• 1. General Description of the Phunware-Developer Relationship
    • 1.1. Phunware Inc. (“we” or “Phunware” or “Company”), provides a proprietary customer engagement platform (the “Phunware platform”).
    • 1.2. Phunware provides open access to the Phunware Software Development Kits (“SDK”) and/or associated Phunware Application Programming Interfaces (“APIs”). Use of the SDK and/or APIs is subject to the terms and conditions set forth herein (“Developer Terms.”). By registering your Developer App with Phunware, and/or by accessing, downloading, copying, and/or using the SDK and/or APIs, You agree to these Developer Terms. The Developer Terms, as amended by Phunware from time to time constitute a complete and binding legal agreement between You and Phunware, effective upon your first access of the Phunware SDK and/or APIs, and govern your use of the SDK and/or associated APIs, as well as the use of any applications developed by you using the SDK and/or associated APIs. THESE DEVELOPER TERMS INCLUDE AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY.
    • 1.3. Phunware reserves the right to change, update or otherwise alter these Developer Terms at any time by publishing the revised Developer Terms on our website. All changes are effective immediately. We will do our best to notify you of any significant changes, but it shall remain your responsibility to monitor these Developer Terms for changes. The continued use of the SDK and/or APIs following a revision to these Developer Terms will constitute your consent to such changes. In the event of a conflict between these Developer Terms and any other content provided to you by Phunware, unless specifically provided otherwise, these Developer Terms shall govern.
    • 1.4. Definitions. In addition to the terms defined in parentheses throughout these Developer Terms, the following terms shall mean:
      • 1.4.1. “API(s)” means the Phunware-documented Application Programming Interface(s) provided by Phunware, whether used in conjunction with or separate from the Phunware SDKs.
      • 1.4.2. “Developer App” means one or more software programs developed using a Phunware SDK and/or APIs for use with the Phunware platform, Phunware API’s, and/or any software or application for integrating a point of sale system with the Phunware platform and/or Phunware POS hardware.
      • 1.4.3. “MaaS Portal” means your portal provided at the Phunware website to view and manage your applications on Phunware.
      • 1.4.4. “Phunware App” means any software application, including without limitation a mobile software application for iOS, Android, or other software or web application, authorized by Phunware and the application’s User to access the Phunware platform, including without limitation by securely requesting User Data, in whole or in part.
      • 1.4.5. “Permissions” means the set of data rights and/or action rights granted to your Developer App by Users on the Phunware platform.
      • 1.4.6. “SDK” (Software Development Kit) means the documentation, software (including source code and object code), applications, sample code, simulator, tools, libraries, APIs, data, files, and materials provided or made available by Phunware for use by You in connection with Your Developer App.
      • 1.4.7. “Updates” means bug fixes, updates, upgrades, modifications, enhancements, supplements, and new releases or versions of the SDK and or APIs, in whole or in part.
      • 1.4.8. “User Data” means all data collected by Phunware in operating and otherwise concerning the use of the Phunware platform.
      • 1.4.9. “You,” “Developer,” or “your” means the person(s) or entity registering the Developer App with Phunware and/or using or accessing the Phunware SDK and/or APIs or otherwise exercising rights under these Developer Terms, and that person’s employees, agents, affiliates, successors, and assigns. If You are entering into this Agreement on behalf of your company or educational institution, “You” or “Your” refers to your company or educational institution, and its employees, agents, affiliates, successors, and assigns, as well.
  • 2. Principal Company Obligations. In connection with your use of the SDK, subject to these Developer Terms, Phunware agrees that we will:
    • 2.1. Publish its Privacy Policy for you to add to your End User License Agreement and Privacy Policy at www.phunware.com/privacy.
    • 2.2. For a fee, provide you access to the Enterprise Components of the Phunware SDK and associated .
    • 2.3. Provide you with access to sample integration source code;
  • 3. Principal Developer Obligations. In connection with your use of the SDK, subject to these Developer Terms, you agree that you will:
    • 3.1. Comply with all of the Phunware Developer Terms and Privacy Policy;
    • 3.2. Appropriately inform and educate users of your Developer App concerning the functionality within your Developer App that leverages the Phunware platform;
    • 3.3. Perform proper and complete testing and evaluation of the Phunware integration to your Developer App to ensure that you launch a fully functional Developer App;
    • 3.4. Maintain your Developer App to be compatible with the latest Phunware API, within a reasonable timeframe, in order to continue to provide a fully functional Developer App and to receive the latest available features from Phunware;
    • 3.5. Never attempt to store Users’ restricted information such as financial account information;
    • 3.6. Immediately and privately report any potential security concern that you discover to support@phunware.com so that we may investigate it immediately;
    • 3.7. Always ask Users for appropriate permissions when taking action on a User’s behalf, and never take any actions that may surprise Users;
    • 3.8. Not hit the Phunware APIs with excessive speed; if you do so, your requests will be throttled or rejected; and,
    • 3.9. Not use the Phunware SDK or APIs or the Phunware platform to facilitate any illegal activity.
