Phuntoken.com Terms of Use

Welcome to PHUNTOKEN.COM! PhunToken.com allows you to purchase PhunTokens (“PhunToken Purchases”) or earn PhunToken rewards for engaging with brands or otherwise participating in rewards programs, branding marketing campaigns or completing a survey (“PhunToken Rewards”) through the Platform and the Sites (each defined below). These Terms of Use are entered into by and between you (“You” or “User”) and Phunware, Inc. (“Phunware,” “Company,” “we,” or “us”). These Terms of Use set forth the terms and conditions, together with any documents they expressly incorporate by reference, that govern your access to and use of PhunToken Purchases and PhunToken Rewards on Phunware’s websites and subdomains, the PhunWallet App (defined in Section 2) and social media accounts, including any content, functionality, and services offered on or accessible through www.phuntoken.com (collectively, the “Sites”).

  1. Accepting these Terms of Use

    Phunware offers PhunToken Purchases and PhunToken Rewards using its proprietary blockchain-enabled mobile loyalty ecosystem available through the PhunWallet App (the “Platform”) for PhunToken ERC-20 compatible tokens initially distributed on the Ethereum blockchain, but also including any tokens initially distributed on or migrated to any other blockchain or distributed ledger technology (“PhunTokens”). Phunware makes available to Users the access and use of the Platform and related content and materials and Services (defined below) via the Sites operated by it.

    These Terms of Use set out your rights and responsibilities when you use the Platform and the Sites to make PhunToken Purchases or participate in PhunToken Rewards programs (collectively, the “Services”), so please read them carefully.

    By clicking on the “I Accept” button, completing the account registration process, or using the Sites, you accept and agree to be bound and abide by these Terms of Use and all of the terms incorporated herein by reference. By agreeing to these terms, you hereby certify that you are at least 18 years of age. If you do not agree to these Terms of Use, you must not access or use the Platform or the Sites.

    Please note that Section 16 contains an arbitration clause and class action waiver. By agreeing to these Terms of Use, you agree to resolve all disputes through binding individual arbitration, which means that you waive any right to have the dispute decided by a judge or jury, and you waive any right to participate in collective action, whether that be a class action, class arbitration, or representative action.

    Phunware reserves the right to change or modify these Terms of Use at any time and in our sole discretion. You agree and understand that, by logging into your account, accessing or using the Sites following any change to these Terms of Use, you agree to the revised Terms of Use and all of the terms incorporated therein by reference. If you do not agree to any modification of these Terms of Use, your sole remedy is to discontinue your use of the Platform and the Sites. The most current version of these Terms of Use will be available on our website and supersedes previous versions. We encourage you to review the Terms of Use from time to time to ensure that you understand the terms and conditions that apply when you access or use the Sites.

    Phunware reserves the right to apply special terms to any particular feature or function of the Platform or the Services and any such special terms shall become part of these Terms of Use upon your access and use thereof.

    All capitalized terms used herein have the meanings stated in these Terms of Use, unless stated otherwise in writing and signed by Phunware.

  2. Your Phunware User Account

    While certain public portions of the Platform may be viewed without creating a user account, you should create a user account (each, a “User Account”) with Phunware in order to access and use the Services for PhunToken Purchases and PhunToken Rewards programs, including installing and setting up the PhunWallet mobile application and any associated software wallet (the “PhunWallet App”).

    When you create a User Account, we will ask you for some personal information about yourself. We may require you, in our sole discretion, to provide additional information and/or documents. If you do not provide complete and accurate information and/or documents in response to such a request, we may refuse to provide you with the Services or authenticate your User Account. Phunware reserves the right to decline to activate a User Account for any person for any reason.

