FlyLogan App
Terms and Conditions
Effective Date: April 14, 2022
Massachusetts Port Authority (“Massport”, “we”, “us” or “our”) owns and operates the Massport website (located at www.Massport.com, the “Site”) and the FlyLogan mobile application (the “App”), through which it makes available various services and products, including parking reservation services, food ordering and delivery services, flight tracking, lost and found services, airport information, financial information, community notices, media releases, and other services (collectively, the “Services”). These Terms and Conditions (“Terms”) govern your access to and use of the Services. Please read these Terms carefully before using the Services. NOTE THAT SECTION 17 OF THESE TERMS CONTAINS A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS AND LIMITS THE FORUM AND/OR REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
BY ACCESSING OR USING THE SERVICES, OR BY CLICKING TO ACCEPT OR AGREE TO THESE TERMS WHEN THAT OPTION IS MADE AVAILABLE TO YOU, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL OF THE TERMS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS, INCLUDING THE MANDATORY ARBITRATION AND CLASS ACTION WAIVER IN SECTION 17, YOU MAY NOT ACCESS OR USE THE SERVICES.
Massport reserves the right to revise these Terms from time to time in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as by providing notice through the Services or updating the “Effective Date” date at the beginning of these Terms. By continuing to access or use the Services, you confirm your acceptance of the revised Terms and all of the terms incorporated herein by reference. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Services. If you do not agree to the revised Terms, you may not access or use the Services.
Privacy Policy
Please refer to our Privacy Policy for information about how we may collect, use and share your information.
Eligibility
The Services are not targeted toward or intended for use by anyone under the age of 13. By accessing or using the Services, you represent and warrant that you (a) are 13 years of age or older, and (b) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.
Registration, Accounts and Communication Preferences
To access and use certain areas or features of the Services, you may need to register for an account, including accounts as may be required by our third-party providers (“Account”) You understand that to create your Account, you will be asked to provide your name and certain other personal information, which may include, but may not be limited to, name, address, zip code, and valid email address, and telephone number. By creating an Account, you agree to (a) provide accurate, current and complete Account information, (b) maintain and promptly update, as necessary, your Account information, (c) maintain the security of your Account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the Services on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Services or your Account. You further understand and agree that Massport may take actions we deem reasonably necessary to prevent, respond to, pursue or remedy suspected or actual fraud and abuse, including without limitation, termination or suspension of your Account.
By creating an Account, you also consent to receive electronic communications from Massport or third-party providers (e.g., via email). These communications may include notices about your Account (e.g., password changes and other information) or mobile food orders and are part of your relationship with us and the third-party providers. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
By providing your mobile phone number to us through the Services, you consent to receive calls or text messages at any such phone number sent by or on behalf of Massport, including autodialed calls and/or text messages, for operational or informational purposes, such as to verify your Account by sending a one-time code to the phone number associated with your Account. It is your responsibility to keep your account information, including your phone number, updated. Standard message and data rates applied by your mobile phone carrier may apply to the text messages we send you. Please contact your mobile phone carrier for details. You may opt out of receiving these calls or text messages at any time by following the opt-out instructions provided at https://www.massport.com/terms-and-conditions, or sent to your phone.
User Conduct
You agree that you will not violate any law, contract, intellectual property or other third-party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Services. You agree that you will abide by these Terms and will not: (i) engage in any harassing, threatening, intimidating, predatory or stalking conduct; (ii) use or attempt to use another user’s account without authorization from such user and Massport; (iii) use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Services or that could damage, disable, overburden or impair the functioning of the Services in any manner; (iv) reverse engineer any aspect of the Services, or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Content, area or code of the Services; (v) attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Services that you are not authorized to access; (vi) develop any third-party applications that interact with User Content or the Services without our prior written consent; (vii) use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Services, extract data or otherwise interfere with or modify the rendering of pages or functionality; (viii) infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; (ix) use, store, distribute or access private or personal information of a third party without such third party’s consent; (x) introduce the Services to viruses, corrupted data or other harmful, disruptive or destructive files or content; or (x) use the Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
We encourage you to report content to iaviation@massport.com or conduct that you believe violates your rights (including intellectual property rights) or our Terms and policies. If we determine that you have violated our Terms or policies, we may take action to protect our community and the Services, including by suspending access to your Account or the Services, or otherwise disabling it or terminating your access to any of the foregoing. We may also suspend, disable or terminate your Account and/or access to the Services if you create risk or legal exposure for us or when we are permitted or required to do so by law.