  • 4. MaaS Portal In connection with your use of the SDK, subject to these Developer Terms, you agree that you will:
    • 4.1. In order to access the Phunware APIs licensed pursuant to these Developer Terms, you must first register your Developer App via the Phunware MaaS Portal, accessible at https://maas.phunware.com, or by emailing your Developer App information to Phunware at support@phunware.com.
    • 4.2. A Phunware User Account is required in order to register a new Developer App with Phunware.
    • 4.3. You warrant that all information that you provide to Phunware in connection with your User Account, and the registration of your Developer App, shall be true, accurate, and complete.
    • 4.4. Upon registration of your Developer App, you will be granted a unique Phunware Developer App ID to identify your Developer App, and will be granted access to a Phunware API key to enable your access to the Phunware APIs.
    • 4.5. Upon the successful launch of your Developer App, you agree to grant Phunware a limited, non- exclusive, non-transferrable license to use your name, logo, and or graphic design elements, and any Developer Content (defined below) within the Developer App for the purpose of publicly promoting your Developer App, and your Developer App’s affiliation with Phunware, to Users and merchants within the Phunware platform, Phunware Apps, in the Phunware App Center, and/or on Phunware’s website, in print materials, and on the websites and online services of our affiliates and advertising partners. You represent and warrant to us that such materials shall not infringe or violate the intellectual property rights of any third parties.
  • 5. SDK/API License
    • 5.1. Phunware makes its Phunware SDK available to you for download under the terms below:
    • 5.2. Open Source Licenses. Any use, reproduction and distribution of components of the Phunware SDKs licensed under an open source software license are governed solely by the terms of that open source software license and not these Developer Terms. Each component or file within the Phunware SDK subject to an open source license agreement is clearly identified within such file. The Phunware SDKs incorporate files subject to the following open source license agreements: Apache 2.0; MIT License;.
    • 5.3. Non-Permitted Uses. All uses of the Phunware SDKs other than as specifically authorized herein are prohibited. Pursuant to the license granted hereunder, you are NOT authorized to use, modify, or make derivative works of any Phunware SDK or APIs for any purpose, including without limitation the development of any software application, that is incompatible with the Phunware platform, or in any manner that damages or interferes adversely with, or threatens damage or interference with, the Phunware platform and/or the operation, security, data management, or authentication mechanisms of the Phunware platform, or any Phunware App or other software application integrated with the Phunware platform. Any such use, copying, modification, making derivative works or distribution is prohibited and a breach of these Developer Terms.
    • 5.4. Copyright Notices. You agree to retain and reproduce in full the Phunware copyright, disclaimers, attribution, and all other proprietary notices (as they appear in the Phunware SDKs and documentation provided), whether by Phunware or any third party, in all copies of the SDK and documentation that you may make.
    • 5.5. Updates to the SDK and APIs. From time to time, Phunware may extend, enhance, or otherwise modify the Phunware SDK and/or APIs without notice. If Phunware releases an update to the Phunware SDK and/or APIs, Phunware’s Developer Terms shall govern your use of and access to such updates. Phunware shall not be obligated to make available any updates to the SDK and/or APIs. Should an update be made available, it may have features, services or functionality that are different from those found in the SDK and/or APIs licensed hereunder. It shall be Developer’s sole responsibility to update the Developer Apps as necessitated by any update to the Phunware SDK and/or APIs.
    • 5.6. Notice of SDK and API Updates, Developer Terms Updates. If you wish to be notified of upgrades to the SDK and/or APIs by Phunware, and/or of any revisions or changes to these Developer Terms, by email, you may notify Phunware by emailing support@phunware.com.
    • 5.7. Ownership. Phunware, or such third parties as may be specifically identified within portions of the SDK and/or APIs, owns all legal right, title and interest in and to the SDK and/or APIs, and any updates to same that may be released in the future by Phunware, including any Intellectual Property Rights that subsist in the SDK and/or APIs (including any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights). Except as expressly licensed to you under the identified license terms, and/or by these Developer Terms as applicable, Phunware reserves all such rights.