    Your User Account is subject to the following conditions:

    • Access: You understand and agree that access to your User Account is limited solely to you. You agree that you will not sell, rent, lease, or grant access to your User Account to any person without our prior written permission. You further agree that Phunware may limit the storage space set aside for your User Account and accrued PhunToken Rewards stored in your User Account.
    • Security: You understand and agree that you are solely responsible for maintaining the security of your User account and control over any user names, passwords, or any other codes that you use to access the Services or the Platform. Any unauthorized access to your User Account by third parties could result in the loss or theft of PhunTokens and/or funds held in your User Account and any associated accounts, including your linked cryptocurrency wallet(s), bank account(s) and credit card(s). You understand and agree that you will not hold us responsible for managing and maintaining the security of your User Account. You further understand and agree that we are not responsible (and you will not hold us responsible) for any unauthorized access to or use of your User Account. You are responsible for monitoring your User Account. If you notice any unauthorized or suspicious activity in your User Account, please notify us immediately.
    • Communication: You agree and understand that we will communicate with you via electronic means. To ensure that you receive all of our communications, you agree to keep your email address and telephone number current and notify us if there are any changes. You agree that any notices, agreements, disclosures, or other communications delivered to your email address on record are considered valid.

  3. User Account Suspension

    You agree that Phunware has the right to immediately suspend your User Account, pause or cancel your access to the Services or the Platform, or close your User Account if we suspect, in our sole discretion, that (1) your User Account is being used for money laundering, investment speculating or any illegal activity; (2) you have concealed or provided false identification information or other details; (3) you have engaged in fraudulent activity; or (4) you have engaged in transactions in violation of these Terms of Use or any applicable laws, regulations, orders, ordinances or treaties.

  4. PhunToken Rewards Programs

    You agree that Phunware may offer PhunToken Rewards programs under which you may have the opportunity to earn or accrue PhunToken Rewards. Phunware may limit, suspend or terminate your ability to participate in any PhunToken Rewards program in its sole and absolute discretion, and may void any PhunToken Rewards you may have earned, accrued or accumulated in a PhunToken Rewards program, if we determine in our sole discretion that you have not complied with these Terms of Use or any additional rules applicable to such participation. You agree to abide by the final and binding decisions of Phunware regarding any PhunToken Rewards program and your participation in it. We reserve the right to change, suspend, or cancel all or a portion of a PhunToken Rewards program, including any PhunToken Rewards you may have accrued, at any time without prior notice to you. Notwithstanding the foregoing, any On-Chain PhunTokens you receive from PhunToken Purchases or following the exchange, conversion or redemption of PhunToken Rewards are not subject to being voided. “On-Chain PhunTokens” refers to digital assets that reside on the blockchain and are publicly available for purchase or transfer.

    PhunToken Rewards can be earned in a program by participating in certain activities, as described in the rules of applicable PhunToken Rewards program, which will be published on one or more Sites. We may modify our expiration rules and policies for any PhunToken Rewards programs from time to time, and if your points or rewards expire or are canceled pursuant to such then-current rules or policies, we may remove such points or rewards from your User Account, without any compensation or further obligation to you regarding the expired points or rewards.

  5. Communication

    You agree that we may send you promotional communications by email, including, but not limited to, newsletters, special offers, surveys, and other news and information that we think will be of interest to you.

    You agree that we may send you communications by email or text message that pertain to the status of a purchase or sale of a PhunTokens on the Platform, and other communications that pertain to your interaction with the Sites, including but not limited to notifications about the status of PhunTokens that you are interested in purchasing.

    You may opt out of promotional communications at any time by following the instructions provided in the email.

    You agree to receive communications and notices, including those regarding changes to these Terms of Use, by electronic mail, regular mail, text message, in-app messaging in the PhunWallet app, or other reasonable means now known or hereinafter developed. Your consent to receive electronic communications includes any notices or other information that we may be required by law to provide you in writing or otherwise. You agree to keep us apprised of your current email address should the same change after the date your User Account is established. We may also send you push notifications if you install the PhunWallet app. If you elect to provide us a mobile number, we may use it to contact you when you make User Account updates. You may receive recurring messages from us during those account changes. Standard message rates apply, and carriers are not responsible for any delayed or undelivered messages. You may opt out of receiving certain communications in accordance with our Privacy Policy.

  6. Ownership

    The Phunware logo and any product or service names, trademarks, service marks, logos, or slogans that may appear on the Platform or the Sites are trademarks of Phunware or our affiliates. The Phunware trademarks may not be copied, imitated, publicly displayed, distributed or used, in whole or in part, without our prior written permission.

