THESE END USER TERMS OF SERVICE (“TERMS OF SERVICE”) FORM A BINDING AGREEMENT BETWEEN YOU (“YOU,” “YOUR”) AND ON THE FLY, INC. (“ON THE FLY”, “OTF”, “WE,” “US,” “OUR”) PLEASE READ THESE TERMS OF SERVICE CAREFULLY, BECAUSE BY DOWNLOADING, ACCESSING OR USING THE ON THE FLY APPLICATION (“OTF APP”), PRODUCTS AND/OR SERVICES (COLLECTIVELY, THE “SERVICES”) YOU ARE ACKNOWLEDGING THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND OTF’S PRIVACY POLICY (available at www.ontheflypos.com/tos) (“PRIVACY POLICY”). IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE OR OTF’S PRIVACY POLICY YOU MAY NOT DOWNLOAD, ACCESS OR USE THE SERVICES.

FROM TIME TO TIME WE MAY UPDATE OR MODIFY THESE TERMS OF SERVICE IN OUR DISCRETION, AND WILL POST THE UPDATED TERMS TO www.ontheflypos.com/tos.  WE MAY PROVIDE NOTICE TO YOU OF THE UPDATED TERMS OF SERVICE BY POSTING CHANGES ONLINE AT WWW.ONTHEFLYPOS.COM/TOS, BY EMAIL, AND/OR AN ON-SCREEN NOTIFICATION THROUGH THE SERVICES. THE UPDATED TERMS OF SERVICE WILL BECOME EFFECTIVE AS OF THE EFFECTIVE DATE INDICATED IN THE TERMS OF SERVICE (“EFFECTIVE DATE”). ANY USE OF THE SERVICES AFTER THE EFFECTIVE DATE MEANS YOU HAVE ACCEPTED THE UPDATED TERMS. YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT YOU DO NOT ACCEPT THE UPDATED TERMS OF SERVICE IS TO CEASE YOUR ACCESS TO AND USE OF THE SERVICES.

1. Use of the Platform

1.1       You may only access and use the Services if you are an authorized subscriber and/or employee of a OTF customer (“Merchant”) that has paid for a software subscription for On the Fly Services pursuant to a merchant agreement entered into between OTF and Merchant (the “Merchant Agreement”). OTF grants you a limited, revocable, non-exclusive, non-transferable license to access and use the applicable Services during the course of your employment with Merchant, solely and exclusively for Merchant’s internal business purposes.

1.2       You agree to use the Platform only for the management and operation of Merchant’s business pursuant to the terms and conditions of the Merchant Agreement and not directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services; (b) modify, translate, or create derivative works based on the Services; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (c) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive with the Services; (d) remove or obscure any proprietary notices or labels from the Services; (e) use the Services for any fraudulent undertaking or in any manner that could damage, disable, overburden, impair or otherwise interfere with OTF’s provisioning of the Services; (f) violate or breach any operating procedures, requirements or guidelines regarding Merchant’s use of the Services that are posted on or through the OTF App or otherwise provided or made available to Merchant; (g) alter, distribute, license, resell, transfer, assign, rent, lease, timeshare or otherwise commercially exploit the Services to any third- party or provide it as a service bureau; (h) conduct any penetration or vulnerability testing on the Services or network; or (i) copy any features, functions, text or graphics of the Services, including without limitation, the structure, sequence or organization of the user interface.

2. Fees, Payment and Taxes
   • In exchange for the Services, Merchant agrees to pay to the Processor One Payment the applicable fees for the Services  plus applicable shipping fees and Taxes (the “Fees”).  Fees attributable to Subscription Services are paid in advance and will be billed on thirty (30) day intervals (each such date is referred to as a “Billing Date”). Fees attributable to Non-Recurring Services shall be paid upon Merchant’s execution of the Application referencing, unless otherwise provided for within the Application. Any amounts past due from Merchant under this Agreement shall accrue interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or, if less, the maximum rate allowed by applicable law, in addition to all reasonable expenses associated with the collection thereof. Except as otherwise expressly provided within this Agreement, all Fees are non-refundable, non-cancelable and non-creditable. In making payment of Fees, Merchant acknowledges that Merchant is not relying upon future availability of any Service beyond the current order term or any upgrades or future enhancements to the Services.