    • 5.8. Comments. Phunware is pleased to hear from you and welcomes your comments about the Phunware platform, SDK, and/or APIs. If you submit ideas or suggestions for the Phunware platform, SDK or APIs (“Comments”), you agree that all Comments will be deemed, and will remain, the sole property of Phunware. None of the Comments will be subject to any obligation of confidence on the part of Phunware, and Phunware will not be liable for any use or disclosure of any Comments. Without limiting the foregoing, Phunware will be entitled to unrestricted use and other exploitation of the Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Comments.
  • 6. Developer App Requirements and Specifications
    • 6.1. Subject to these Developer Terms, Phunware encourages you to create software applications freely using the Phunware SDK and/or APIs and to broaden the scope of User interaction with the Phunware platform. Unfortunately, there are some restrictions associated with the Phunware platform that are unavoidable, set forth below:
    • 6.2. Phunware Platform and Mobile Interface Conventions. As with any platform, certain core architectural decisions were made in building out the core functionality of the Phunware platform. You agree that any Developer App built using the SDK and or APIs for use with the Phunware platform shall operate within limits imposed by the architecture of the existing Phunware platform. Because the Phunware platform is constantly under development by Phunware, changes or upgrades to the platform may affect the design and development, or operation, of your Developer App. Likewise, within most mobile operating systems, certain user interface conventions, requirements, and recommendations exist, including without limitation restrictions on available fonts. You agree to maintain compliance with these conventions, requirements, and recommendations.
    • 6.3. Keep the User’s information secure. You agree that any Developer App created using the SDK and/or APIs for use with the Phunware platform shall never store User personal information, passwords, login information, or financial account numbers. You agree that any mobile Developer App shall always use app- private storage (Android) and the keychain (iOS) to store sensitive information like access or payment tokens. Developer Apps for Android shall disallow backups of app. Developer Apps shall never expose User Data to other applications via intents, content providers, or shared storage.
    • 6.4. Don’t make the User worry about their network state. You agree that the Developer App for use with the Phunware platform may cache, but will refresh in the background when possible..
    • 6.5. Only Ask For The Permissions You Need. The Phunware platform provides a powerful tool enabling you to act on behalf of merchants and Users. You agree that the Developer App used with the Phunware platform will always request from merchants and/or Users the minimum Phunware platform permissions necessary to the functionality employed by the Developer App, rather than asking for all possible permissions and seeing what comes in handy. Phunware reserves the right to revoke without notice unused permissions requested by the Developer App.
    • 6.6. Non-Exclusivity Within the Phunware Ecosystem. Phunware shall not obtain any ownership interest in any software applications you create or develop using the SDK and/or API’s provided pursuant to these Developer Terms for use with the Phunware platform or otherwise.
    • 6.7. Comply with the Law. You agree that you will not use the Phunware SDK and/or APIs in any Developer App utilizing the Phunware platform for any unlawful or illegal activity, or to facilitate payment for any illegal activity via the Phunware platform. You agree that you will not develop, launch, or offer any Developer App using the Phunware platform that would effect, commit, or facilitate the commission of a crime, or other tortious, unlawful, or illegal act. You represent and warrant to Phunware that you have obtained all necessary licenses and authorizations from federal, state, and local authorities required in order to operate your business.
    • 6.8. Respect the Valid intellectual Property of Others. You agree and warrant that you have all right and title to use in connection with your Developer App any trademarks, service marks, names, logos, designs, layouts, photographs, text, images or other content within the Developer App (“Developer Content”), and that your, and Phunware’s, use, copying, modification and publication of the Developer Content: (i) will not infringe, violate or misappropriate any third party copyright, patent, trade secret or other proprietary rights, (ii) will not infringe any rights of publicity or privacy, and (iii) will not be defamatory or obscene or otherwise violate any law.
    • 6.9. Be Responsible For Your Content. You are solely responsible for the development, content, operation, maintenance, and use of your Developer App, including without limitation for (i) the technical operation of your Developer App, including ensuring that calls you make are compatible with then-current APIs; (ii) compliance of Your Developer App with these Developer Terms, as well as the Phunware Privacy Policy; (iii) any claims relating to the use of your Developer App; and (iv) properly handling and processing notices sent to you (or any of your affiliates) by any person claiming that you Developer App violates such person’s rights.
