EARN HELIUM COIN, LLC TERMS OF SERVICE AND LEASE AGREEMENT

Acceptance of the Terms of Service and Lease Agreement

These Terms of Service and Lease Agreement (“TOS”) are entered into between you and Earn Helium Coin, LLC, a Colorado limited liability company (the “Company”, “Earn Helium”, “we”, “us”, or “lessor”). These TOS contain the terms and conditions upon which Earn Helium makes its software, Devices (defined below), hardware, services and related documentation (collectively, the “Services”) available to you. These TOS take effect as of the date you purchase or lease any one of such elements (the “Effective Date”) from Earn Helium (whether directly or indirectly). In addition, the following terms and conditions govern your access to and use of the Earn Helium website (https://earnhelium.com), including any content, functionality, device lease terms, or services offered on or through Earn Helium (collectively, the “Website”), whether as a guest or a registered user. Further as used herein, the terms “you”, “your”, “lessee”, “Customer”, and the like refer to the individual persons or entities using or accessing the Website or Services.

These TOS include a lease agreement (“Lease Agreement”) governing the terms and conditions of your leasing of Device(s) (as defined below) from Earn Helium. You hereby acknowledge and agree that your acceptance of these TOS constitute your binding agreement to the terms and conditions of the Lease Agreement.  in addition and further to the foregoing, references herein to the tos shall also be deemed to include the lease agreement. 

Please read these TOS carefully before you start using the Website or SERVICES.

By using OR ACCESSING the Website OR SERVICES or by clicking to accept or agree to these TOS when this option is made available to you, you accept and agree to be bound and abide by these TOS. If you do not want to agree to these TOS or the Privacy Policy, you must not access or use the Website OR THE SERVICES.

This Website and the Services are offered and available to users who are 18 years of age or older. By using this Website or Services, you represent and warrant that you are of legal age to form a binding contract with the Company and meet the foregoing eligibility requirements. If you do not meet all these requirements, you must not access or use the Website or Services.

1. USAGE AND CHANGES TO TERMS OF SERVICE

Your use of the Website and Services is additionally subject to your compliance with all applicable laws and regulations. We may revise and update these TOS from time to time at our sole discretion, with or without notice to you, and as such, you are encouraged to review these TOS periodically. All such changes are effective immediately when we post them and apply to all access to and use of the Website and Services thereafter. Your continued use of the Website or Services following the posting of revised TOS is deemed to be your acceptance and agreement to the revised TOS. If you at any point you do not agree with changes to these TOS, your only remedy is to cancel your Services and discontinue use of the Website.

2. SERVICES

Overview of Helium Network

The Helium Network (“Network”) is a decentralized wireless network that enables users within range of a compatible hotspot device (“Device”) to wirelessly connect to the internet. Helium’s wireless network operates via a blockchain comprised of a network of connected hotspot Devices. Device(s) take the form of network hardware containing a radio chip and firmware that are compatible with the Network. Each Device acts as a hotspot, extending wireless coverage of the Network from one Device to another. Once connected to the Helium Blockchain, the device begins the process of verifying hotspots accurately represent their location, configuration, and the wireless network coverage they create through the blockchain protocol, proof-of-coverage. Devices earn Helium Network Token rewards for participating in this verification process. The rewards incentivize individuals to participate in the Network which in turn extends Network coverage for users wanting access.

Earn Helium Services

Earn Helium leases customers devices compatible with the Helium Network that act as hotspots which broaden the range of the Helium Network. Earn Helium is not affiliated with the Helium Network and is a third-party entity offering Devices for lease to customers. Device operators (“Operators”) can install these Devices in places like a home or office. Once installed and operational, the Devices provide long-range wireless coverage for users to access the internet. While in operation, these hotspot Devices earn Helium Network Tokens (“Tokens”) validating wireless coverage and transferring Device data over the network. Earn Helium leases Devices to customers that expand the overall coverage of the Helium Network.

