terms. AnchorFree reserves the right, at our discretion, to make non-material changes to these Terms at any time. Please check these Terms and any Guidelines periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, we will make reasonable efforts to notify you at least 30 days in advance of the effective date of such change. We may provide notice through a pop-up or banner within the Service, by sending an email to any address you may have used to pay for Hotspot Shield Elite, or through other reasonable means. If you do not agree to the changed Terms you must discontinue your use of the Service. If you are a user of Hotspot Shield Elite and you elect to discontinue use of the Service due to a material change in these Terms, we will provide you with a refund as described in Section 9 below. All other changes are effective upon publication of the changed Terms.
4. User Content
4.1 User Content Generally. Certain features of the Service, such as the Hotspot Shield Help Desk may permit users to post content, including messages, reviews, data, text, and other types of works (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 AnchorFree. By posting or publishing User Content, You grant AnchorFree a worldwide, non-exclusive, royalty-free 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). Any such use of your User Content by AnchorFree may be 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 AnchorFree 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 AnchorFree and these Terms; 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 post or publish, and will not be in any way responsible or liable for User Content. AnchorFree may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms 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 AnchorFree with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, 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, AnchorFree does not permit copyright-infringing activities on the Service.
4.5 Digital Millennium Copyright Act. It is AnchorFree’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. For more information, please go to AnchorFree’s DMCA Notification Guidelines.
5. The Hotspot Shield Software
5.1 Hotspot Shield Software License. The Service, including Hotspot Shield Software, is licensed, not sold, to You. Subject to the terms and conditions set forth in this Agreement, AnchorFree grants You a limited, revocable, nonexclusive, personal, nontransferable license to install and use one (1) copy of the provided version of the Hotspot Shield Software in object code format, to access the Service for internal and personal purposes only, and on only five (5) Devices (as defined in Section 6.1 below). The Hotspot Shield 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.
5.2 Hotspot Shield Software License Restrictions. YOU MAY NOT (AND MAY NOT ALLOW A THIRD PARTY TO) RENT, LEASE, SUBLICENSE, SELL, ASSIGN, LOAN, USE FOR TIMESHARING OR SERVICE BUREAU PURPOSES OR OTHERWISE TRANSFER THE HOTSPOT SHIELD SOFTWARE OR ANY OF YOUR RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT. 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 Hotspot Shield Software by any means whatsoever, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (b) remove or destroy any copyright notices or other proprietary markings; © attempt to circumvent any use restrictions; (d) modify or adapt the Hotspot Shield Software, merge the Hotspot Shield Software into another program or create derivative works based on the Hotspot Shield Software; or (e) use, copy or distribute the Hotspot Shield Software without AnchorFree’s written authorization, except that You may make one (1) copy of the Hotspot Shield Software for archival or backup purposes only.
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 HOTSPOT SHIELD SOFTWARE OR THE SERVICE. YOU ASSUME ALL RISK AND LIABILITY FOR ANY SUCH PROHIBITED USE OF COPYRIGHTED CONTENT.
5.4 Recurring Payments for Elite Service using Hotspot Shield Software. When You purchase a subscription to AnchorFree’s Elite Service in connection with your use of the Hotspot Shield Software, AnchorFree will provide You with the ability to automatically renew your subscription to the Elite Service.
The AnchorFree Elite Service monthly/annual fee, explained here, is paid in advance for the month(s)/year(s) following each recurring charge and is non-refundable except as expressly set forth in these Terms. Taxes may apply on the membership fee.
If the payment mechanism (such as a credit card) we have on file for You is declined for payment of your Elite Service membership fee, we may retry the payment mechanism at the same or lower rate. If all retries are declined, your Elite Service membership will be canceled. If You provide us with a new form of payment and are successfully charged within 30 days, your new Elite Service membership period will be based on the original renewal date and not the date of the successful charge. If your Elite Service is terminated, you may be entitled to a refund, subject to limitations provided in Section 9 of these Terms.