    You acknowledge and agree that as between you and Phunware, title to and ownership of the Phunware’s proprietary processes, content and technology used in the operation of the Sites, the Platform and/or the Services, and all intellectual property rights relating thereto, including without limitations: copyrights, hardware designs, algorithms, software, content “look and feel”, software and user-interface designs, architecture, documentation (both printed and electronic), network designs, know-how, data, databases, ad copy, templates, trademarks, patents, trade names, trade dress, methodologies, trade secrets, confidential information and any related intellectual property rights and goodwill associated with the foregoing throughout the world (whether owned by Phunware or licensed to Phunware from a third party), and any derivatives, improvements, enhancements or extensions of, and any feedback or suggestions to, any of the foregoing, conceived, reduced to practice, or developed whether alone or jointly with others by Phunware or you (collectively, “Phunware IP”), are and will remain vested in Phunware at all times and for all purposes. You will not challenge, contest or otherwise take any action inconsistent with Phunware’s rights in and to the Phunware IP.

    You may not use any Phunware IP without our express written permission. You may not use links to the Sites or otherwise use framing techniques to enclose any Phunware IP without our express written consent. In addition, the look and feel of the Platform, the Sites and Phunware IP, including without limitation, all page headers, custom graphics, button icons, and scripts constitute the service mark, trademark, or trade dress of Phunware and may not be copied, imitated, or used, in whole or in part, without explicit written permission of Phunware.

    Notwithstanding anything to the contrary herein, you understand and agree that you shall have no ownership or other property interest in the Phunware IP, and you further agree that all rights therein and any use thereof are and shall forever be owned by and inure to the benefit of Phunware.

    You acknowledge that the issuance of PhunTokens to your User Account does not allow or imply commercial use or ownership of intellectual property on the brand, design, music, video, art or other media displayed in your digital asset PhunTokens.

  7. Your Use of The Platform, PhunTokens, the Sites and Phunware IP

    We hereby grant you a limited, non-exclusive, non-transferable, revocable license to access and use the Sites and the Platform displaying Phunware IP. Our grant of such license is subject to the following conditions:

    • Unlawful Activity: You agree not to engage, or assist, in any activity that violates any law, statute, ordinance, regulation, or sanctions program, including but not limited to the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), or that involves proceeds of any unlawful activity.
    • Abusive Activity: You agree not to engage in any activity that poses a threat to the Sites, the Platform or Phunware and its businesses, for example by distributing a virus or other harmful code, or through unauthorized access to the Sites or other users’ accounts.
    • Inappropriate Behavior: You agree not to interfere with other users’ access to or use of the Sites and the Platform, including any Phunware IP made available to you.
    • Communication: You agree not to communicate with other users for purposes of (1) sending unsolicited advertising or promotions, requests for donations, or spam; (2) harassing or abusing other users; (3) interfering with transactions of other users. You agree not to use data collected from the Sites or the Platform to contact individuals, companies, or other persons or entities outside the Sites for any purpose, including but not limited to marketing activity.
    • Fraud: You agree not to engage in any activity that operates to defraud Phunware, other users, or any other person or that provides any false, inaccurate, or misleading information to Phunware.
    • Gambling: You agree not to utilize the Platform, the Sites or Services to engage in any lottery, bidding fee auctions, contests, sweepstakes (other than sweepstakes offered by Phunware) or other games of chance.
    • Investment Speculating: You agree to not utilize the Platform to short sell or speculate on the value or purchase price (increases or decreases) of the PhunTokens.
    • Taxes: You agree that you are solely responsible for determining what, if any, taxes apply to your PhunTokens transactions. Neither Phunware nor any other party affiliated with Phunware or providing Services related to the Sites, the Platform or Phunware IP is responsible for determining the taxes that apply to your PhunTokens transactions.
    • Intellectual Property Infringement: You agree not to (1) engage in transactions involving items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the law (including without limitation any User Content posted or made available on the Sites); (2) use Phunware IP without express written consent from Phunware; or (3) engage in any action that implies an untrue endorsement, sponsorship or affiliation with Phunware.
    • Additional Prohibitions: You agree not to (1) distribute, publish, broadcast, reproduce, copy, retransmit, or publicly display any Phunware IP; (2) modify or create derivative works from the Sites or Phunware IP, or any portion thereof; (3) use any data mining, robots, or similar data gathering or extraction methods on the Sites or Phunware IP; or (4) download any portion of the Sites or Phunware IP, other than for purposes of page caching, except as expressly permitted by us.