Hotspot Device Operation, Rewards, and Limitations

The Device earns Tokens only when it is properly installed and powered on. Likewise, moving or obstructing the Device may make it more difficult for third-party devices to connect to the Device’s Helium Network hotspot. This can also reduce Token earnings. Moreover, the exact formula of how many Tokens an Operator can earn depends on their hotspot’s traffic and how many other hotspots are in their area. The more competition in their area, the less they will typically earn. A rural area may have fewer competing hotspots but will also see much less traffic. Regardless, Earn Helium does not guarantee any Device will earn Tokens. Furthermore, Tokens may have no value, and Earn Helium makes no promises, guaranties, or warranties as to the value of Tokens. For further information about installing an Earn Helium Device please visit, https://earnhelium.com/instructions/.

Token Reward Amount

Operators receive 20% of the total number of Tokens earned (“Token Payout”) from their participation via Devices on the Network. Earn Helium will keep, retain and be deemed to have earned and owned the remaining 80% of the Tokens earned from each applicable Operator’s Devices on the Network. Earn Helium releases Token Payouts to Operators on an annual basis at such time as determined by Earn Helium in its sole discretion. Under some circumstances, Earn Helium may withhold payment of the Tokens until the Operator fulfills the collateral obligations set forth in Section 3.

Eligibility, Shipment, and Delivery of Earn Helium Device

Individuals interested in the Services must first fill out the eligibility form listed on the Website to see if they qualify for a Helium hotspot. After submitting the eligibility form, Earn Helium will review your information and contact you with next steps. Upon making an eligibility determination, Earn Helium will set up the internal software in the hotspot device and mail it to the location you provide. Once received, plug in your device and follow the included setup instructions. After the installation, email hello@earnhelium.com to notify Earn Helium that your device is online. Once confirmed, Earn Helium will enable annual payments to your wallet.

Helium HNT Wallet and Payment Distribution

To receive annual Token payouts, users must download the “Helium HNT Wallet” mobile application from the Google Play or Apple store. Upon successfully downloading the correct application, users must email their respective “Deeplink”, located in the deposit section of the Helium HNT Wallet, to hello@earnhelium.com. Once Earn Helium receives your Deeplink, it can then transmit Token earnings to your “Helium HNT Wallet.” As stated in section 3(I), Earn Helium can only issue annual Token payments once an Operator meets their device collateral requirements. For further information about this setup procedure please visit, https://earnhelium.com/wallet/.

