License & Terms of Services
This Software License and Terms of Service Agreement (the “Agreement”) for the Betternet Software (the “Betternet Software”), the website at www.betternet.co, and all other online properties and websites owned or operated by Betternet (together with the Betternet Software, the “Service”) is a legal contract between the individual accepting and agreeing to this Agreement (“you”) and Betternet. As used in this Agreement, “Betternet” means Betternet LLC.
PLEASE READ CAREFULLY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING THE “INSTALL” BUTTON TO INITIATE THE INSTALLATION OF THE BETTERNET SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT INCLUDING THE REQUIREMENT OF BINDING ARBITRATION FOR ALL LEGAL DISPUTES. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE “I DECLINE” BUTTON AND THE BETTERNET SOFTWARE WILL NOT BE INSTALLED ON YOUR DEVICE. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST DESTROY, RETURN OR DELETE ALL COPIES OF THE BETTERNET SOFTWARE IN YOUR POSSESSION.
By clicking the “Install” button or by otherwise registering for, accessing or using the Service, you represent and warrant that you are Eligible (as defined below) and have not been previously suspended or removed from the Service by Betternet.
As provided in greater detail in this Agreement (and without limiting the express language of this Agreement), you acknowledge the following:
- the Service is licensed, not sold to you, and you may use the Service only as set forth in this Agreement;
- the use of the Service may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator’s or Internet provider’s terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- we provide the Betternet Software to you on an “as is” basis without warranties of any kind and Betternet’s liability to you is limited;
- disputes arising between you and Betternet will be resolved by binding arbitration. By accepting this Agreement, as provided in greater detail in Section 15 below, you and Betternet are each waiving the right to a trial by jury or to participate in a class action; and
- if you post any User Content that is prohibited by this Agreement, then we may—but have no obligation to—take any remedial action that we, in our sole discretion, deem necessary and/or appropriate under the circumstances, such as, without limitation, suspending or terminating your account, removing your User Content, and/or reporting you to law enforcement authorities, either directly or indirectly.
1. The Service
Betternet provides the Service by establishing a secure Virtual Private Network (“VPN”) connection when connecting to the Internet. 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 or Premium Service (the “Paid Service”). If you choose to use the free Service, Betternet may deliver third-party advertisements (“Advertisements”) to you. If you choose to use the Paid Service, Betternet will not deliver any Advertisements to you.
THE SERVICE IS NOT AVAILABLE TO PERSONS WHO ARE NOT ELIGIBLE OR TO ANY USERS PREVIOUSLY SUSPENDED, TERMINATED OR REMOVED FROM THE SERVICE BY BETTERNET. “Eligible” means, with respect to the Paid Service, 18 years of age or older, and with respect to the free Service, 13 years of age or older. By downloading, using or accessing the Service, you represent and warrant that you are Eligible or have the permission of a parent or guardian to use the Service. NOTWITHSTANDING THE FOREGOING, IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER.
Modification of this Agreement
Betternet reserves the right, at our discretion, to make non-material changes to this Agreement at any time. Please check this Agreement and any guidelines notified to you by Betternet periodically for changes. In the event that a change to this Agreement 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 the Betternet Software Paid Service, or through other reasonable means. If you do not agree to the changed Agreement you must discontinue your use of the Service. If you are a user of the Betternet Software Paid Service and you elect to discontinue use of the Service due to a material change in this Agreement, we will provide you with a refund as described in Section 9 below. All other changes are effective upon publication of the changed Agreement.
4.1 User Content Generally.
Certain features of the Service, such as the Betternet Software Help Desk, may permit users to post content, including messages, reviews, data, text, and other materials (collectively, “User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
4.2 Limited License Grant to Betternet.
By posting or publishing User Content, you grant Betternet a worldwide, non-exclusive, royalty-free, perpetual, irrevocable right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed) without any compensation paid to you.
4.3 User Content Representations and Warranties.
You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting and publishing User Content, you affirm, represent, and warrant that:
- (A) You are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize Betternet 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 Betternet and this Agreement; and
- (B) your User Content, and the use thereof as contemplated herein, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, or libel any third party.
4.4 User Content Disclaimer.
We are under no obligation to edit or control User Content that you or other users of the Service post or publish, and will not be in any way responsible or liable for User Content. Betternet may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this Agreement or is otherwise objectionable. You understand that when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Betternet with respect to User Content. To the fullest extent permitted by law, we expressly disclaim any and all liability in connection with User Content. If notified by a user of the Service or content owner that User Content allegedly does not conform to this Agreement, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Betternet does not permit copyright-infringing activities on the Service.
4.5 Digital Millennium Copyright Act.
It is Betternet’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act.