    If you are unsure whether a contemplated use would violate these Terms of Use, please contact us at the address listed below under Contact Information.

  8. Privacy

    You acknowledge and agree to the collection, use, and disclosure of your personal information in accordance with Phunware’s Privacy Policy, which is incorporated into these Terms of Use by reference. The Privacy Policy can be found at https://www.phunware.com/privacy.

  9. Modifications

    You agree and understand that we may modify part or all of the Platform, the Sites or the Services without notice.

  10. Inherent Risks of PhunTokens

    You agree and understand that you are solely responsible for determining the nature, potential value, suitability, and appropriateness of these risks for yourself, and that Phunware does not give advice or recommendations regarding PhunToken Purchases or PhunToken Rewards, including the suitability and appropriateness of, PhunTokens. You agree and understand that you access and use the Platform and the Sites operated by Phunware at your own risk; however, this brief statement does not disclose all of the risks associated with PhunTokens and other digital assets. You agree and understand that Phunware will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using PhunTokens, however caused.

  11. Third Parties

    Phunware may rely on third-party platforms, including but not limited to Branch.io, ElasticEmail and AWS, to perform PhunTokens transactions. Our Sites may contain links to third-party websites or applications (collectively, “Third Party Sites”). Phunware does not own or control Third Party Sites. You understand and agree that your use of any Third Party Sites is subject to any terms of use and/or privacy policy provided by such Third Party Sites. Phunware is not a party to any such agreement. You should review any terms of use and/or privacy policy provided by such Third Party Sites and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

    Phunware provides these Third Party Sites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites, or their products or services. You use all links in Third Party Sites at your own risk. When you leave our Sites, our Terms of Use and our Privacy Policy no longer govern. We may, but are not obligated to, warn you that you are leaving our Sites.

    Any PhunTokens transactions processed by Third Party Sites are governed by the applicable terms of service and privacy policies of the applicable third party service providers, copies of which are available at https://aws.amazon.com/privacy/ (for AWS), https://elasticemail.com/resources/usage-policies/privacy-policy (for ElasticEmail), and https://branch.io/policies/privacy-policy/ (for Branch.io).

  12. Disclaimers

    EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY PHUNWARE, THE PLATFORM, THE SITES, PHUNTOKENS, PHUNTOKEN PURCHASES, PHUNTOKEN REWARDS, THE PHUNWARE IP AND ALL MATERIALS CONTAINED THEREIN, AND PHUNTOKENS LISTED THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. PHUNWARE (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT THE SITES WILL (1) MEET YOUR REQUIREMENTS; (2) BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (3) BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE.

    WE WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE SITES. PHUNWARE DOES NOT REPRESENT OR WARRANT THAT CONTENT ON THE SITES IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.

    WHILE PHUNWARE ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE PLATFORM, THE SITES AND ANY PHUNWARE IP SAFE, PHUNWARE CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM THE SITES, ANY PHUNWARE IP, AND ANY PHUNTOKENS LISTED ON OUR PLATFORM, OUR SITES OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD US RESPONSIBLE FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

    WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU OR OTHERS FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF PHUNTOKENS INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (1) USER ERROR SUCH AS FORGOTTEN PASSWORDS, LOST SEED PHRASES, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (2) SERVER FAILURE OR DATA LOSS; (3) CORRUPTED WALLET FILES; (4) UNAUTHORIZED ACCESS TO APPLICATIONS; (5) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE PLATFORM, THE SITES OR PHUNTOKENS.

    PHUNTOKENS AND ACCRUED PHUNTOKEN REWARDS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED, IN THE CASE OF PHUNTOKENS, ON THE PUBLIC DECENTRALIZED LEDGER AND, IN THE CASE OF ACCRUED PHUNTOKEN REWARDS, IN THE PLATFORM. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS, IN THE CASE OF PHUNTOKENS, ON THE PUBLIC DECENTRALIZED LEDGER AND, IN THE CASE OF ACCRUED PHUNTOKEN REWARDS, ON THE OWNERSHIP RECORD MAINTAINED WITHIN THE PLATFORM. WE DO NOT GUARANTEE THAT PHUNWARE OR ANY PHUNWARE PARTY CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY PHUNTOKENS.