3. DEVICE LEASE TERMS
4. Lease of Equipment. Lessor hereby agrees to lease to Lessee, and Lessee hereby agrees to lease from Lessor, one or more Network compatible networking Device(s). The lease of any Device is governed by the terms and conditions set forth herein these TOS, and any supplemental documentation provided by Lessor. If there is any inconsistency between the provisions of these TOS and any other documentation provided to you, the provisions of these TOS shall control as to the Device leased hereunder.
5. True Lease. The parties intend that these TOS shall constitute a true lease or operating lease under applicable law. As such, Lessor retains title to and ownership of the Devices at all times. Lessee acquires no ownership, title, property, right, equity, or interest in the Device other than its leasehold interest solely as lessee subject to all the terms and conditions of these TOS.
6. In consideration for Lessor’s leasing of Device(s) to Lessee, Lessor shall be entitled to retain 80% of Tokens earned by Lessee’s Device(s).Subject to these TOS, Lessee shall be entitled to 20% of Tokens earned by Lessee’s Device(s).
7. Term of Lease Agreement and TOS. The Lease Agreement shall remain in full force and effect until terminated with respect to all Devices in accordance with these TOS. The Lease Agreement term with respect to any Device shall commence on the mailing of the applicable Device to you (“Commencement Date”) and, unless sooner terminated under these TOS, shall expire on the date all Devices are returned to and accepted by Lessor in the condition required as set forth herein. The terms of these TOS shall govern your access to and use of the Website and Services at all times.
8. Lessee’s Use of Equipment. During the term of the Lease Agreement, the Device(s) shall be located at Lessee’s place of residence or place of business, other than temporary relocations for repair or maintenance. No Device shall be removed from the place of installation without the prior written consent of Lessor other than temporary relocations for repair or maintenance. Lessee covenants and warrants that during the period that any Device is leased to Lessee hereunder, such Device will at all times be used and operated in compliance with the applicable laws of the jurisdictions in which the Device is located, and in compliance with all applicable acts, rules, regulations, and orders of any commission, board or other legislative, administrative, or judicial body or officer having power to regulate or supervise the use or operation of the Device. Lessee shall not, in the absence of a landlord and/or mortgagee disclaimer, waiver, subordination or similar agreement acceptable to Lessor, install or use the Device in such manner or in such circumstances that any part of the Device is deemed to be an accession to other personal property or deemed to be real property or a fixture thereon.
9. Lessee’s Covenants. At all times during the term of the Lease Agreement, Lessee shall comply with the following covenants:
   1. Lessee shall not enter into any sublease of any Device without Lessor’s prior written consent, which consent may be withheld in Lessor’s sole discretion. No permitted sublease shall relieve Lessee of its obligations under these TOS, and Lessee shall remain directly liable to Lessor under these TOS for the performance of all of the terms hereof and thereof to the same extent as if such sublease had not occurred.
   2. Liens. Lessee shall keep the Device free and clear of all liens and encumbrances. Lessee shall affect the removal of any such lien or encumbrance immediately upon written notice thereof from Lessor or otherwise becoming aware of the existence of a lien or encumbrance.
   3. Lessee shall pay, and indemnify and hold Lessor harmless from, all assessments, license fees, and sales, use, property, excise, and other taxes and charges (other than gross or net income taxes) imposed on or with respect to (a) the Device or any part thereof arising out of or in connection with the shipment, possession, ownership, use, delivery, or operation of any Device, or (b) these TOS or the consummation of the transactions contemplated herein and therein, including receipt of any Tokens.
10. From the Commencement Date for a Device under the Lease Agreement through the expiration or earlier termination of the Lease Agreement as to such Device, Lessee shall bear all risk of loss, damage, destruction, theft, taking, confiscation, or requisition, partial or complete, of or to such Device or its use, however caused or occasioned (“Loss”). Lessee shall notify Lessor in writing within 10 days of learning of any such Loss.
11. Return of Equipment. Upon termination of the Lease Agreement, Lessee shall, at its sole expense and risk, return the applicable Device(s) to a return location that shall be designated by Lessor in its sole discretion no fewer than 10 days prior to the effective date of termination of the Lease Agreement as to the applicable Device(s). Further, Lessee shall cause any Device returned under this TOS to be in, as good condition as when delivered to Lessee and complete with all parts, ordinary wear and tear from operation of the device in its ordinary course excepted. Notwithstanding anything to the contrary contained in these TOS, the terms of the Lease Agreement shall survive until Lessee returns all Devices to Lessor in accordance with these TOS.
12. If upon termination of the Lease Agreement for a Device, Lessee does not return such Device to Lessor in the condition required by and otherwise in accordance with the terms and conditions of these TOS, Lessee shall continue to comply with all the terms and conditions of these TOS. In addition, if Lessee fails to return such Devices to Lessor as required hereunder, Lessee shall be liable to pay and shall pay to Lessor $25.00 per day until the date on which Lessee returns such Device to Lessor in the manner required hereunder (“Holdover Rent”). You hereby acknowledge and agree that Lessor may satisfy Holdover Rent payment via Tokens at its sole discretion. Nothing contained in this Section, including Lessee’s payment of any Holdover Rent, shall (a) constitute a waiver of Lessee’s failure to perform any obligation under these TOS; or (b) give Lessee the right to retain possession of any Device after the termination of the Lease Agreement.
13. Device Collateral Obligations. On or prior to the Commencement Date and before shipment of the Device, Lessee shall provide Lessor with monetary collateral in the amount of the cost of the Helium Network compatible Device, which is $1,000 USD. Lessor shall not receive annual payment of TOKENS until Lessee satisfies and maintains this collateral obligation. Lessee may choose one of the following device collateral mechanisms: 1) Lessee agrees to place a credit or debit card on file with Earn Helium, such that, if damage, loss, or other impairment occurs to the Device, the Lessee authorizes Earn Helium to charge Lessee’s credit or debit card for the damage, loss, or other impairment incurred up to the value of the Device(s); or, 2) Lessor may establish an escrow account that holds a balance equal to the cost of the Helium Network compatible Device(s) and Lessee can choose to: a) fund the account with a one-time payment, or b) allow Earn Helium to deposit their Token earnings in the escrow account until the balance reflects the cost of the Device. Should Lessee choose option (2)(b) in the preceding sentence, Lessor requires a credit or debit card on file to cover any shortfall not covered by the accumulated Token.
14. Exclusion of Warranties. LESSOR MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE DEVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY AGAINST INTERFERENCE; OR (d) WARRANTY AGAINST INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET, OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