Betternet is a service provider of transitory digital network communications under the Digital Millennium Copyright Act ("DMCA") 17 U.S.C. p. 512(a). Accordingly, it is Betternet's policy to promptly terminate without notice the accounts of those determined by Betternet to be repeat infringers, where a repeat infringer is an end user of the Betternet Services who has been notified by Betternet of infringing transmissions activities more than twice ("Repeat Infringer Policy"). Because of the ephemeral nature of transmissions imitated at the direction of persons using the Betternet Service, it is generally not possible for Betternet to take-down content from its system, but it will use all reasonable efforts to identify the offending persons in order to enforce its Repeat Infringer Policy.
If you are a copyright owner or an agent thereof, and you believe that any content transmitted through the Betternet Services infringes your copyrights, then you may notify Betternet at firstname.lastname@example.org
Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
The Betternet Software
5.1 Betternet Software License.
The Service, including the Betternet Software, is licensed, not sold, to you. Subject to the terms and conditions set forth in this Agreement, Betternet grants you a limited, revocable, nonexclusive, personal, nontransferable license during the term of this Agreement to install and use one (1) copy of the provided version of the Betternet Software in object code format, to access the Service for internal and personal purposes only, and on no more than five (5) Devices (as defined in Section 6.1 below). The Betternet 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 Betternet 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 BETTERNET 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 Betternet Software by any means whatsoever, except to the extent that such restriction is expressly prohibited by applicable law; (b) remove or destroy any copyright notices or other proprietary markings; (c) attempt to circumvent any use restrictions; (d) modify or adapt the Betternet Software, merge the Betternet Software into another program or create derivative works based on the Betternet Software; or (e) use, copy or distribute the Betternet Software without Betternet’s written authorization, except that you may make one (1) copy of the Betternet 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 BETTERNET SOFTWARE OR THE SERVICE. YOU ASSUME ALL RISK AND LIABILITY FOR ANY SUCH PROHIBITED USE OF COPYRIGHTED CONTENT.
5.4 Recurring Payments for Paid Service using Betternet Software.
When you purchase a subscription to Betternet’s Paid Service in connection with your use of the Betternet Software, Betternet will automatically renew your subscription to the Paid Service at the end of its initial term and at the end of each term thereafter. The renewal term will be for the same period of time as the initial term. This period of time is known as the Subscription Period.
At the conclusion of each subscription term, you will automatically be billed for the Betternet Paid Service for a renewal subscription term lasting a period of time equal to the Subscription Period. The Betternet Paid Service fee is non-refundable except as expressly set forth in this Agreement. Taxes may apply on the subscription fee. You agree to pay for the subscription that you select for the Paid Service and you authorize us to automatically charge the payment method our service provider has on file for your recurring payments.
If the payment mechanism (such as a credit card) we have on file for you is declined for payment of your Paid Service subscription fee, we may retry the payment mechanism at the same or lower rate. If we do not obtain payment, your Paid Service subscription will be canceled. If you provide us with a new form of payment and are successfully charged within 30 days after the renewal date, your new Paid Service subscription term will be based on the original renewal date and not the date of the successful charge. If your Paid Service is terminated, you may be entitled to a refund, subject to limitations provided in Section 9 of this Agreement.
You are responsible to canceling your subscription regardless of whether you receive any notice from Betternet about the renewal of that subscription. In the event that your payment mechanism expires prior to the renewal date of your subscription, you are responsible for updating a new payment mechanism in your Betternet account before the renewal date of your subscription to the Paid Service. To the fullest extent permitted by law, Betternet makes no representations or warranties about the continued availability of any particular form of payment method made available for use with the Service.
Several methods of cancelling the automatic renewal of your Betternet Paid Service subscription are available to you, and are described at the website https://support.betternet.co/hc/en-us/articles/217233626. Once you have cancelled your automatic renewal, recurring subscription fees for Betternet Paid Service fees will no longer be charged to the payment method we have on file for your account, and your subscription will remain active only until the end of the term for which you have fully paid the Betternet Paid Service fee.
UNLESS YOU NOTIFY US BEFORE A CHARGE THAT YOU WANT TO CANCEL OR DO NOT WANT TO AUTO RENEW, YOU UNDERSTAND YOUR PAID SERVICE SUBSCRIPTION WILL AUTOMATICALLY RENEW PERIODICALLY AND YOU AUTHORIZE US TO COLLECT THE THEN-APPLICABLE PAID SERVICE SUBSCRIPTION FEE PLUS ANY APPLICABLE TAXES, USING ANY PAYMENT METHOD WE HAVE ON RECORD FOR YOU.
Betternet currently uses third-party payment processors for electronic commerce. Our third-party e-commerce payment processor accepts payments through methods detailed on the applicable payment screen, which may include various credit cards. By using such third-party payment processors, you agree to their terms and conditions of use. Such third parties may charge fees to process payments. We may, but are not required to, pay certain fees at our sole discretion. To the fullest extent permitted by law, Betternet disclaims all liability with regard to any fees or problems you have with third-party payment processors.