UNLESS YOU NOTIFY US BEFORE A CHARGE THAT YOU WANT TO CANCEL OR DO NOT WANT TO AUTO RENEW, YOU UNDERSTAND YOUR ELITE SERVICE MEMBERSHIP WILL AUTOMATICALLY CONTINUE INDEFINITELY AND YOU AUTHORIZE US (WITHOUT NOTICE TO YOU, UNLESS REQUIRED BY APPLICABLE LAW) TO COLLECT THE THEN-APPLICABLE ELITE SERVICE MEMBERSHIP FEE AND ANY TAXES, USING ANY CREDIT CARD WE HAVE ON RECORD FOR YOU.
6. The Service
6.1 Availability. AnchorFree agrees to allow You to use the Hotspot Shield 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. ANCHORFREE IS NOT RESPONSIBLE FOR ANY FAILURES TO MAINTAIN THE CONFIDENTIALITY, SECURITY, ACCURACY OR QUALITY OF YOUR DATA, MESSAGES OR PAGES WHETHER OR NOT RELATED TO INTERRUPTIONS OR PERFORMANCE ISSUES WITH THE SERVICE. ANCHORFREE DOES NOT ENCRYPT ALL WEB TRAFFIC TO OR FROM YOUR DEVICE, AND ANCHORFREE DOES NOT PROVIDE A PROXY IP ADDRESS FOR ALL WEBSITES ON ALL MODES OF THE SERVICE.
6.2 Denial of Access. AnchorFree reserves the right to modify or discontinue the Service at any time without any notice for its convenience. If you are a user of the Elite Service, you may be entitled to a refund as described in Section 9 below. AnchorFree may deny access to the Service without any prior notice if You are in breach of a material term of this Agreement, and may terminate your use of the Service as described in Section 9 below. You shall not allow any third party to access the Service from your Device.
6.3 Trusted Publisher. As part of the Service, AnchorFree may install its own certificate on your Device as a Trusted Publisher. AnchorFree reserves the right to make future installs or updates to such certificates on your Device in connection with providing the Service at any time without any notice for its convenience.
7. Prohibited Conduct.
BY USING THE HOTSPOT SHIELD SOFTWARE OR THE SERVICE YOU AGREE NOT TO:
7.1 use the Hotspot Shield 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;
7.2 rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the Service, the Hotspot Shield Software or any Materials (as defined in Section 10, below);
7.3 delete the copyright or other proprietary rights on the Hotspot Shield Software or the Service;
7.4 use the Hotspot Shield Software or the Service for any illegal purpose, or in violation of any local, state, national, or international law;
7.5 use the Service or the Hotspot Shield Software for any commercial use, it being understood that the Hotspot Shield Software and the Service is for personal, non-commercial use only;
7.6 use the Hotspot Shield Software or the Service if You are under the age of 21 years old;
7.7 remove, circumvent, disable, damage or otherwise interfere with security-related features of the Hotspot Shield Software or the Service, features that prevent or restrict use or copying of the Hotspot Shield Software, or features that enforce limitations on the use of the Service;
7.8 reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service or the Hotspot Shield Software or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
7.9 modify, adapt, translate or create derivative works based upon the Hotspot Shield Software or the Service or any part thereof, except and only to the extent foregoing restriction is expressly prohibited by applicable law; or
7.10 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.
8. Third-Party Transactions
8.1 Advertisements. If You are using the free Service, AnchorFree may deliver third-party Advertisements. Advertisements may be displayed to overlay a page or as an interstitial. You hereby acknowledge and consent that AnchorFree may deliver third party Advertisements to overlay a page or as an interstitial. AnchorFree reserves the right to prevent your access to the Service or continued use thereof if You violate our terms by engaging in fraud, copyright infringement or employing an adblocking product or other software or mechanism that prevents You from participating in advertising programs, surveys, or other activities that involve monetization of the Service. AnchorFree 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.
8.2 Otherwise. If You choose to access and use certain websites, services or content, or purchase products from third parties, including without limitation through third-party payment vendors while using the Elite 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, please note that AnchorFree policies and these Terms 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. AnchorFree has no responsibility for any third party’s policies, or any third party’s compliance with them.