• Payment. Merchant authorizes the processor One Payment to charge via ACH all amounts arising under this service until all of Merchant’s payment obligations hereunder have been paid in full. Merchant must keep its Payment Information current at all times, and in the event that Merchant wishes to make changes to its Payment Information, it may contactclientsupport@onepaymentus.com.  In the event that Merchant’s Payment Information cannot be verified, is invalid, is over-limit or is not otherwise acceptable, One Payment and/or OTF may, at its discretion: (i) suspend or cancel the Services without notice; (ii) generate invoices for payment; (iii) pass through to Merchant any fees incurred by OTF or One Payment as a result of a rejected payment attempt (including, but not limited to, ACH rejection fees) in the exact amount as charged.

• Taxes. Fees are exclusive of applicable federal, state, local or other governmental sales, use, property, value added, goods and services taxes, fees or charges now in force or enacted in the future (the“Taxes”), unless otherwise expressly indicated by One Payment or OTF. Merchant is responsible for all applicable Taxes that arise from or as a result of Merchant’s subscription to and/or purchase of the Services. If Merchant is not charged Taxes by One Payment/OTF, Merchant is fully and solely responsible for determining if Taxes are payable, and if so, calculating and self-remitting Taxes to the appropriate tax authorities in Merchant’s jurisdiction, along with any penalties, late charges or interest associated with the Taxes. Merchant represents and covenants that it will indemnify One Payment and OTF and its parent, subsidiary and affiliate entities and their respective officers, directors, agents and employees for any liability or expense that One Payment, OTF or its parent, subsidiary and affiliate entities and their respective officers, directors, agents or employees may incur in connection with such Taxes.

• Change in Fees. OTF reserves the right to change Fees upon thirty (30) days’ advance notice to Merchant, and Merchant’s continued use of the Services following such change will be deemed an acceptance of the change unless Merchant otherwise terminates this Agreement prior to the effective date of such change. In the event that Merchant terminates this Agreement due to a change in Fees prior to the effective date of such change, Merchant shall only be liable for the payment of Fees for Services provided to Merchant through the effective date of termination.

• Disputing Fees. Merchant is responsible for promptly and carefully reviewing amounts invoiced and its payment of Fees. In the event that Merchant wishes to dispute any Fees charged to or paid by Merchant under this Agreement, Merchant must provide One Payment with written notice of the dispute (the“Disputed Fees Notice”) by sending an email to clientsupport@onepaymentus.com within thirty (30) days of the date that the invoice at issue was made available by One Payment (the “Dispute Timeframe”). Such Disputed Fees Notice should set out the nature of the dispute along with all available supporting documentation. In the event that Merchant provides One Payment with such a Disputed Fees Notice outside of the Dispute Timeframe, One Payment shall have no obligation to investigate or effect any adjustments to the disputed Fees, and any voluntary efforts by One Payment to assist Merchant in investigating such disputed Fees shall not create any obligation to continue such investigation or any future investigation.

• Additional Orders/Cancellations. It is the Merchant’s obligation to request in writing to clientsupport@onepaymentus.com additional licenses and/or the removal of licenses to which such request shall take effect in the next billing cycle.  Therefore a cancellation will take effect for the billing cycle for the following month.  Additional Orders will be billed prorated from the date the licenses are enabled.  In order to obtain new/additional licenses, Merchant will be required to submit an amended payment form in order to authorize One Payment/OTF to ACH Merchant for the new, greater amount.