    • 6.10. As a Developer utilizing the Phunware platform, your conduct and business practices reflect upon Phunware and the community of Phunware Users. Phunware reserves the right to terminate the license granted hereunder, and/or your access to the Phunware platform if, in its sole discretion, it determines that your business, conduct, or business practices reflect poorly upon Phunware or pose a threat to the Phunware platform or any other user of the Phunware platform.
  • 7. Support
    • 7.1. You shall be solely responsible for supporting and maintaining your Developer App with the latest Phunware SDK and APIs, and the latest version of any mobile operating system.
    • 7.2. Phunware reserves the right to terminate its support service for any Developer App at any time. Phunware shall not be responsible for any claims, complaints, costs, expenses, liabilities or damages to any person arising out of Phunware’s provision of support for any Developer App, any delays in such support, or the accuracy of any information provided by Phunware in connection with the support service.
  • 8. Third-Party Applications
    • 8.1. If you use the Phunware SDK and/or associated APIs to integrate to the Phunware platform a Developer App developed in whole or in part by a third party, or that accesses data, content or resources provided by a third party, you agree:
      • 8.1.1. Phunware is not responsible for those applications, data, content, or resources. You understand that all data, content or resources which you may access through such third party applications are the sole responsibility of the person from which they originated and that Phunware is not liable for any loss or damage that you may experience as a result of the use or access of any of those third party applications, data, content, or resources.
      • 8.1.2. You are aware the data, content, and resources presented to you through such a third party application may be protected by intellectual property rights which are owned by the providers (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on these data, content, or resources (either in whole or in part) unless you have been specifically given permission to do so by the relevant owners.
      • 8.1.3. You acknowledge that your use of such third party applications, data, content, or resources may be subject to separate terms between you and the relevant third party. In that case, these Developer Terms do not affect your legal relationship with these third parties.
  • 9. User Complaints.
    • 9.1. You agree to respond promptly and to take full responsibility for any User complaints arising out of the use of your Developer App.
    • 9.2. If we receive any User complaints related to the usage of Phunware as it pertains to your Developer App, you will cooperate with us as we investigate such complaints. While we will seek to resolve complaints to the satisfaction of all parties, we might not be successful in doing so.
    • 9.3. If Phunware receives an abnormal volume of complaints about your Developer App, we reserve the right to terminate your access at any time. Any appeals must be made through support@phunware.com.
  • 10. Representations and Warranties.
    You represent and warrant to Phunware that:
    • 10.1. You have the right, power and authority to enter into this agreement and to be bound by these Developer Terms, including the right to bind your employer if your access to the SDK and/or APIs is undertaken on behalf of your employer. Your execution and performance of these Developer Terms will not conflict with or violate any agreements or instruments by which you are bound, any applicable law, or any rights of any third party.
    • 10.2. If your product stores, processes or exchanges any cardholder data, that your product complies and adheres to all of the requirements or control objectives set forth in the PCI Security Standards Council, LLC Payment Application Data Security Standard (PA-DSS), as in effect from time to time, and that all future versions of your product will comply with such requirements; and
    • 10.3. Any advertising or promotion of your products or services relating to an association with the Phunware platform will not constitute, and you will not engage in any, false, deceptive or unfair trade practices.
  • 11. Disclaimer of Warranties.
    • OTHER THAN AS EXPLICITLY SET FORTH, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT, the Phunware SDK and/or any associated APIs, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ANY WARRANTIES ARISING FROM CUSTOM OR USAGE OF TRADE. WE DO NOT WARRANT OR GUARANTEE THAT YOU WILL ACHIEVE ANY LEVEL OF SALES, REVENUE OR PROFIT. WE DO NOT WARRANT OR GUARANTEE THAT THE PHUNWARE WEBSITES OR SERVICES OR USER DATA WILL ALWAYS BE AVAILABLE OR OPERATE ERROR-FREE, THAT THE CAMPAIGNS WILL BE ERROR-FREE, OR THAT ANY ERRORS, OMISSIONS OR MISPLACEMENTS IN THE DEVELOPER RELATIONSHIP WILL BE CORRECTED. No statement, either orally or in writing, made by any of our officers, employees or agents will vary this paragraph.
  • 12. Limitation of Liability.
    • 12.1. IN NO EVENT WILL PHUNWARE BE LIABLE OR OBLIGATED TO YOU OR ANY THIRD PARTY IN ANY MANNER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES ON ACCOUNT OF LOST PROFITS, LOST REVENUES OR FAILURE TO REALIZE ANTICIPATED BUSINESS BENEFITS, ARISING IN CONNECTION WITH THIS AGREEMENT, OR YOUR USE OF THE PHUNWARE SDK AND/OR ANY ASSOCIATED APIS OR THE USE OF THE DEVELOPER APP IN CONNECTION WITH THE PHUNWARE PLATFORM, REGARDLESS OF THE FORM OF ACTION, WHETHER OCCURRING IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT WE KNEW THAT SUCH DAMAGES MAY HAVE BEEN INCURRED.