User Content
The Services may include interactive features and areas that allow users to create, post, share or store content, including, but not limited to, text, graphics, code, items or other materials (collectively, “User Content”). If you decide to share your User Content with others through the Services, you understand that this User Content will be viewable by others. You agree that you are solely responsible for your User Content and for your use of any interactive features and areas of the Services. Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Services at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Services at your sole cost and expense.
Rights in User Content
If you upload, post or submit content, including comments, photos or likes, to the Services or to our pages or feeds on third-party social media platforms (e.g., Massport’s Facebook, Twitter, or Instagram account), you hereby grant Massport and any third-party provider of the Services a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes.
By uploading, posting or submitting User Content to Massport through the Services or through our pages or feeds on third-party services or third-party social media platforms, you represent and warrant that (a) such User Content is non-confidential, (b) you own and control all of the rights to the User Content or you otherwise have all necessary rights to post such User Content, (c) you authorize Massport to use such User Content for the purposes described in these Terms, (d) the User Content is accurate and not misleading or harmful in any manner, and (e) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third-party right.
Proprietary Rights; Additional Restrictions
Unless otherwise indicated in writing by us, the Services and all content and other materials contained therein, including, without limitation, the Massport logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Massport or our licensors or suppliers, as applicable, and are protected by U.S. and international copyright laws.
You are hereby granted a limited, revocable, nonexclusive, non-transferable, non-sublicensable license to: (i) download, install, and use the Services for your personal, non-commercial use on a device owned or otherwise controlled by you; and (ii) access, stream, download, and use on such device the Content and Services strictly in accordance with these Terms and any other terms and conditions applicable to such Content and Services. However, such license does not include any right to (a) sell, resell or use commercially the Services or Content, (b) distribute, publicly perform or publicly display any Services or Content, (c) modify or otherwise make any derivative uses of the Services or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Services or Content, except as expressly permitted by us, and (f) use the Services other than for their intended purposes. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Massport or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
Not with standing anything to the contrary in these Terms, the Services may include software components provided by Massport or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
Purchases
You may elect to participate in certain functionality of the Services which will allow you to make purchases from us (through our vendors) and from third parties. For purchases you make through us or our vendors, additional terms may apply. For purchases you make through third parties, you agree that the items, products and services are provided by third parties and not Massport, and such purchases are between you and the applicable third party, and subject to the applicable third-party provider’s terms and conditions. If you elect to use such functionality, you agree to pay the applicable fees as they become due plus all related taxes.
Third-Party Links
Massport makes no claim or representation regarding the quality, content, nature or reliability of third-party services, products, or content accessible by hyperlink, connected or embedded from/on the Services. Massport is not responsible for the privacy practices or the content of any off-site pages or any other sites linked to the Services, whether or not they are affiliated with Massport. Such linked sites are for your convenience only and you access them at your own risk. Massport makes no representations or warranties as to the accuracy or functioning of any such link. That another web site is linked to our Servicesdoes not constitute endorsement by Massport of the owner of the other site, the content of its site, or its services or products. You should review the applicable terms, conditions and policies, including privacy and data gathering practices, of any products or services available or site to which you navigate from the Services.
Third-Party Content
We may display content, advertisements and promotions or otherwise make available products or services from third parties through the Services (collectively, “Third-Party Content”). We do not control, endorse or adopt any Third-Party Content, and we make no representations or warranties of any kind regarding such Third-Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third-Party Content are solely between you and such third parties.
Lost and Found Program
As a courtesy to you, we may provide through the Services and through our third-party providers a Lost and Found Program that you may use if you lose an item in a Massport-controlled space. This Lost and Found Program is provided for your use with no guarantee or warranty that any item submitted will be found. Your use of the Lost and Found Program is completely optional and voluntary and you use the Service at your own risk.
By providing your information to the Lost and Found Program, your information may be aggregated into a database that is shared by our third-party provider with other airlines and airports in an attempt to find your item. If your item is found, you may be required to pay shipping costs and other fees to obtain your item and our third-party provider may require your consent to additional terms and conditions.
