AXON VIBE Terms & Conditions

These terms and conditions are a legal agreement (this “Agreement”) between you ( “You” or “Your” or “User”) and Axon Vibe Inc. (“Axon Vibe”, “we” or “us”) under which You shall access and use the services and features (collectively, the “Services”) available on or through Axon Vibe’s ”Smart Favorites” or similar location-based functionality or application (the “Functionality”). The Functionality is a free, optional add-on for users of the Metropolitan Transportation Authority’s (“MTA”) on-line transportation application ("MTA App") through which You are provided with the opportunity to access and use our Functionality. Axon Vibe is not affiliated with MTA. Axon Vibe is not responsible for the MTA App and MTA is not responsible for the Functionality provided under this Agreement.

The date You first agree to or accept this Agreement, or that You otherwise first access and use the Functionality following the date this Agreement is first made available to You, is referred to herein as the “Effective Date.”

We may revise this Agreement at any point, at which point there will be a notice of the revision through the Functionality. By continuing to use the Functionality or other Services after such notice, You are unconditionally agreeing to the then current version of the Agreement.

While the Services may identify transportation service alternatives and rewards based on Your usage of the MTA App, Axon Vibe does not provide any transportation services or any of the products or services which are the subject of discounts and special offers for certain third-party products and services (“Rewards”) which third parties offer to You through our Services. When You are using or accessing any third-party products or services in connection with the Services, Your access to and use of such third-party products and services is subject to the terms, conditions and privacy policy of the applicable third party. Axon Vibe is not responsible for any such third-party products or services.

BEFORE YOU CLICK ON THE “I ACCEPT” BUTTON OR AUTHORIZE OR USE THE SERVICES, CAREFULLY READ THIS AGREEMENT. BY CLICKING ON THE “I ACCEPT” BUTTON OR BY AUTHORIZING OR USING THE FUNCTIONALITY OR THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT OR YOU DO NOT WISH TO BE LEGALLY BOUND BY THESE TERMS AND CONDITIONS, THEN DO NOT CLICK “I ACCEPT” OR AUTHORIZE THE FUNCTIONALITY OR SERVICES. IN SUCH CASES, YOU WILL NOT BE PERMITTED TO ACCESS AND/OR USE THE FUNCTIONALITY OR SERVICES.

FURTHER, THIS AGREEMENT CONTAINS A PROVISION TO ARBITRATE, WHICH REQUIRES THAT YOU AND AXON VIBE ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND LIMITS CLASS ACTION CLAIMS, AS DESCRIBED IN THE ARBITRATION SECTION BELOW UNLESS YOU OPT-OUT AS PROVIDED IN SUCH AGREEMENT TO ARBITRATE (SEE SECTION 8, “AGREEMENT TO ARBITRATE AND WAIVER OF CLASS ACTION”).

1. Authorizing the Functionality and Permissions for Collection of Data

You may incur charges from Your telecommunications provider by using the Functionality.

You may authorize the Functionality in connection with your use of the MTA App on Your device. In connection with Your installation and use of the MTA App, You may opt-in to authorize the Functionality and permit Axon Vibe to collect information through Your device regarding Your location and movement behavior (“Precise Location Information”). If You opt-in to this feature, push messages will be automatically sent to You in connection with Your use of the Services and based on the Precise Location Information. You may ask Axon Vibe to delete Your Information at any time through the Functionality, and in such event Your Information and other content received by the Functionality will be deleted within thirty (30) days. Nothing herein will terminate Your use of the MTA App or MTA’s storage of Your information in connection with the MTA App; any such termination or removal of Your information is subject to any separate agreement between You and MTA.

In order to utilize the Functionality, You will need to opt-in using the MTA App, in which event MTA will provide to us a token identifier which does not specifically identify You. Your use of the Functionality will result in the provision of Your Precise Location Information to us (collectively, “Your Information”).

See more about the Information we collect about You in the “Privacy Statement”.