    • 12.2. IN NO EVENT WILL PHUNWARE’S LIABILITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT, THE PHUNWARE PLATFORM, THE SDK OR APIS EXCEED THE FOLLOWING AMOUNTS: (A) IF THE DAMAGES RELATE TO A PARTICULAR TRANSACTION OR TRANSACTIONS, THE AMOUNT OF TRANSACTION FEES (AS DEFINED IN THE PHUNWARE MERCHANT TERMS) PAID TO AND RETAINED BY PHUNWARE IN CONNECTION WITH SUCH TRANSACTION OR TRANSACTIONS; AND (B) IF THE DAMAGES DO NOT RELATE TO PARTICULAR TRANSACTIONS, THE TOTAL AMOUNT OF TRANSACTION FEES PAID TO AND RETAINED BY PHUNWARE IN THE THREE (3) MONTH PERIOD BEFORE THE LIABILITY AROSE. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHETHER THE DAMAGES ARISE IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.
  • 13. Indemnity.
    • 13.1. You will indemnify and hold harmless Phunware, its affiliated and related entities, and any of their officers, directors, employees and agents (“Company Indemnitees”) against any claims, actions, suits, investigations, proceedings, liabilities, losses, damages, penalties, fines, costs and expenses, including but not limited to attorneys’ fees and costs in each case as and when incurred (“Damages”), arising out of, relating to, or incurred in connection with, any of the following:
      • 13.1.1. Your breach or alleged breach of these Developer Terms, or of your representations, warranties or covenants set forth herein;
      • 13.1.2. The design of, or any failure of, your Developer App, including without limitation your Developer App’s failure, or alleged failure, to grant, redeem, or honor a Campaign incentive or reward, or Campaign Credit;
      • 13.1.3. The products or services provided or required to be provided by you, or your authorized users or merchant Clients, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damage related to your product or service;
      • 13.1.4. Your failure to maintain the Developer App to operate in connection with any update to the Phunware SDK and/or associated APIs, and/or any updated to any mobile operating system;
      • 13.1.5. The User Data and reporting or analytics services provided by Phunware pursuant to User granted permissions, including the completeness or accuracy of such data, your use or misuse of any such data, the unauthorized disclosure by you of such information, whether intentional or unintentional, and/or the revocation of any applicable permissions;
      • 13.1.6. Any violation of any applicable federal, state, or local law or regulation including without limitation failure to obtain all required licenses, permits, and authorizations; and
      • 13.1.7. Any violation or infringement, or allegation of violation of infringement, by you, your authorized users or merchants, or your Developer App of any intellectual property right of any third party.
    • 13.2. Phunware shall have the right to appoint counsel to defend any claim, action, suit, investigation or proceeding (“Claim”) covered by your indemnification obligations set forth above, at your cost and expense. You shall have no right to control the defense or settlement of any such Claim, and you shall not settle or compromise any such Claim without Phunware’s prior written consent.
    • 13.3. You agree to monitor and be responsible for your authorized users and merchants use of the SDK and associated APIs, and your Developer App, and their compliance with these Developer Terms; and you will be solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by you and your authorized users and merchants in connection with the SDK and associated APIs, and your Developer App.
  • 14. Confidentiality.
    • In connection with these Developer Terms, and the actions contemplated hereunder, Phunware and Developer may disclose to each other certain confidential and proprietary information relating to their respective businesses, customers, suppliers, prices, products, and technologies that is not generally publicly known (“Confidential Information”). Each of us shall keep confidential the expressly designated Confidential Information of the other party, not disclose it to any third party, and not use it except for the purposes contemplated by these Developer Terms. The obligations of confidentiality herein shall not apply to (a) information in the public domain without fault of the receiving party; (b) information disclosed to the receiving party or in the possession of the receiving party without any breach of any obligation of confidentiality owed by the receiving party or any third party to the disclosing party; (c) information independently developed by the receiving party without use of the Confidential Information of the disclosing party; and (d) information required to be disclosed in order to comply with law.
  • 15. Termination.
    • 15.1. These Developer Terms, as amended from time to time, shall apply until terminated pursuant to this section.