The third-party provider uses an artificial intelligence driven algorithm to try to match the information you submit through the Lost and Found form to item descriptions and photographs taken by Massport and other participating airlines and airports. Other personnel that may not work for Massport or Massport’s third-party provider may see any and all information (including any personal information) you submit through the Lost and Found form as part of the Service’s functionality. We are not responsible for any misidentification that occurs based on the description you enter.
Feedback
You can submit questions, comments, suggestions, ideas, original or creative materials or other information about Massport or the Services (collectively, “Feedback”). Feedback is non-confidential and shall become the sole property of Massport. Massport shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Indemnification
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Massport, and our respective past, present and future employees, members, officers, directors, contractors, consultants, suppliers, vendors, service providers, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Massport Parties”), from and against all actual or alleged Massport Party or third-party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) any use or misuse of the Services or Content by you or any third party you authorize to access or use such Services or Content, (b) any User Content you create, post, share or store on or through the Services or our pages or feeds on third-party social media platforms, (c) any Feedback you provide, (d) your violation of these Terms, and (e) your violation of the rights of another. You agree to promptly notify Massport of any third-party Claims, cooperate with the Massport Parties in defending such Claims and pay all of Massport fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). You further agree that the Massport Parties shall have control of the defense or settlement of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Massport.
Disclaimers
THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. MASSPORT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SERVICES AND CONTENT, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SITES WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS.
We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Services (or any features or functionality of the Services) at any time without notice and without obligation or liability to you. Reference to any products, website, services, third party, processes or other information by trade name, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us.
Limitations on Massport’s Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MASSPORT PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SERVICES OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, THIRD-PARTY CONTENT AND LINKS TO THIRD-PARTY SITES), OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY MASSPORT PARTY, OR FROM EVENTS BEYOND THE MASSPORT PARTIES’ REASONABLE CONTROL, SUCH AS SERVICE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE MASSPORT PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE MASSPORT PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO ACCESS OR USE OF THE SERVICES OR CONTENT EXCEED $100. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE MASSPORT PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.
Certain jurisdictions do not permit the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages, therefore, some of the limitations above may not apply to you.
Release
To the fullest extent permitted by applicable law, you, on behalf of your heirs, executors, administrators, legal and personal representatives, hereby release, waive, acquit and forever discharge the Massport Parties from and against, and covenant not to sue any such Massport Party for, all claims you have or may have arising out of or in any way related to these Terms. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Dispute Resolution; Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH MASSPORT AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US, INCLUDING A CLASS ACTION WAIVER. This Section 17 applies to all Disputes (unless excluded under Section 17.1) between you and the Massport Parties.
Binding Arbitration
EXCEPT FOR ANY DISPUTES, CLAIMS, SUITS, ACTIONS, CAUSES OF ACTION, DEMANDS OR PROCEEDINGS (COLLECTIVELY, “DISPUTES”) IN WHICH EITHER PARTY SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS WITHIN THE COMMONWEALTH OF MASSACHUSETTS, YOU AND MASSPORT AGREE (A) TO WAIVE YOUR AND MASSPORT’ RESPECTIVE RIGHTS TO HAVE ANY AND ALL DISPUTES ARISING FROM OR RELATED TO THESE TERMS, OR THE SERVICES OR CONTENT, RESOLVED IN A COURT, AND (B) TO WAIVE YOUR AND MASSPORT’S RESPECTIVE RIGHTS TO A JURY TRIAL. INSTEAD, YOU AND MASSPORT AGREE TO ARBITRATE DISPUTES THROUGH BINDING ARBITRATION (WHICH IS THE REFERRAL OF A DISPUTE TO ONE OR MORE PERSONS CHARGED WITH REVIEWING THE DISPUTE AND MAKING A FINAL AND BINDING DETERMINATION TO RESOLVE IT INSTEAD OF HAVING THE DISPUTE DECIDED BY A JUDGE OR JURY IN COURT).