    Phunware is not responsible for sustained losses due to vulnerability or any kind of failure, abnormal behavior of software (e.g., wallet, smart contract), blockchains, or any other features of PhunTokens. Phunware is not responsible for sustained losses due to late reports by developers or representatives (or no report at all) of any issues with the blockchain supporting PhunTokens including forks, technical node issues or any other issues having fund losses as a result.

    Nothing in these Terms of Use shall exclude or limit liability of either party for fraud, death or bodily injury caused by negligence, violation of laws, or any other activity that cannot be limited or excluded by legitimate means.

    TO THE FULLEST EXTENT PROVIDED BY LAW, PHUNWARE HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE PLATFORM, THE SITES, ANY PHUNWARE IP AND ANY OTHER MATERIALS OR CONTENT CONTAINED THEREIN (INCLUDING LINKS OR PHUNTOKENS); PROVIDED, HOWEVER, THAT THE FOREGOING DISCLAIMERS DO NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

  13. Limitation of Liability

    TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL PHUNWARE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THESE TERMS OF USE, THE PLATFORM, THE SITES, PRODUCTS OR THIRD PARTY SITES AND PRODUCTS, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF PHUNWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITES, THE PLATFORM, PHUNTOKEN PURCHASES, PHUNTOKEN REWARDS, ANY PHUNWARE IP OR THIRD PARTY SITES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.

    ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF PHUNWARE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS OF USE, THE ACCESS TO AND USE OF THE PLATFORM, THE SITES, ANY PHUNWARE IP, PHUNTOKENS, THIRD PARTY SITES OR ANY PRODUCTS OR SERVICES OFFERED ON THE SITES EXCEED $100. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY TO LIABILITY OF PHUNWARE FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A MEMBER OF PHUNWARE’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A MEMBER OF PHUNWARE’S FRAUD OR FRAUDULENT MISREPRESENTATION.

    Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or limitations of liability for personal injury from consumer products, so this limitation may not apply to personal injury claims.

  14. Indemnification

    the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Phunware, and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Phunware Parties”), from and against all actual or alleged third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Platform, the Sites, Phunware Purchases, Phunware Rewards, any Phunware IP or PhunTokens, (b) your violation of these Terms of Use, and (d) your violation of the rights of a third party, including another user or Third Party Services. You agree to promptly notify Phunware of any third party Claims and cooperate with the Phunware Parties in defending such Claims. You further agree that the Phunware Parties shall have control of the defense or settlement of any third party Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A WRITTEN AGREEMENT BETWEEN YOU AND PHUNWARE.

  15. Governing Law

    These Terms of Use, your access and use of the Platform, the Sites, PhunToken Purchases, PhunToken Rewards and any PhunTokens, your rights and obligations, and all actions contemplated by, arising out of or related to these Terms of Use shall be governed by the laws of the State of Texas, as if these Terms of Use are a contract wholly entered into and wholly performed within the State of Texas. THE PLATFORM AND THE SITES ARE OPERATED BY PHUNWARE ON SERVERS LOCATED WITHIN THE STATE OF TEXAS. YOU UNDERSTAND AND AGREE THAT YOUR USE OF PHUNWARE AS CONTEMPLATED BY THESE TERMS OF USE SHALL BE DEEMED TO HAVE OCCURRED IN THE STATE OF TEXAS AND BE SUBJECT TO THE INTERNAL LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.

  16. Disputes

    Please read the following agreement to arbitrate (“Arbitration Agreement”) in its entirety. This clause requires you to arbitrate disputes with Phunware and limits the manner in which you can seek relief from us.

    You agree that any dispute or claim relating in any way to: your access, use, or attempted access or use of the Platform, the Sites, PhunToken Purchases, PhunToken Rewards and the Phunware IP, any products sold or distributed through the Sites, or any aspect of your relationship with Phunware will be resolved by binding arbitration, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Phunware may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyright, or patent). You agree that any such arbitration shall be settled solely and exclusively by binding arbitration held in Austin, Texas, administered by JAMS and conducted in English, rather than in court.