    • 15.2. Phunware reserves the right to terminate this Agreement, and any other agreements you may have with Phunware, to revoke any license(s) granted hereunder, and/or to revoke access to the Phunware platform for any Developer App, without recourse, in the event that: (i) you are in material breach of these Developer Terms, (ii) you violate any laws or otherwise engage in any conduct that may adversely affect our business or reputation; or (iii) Phunware is required to terminate by law. Such determinations are in the sole discretion of Phunware. All accrued rights and remedies granted to Phunware hereunder shall survive any termination of this Agreement.
    • 15.3. Upon the termination of this Agreement for any reason, you agree to immediately cease all use of the SDK and associated APIs, and to erase and destroy all copies, full or partial, of the SDK and APIs, and any copies of Phunware Confidential Information in your and your authorized users’ possession or control. At Phunware’s request, you agree to provide written certification of such destruction to Phunware. Phunware will not be liable for compensation, indemnity, or damages of any sort as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement will be without prejudice to any other right or remedy Phunware may have, now or in the future.
  • 16. Developer Privacy Policy.
    • 16.1. You understand and agree that Phunware reserves the right to share User and app information in accordance with the Phunware Privacy Policy (“Privacy Policy”), which can be found here: www.phunware.com/privacy. The Privacy Policy is incorporated by reference herein. Phunware reserves the right to share User Data and data concerning the use of your Developer App, in aggregate, with third parties to aid in statistical analysis, loyalty program structuring and tracking, or feature development.
  • 17. General.
    • 17.1. This Agreement represents the entire agreement of the parties as to its subject matter, and supersedes all prior written and oral representations and discussions between the parties. No waiver by any party of a breach of any provision of this Agreement by any other party shall be construed to be a waiver of any succeeding breach of the same or any other covenant or condition. Ambiguities, if any, in this Agreement shall not be construed against any party, irrespective of which party authored the ambiguous provision, and any rule of construction to the contrary shall not apply. Phunware shall not be liable for any breach of these Developer Terms to the extent such breach arises from factors outside Phunware’s reasonable control.
    • 17.2. All disputes arising out of or relating to this Agreement or the Phunware platform, including without limitation the validity, applicability, and/or enforceability of any provision herein, shall be resolved exclusively by binding arbitration before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect and the further procedures set forth herein. (For information on the AAA and its rules, see www.adr.org.) The arbitration shall be conducted in Boston, Massachusetts, unless the Arbitrator shall determine that that venue is not reasonably convenient to all parties, in which case the Arbitrator shall determine another venue that is. In the event that the AAA is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by the court. The Arbitrator shall have authority to issue any and all remedies authorized by law. Notwithstanding any rules of the AAA to the contrary, any claims shall be adjudicated on an individual basis only, and YOU WAIVE ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties hereto. In connection with any arbitration proceeding pursuant to this Agreement, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses. Notwithstanding the foregoing, you or we may file an individual claim in any small claims court for disputes or claims within the scope of its subject matter jurisdiction if such court has personal jurisdiction. Phunware does not hereby waive any defense that such jurisdiction may be lacking in your state. Without derogation of the parties’ obligation to arbitrate as set forth herein, for any claims other than those in small claims court, jurisdiction for any court proceedings arising out of or relating to this Agreement or the Phunware platform shall be vested exclusively in, and venue shall be laid in, the state or federal courts sitting in Boston, Massachusetts, except that, following confirmation of an arbitration award in a state or federal court in Boston, Massachusetts, a judgment arising therefrom may be executed in any court of competent jurisdiction.
    • 17.3. The parties are independent contractors. Except for our right to advertise on your behalf in accordance with the Developer Terms, this Agreement does not create any joint venture or agency. Neither party has the power to bind the other.
    • 17.4. All communications between Developer and Phunware, and any notices due hereunder, may use electronic means. Developer (a) consents to receive communications from Phunware in an electronic form, and (b) agrees that all Developer Terms, agreements, notices, disclosures, and other communications that Phunware provides to you electronically will satisfy any legal requirement that such communications be in writing. The foregoing does not affect Developer’s statutory rights.
    • 17.5. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law; provided, however, that if the court invalidates the prohibition on class, aggregated, mass or consolidated proceedings, then the arbitration clause in Section 17.2 shall also be invalid.
    • 17.6. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without regard to its choice of law rules and without regard to conflicts of laws principles except that the Arbitration provision in Section 17.1 shall be governed by the Federal Arbitration Act.
    • 17.7. This Agreement shall exclusively be governed by the laws of the State of Texas.

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