You may use the Betternet Software solely to access the Service. A computer or other equipment enabled to access the Internet (a “Device”) is required to utilize the Service. You are solely responsible for ensuring that your Device is sufficient and compatible for use with the Service. The speed and quality of the Service may vary and the Service is subject to unavailability, including emergencies, third party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and maintenance and repair, and may be interrupted, refused, limited or curtailed.
6.2 Denial of Access.
Betternet reserves the right to modify or discontinue the Service at any time without notice. If you are a user of the Paid Service, you may be entitled to a refund as described in Section 9 below. Betternet may deny access to the Service without any prior notice if you breach 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, Betternet may install its own certificate on your Device as a Trusted Publisher (as defined by your Internet browser). Betternet 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 notice.
BY USING THE BETTERNET SOFTWARE OR THE SERVICE YOU AGREE NOT TO:
7.1 use the Betternet 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 Betternet Software or any Materials (as defined in Section 10, below);
7.3 delete the copyright or other proprietary rights on the Betternet Software or the Service;
7.4 use the Betternet 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 Betternet Software for any commercial use, it being understood that the Betternet Software and the Service is for personal, non-commercial use only;
7.6 use the Betternet Software or the Service if you are not Eligible;
7.7 remove, circumvent, disable, damage or otherwise interfere with security-related features of the Betternet Software or the Service, features that prevent or restrict use or copying of the Betternet 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 Betternet Software or any part thereof, except to the extent that such restriction is expressly prohibited by applicable law;
7.9 modify, adapt, translate or create derivative works based upon the Betternet Software or the Service or any part thereof; 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.
If you are using the free Service, Betternet may deliver third-party Advertisements. You hereby acknowledge and consent that Betternet may deliver third party Advertisements to overlay a page or as an interstitial. Betternet reserves the right to prevent your access to the Service or continued use thereof if you violate this Agreement, engage in fraud or copyright infringement, or employ an ad-blocking product or other software or mechanism that prevents you from participating in advertising programs, surveys, or other activities that involve delivery of Advertisements or other monetization of the Service. Betternet 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 Third Party Policies.
If You choose to access and use third-party websites, services or content, or purchase products from third parties, including without limitation through third-party payment vendors while using the Paid Service, or through Advertisements while using the free Service, your personal information may be available to a third-party content provider. If you choose to visit or use any third-party products or services, Betternet policies and this Agreement will not apply to your activities or any information you disclose while using third-party products or services or otherwise interacting with third parties. How third parties handle and use your personal information related to their sites and services is governed by their security, privacy and other policies, if any, and not our policies. Betternet has no responsibility for any third party’s policies, or any third party’s compliance with them.
9.1 Termination by Betternet.
For users of the free Service, You agree that Betternet, in its sole discretion, for any or no reason, and without penalty, may terminate your use of the Service or the Betternet Software at any time, and that Betternet 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 Betternet will not be liable to you or any third party for any such termination.
For users of the Paid Service, You agree that Betternet, in its sole discretion, for any or no reason, may terminate your use of the Service or the Betternet Software at any time, and that Betternet 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 Paid Service, You may be entitled to a pro-rated refund of your current subscription payment amount in connection with your use of the Paid Service. If your account is terminated due to your breach of this Agreement during the relevant cancelation period, you will not be eligible for a refund. All refunds are issued at Betternet’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 Betternet 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 Paid Service and wish to request a refund, please email customer service at email@example.com 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 Betternet 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 Betternet that all copies of the Betternet Software have been destroyed or deleted from any of your Device or other storage devices.
Ownership; Proprietary Rights
The Betternet Software and the Service are owned and operated by Betternet and its partners. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Service or the Betternet Software provided by Betternet (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 Betternet Software or Service (excluding any Materials on third-party websites) are the property of Betternet or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Betternet or its affiliates and/or third-party licensors. Except as expressly authorized by Betternet, 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. Betternet reserves all rights not expressly granted in this Agreement.
To the fullest extent permitted by law, You agree to indemnify, save, and hold Betternet, its affiliated companies, contractors, subcontractors, officers, directors, shareholders, employees, agents and its third-party suppliers, licensors, and partners (the “Betternet Entities”) harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your misuse of the Betternet Software or Service, any violation by You of this Agreement, or any breach of the representations, warranties, and covenants made by You herein. Betternet reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Betternet Entities, and you agree to cooperate with Betternet’s defense of these claims. Betternet will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
The Betternet Software and the Service may be subject to United States export controls. You may not export or re-export the Betternet Software without: (a) the prior written consent of Betternet, (b) complying with any applicable export control laws, and (c) obtaining all appropriate permits and licenses. In any event, You may not remove or export from the United States or allow the export or re-export of any part of the Betternet 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 Betternet 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 this Agreement and will be prohibited except to the extent expressly permitted by this Agreement. The Betternet 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 Betternet, 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.