    Any such arbitration shall be conducted in accordance with the then-prevailing JAMS Streamlined Arbitration Rules & Procedures, except that any dispute involving claims and counterclaims over $250,000, not inclusive of attorneys’ fees and interest, shall be subject to the then-prevailing JAMS Comprehensive Arbitration Rules and Procedures.

    The arbitrator shall have exclusive authority to (1) determine the scope and enforceability of this Arbitration Agreement; and (2) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including but not limited to any claim that all or part of this Arbitration Agreement is void or voidable; (3) decide the rights and liabilities, if any, of you and Phunware; (4) grant motions dispositive of all or part of any claim; (5) award monetary damages and grant any non-monetary remedy or relief available to a party under applicable law, arbitration rules, and these Terms of Use (including the Arbitration Agreement). The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. Such an award is final and binding upon you and us.

    You understand that by agreeing to this Arbitration Agreement, you and Phunware are each waiving their right to trial by jury and to participate in a class action or class arbitration.

    If any part of this Arbitration Agreement is found to be invalid or unenforceable, then such part shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue to be in full force and effect.

    This Arbitration Agreement shall survive the expiration or termination of your relationship with Phunware.

  17. Termination

    We reserve the right, without notice and in our sole discretion, to terminate your license to access or use the Platform, the Sites, PhunToken Purchases, PhunToken Rewards, any PhunTokens or the Phunware IP, at any time and for any reason. You understand and agree that we shall have no liability or obligation to you in such an event. All obligations (including ownership, confidentiality, disclaimers and limitations of liability, governing law and arbitration) that are by the nature intended to survive the expiration or termination of these Terms of Use shall survive and you will continue to be bound by these obligations. You agree and understand that all provisions of these Terms of Use shall survive the termination or expiration of these Terms of Use.

  18. Severability

    If any term, clause, or provision of these Terms of Use is held invalid or unenforceable, then that term, clause, or provision shall be severable from these Terms of Use and will not affect the validity or enforceability of any remaining part of that term, cause, or provision, or any other terms, clause, or provision of these Terms of Use.

  19. Entire Agreement

    These Terms of Use (and all documents referenced herein) comprise the entire and integrated agreement between you and Phunware relating to your access to and use of the Platform, the Sites, PhunToken Purchases, PhunToken Rewards, PhunTokens and Phunware IP, and supersede any and all prior discussions agreements, and understandings of any kind (including without limitation prior versions of these Terms of Service). Except as otherwise provided herein, these Terms of Use are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.

  20. Electronic Signature Consent to These Terms of Use

    Your access and use of the Sites, the Platform, PhunToken Purchases, PhunToken Rewards, PhunTokens and/or the Services will be managed through your User Account. Phunware relies on an electronic signature process as official authorization for your agreement as well as any changes to these Terms of Use or any transactions conducted using the Platform on the Sites or the Services. By accessing the Sites or the Platform and, where prompted clicking “I Agree” or “Click to Consent” or by submitting any order for other Services, you agree to conduct each transaction by electronic means and Phunware and you hereby state that electronic signatures shall have the same force and effect as an original signatures with respect to these Terms of Use and all written agreements entered into between you and Phunware. You may revoke approval of this electronic signature process at any time with prior written notice to Phunware from your User Account; however this will result in Phunware suspension or termination of the Services and/or your access and use of the Sites or the Platform absent your acknowledgment of agreement or consent by other valid legal means.

    Your access and use of electronic records on the Platform and consent by electronic signature may require the following hardware and software at your own expense:

    • Hardware and software minimum requirements to access and store the electronic records:
      • Hardware: Hard drive
      • Devices: iOS, Android, Windows
    • Operating System:
      • Browsers: Internet Explorer 8, 9, 10 or 11; Chrome; Safari (Mac OS)
      • Software: Adobe Acrobat or similar software to view PDF files

    We can deliver electronic records (and/or paper copies) to you (i) by displaying or delivering by email or making the records available on your User Account, (ii) by requesting that you print or download the electronic record and retain it for your records at the time of execution, or (iii) in response to your written request for a copy of the electronic records sent to us at the contact address set forth under “Contact Information” to the attention of Matt Aune. You may or may not incur additional fees for receiving paper copies of documents related to transactions on the Platform or the Sites.