You are solely responsible for any access to or use of the Functionality or any of the Services through Your device.

2. Ownership, Processing and Use of Data

As between You and Axon Vibe, You are the sole and exclusive owner of Your Information. You represent, warrant and covenant that You will only provide Your Information which You have the right to provide to Axon Vibe for the purposes of this Agreement. You hereby authorize Axon Vibe to use Your Information for the purposes of Your use of the Functionality and related Services, including, without limitation, in order to analyse Your Information to provide You with suggestions and more comprehensive and useful Services through the Services in connection with Your travels. You further authorize Axon Vibe to create aggregated data reflecting Your use of the Services and third-party use of our Services (“Aggregate Data”), which Aggregate Data shall be the property of Axon Vibe.

See more about the use of information that we collect about You in the “Privacy Statement”.

3. Security; Use

The transmission of data between Axon Vibe and Your device shall take place wirelessly via public communications networks. Axon Vibe implements technical and organizational security measures intended to protect the processed data, the Functionality and Your Information from loss, failure, unauthorised access and theft.

The data used by the Functionality shall be processed and stored by Axon Vibe. You agree that the data collected from Your device and resulting rewards offered to you be stored at a data center in the United States. Treatment of data shared with third parties is further covered in our Privacy Policy.

You shall not breach any of the security measures in place on the Functionality or try to access, or interfere with, non-public portions of the Functionality.

You shall not use the Services for any unlawful or malicious activity. You are responsible for any activities that occur under Your account.

4. Intellectual Property

The Functionality and all information, text, images, audio, video, data, links, software or other material that is not posted, uploaded or otherwise provided by You (“Axon Vibe Content”) is the property of Axon Vibe or its licensors. Axon Vibe Content is protected by copyright, trademark, patent, trade secret and other rights of Axon Vibe and its licensors. You grant Axon Vibe the non-exclusive, perpetual, royalty-free right to use Your Information in connection with the improvement of the Services and our related Axon Vibe Content and to exploit such Services and other Axon Vibe Content without limitation, subject to the terms of our Privacy Statement.

Axon Vibe hereby grants You a non-transferable, non-sublicensable, non-exclusive, revocable and limited right to access and use the Functionality and Axon Vibe Content solely for Your use of the Functionality and the Services, subject to this Agreement, in compliance with all laws and regulations that apply to You. By way of non-limiting example, You shall not resell or use the Functionality to provide services to any third party, You shall not reproduce or transmit any Axon Vibe Content in any form or by any means, You may not modify, alter, or prepare derivative works based on the Axon Vibe Content, You shall not distribute copies of or publicly distribute, perform or display the Axon Vibe Content and You shall not remove copyright, trademark or other proprietary notices from the Axon Vibe Content. This grant of rights is for the sole purpose of enjoying the Functionality and the Services and are revocable at any time by Axon Vibe or its licensors in their sole and absolute discretion.

5. Disclaimer of Warranties

YOU ACKNOWLEDGE AND AGREE THAT THE FUNCTIONALITY, RELATED SERVICES AND ANY REWARDS ARE PROVIDED TO YOU “AS IS,” “WHERE IS,” “AS AVAILABLE” AND “WITH ALL FAULTS,” AND THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AXON VIBE, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE FUNCTIONALITY AND SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR PURPOSE. YOU ACKNOWLEDGE AND AGREE THAT THE INFORMATION, SOFTWARE, PRODUCTS AND SERVICES CONTAINED IN OR AVAILABLE THROUGH THE SERVICES, MAY INCLUDE INACCURACIES OR ERRORS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU, AND NOT AXON VIBE, ARE RESPONSIBLE FOR EVALUATING THE ACCURACY, RELIABILITY, COMPLETENESS AND USEFULNESS OF ANY INFORMATION OR SUGGESTIONS OBTAINED THROUGH THE USE OF THE SERVICES. AXON VIBE MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS OR WARRANTIES REGARDING THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY OR LACK OF VIRUSES OR OTHER HARMFUL COMPONENTS OF THE SERVICES, OR THE ACCURACY OF SUCH INFORMATION.