THE FOLLOWING PROVISIONS OF THIS SECTION 13 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
13.1 No Warranties.
BETTERNET AND THE BETTERNET 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 BETTERNET OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 13 THE TERM BETTERNET INCLUDES THE BETTERNET ENTITIES.
13.2 “As is” and “As available” and “With All Faults”.
YOU EXPRESSLY AGREE THAT USE OF THE SERVICE AND THE BETTERNET SOFTWARE IS AT YOUR SOLE RISK. THE SERVICE, THE BETTERNET SOFTWARE AND ANY DATA, INFORMATION, THIRD-PARTY BETTERNET 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 BETTERNET SOFTWARE OR THE SERVICE WILL WITHSTAND ATTEMPTS TO EVADE SECURITY MECHANISMS OR THAT THERE WILL BE NO CRACKS, BUGS, DISABLEMENTS OR OTHER CIRCUMVENTION. BETTERNET AND THE BETTERNET ENTITIES DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD THE BETTERNET SOFTWARE AND OTHERWISE OBTAIN OR TRANSMIT MATERIALS, DATA, OR OTHER CONTENT WHILE USING THE SERVICE AT YOUR OWN DISCRETION AND RISK.
Limitation of Liability and Damages
THE FOLLOWING PROVISIONS OF THIS SECTION 14 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
14.1 Limitation of Liability.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL BETTERNET OR THE BETTERNET 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 BETTERNET SOFTWARE, OR ANY OTHER INTERACTIONS WITH BETTERNET, EVEN IF BETTERNET OR AN BETTERNET AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.2 Limitation of Damages.
IN NO EVENT WILL THE TOTAL LIABILITY OF BETTERNET 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 BETTERNET SOFTWARE (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE BETTERNET SOFTWARE AND THE SERVICE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR TWENTY FIVE UNITED STATES DOLLARS, WHICHEVER IS GREATER.
14.3 Basis of the Bargain.
YOU ACKNOWLEDGE AND AGREE THAT BETTERNET HAS OFFERED THE BETTERNET 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 BETTERNET, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND BETTERNET. BETTERNET WOULD NOT BE ABLE TO PROVIDE THE SERVICE OR THE BETTERNET SOFTWARE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
14.4 Consumer End Users (Outside of the USA).
This Section 14.4 applies only if you reside and use the Service and Betternet Software outside of the United States.
- (A) Warran 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 Betternet 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.
Dispute Resolution and Arbitration
In the interest of resolving disputes between you and Betternet in the most expedient and cost effective manner, you and Betternet agree that any and all disputes arising out of or relating in any way to this Agreement or your use of the Service shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND BETTERNET ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
15.2 Notwithstanding Section 15.1,
You and Betternet 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.
Any arbitration between you and Betternet will be conducted in English by a single arbitrator and will be governed by (i) the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”).
15.4 Notice; Process.
A party who intends to seek arbitration must first send a written notice of the dispute to the other party, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for You, by electronic mail (“Notice”). Betternet’s address for Notice is: Betternet LLC, 155 Constitution Dr Menlo Park, CA 94025. 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 Betternet may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by You or Betternet 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, Betternet shall pay you the greater of (i) the amount awarded by the arbitrator, if any, or (ii) the greatest amount offered by Betternet in settlement of the dispute prior to the arbitrator’s award, whichever is greater.
In the event that you commence arbitration in accordance with this Agreement, Betternet will reimburse you for your payment of the filing fee, unless your claim is for greater than US $10,000, in which case the payment of any fees shall be decided by the Rules. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara County, California provided that if the claim is for US $10,000 or less, You may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in the United States Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the Rules. In such case, you agree to reimburse Betternet for all monies previously disbursed by it that are otherwise your obligation to pay under the Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
15.6 No class actions.
YOU AND BETTERNET 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 Betternet 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.
If Section 15.6 above is found to be unenforceable or if the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 will be null and void.
Betternet 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.
The failure of Betternet 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 Betternet.
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.
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 Betternet will be filed only in the state or federal courts located in the City and County of San Francisco, California, and You hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.
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.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Betternet without restriction. Any assignment attempted to be made in violation of this Agreement shall be void.
Upon termination or expiration of this Agreement for any reason, the following provisions will survive such termination or expiration: Sections 4.2, 5.3, and 10 through 16.
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 Betternet 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 BETTERNET 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.
The Service and Betternet Software set forth hereunder are offered by Betternet LLC, 155 Constitution Dr Menlo Park, CA 94025. You may email Betternet at: firstname.lastname@example.org.