    You can view and change your contact information by accessing and updating this information in your online account or by sending a written request to Phunware for such information sent to Phunware at 7800 Shoal Creek Blvd., Suite 230-S, Austin, Texas 78757 to the attention of PhunWallet Support.

    You can revoke your consent to the use of electronic signatures by accessing and updating the consent opt-out from your User Account or by sending a written request to revoke consent to us at our contact address set forth under “Contact Information” to the attention of Matt Aune. Your revocation of such consent will not terminate your User Account. You may or may not incur additional charges by opting out of electronic consent – please refer to our fee schedule for current fees related to transactions on the Platform or the Sites

  21. Officers or Employees Setting Up User Accounts for Company or Business

    If you are an officer or employee setting up a User Account(s) for use by your company or business, then you are confirming your acknowledgement and agreement binding on you and your company or business as User to the terms and conditions set forth in these Terms of Use, and Phunware reserves the right to request a hard copy signature, as required by law. You represent to Phunware that you are the officer or authorized representative of the company being named as the User on a User Account, and that you have legal authority to enter into these Terms of Use with Phunware on behalf of such company and to permit the access and use of the Sites, the Platform and Services and the permitted uses and rights in and to the personal information and user content pertaining to such company by Phunware and its service providers. You further agree to allow Phunware to make disclosures and share your User content and information with others authorized by you under your User Account or the Platform (including those persons selected from or submitted to our Platform features). In this instance, the term “You” shall mean both the officer or employee and the company or business identified in your User Account.

  22. Confidentiality

    You will hold any and all content, information and materials comprising Phunware IP in strict confidence and not disclose those items to others. You will employ all reasonable steps to protect such confidential information from unauthorized or inadvertent use, dissemination or disclosure. You will limit access to your employees and contractors having a need to know and only to the extent necessary to enable you to adequately perform your rights and obligations under these Terms. You further will undertake to ensure the individual compliance of each employee or contractor to whom you give access or use. No copies of the content, information and materials comprising Phunware IP may be made or retained by you. You agree not to remove any identification, copyright or other proprietary notices from such content, information and materials comprising Phunware IP. You will implement appropriate administrative, technical, and physical safeguards and other appropriate measures to protect the security, confidentiality, and integrity of any such confidential information disclosed to you by Phunware. In the event you discover any actual or suspected misuse of, disclosure or loss of, or inability to account for any of our confidential information, you shall promptly: (i) notify Phunware upon becoming aware thereof; (ii) furnish to us with full details of the unauthorized possession, use, or knowledge, or attempt thereof, and use reasonable efforts to assist us in investigating or preventing the reoccurrence of any unauthorized possession, use, or knowledge, or attempt thereof, of our confidential information; (iii) take such actions as may be necessary or reasonably requested by us to minimize the violation; and (iv) cooperate in all reasonable respects with us to minimize the violation and any resulting damages. You further will not disclose the terms of these Terms of Use (including any order confirmed by us) including but not limited to pricing, duration, and volume or frequency commitments, to a third party, except as required by law or to enforce your contract rights through legal process.

  23. Specific Performance

    The parties understand and agree that, due to the highly competitive nature of the cryptocurrency and blockchain industries, the breach of any covenants and obligations of limited use, ownership and confidentiality set forth these Terms of Use may cause irreparable injury to Phunware for which no adequate remedy at law will be available. Therefore, Phunware will be entitled, in addition to such other remedies as it may have hereunder, to a temporary restraining order and preliminary injunctive relief for any breach or threatened breach of these Terms of Use without first posting bond or proving actual damages.