9. Termination; Refunds; Terms of Service Violations
9.1 Termination by AnchorFree. For users of the free Service, You agree that AnchorFree, in its sole discretion, for any or no reason, and without penalty, may terminate your use of the Service or the Hotspot Shield Software at any time, and that AnchorFree may also in its sole discretion and at any time discontinue providing access to the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service may be effected without prior notice and You agree that AnchorFree will not be liable to You or any third party for any such termination.
**For users of the Elite Service, You agree that AnchorFree, in its sole discretion, for any or no reason, may terminate your use of the Service or the Hotspot Shield Software at any time, and that AnchorFree may also in its sole discretion and at any time discontinue providing access to the Service, or any part thereof, with or without notice. If such termination or discontinuation occurs during a period for which You are a paid subscriber to the Elite Service, You may be entitled to a pro-rated refund of your last subscription payment amount in connection with your use of the Elite Service. If your account is terminated due to your breach of this Agreement during the relevant cancelation period, You will not be refunded. All refunds are issued at AnchorFree’s sole discretion and any request for refund may be denied for any or no reason. You agree that any termination of your access to the Service may be effected without prior notice and You agree that AnchorFree will not be liable to You or any third party for any such termination beyond the refund described in this Section 9.1. If You have been terminated from the Elite Service and wish to request a refund, please email customer service at firstname.lastname@example.org 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 AnchorFree may have at law or in equity.
9.2 Termination by You. You may terminate this Agreement at any time by discontinuing use of all parts of the Service and certifying in writing to AnchorFree that all copies of the Hotspot Shield Software have been destroyed or deleted from any of your Device or other storage devices.
10. Ownership; Proprietary Rights. The Hotspot Shield Software and the Service are owned and operated by AnchorFree 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 Hotspot Shield Software provided by AnchorFree (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 Hotspot Shield Software or Service (excluding any Materials on third-party websites) are the property of AnchorFree or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to AnchorFree or its affiliates and/or third-party licensors. Except as expressly authorized by AnchorFree, 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. AnchorFree reserves all rights not expressly granted in this Agreement.
11. Indemnification. You agree to indemnify, save, and hold AnchorFree, its affiliated companies, contractors, subcontractors, officers, directors, shareholders, employees, agents and its third-party suppliers, licensors, and partners (the “AnchorFree Entities”) harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your misuse of the Hotspot Shield Software or Service, any violation by You of this Agreement, or any breach of the representations, warranties, and covenants made by You herein. AnchorFree reserves the right, at your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify the AnchorFree Entities, and You agree to cooperate with AnchorFree’s defense of these claims. AnchorFree will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.
12. Export. The Hotspot Shield Software and the Service may be subject to United States export controls. You may not export or re-export the Hotspot Shield Software without: (a) the prior written consent of AnchorFree, (b) complying with any applicable export control laws, and © 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 Hotspot Shield 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 Hotspot Shield 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 the terms of these Terms and will be prohibited except to the extent expressly permitted by these Terms. You understand and agree that the Hotspot Shield 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 AnchorFree, 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 Service.
13. Disclaimers; No Warranties.
13.1 No Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ANCHORFREE AND THE ANCHORFREE 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 ANCHORFREE OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 13 THE TERM ANCHORFREE INCLUDES THE ANCHORFREE ENTITIES.
13.2 “As is” and “As available” and “With All Faults”. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE AND THE HOTSPOT SHIELD SOFTWARE IS AT YOUR SOLE RISK. THE SERVICE, THE HOTSPOT SHIELD SOFTWARE AND ANY DATA, INFORMATION, THIRD-PARTY HOTSPOT SHIELD 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 HOTSPOT SHIELD SOFTWARE OR THE SERVICE WILL WITHSTAND ATTEMPTS TO EVADE SECURITY MECHANISMS OR THAT THERE WILL BE NO CRACKS, BUGS, DISABLEMENTS OR OTHER CIRCUMVENTION. YOU ACKNOWLEDGE AND UNDERSTAND THAT ANCHORFREE DOES NOT AND WILL NOT ENCRYPT ALL WEB TRAFFIC TO OR FROM YOUR DEVICE, AND THAT ANCHORFREE DOES NOT AND WILL NOT PROVIDE A PROXY IP ADDRESS FOR ALL WEBSITES. ANCHORFREE AND THE ANCHORFREE 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.