3. Ownership of Content, Use of Trademarks

3.1       OTF owns or has license to all rights, title, interest, copyright and other worldwide intellectual property and trade secret rights in and to the Services (including all derivatives or improvements thereof). You may voluntarily submit suggestions, enhancement requests, ideas, feedback, recommendations or other input about the Services (“Feedback”) at any time. You irrevocably assign all right, title, interest and other worldwide intellectual property rights in and to the Feedback to OTF, Inc., and acknowledge that we are free to use, disclose, reproduce and otherwise exploit any and all Feedback provided by you relating to the Services in our sole discretion, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by OTF.

3.2       User Content. You, (or Merchant, if applicable and different) retain all rights, title and interest in and to any text, graphics, videos, images or other data that you upload to the Services (“User Content”). You grant to OTF a non-exclusive, royalty-free, fully paid-up, worldwide license to access, use, copy, modify (including the right to create derivative works of), display and transmit User Content solely for the purpose of our providing the Services, to market to the general public the OTF solution and in accordance with our Privacy Policy. You are solely responsible for the accuracy, quality, content and legality of User Content, the means by which User Content is acquired, and any transfer of User Content outside of the Services by you, Merchant or any third-party authorized by you. You represent, warrant and covenant that you have all rights necessary to upload the User Content to the Services and to otherwise have such User Content used or shared, as applicable, in relation to the Services.

3.3       Third-Party Content. Through your use of the Services you may be presented with material provided by third-parties, not owned or controlled by us, from our partners, and/or from other users of the Services, including but not limited to software, text, graphics, videos, images, or advertising content (collectively referred to as “Third-Party Content”). All Third-Party Content and the Services are protected by United States and foreign intellectual property laws. Unauthorized use of the Services and/or Third-Party Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Services or Third-Party Content, and you will not use, copy or display the Services or Third-Party Content except as permitted under these Terms of Service. No other use of the Services or Third-Party Content is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the Services and Third-Party Content. You may not sell, transfer, assign, license, sublicense, or modify the Third-Party Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Third-Party Content in any way for any public or commercial purpose other than as permitted hereunder. The use or posting of any of the Third-Party Content on any other platform, or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of these Terms of Service, your right to access and/or use the Third-Party Content and Services will automatically terminate.

3.4 We do not review, pre-screen or filter all User Content, or Third-Party Content, but we do reserve the right to refuse to accept, or delete any User Content or Third-Party Content in our sole discretion. In addition, we have the right (but not the obligation) in our sole discretion to reject or delete any content that we reasonably consider to be in violation of these Terms of Service or applicable law. We do not guarantee the accuracy, integrity or quality of any Third-Party Content, regardless of whether such products or services are designated as “certified,” “validated” or the like. Any interaction or exchange of information or data between you and any third-party is solely between you and such third-party. You should take precautions when downloading files from any platform to protect your computer from viruses and other destructive programs. If you decide to access any Third-Party Content, you fully assume the risk of doing so. Under no circumstances will OTF be liable in any way for any Third-Party Content, including liability for any errors or omissions in any Third-Party Content or for any loss or damage of any kind incurred as a result of the use of any Third-Party Content posted, emailed or otherwise transmitted via the Services.

3.5 Each user must: (a) provide true, accurate, current and complete information on the OTF App’s registration form (collectively, the “Registration Data”) and (b) maintain and promptly update the Registration Data as necessary. If, after investigation, we have reasonable grounds to suspect that any user’s information is untrue, inaccurate, not current or incomplete, we may suspend or terminate that user’s account and prohibit any and all current or future use of the Services (or any portion thereof) by that user other than as expressly provided herein. Each user is wholly responsible for maintaining the confidentiality and security of his/her username and password, and is wholly liable for all activities occurring thereunder. OTF cannot and will not be liable for any loss or damage arising from a user’s failure to comply with this Sub-Section 3.5, including any loss or damage arising from any user’s failure to (a) immediately notify OTF of any unauthorized use of his or her password or account or any other breach of security, or (b) exit and close his or her account at the end of each session.