  24. Use Limits

    Phunware reserves the right to establish general practices and limits concerning user accounts at any time (and may modify such practices and limits at its sole discretion), including without limitation the maximum number of days that any information or content will be retained and the maximum amount of file space that will be allotted on our servers on your User Account. You acknowledge that Phunware reserves the right to log off user accounts that are inactive for an extended period of time and reserves the right at any time, and from time to time, to modify or discontinue, either temporarily or permanently, the Sites, the Platform, PhunTokens, or the Services (or any part thereof) with or without notice. You agree that Phunware shall not be liable to you or to any third party for any such modification, suspension or discontinuance or your User Account.

  25. Consumer Review Fairness Act

    The Consumer Review Fairness Act gives you certain protection against “gag” clauses prohibiting the disparagement of a service provider’s service offerings. The parties acknowledge and agree that, notwithstanding anything to the contrary herein, no clause in these Terms of Use shall be constructed to (i) prohibit or restrict the ability of, or impose a penalty or fee against, you from engaging in any Covered Communication or (ii) transfer or require you to transfer to Phunware any intellectual property rights in any otherwise lawful Covered Communication other than the non-exclusive license set forth in this Agreement; provided however that: (1) the foregoing shall not affect (A) any duty of confidentiality imposed by law, (B) any civil actions for defamation, libel or slander or any similar causes of action, or (C) Phunware’s right to remove or refuse to display publicly on an Internet websites or webpage owned, operated or otherwise controlled by Phunware any Covered Communication that contains the personal information or likeness of any person, or is libelous, harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic, or is unrelated to the goods and services offered by or available at Phunware’s Internet websites or webpages; and (2) the foregoing shall not apply to the extent that the clause in this Agreement prohibits disclosure or submission of (A) trade secrets or commercial or financial information obtained from any person and considered privileged or confidential, (B) personnel and medical files and similar information, the disclosure of which would constitute a clearly and unwarranted invasion of personal privacy, (C) records or information compiled for law enforcement purposes, the disclosure of which would constitute a clearly and unwarranted invasion of personal privacy, (D) content that is unlawful or otherwise meets the requirements of subsection (2)(C) above, or (E) content that contains any computer viruses, worms, or other potentially damaging computer code, processes, programs, applications or files. You grant Phunware, its successors and assign, the non-exclusive, perpetual, irrevocable, fully-paid, royalty-free right to copy, use, reproduce, edit, display, or commercially exploit any Covered Communication, in whole or in part, in any media (including Internet) whether now known or hereafter created, without the requirement of an accounting or prior written notice to you by Phunware. For purposes of these Terms of Use, “Covered Communication” means any written, oral or pictorial (including pictures, photographs, video, illustrations and symbols) review, performance assessment of, or other similar analysis of, including by electronic means, the goods, services or conduct of Phunware by you.

  26. Notice of Claims of Intellectual Property Violations

    The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any materials submitted to the Service, the Platform and/or the Sites infringe your copyright, you (or your agent) may send Phunware a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Sites or the Platform are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Phunware to locate the material on the Sites or the Platform; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the Sites or the Platform should be sent to Matt Aune at [email protected]. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.

    Please provide all of the information requested above. No specific form is required to provide Phunware with notifications of possible infringement. However, it will take Phunware longer to process your notice if any of this information is not provided, and in some cases, we may not be able to process your notice. Also please note that, due to security concerns, attachments cannot be accepted. Accordingly, any notification of possible infringement submitted electronically with an attachment will not be received or processed.

  27. Miscellaneous Terms

    Failure by us to enforce any particular term of these Terms of Use shall not be construed as a waiver of any of our rights hereunder. Your use of the Platform, PhunToken Purchases, PhunToken Rewards, PhunTokens, the Sites and the Services is personal and you may not assign or transfer any of your rights and obligations under these Terms of Use without our prior written authorization. We may subcontract, assign, transfer or convey our rights and obligations under this Agreement by contract, merger, reorganization or operation of law to a third party without your prior notice or consent.

  28. Contact Information

    If you have any questions, would like to provide feedback, or would like more information about Phunware, please feel free to email us at [email protected] or write us at Phunware, 7800 Shoal Creek Blvd., Suite 230-S, Austin, Texas 78757 to the attention of PhunWallet Support. If you would like to lodge a complaint, please contact us at [email protected].

  29. Smart Contract Interaction

    A 900-second error can occur on claiming staking rewards due to how miners can manipulate timestamps in Ethereum Mainnet.