No Class Arbitrations, Class Actions or Representative Actions
YOU AND MASSPORT AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES, OR CONTENT IS PERSONAL TO YOU AND MASSPORT AND THAT SUCH DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ARBITRATION AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING. You and Massport agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Massport agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.Federal Arbitration Act
You and Massport agree that these Terms affect interstate commerce and that the enforceability of this Section 17 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
Notice; Informal Dispute Resolution
You and Massport agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Massport shall be sent by certified mail or courier to Massachusetts Port Authority, c/o Chief Legal Counsel, One Harborside Drive, Suite 200S, East Boston, MA 021280-0209. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 3 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Massport cannot agree how to resolve the Dispute within a reasonable time after the date notice is received by the applicable party, then either you or Massport may, as appropriate and in accordance with this Section 17, commence an arbitration proceeding or, to the extent specifically provided for in Section 17.1, file a claim in court.
Process
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF IN THE COMMONWEALTH OF MASSACHUSETTS FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND MASSPORT AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR MASSPORT WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND MASSPORT WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Massport agree that (a) any arbitration will occur (i) in the Commonwealth of Massachusetts, County of Suffolk, or (ii) telephonically, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the American Arbitration Association’s (“AAA”) Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth herein (“AAA Rules”), which are hereby incorporated herein by reference, and (c) that the seat of the arbitration shall be Boston, Massachusetts and that state or federal courts of the Commonwealth of Massachusetts and the United States, respectively, sitting in the Commonwealth of Massachusetts, County of Suffolk, have exclusive jurisdiction over any litigation in aid of arbitration and the enforcement of any arbitration awards. The parties shall attempt to agree on the single arbitrator to be appointed to resolve the dispute. If the parties are unable to reach agreement within a reasonable time after commencement of the arbitration with the AAA, the arbitrator selection process identified in the AAA Consumer Arbitration Rules shall apply. Each party shall be responsible for its costs incurred in such arbitration, but the arbitrator shall not have the authority to re-allocate those costs in an award or otherwise. If you cannot afford to pay for the arbitration, you agree to provide us the option of paying the arbitrator before seeking to initiate any other form of dispute resolution, including litigation. As part of the arbitration, both you and Massport will have the opportunity to reasonable discovery of non-privileged information that is relevant and material to the Dispute, including the ability to request from each other, and third parties, documents, information and testimony that is relevant and material to the Dispute.
Authority of Arbitrator
As limited by the FAA, these Terms and the applicable AAA Rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
AAA Rules
The AAA Rules and additional information about the AAA are available on the AAA website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the AAA Rules, or (b) waive your opportunity to read the AAA Rules and any claim that the AAA Rules are unfair or should not apply for any reason.
Severability
If any term, clause or provision of this Section 17 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 17 will remain valid and enforceable. Further, the waivers set forth in Section 17.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
Opt-Out Right
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 17 by writing to: Massachusetts Port Authority, c/o Chief Legal Counsel, Harborside Drive, Suite 200S, East Boston, MA 021280-0209. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 18.
Governing Law and Venue
These Terms, and your access to and use of the Services shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts, without regard to conflict of law rules or principles (whether of the Commonwealth of Massachusetts or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration shall be resolved on an individual basis in the state or federal courts of the Commonwealth of Massachusetts and the United States, respectively, sitting in the Commonwealth of Massachusetts, County of Suffolk.
Modifications to the Services
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Services (or any features or parts thereof) at any time.
Termination
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Services at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
Severability
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
Survival
The following sections will survive the expiration or termination of these Terms and the termination of your Account: all defined terms and Sections 1, 3, 4, 5, 6, 7 (first paragraph) and 8 through 23.
Additional Application Terms
These Terms supplement and incorporate, as applicable, either (a) the Apple, Inc. (“Apple”) Terms and Conditions (located at www.apple.com/legal/internet-services/itunes/us/terms.html including, without limitation, the Licensed Application End User License Agreement provided therein (“Apple Terms”); or (b) the Google, Inc. (“Google”) Terms of Service (located at www.google.com/intl/en/policies/terms/ including, without limitation, the Google Play Terms of Service provided therein (“Google Terms”). If any of the provisions of the Apple Terms or Google Terms conflict with these Terms, these Terms will control, solely to the extent such terms apply to the App. Massport, not Apple, Google, or any other operator of an app store or marketplace, is solely responsible for the App and the content thereof.
Miscellaneous
These Terms, and any other terms and policies incorporated herein, constitute the entire agreement between you and Massport relating to your access to and use of the Services. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Massport. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Massport’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.