 

4. TERMINATION

The Lease Agreement shall automatically terminate upon your failure to pay any fee or satisfy any obligation under these TOS. You or Earn Helium may otherwise terminate these TOS at any time by written 30 days prior written notice to the other party. You acknowledge and agree that Earn Helium may retain data you have provided or produced in connection with your use of Earn Helium’s Services for a period of 180 days following termination of the Lease Agreement.

1. Termination for Breach. In the event of a material breach by either party that is not cured within 15 days after receipt of written notice thereof from the other party, the non-breaching party may, by written notice to the breaching party, (i) terminate these TOS, (ii) terminate or suspend the performance of any Services hereunder, and (iii) pursue other legal and equitable rights and remedies to which it may be entitled.
2. Immediate Termination. In addition to Earn Helium’s other rights under these TOS, Customer acknowledges and agrees that Earn Helium shall have the right to immediately terminate Customer’s access to the Service in the event that Customer fails to comply with the limitations on Services usage set forth in Section 8 below.
3. Effect of Termination. Except as set forth in these TOS, in the event of termination of these TOS, the rights and obligations hereunder will terminate immediately. Any payment or other obligation that has accrued as of such termination date will survive such termination. In the event of any termination of these TOS, any provision hereof required to enforce the parties’ rights and obligations hereunder or that by its terms continues after such termination, will survive and will continue in effect as described therein.

 

5. REPRESENTATIONS
   1. Earn Helium agrees to payout 20% of the Helium Network Tokens to its Operators Helium HNT wallets on an annual basis, so long as the Operator satisfies the terms set forth herein, including but not limited to fulfilling the Device Collateral requirements set forth in Section (3)(I).
   2. Earn Helium provides no guaranty whatsoever as to the VALUE, stability or security of the Helium Network Tokens or their associated price on secondary markets. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE TOKENS MAY LOSE THEIR ENTIRE VALUE.
   3. Each party represents and warrants to the other that (i) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and these TOS has been duly authorized by all necessary corporate (or other entity) action, and (ii) these TOS is the legal, valid and binding obligation of it, enforceable against it in accordance with these TOS’s terms.

 

6. RISKS OF DIGITAL ASSETS

As with any asset, the value of Digital Assets can increase or decrease and there can be a substantial risk that you lose money buying, selling, holding, or investing in Digital Assets. “Digital Asset” means any digital asset (including a virtual currency or virtual commodity, such as Helium Tokens) which is a digital representation of value based on (or built on top of) a cryptographic protocol of a computer network. You should consult your financial advisor, legal or tax professional regarding your specific situation and financial condition and carefully consider whether trading or holding Digital Assets is suitable for you.

Earn Helium is not registered with the U.S. Securities and Exchange Commission and does not offer securities services in the United States or to U.S. persons.  You acknowledge that Digital Assets are not subject to protections or insurance provided by the Federal Deposit Insurance Corporation or the Securities Investor Protection Corporation.

7. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PROVIDED BY LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL Earn Helium, ITS AFFILIATES, OR ANY OF THEIR LICENSORS, SERVICE PROVIDERS, AGENTS, MEMBERS, OWNERS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OR LOSSES OF ANY KIND,  UNDER ANY LEGAL THEORY, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO DAMAGES OR LOSSES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF EARN HELIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES), ARISING OUT OF OR IN CONNECTION WITH: (i) THE USE OF OR THE INABILITY TO USE THE WEBSITE OR SERVICES, ANY WEBSITES LINKED TO THE WEBSITE, ANY CONTENT ON THE WEBSITE, OR ANY SERVICES PROVIDED THROUGH THE WEBSITE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE DEVICES AND SERVICES RESULTING FROM ANY DEVICES DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE WEBSITE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY, INCLUDING THIRD PARTY CONTENT, ON THE WEBSITE; OR (v) ANY OTHER MATTER RELATING TO THE WEBSITE, THE SERVICES OR THE DEVICES. YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO THESE TOS AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE PAYMENT OF TOKENS AS DESCRIBED IN THESE TOS.

NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THE LIABILITY OF Earn Helium ARISING OUT OF OR IN CONNECTION WITH THESE TOS EXCEED THE COST OF THE DEVICE OR THE VALUE OF THE TOKENS EARNED BY DEVICE DURING THE SIX (6) MONTHS PRECEDING THE CLAIM, WHICHEVER IS LESS. THE LIMITATIONS SET FORTH IN THIS PROVISION APPLY TO ANY LIABILITY ARISING FROM ANY CAUSE OF ACTION WHATSOEVER IN CONNECTION WITH THESE TOS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNIFICATION OR OTHERWISE, EVEN IF EARN HELIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.

8. RESTRICTIONS

Except as set forth in a written agreement between Customer and Earn Helium, Customer shall not, directly or indirectly, (a) sell, lend, rent, distribute, resell, lease, assign, license, sublicense or otherwise transfer to any third party any Device, or the rights granted to Customer with respect to any Device, (b) translate, port, modify, reproduce, distribute, republish, frame, download, cache, or make or create derivative works based on any Device, (c) access or use the Services in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas, (d) derive or attempt to derive the source code, source files, or any component or structure of all or any portion of any Device by reverse engineering, disassembly, decompilation, or any other means (the foregoing prohibitions include review of data structures or similar materials produced by programs), or access or use any Services in order to build or support or assist a third party in building or supporting, products or services competitive to Earn Helium or its products and services, (e) perform or disclose any benchmark or performance test of any Device or the Services, (f) remove, obscure or alter any proprietary notice on Devices, (g) use the Service to collect, process or store financial or personal information, (h) use or permit the access to or use of any Device, including the Services, for any unlawful activity, including exporting in violation of applicable law, or (i) access or use the Device, Service or any other deliverable for any use other than the those authorized in these TOS. Customer acknowledges and agrees that, other than Earn Helium’s Website, Earn Helium does not provide support for the Device. Without limiting our other remedies, we may (but are not required to) remotely suspend or disable Devices or Services that we believe have been transferred or are being used in violation of these TOS.

9. TRADEMARKS

The Company name, the terms “Earn Helium” and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company, which may be withheld at the Company’s sole discretion. All other names, logos, product and service names, designs, and slogans on the Website or Services are the trademarks of their respective owners.

10. INTELLECTUAL PROPERTY

As between the parties, Earn Helium owns and retains all right, title and interest in and to all of the Devices, Website, Services all improvements, modifications and derivative works of the foregoing, and all intellectual property rights in any of the foregoing. To the extent that you acquire any right, title or interest in or to any Device (including without limitation the Services), any deliverable, or any intellectual property rights therein, you hereby assign to Earn Helium all such right, title and interest. You are not provided with any license or right to the Device(s), other than the lease outlined in the Lease Agreement, or the intellectual property rights therein, whether by implication, estoppel or otherwise. Customer is not granted any right to use any Earn Helium trademark, service mark, logo or trade name.

11. INDEMNIFICATION

You agree to defend, indemnify, and hold harmless Earn Helium, its affiliates, licensors, and service providers, and its and their respective officers, owners, members, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these TOS or your use of the Website, Services or Devices, including, but not limited to, any use of the Website and our content, Services, Devices and products other than as expressly authorized in these TOS, or your use of any information obtained from the Website.

12. GOVERNING LAW

All matters relating to the Website, Services and these TOS, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Colorado without regard to conflict of laws principles.