3.6 The trademarks, service marks, and logos of OTF (the “OTF Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of OTF. Other OTF product and service names located in the Services may be trademarks or service marks owned by third-parties (the “Third-Party Trademarks”, and, collectively with the OTF Trademarks, the “Trademarks”). Nothing in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed in the Services without the prior written consent of OTF specific for each such use. The Trademarks may not be used to disparage OTF or the applicable third-party, OTF’s or third-party’s products or services, or in any manner that may damage any goodwill in the Trademarks. Except as described herein, the use of any Trademarks is prohibited without OTF’s prior written consent. All goodwill generated from the use of any OTF Trademark or Third-Party Trademark will inure to OTF’s, or the applicable Third Party’s benefit, as applicable.

4. Privacy

OTF’s Privacy Policy describes what information we collect from you and other users of the Services, and how we use User Content and other information obtained through the Services. We encourage you to read the Privacy Policy carefully as it forms a binding part of these Terms of Service, and contains important information about your rights.

5. Limitation of Liability and Disclaimer of Warranties

5.1       EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, OTF AND ITS THIRD-PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON- INFRINGEMENT AND QUALITY. OTF AND ITS THIRD-PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS YOU MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OTF AND ITS THIRD-PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE SERVICES WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT NEITHER OTF NOR ITS THIRD- PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. OTF IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. WITHOUT LIMITING THE FOREGOING, OTF DOES NOT WARRANT OR GUARANTEE THAT ANY OR ALL SECURITY ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD PARTIES. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY OTF, THE SERVICES ARE PROVIDED TO MERCHANT ON AN “AS IS” BASIS.  FURTHERMORE, OTF IS A SOFTWARE SOLUTION.  IN NO WAY DOES OTF PROVIDE ANY WARRANTIES WHATSOVER REGARDING ANY OF THE HARDWARE (WHETHER TABLETS, COMPUTERS OR OTHER INTERFACE) USED BY THE MERCHANT IN USING OTF.

5.2       IN NO EVENT WILL OTF BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICES, EVEN IF OTF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN HAS FAILED ITS ESSENTIAL PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW OTF’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO ONE HUNDRED DOLLARS ($100).

5.3       Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES AND THOSE STATES ONLY, THE LIABILITY OF THE OTF PARTIES WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

6. Indemnification

You agree to defend, indemnify and hold harmless OTF and its directors, officers, employees, affiliates and agents from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of these Terms of Service or your access to, use or misuse of the Third-Party Content or Services. OTF will provide notice to you of any such claim, suit, or proceeding. OTF reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section. In such case, you agree to cooperate with any reasonable requests assisting OTF’s defense of such matter.

7. Termination of the Agreement

7.1       OTF reserves the right, in its sole discretion, to restrict, suspend, or terminate these Terms of Service and your access to all or any part of the Services or User Content at any time and for any reason without prior notice or liability. OTF reserves the right to change, suspend, or discontinue all or any part of the Services at any time without prior notice or liability.

7.2       Sections 1 (Use of the Platform), 4 (Limitation of Liability and Disclaimer of Warranties), 5 (Indemnification), 6 (Termination of Agreement) and 9 (Miscellaneous) will survive the termination of these Terms of Service.

8. Arbitration

8.1       Agreement to Arbitrate. This Section 8 is referred to as the Arbitration Agreement. You agree that any and all disputes or claims that have arisen or may arise between you and OTF, whether arising out of or relating to these Terms of Service or in connection with your use of the Services, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. You agree that, by agreeing to these Terms of Service, you and OTF are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate, provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.

8.2       Prohibition of Class and Representative Actions and Non-Individualized Relief. You and OTF agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both you and OTF agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).

8.3       Pre-Arbitration Dispute Resolution. OTF is always interested in resolving disputes amicably and efficiently, and most participant concerns can be resolved quickly and to the participant’s satisfaction by emailing OTF’s support team at support@ontheflypos.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to On the Fly should be sent to On the Fly at 5300 NW 77^th Ct., Doral, Florida 33166.

Attn: General Counsel. (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If you and OTF do not resolve the claim within sixty (60) calendar days after the Notice is received, you or OTF may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by OTF or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or OTF is entitled.