6. Limitations of Liability

IN NO EVENT SHALL AXON VIBE, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF USE OR DATA, ANY DAMAGE TO OR CORRUPTION OF DATA (WHETHER DIRECT OR INDIRECT) OR COSTS OF COVER, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS OR THE SERVICES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF AXON VIBE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE THIS AGREEMENT AND DISCONTINUE USING THE SERVICES.

YOU AGREE THAT AXON VIBE SHALL NOT BE LIABLE FOR ANY FAILURE OF CORRECTNESS, CURRENCY AND COMPLETENESS OF THE INFORMATION PROVIDED TO THE USER, FOR ANY LOSS OF YOUR DATA OR FOR ANY THIRD PARTY’S REWARDS, PRODUCTS OR SERVICES.

IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING EXCLUSIONS OF LIABILITY, AXON VIBE, ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS IS LIABLE TO YOU FOR ANY AMOUNTS UNDER THIS AGREEMENT UNDER ANY THEORY OF RECOVERY, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, AXON VIBE’S (AND SUCH AFFILIATES', DIRECTOR'S, OFFICER'S, EMPLOYEE'S, OR AGENT'S, AS APPLICABLE) TOTAL LIABILITY UNDER THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH THE SERVICES SHALL NOT EXCEED ONE DOLLAR ($1.00), EXCEPT TO THE EXTENT SUCH LIMITATION IS NOT PERMITTED BY APPLICABLE LAW.

7. Indemnity

By accepting these terms and using the Functionality or other portions of the Services, You agree to indemnify and hold harmless Axon Vibe, and its affiliates, officers, directors, employees and agents from and against any and all claims, damages, obligations, losses, liabilities, costs or debt and expenses arising from Your Information, Your use of and access to the Functionality or related Services, Your violation of this Agreement, Your violation of any third-party rights, including, but not limited to, copyright, property right or privacy right, or any claim that content submitted by You causes damage to a third party. To the extent permitted under applicable laws, You hereby release Axon Vibe and its affiliates, officers, directors, employees and agents from any and all claims or liability related to the Services.

8. Agreement to arbitrate and waiver of class action

Except for disputes relating to Your or Axon Vibe’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents), You agree that all disputes between You and Axon Vibe (whether or not such dispute involves a third party) arising out of or relating to this Agreement, the Functionality, and/or the Services, shall be finally resolved by arbitration before a single arbitrator conducted in the English language in New York, New York, USA under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), and You and Axon Vibe hereby expressly waive trial by jury. You and Axon Vibe shall appoint as sole arbitrator a person mutually agreed to by You and Axon Vibe or, if You and Axon Vibe cannot agree within thirty (30) days of either party’s request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either party. The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys’ fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement. Notwithstanding the foregoing, either party may be entitled to seek injunctive relief, security or other equitable remedies from the United States District Court for the Southern District of New York or any other court of competent jurisdiction.

Any claims brought by You or Axon Vibe must be brought in that party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither You nor Axon Vibe shall participate in a class action or class-wide arbitration for any claims covered by this Agreement, unless ordered to do so by a court of law. You hereby waive any and all rights to bring any claims related to this Agreement or the Privacy Statement as a plaintiff or class member in any purported class or representative proceeding.

YOU MAY OPT OUT OF THIS AGREEMENT TO ARBITRATE WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU AUTHORIZED THE FUNCTIONALITY. If You do so, neither You nor we can require the other to participate in an arbitration proceeding. To opt out, You must notify us in writing and the opt-out notice must state that You do not agree to the agreement to arbitrate and must include Your name, address, phone number and a clear statement that You want to opt-out of this agreement to arbitrate. You must sign the opt-out notice for it to be effective. This procedure is the only way You can opt out of the agreement to arbitrate. You must use the address that is set forth on our website, and You must address Your opt-out to: Axon Vibe, Inc., 65 Greene St., Fl. 5, New York, NY 10012, ATTN: Arbitration Opt-out.