13. DISPUTE RESOLUTION
14. ANY LEGAL SUIT, ACTION, OR PROCEEDING ARISING OUT OF, OR RELATED TO, THESE TOS OR THE WEBSITE SHALL BE INSTITUTED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF THE UNITED STATES OR THE COURTS OF THE STATE OF COLORADO, IN EACH CASE LOCATED IN THE CITY AND COUNTY OF DENVER ALTHOUGH WE RETAIN THE RIGHT TO BRING ANY SUIT, ACTION, OR PROCEEDING AGAINST YOU FOR BREACH OF THESE TOS IN YOUR COUNTRY OR STATE OF RESIDENCE OR ANY OTHER RELEVANT COUNTRY OR STATE. YOU WAIVE ANY AND ALL OBJECTIONS TO THE EXERCISE OF JURISDICTION OVER YOU BY SUCH COURTS AND TO VENUE IN SUCH COURTS.
15. AT COMPANY’S SOLE DISCRETION, IT MAY REQUIRE YOU TO SUBMIT ANY DISPUTES ARISING FROM OR RELATING TO THESE TOS OR USE OF THE WEBSITE, SERVICES OR DEVICES, INCLUDING DISPUTES ARISING FROM OR CONCERNING THEIR INTERPRETATION, VIOLATION, INVALIDITY, NON-PERFORMANCE, OR TERMINATION, TO FINAL AND BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE AMERICAN ARBITRATION ASSOCIATION APPLYING COLORADO LAW.
16. IF PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES THE RIGHT TO LITIGATE IN COURT OR AN ARBITRATION PROCEEDING ANY DISPUTE AS A CLASS ACTION, EITHER AS A MEMBER OF A CLASS OR AS A REPRESENTATIVE, OR TO ACT AS A PRIVATE ATTORNEY GENERAL. THIS PROVISION MAY BE ENFORCED UNDER THE FEDERAL ARBITRATION ACT OR OTHER APPLICABLE LAW AND EARN HELIUM MAY TAKE ANY AND ALL ACTIONS NECESSARY TO DISMISS A CLASS OR COLLECTIVE ACTIONS OR CLAIMS THEREUNDER.
17. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT MONETARY DAMAGES ARE NOT A SUFFICIENT REMEDY FOR ANY THREATENED OR ACTUAL BREACH OF THESE TOS, IN ADDITION TO MONETARY DAMAGES, EARN HELIUM SHALL BE ENTITLED TO SEEK OTHER REMEDIES AT LAW, INJUNCTIVE OR OTHER EQUITABLE RELIEF AND/OR SPECIFIC PERFORMANCE TO REMEDY OR PREVENT ANY THREATENED OR ACTUAL BREACH OF THESE TOS IN ANY COURT OF COMPETENT JURISDICTION WITHOUT THE REQUIREMENT OF A BOND.
18. BINDING AGREEMENT

These TOS shall be binding upon and inure to the benefit of the Parties and their respective authorized heirs, personal representatives, and successors-in-interest. Subject to the foregoing sentence, these TOS are for the exclusive benefit of you and Earn Helium, and there shall be no third-party beneficiary to any of the provisions of these TOS. Neither party may assign or transfer their rights or obligations under these TOS without the written consent of the other party, provided that Earn Helium may assign or transfer such rights or obligations to any affiliated entity controlled or under common control with Earn Helium or to a successor to all or substantially all of its assets, whether by sale, merger, operation of law or otherwise without your consent.

15. MODIFICATIONS

Earn Helium may revise these TOS from time to time as provided in Section 1. Earn Helium reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website, content, including, Services or these TOS with or without notice

16. SEVERABILITY

Any term or provision of this TOS that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this TOS or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If a final judgment of a court of competent jurisdiction declares that any term or provision of this TOS is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit such term or provision, to delete specific words or phrases or 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 TOS shall be valid and enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision.

17. WAIVER

No waiver under these TOS or any supplement is effective unless it is in writing and signed by an authorized representative of the party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel with respect to any right, remedy, power, privilege, or condition arising from these TOS or any supplement: (i) any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under these TOS or such Supplement; or (ii) any act, omission, or course of dealing between the parties.

18. FORCE MAJEURE

If Earn Helium is unable to perform any of its obligations under these TOS because of severe weather, natural disasters, acts of God, riots, wars, theft, governmental action, acts of our suppliers, pandemic, or other events beyond our reasonable control, then we are relieved from our performance of such obligations to the extent, and for the duration, that such performance is prevented by such events.

19. MISCELLANEOUS

“Helium” and “Helium Network”, as well as associated trademarks, names and logos, are trademarks of their respective owners. Such respective trademark owners have no affiliation or relationship with Earn Helium and have not endorsed the Website, Services, Devices nor any of their contents.