8.4 Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless you and OTF agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, OTF agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

8.5 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.

8.6 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

8.7 Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than Sub-Section 8.2 above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of Sub-Section 8.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of these Terms of Service will continue to apply.

9. Compliance with Laws

9.1 You agree to comply with all federal, state, local and foreign laws, rules and regulations applicable to you and Merchant’s business in relation to your use of the Services, including any applicable tax laws and regulations, the then-current version of the Payment Card Industry Data Security Standards as made available at https://www.pcisecuritystandards.org and the by-laws, and any and all other rules, policies and procedures of VISA, MasterCard, Discover and/or other card networks as in effect from time to time.

9.2 The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any part of the Services to countries or persons prohibited under the export control laws. By accessing, using or downloading the Services, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export or re-export of the Services.

10. Miscellaneous

Any action, claim, or dispute related to these Terms of Service will be governed by the laws of the State of Florida, excluding its conflicts of law provisions, and controlling U.S. federal law. The Uniform Computer Information Transactions Act will not apply to these Terms of Service. If any provision of these Terms of Service  Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms of Service, which will remain in full force and effect. Failure of OTF to act on or enforce any provision of these Terms of Service will not be construed as a waiver of that provision or any other provision herein. No waiver will be effective against OTF unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by OTF and you, these Terms of Service constitute the entire agreement between you and OTF with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between you and OTF with respect to the subject matter. The section headings are provided merely for convenience and will not be given any legal import. These Terms of Service will inure to the benefit of our successors and assigns. You may not assign these Terms of Service without our prior written consent. Any information submitted or provided by you to the Services might be publicly accessible. Important and private information should be protected by you.

Google-Enabled Software Applications

As part of the Services, OTF may offer mobile applications that are intended to be operated in connection with products made commercially available by third parties that operate using the Android operating system, which is owned by Google Inc. (“Google”, and such software, “Google Software”). With respect to the Google Software, in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:

10.1 OTF and you acknowledge that these Terms of Service are entered into between OTF and you only, and not with Google, and that, notwithstanding anything to the contrary herein, as between OTF and Google, OTF, not Google, is solely responsible for Google Software and the content thereof.

10.2 You may not use Google Software in any manner that is in violation of or inconsistent with the usage rules set forth for Google Software in, or otherwise be in conflict with, the then-current Google terms of service available at: https://play.google.com/intl/en-us_us/about/play-terms.html (the “App Store Terms of Service”).

10.3 Your license to use Google Software is limited to a non-exclusive, non-transferable license to use Google Software on a supported Android-based device that you own, or otherwise have rights to use, and that meets the applicable system and compatibility requirements, all as set forth by the usage requirements set forth in the App Store Terms of Service.

10.4 Google has no obligation whatsoever to provide any maintenance or support services with respect to Google Software.

10.5 Google is not responsible for any product warranties, whether express or implied by law.

10.6 OTF and you acknowledge that OTF, not Google, is responsible for addressing any claims of you or any third party relating to Google Software or your possession and/or use of that Google Software, including, but not limited to: (i) product liability claims; (ii) any claim that Google Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

10.7 In the event of any third party claim that Google Software or the end-user’s possession and use of that Google Software infringes that third party’s intellectual property rights, as between OTF and Google, OTF, not Google, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

10.8 You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.

10.9 If you have any questions, complaints or claims with respect to Google Software, they should be directed to OTF.

10.10 The Google Play marketplace is owned and operated by Google. Your use of Google Play is governed by a legal agreement between you and Google consisting of the Google Terms of Service (found at http://www.google.com/accounts/TOS) and the Google Play Terms of Service (found at https://play.google.com/intl/en-US_us/about/play-terms.html). In addition, your use of Google Play is subject to the Google Play Business and Program Policies. The Google Play Market Terms of Service, Google Play Business and Program Policies, and Google Terms of Service will take precedence in that order in the event of a conflict between them, to the extent of such conflict.