13.3 Harm to You. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD THE HOTSPOT SHIELD 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.
14.1 Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL ANCHORFREE OR THE ANCHORFREE 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 HOTSPOT SHIELD SOFTWARE, OR ANY OTHER INTERACTIONS WITH ANCHORFREE, EVEN IF ANCHORFREE OR AN ANCHORFREE AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, ANCHORFREE’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
14.2 Limitation of Damages. IN NO EVENT WILL THE TOTAL LIABILITY OF ANCHORFREE 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 HOTSPOT SHIELD SOFTWARE (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE HOTSPOT SHIELD SOFTWARE AND THE SERVICE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR TWENTY FIVE DOLLARS, WHICHEVER IS GREATER.
14.3 Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT ANCHORFREE HAS OFFERED THE HOTSPOT SHIELD 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 ANCHORFREE, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND ANCHORFREE. ANCHORFREE WOULD NOT BE ABLE TO PROVIDE THE SERVICE OR THE HOTSPOT SHIELD SOFTWARE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
14.4 Limitations by Applicable Law. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
14.5 Consumer End Users (Outside of the USA). This Section 14.5 applies only if You reside and use the Service and Hotspot Shield 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 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 Hotspot Shield Software and the Service, which are governed by U.S. law and this Agreement, 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 AnchorFree in the most expedient and cost effective manner, You and AnchorFree 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 these Terms or the Service, 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 these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ANCHORFREE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
15.2 Notwithstanding subsection
15.1, we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek a temporary restraining order or preliminary injunctive relief in a court of law in aid of arbitration, or (iv) to file suit in a court of law to address intellectual property infringement claims.
15.3 Arbitrator. Any arbitration between You and AnchorFree will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting AnchorFree.
15.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, 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”). For United States citizens and residents, AnchorFree’s address for Notice is: AnchorFree, Inc., PO Box 60429, Sunnyvale, CA 94088. For all other persons, AnchorFree’s address for Notice is: AnchorFree GmbH, Hansmatt 32, 6370 Stans, Switzerland. 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 AnchorFree may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by You or AnchorFree shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, AnchorFree shall pay you the greater of (i) the amount awarded by the arbitrator, if any, or (ii) the greatest amount offered by AnchorFree in settlement of the dispute prior to the arbitrator’s award, whichever is greater.
15.5 Fees. In the event that you commence arbitration in accordance with these Terms, AnchorFree will reimburse You for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara County, California for United States citizens and residents, and at a location to be agreed upon in Switzerland for all other persons, provided that if the claim is for $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 AAA 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 AAA Rules. In such case, You agree to reimburse AnchorFree for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA 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 No class actions. YOU AND ANCHORFREE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both You and AnchorFree agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
16.1 Notice. AnchorFree may provide You with notices, including those regarding changes to this Agreement, by posting the notice through the Service. Notice will be deemed given twenty-four hours after posting.
16.2 Waiver. The failure of AnchorFree 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 AnchorFree.
16.3 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.
16.4 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 AnchorFree will be filed only in the state or federal courts in San Francisco County, California, and You hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.
16.5 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.
16.6 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by AnchorFree without restriction. Any assignment attempted to be made in violation of this Agreement shall be void.
16.7 Survival. Upon termination of this Agreement, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 5.2, 6.1, and 7 through 16.
16.8 Headings. The heading references herein are for convenience purposes only, do not constitute a part of the terms of this Agreement, and will not be deemed to limit or affect any of the provisions hereof.
16.9 Entire Agreement. This Agreement constitutes the entire agreement between You and AnchorFree relating to the subject matter herein and will not be modified except in writing, signed by both parties.
16.10 Time Limit for Claims. YOU AND ANCHORFREE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE OR SOFTWARE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
16.11 Disclosures. The Service and Hotspot Shield Software set forth hereunder are offered by AnchorFree, Inc., PO Box 60429, Sunnyvale, CA 94088 and AnchorFree GmbH, Hansmatt 32, 6370 Stans, Switzerland. You may email AnchorFree at: email@example.com. If You are a California resident, You may have this same information emailed to You by sending a letter to the foregoing address with your email address and a request for this information.