Notwithstanding any provision in this Agreement to the contrary, You and we agree that if we make any change to the arbitration procedures set forth herein in the future, that change shall not apply to any claim that was filed in a legal proceeding against Axon Vibe prior to the effective date of the change. Moreover, if we seek to remove the arbitration covenant from this Agreement, such removal shall not be effective until thirty (30) days after the version of this Agreement not containing the arbitration procedures is posted to the Functionality, and shall not be effective as to any claim that was filed in a legal proceeding against Axon Vibe prior to the effective date of such removal. This Section 8 shall not apply to the extent not enforceable under applicable law.

9. Governing law and jurisdiction

This Agreement, and any dispute between You and Axon Vibe, shall be governed by the laws of the State of New York, USA, without regard to principles of conflicts of law, provided that the Federal Arbitration Act shall govern the interpretation and enforcement of any arbitration. Unless You and we agree otherwise, in the event that Section 2 of the Federal Arbitration Act is found not to apply to You or to a particular claim or dispute, You agree that any claim or dispute that has arisen or may arise between You and Axon Vibe must be resolved exclusively by a state or federal court located in the County of New York, State of New York. You and Axon Vibe agree to submit to the personal jurisdiction of the courts located within the County of New York, State of New York for the purpose of litigating all such claims or disputes. To the extent permitted by applicable law, You and Axon Vibe agree to waive, and hereby waive, trial by jury in any court proceeding.

10. Children’s Privacy

The Services are not directed to children under the age of 13, and Axon Vibe will never knowingly collect information from anyone it knows is under the age of 13. We recommend that persons over 12 but under 18 years of age ask their parents for permission before using the Services or sending any information about themselves to anyone over the Internet.

11. Privacy Statement

Axon Vibe respects Your privacy and takes Your privacy very seriously. You agree and acknowledge that Your use of the Functionality and related Services is subject in all respects to our Privacy Statement, incorporated into this Agreement by reference.

12. Termination

You agree and acknowledge that Axon Vibe may terminate or suspend the Functionality at any time and for any or no reason.

You may cancel Your use of the Services and terminate this Agreement at any time by rescinding Your authorization of the Functionality through the MTA App. Axon Vibe reserves the right to terminate Your account if You are in violation of this Agreement. We are not required to provide a reason for Your termination, and the process is up to our discretion.

Upon termination of this Agreement for any reason, You shall immediately cease all use of the Functionality. You further acknowledge and agree that, upon termination of this Agreement, Axon Vibe shall delete all of Your Information and other content within thirty (30) days.

All the provisions of this Agreement shall terminate upon the termination of this Agreement, except that Sections 2 and 5 through 13 shall survive termination of this Agreement.

13. Miscellaneous

(a) Assignment; Successors and Assigns. You shall not have the right to assign or transfer this Agreement in whole or in part to any third party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties to this Agreement and their respective successors, permitted transferees, and permitted assigns.

(b) No Partnership. You and Axon Vibe are independent parties and are not partners, joint venturers, agents, employees or representatives of the other party.

(c) Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the transactions and matters contemplated hereby, supersedes all previous communications, understandings and agreements (whether oral or written); provided, that, notwithstanding the foregoing, Axon Vibe reserves the right to amend this Agreement unilaterally by posting the amended Agreement to the Functionality, with such amendment effective only with respect to use of the Services after the date of such posting.

(d) No Third Party Beneficiaries. You acknowledge and agree that nothing in this Agreement creates a right enforceable by any person or entity other than You and Axon Vibe.

(e) Headings. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

(f) Jurisdiction. You agree not to access the Functionality or Services from any jurisdiction in which such access is unlawful or in which the Functionality or related Services do not meet local requirements.

(g) Severability. If any part of this Agreement is held to be unlawful, void, or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions.