AirWorks Solutions Inc., Terms of Service
Effective date: April 15, 2020
Welcome to AirWorks. Please read on to learn the rules and restrictions that govern your use of our website and cloud-based services (all features of our website and web application, collectively, the “Services”).
These General Terms apply to your account with AirWorks and to our Services. These Terms of Service (the “Terms”) are a binding contract between you (the “User”, “Subscriber”, “you”) and AirWorks Solutions, Inc. (“AirWorks”, “our”, “we”, and “us”).
AirWorks has developed certain software which it provides as part of its Services accessible through a web-based application from multiple types of devices such as desktops, laptops, tables and smartphones. User wishes to utilize the Services, and AirWorks desires to make the Services available to User, subject to the following terms and conditions. If you have any questions, comments, or concerns regarding these terms or the Services, please contact us through firstname.lastname@example.org.
By accepting these Terms during your account registration or subscription process, or by accessing or using our Services, you confirm your acceptance of all the Terms and your agreement to be a party to this binding contract. If you do not agree, you do not have the right to use or access the Services.
Additional capitalized terms are defined in these Terms and in the “Definitions” section below in Section 16.
These Terms do not alter in any way the terms or conditions of any other agreement you may have with AirWorks with respect to its Services (each, a “Related Agreement”). To the extent these Terms conflict with a Related Agreement, the terms of the Related Agreement shall control.
3. Provision of Services
Subject to your payment of the fees set forth in the applicable Subscriptions, AirWorks will provide the Services via an online user interface specified in such Subscriptions. On or as soon as reasonably practicable after the Effective Date, AirWorks shall provide to you the necessary Access Protocols to allow you and its Authorized Users to access the Application. You may permit any Authorized Users to access and use the features and functions of the Services as contemplated by this Agreement.
3.2 Responsibilities of AirWorks
AirWorks shall, at its own expense, provide for the hosting of the Application on servers operated and maintained by or at the direction of AirWorks, provided that nothing herein shall be construed to require AirWorks to provide for, or bear any responsibility with respect to any telecommunications, computer hardware, software, and Internet connectivity required by you or any Authorized User to provide access from the Internet to the Application. AirWorks shall configure the Subscriber Data for operation with the Application and manage such Subscriber Data. Subject to your payment of the fees set forth in the applicable Subscription, AirWorks shall provide new releases and updates to the Application that it generally provides to its other customers, provided that AirWorks shall not be obligated to provide to you any new release or update to the Application, or any module thereof, for which AirWorks generally charges a separate fee, unless otherwise agreed to by the parties in the applicable Order Form. Subject to the terms of this Agreement, AirWorks shall provide you with the technical support services set forth in the applicable Subscription.
3.3 Responsibilities of Subscriber
You shall cooperate with AirWorks in setting up and configuring the Application, including by providing AirWorks with applicable configuration data to be used by the Application. You shall be responsible for obtaining and maintaining, at your expense, all the necessary telecommunications, computer hardware, software, and Internet connectivity required by you or any Authorized User to access the Application from the Internet. You shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify AirWorks promptly of any such unauthorized use known to you. You are at all times responsible for storing and maintaining any such backup copies of your Data at your sole cost and expense as defined in Section 10.2.
4. Eligibility and Accepted Use
Subject to the full payment of the fees of your Subscription, AirWorks hereby grants you permission to use the Services provided such use is in compliance with these Terms. By agreeing to these Terms and/or using the Services, you represent and warrant to us that:
- you have not previously been suspended or removed from the Services.
- your registration and your use of the Services is in compliance with all applicable laws and regulations including re-export and control laws and regulations.
- you may not use the Services in any manner that is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable.
- you will not mis-use our Services for purposes other than they have been designed for including accessing the Services using a method other than the interface and the instructions that we provide.
- you may not interfere with or damage the Services, including, without limitation, through the use of viruses, bots, harmful code, denial-of-service attacks, backdoors, packet or IP address spoofing, forged routing, or any similar methods or technology.
- except as authorized through the Services, you may not copy, rip, or capture any content encountered on the Services. This includes bulk copying or “scraping” any portion of the website content using a bot or other tool.
- you will not share your user account with any other individual as described in the section “AirWorks Account”.
- You may only use the Services for personal use, or for internal business use within your company or other entity unless otherwise specified in your subscription agreement or the rules around your license and subscription defined as per Section 8.
- You may not use the Services to upload, transmit, or promote any material that constitutes junk mail, spam, or commercial offers;
- You may not use the Services to upload, transmit, or promote any material that infringes or violates the intellectual property rights or any other rights of anyone else (including AirWorks).
- You may not decompile, reverse engineer, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Services.
We may suspend or stop providing our Services to you if you do not comply with our terms or policies or if we are investigating suspected misconduct.
In addition, we have developed a Fair Use Policy for our Services that includes user access, data processing, storage, sharing and API traffic. To determine the scope of Fair Use we take into account your license against the typical usage across all AirWorks accounts. When we detect out of the ordinary levels of usage in your AirWorks account, we’ll contact you to discuss the situation and potential alternatives. If the situation doesn’t change, we reserve the right to limit your account or terminate your license and access to the system.
Using our Services does not give you ownership of any intellectual property rights in our Services or the content you access other than as expressly set out in these Terms. Please refer to Section 9. Other than Subscriber Data and the Output (see Section 10), you may not use content from our Services unless you obtain permission from its owner or are otherwise permitted by law. These terms do not grant you the right to use any branding or logos used in our Services. Don’t remove, obscure, or alter any legal notices displayed in or along with our Services.
5. AirWorks Account
You may need an AirWorks Account in order to use some of our Services. You may create your own AirWorks Account, or your AirWorks Account may be assigned to you by an administrator, such as your employer or the AirWorks team upon your request or the request of your employer. An account is defined as one named user individual (“User”) that can use the Service at a time.
You are responsible for anyone who obtains, accesses or uses Services through you or your account. If you are an administrator, this may include individuals that have access to your organizations’ AirWorks account (“Authorized Users”). This means (among other things) that you are responsible for Authorized Users’ compliance with these Terms, including their use of their accounts, as though each of the Authorized Users is you. In certain cases, Authorized Users may be required to set up individual accounts or otherwise agree to applicable terms in order to obtain, access or use Services, but that requirement does not affect your responsibility for Authorized Users.
Multiple Users may not use the same User account, and only one human being can be associated with a particular User account. If you are using an AirWorks Account assigned to you by an administrator, different or additional terms may apply and your administrator may be able to access or disable your account.
You are responsible for the activity that happens on or through your AirWorks Account. To protect your AirWorks Account, keep your password confidential (try not to reuse your AirWorks Account password on third-party applications) and ensure that only Authorized Users use Services associated with your account. If you suspect unauthorized use of your account, please contact email@example.com.
We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Services (“Feedback”). You agree that AirWorks has the right, but not the obligation, to use such Feedback without any obligation to provide you credit, royalty payment, or ownership interest in the changes to the Services. AirWorks will own, and you hereby assign to AirWorks, all right, title, and interest, including all intellectual property rights, in and to such Feedback.
In connection with your use of the Services, we may send you service announcements, administrative messages, and other information. You may opt out of some of those communications. Instructions for opting-out will be provided if and when we determine to send you such a communication. Please understand that you will not be allowed to “opt–out” of formal notices concerning operation of the Services, and legal and other related notices concerning your relationship to the Services.
The access to your account comes with different types of subscriptions that define the benefits and Services that you will be eligible for through your AirWorks account. AirWorks reserves the right to change the scope of licenses at its own discretion which will impact only future purchases. The use of the Services must comply with the Terms defined in this document and especially Sections 3 and 4.
You will generally purchase a Subscription or License through your account and the ordering page will list out the fees, benefits and rules around a specific Subscription and License. AirWorks will provide you an email containing a summary of your Subscription information following you purchase which serves as an order form.
8.1 Free License
The free license provides you with the benefit of using certain Services from AirWorks free of charge (“Free License”). This is a limited license and comes with limited technical support.
Notwithstanding anything contained in these Terms or otherwise, (a) AirWorks makes no commitments with respect to Free Licenses regarding any features, functions, service levels or data and provides no warranties of any kind with respect to Free Licenses, (b) AirWorks may choose not to generally release any Free Licenses or convert any Free Version into a product offering, and (c) Free Licenses may contain code that is not fully tested, including errors and faults that may cause total data loss or system failure. Subscriptions to Free Licenses do not include Subscription Benefits, and AirWorks reserves the right, without any further notice, to end any Free Versions at any time. You get access to the free Services at your own risk, and the provision of such services is subjects to the Terms here-in in particular the limitations of warranty and liability stated in Section 11.
8.2 Trial License
AirWorks may make available or deliver Services (or features of a Service) labelled or offered as “not for resale”, “evaluation”, “trial”, “pre-release”, “beta” or another similar designation (collectively, “Trial License”). The Trial License provides you with the benefit of using certain Services from AirWorks free of charge to evaluate certain paid services or subscriptions solely for access and viewing for your personal use. Except as expressly set forth in the online or other Documentation for the Trial License or applicable Special Terms, (i) the subscription period for the Trial License will be limited to 14 days, (ii) your use will be limited to non-commercial evaluation purposes with no rights to make available or distribute the Trial License to any third party, and (iii) the use will be only by you as an individual or, if you are a company or other legal entity, by one named employee. The commercial use of the Services or the results derived using the Services under a trial licenses is not permitted.
Notwithstanding anything contained in these Terms or otherwise, (a) AirWorks makes no commitments with respect to Trial Licenses regarding any features, functions, service levels or data and provides no warranties of any kind with respect to Trial Licenses, (b) AirWorks may choose not to generally release any Trial Licenses or convert any Trial Version into a product offering, and (c) Trial Licenses may contain code that is not fully tested, including errors and faults that may cause total data loss or system failure. Subscriptions to Trial Licenses do not include Subscription Benefits, and AirWorks reserves the right, without any further notice, to end any Trial Versions at any time.
8.3 Processing Services and Subscriptions
Processing Services and Subscriptions allow you to use AirWorks Services as determined in the capacity and volume of your license description. Your Subscriptions may include Software or Web Services or a combination of both Software and Web Services. Your subscriptions may also include additional Benefits and may include for example:
- Technical support
- Access to forums, learning events, newsletters, webinars, galleries, and other educational resources
- Access to trial versions and APIs
- Rights to Updates, Upgrades and other additional Software
- Rights to Web Services
8.3.1 Subscription to Services
When you subscribe to a Service, AirWorks will generally provide you with access to the Service through your account or, in certain cases, through an AirWorks-authorized third party or other means. Certain Services may require you to provide additional information to set up and access such Service, and you agree to provide that information.
8.3.2 Length of subscription
Your subscription to a Service other than the Free License will be for a fixed term of limited length, the length of which should be indicated at the time of purchase and should be reflected on your confirmation of purchase or other Service Identification. If no length is indicated, please contact us at firstname.lastname@example.org and we will determine and confirm the length of your subscription term as well as any data processing credits purchased or remaining in your subscription.
8.3.3 Renewal of subscriptions
At the end of your subscription period for a Service, you may be able to renew your subscription to the extent, and on the same terms, that AirWorks then generally makes commercially available to subscribers of such Service in the same geography. Certain subscriptions may have the option of automatically renewing. If you would like to cancel any such automatic renewal, please do so through your account or contact email@example.com.
8.3.4 Replaced subscriptions
If your subscription is replaced by a successor or substitute subscription, the new subscription may be considered a Replaced Subscription and, if so, will be subject to specific terms. AirWorks will describe these specific terms at the time of purchase and reflected on your confirmation of purchase or other Service Identification. If this is not the case, please contact us at firstname.lastname@example.org and we will determine the and confirm the specific terms at that time.
8.4 Right of Return for Refund
For a limited period after you purchase or renew a subscription (the “Return Period”) other than Processing Services and Subscriptions as per Section 8.3, (i) if you object to any of the terms set forth in these Terms, or (ii) if you object to the AirWorks terms of purchase or auto-renewal (if any) applicable to the purchase or renewal of the subscription, or (iii) if you are dissatisfied (for any reason) with the Services to which you subscribed, you may return the Services and may qualify for a refund.
The Return Period, measured from the date of purchase or renewal is defined as follows:
Annual License: 20 days
Monthly License: 10 days
Your right of return for refund does not apply to all orders, including orders for cloud credits, Processing Services and Subscriptions as per Section 8.3 or other consumption-based fees, consulting, advanced consulting, memberships, platform subscriptions or fees, extra-territorial rights and enterprise agreements.
8.5 Fees and Payments
In consideration for the Services, you will pay to AirWorks the fees set forth in your Subscription. AirWorks may increase the fees for any renewal term and we will provide you written notice of such fee increase at least thirty (30) days prior to the end of the then-current term. All fees for Services shall be invoiced by AirWorks in USD and are due and payable as set forth in the applicable Subscriptions. AirWorks shall be entitled to withhold performance and discontinue the Services until all amounts due are paid in full. Any undisputed amounts not paid when due shall bear interest at the rate of one percent (1%) per month, or the maximum rate allowed under applicable law, whichever is less.
The fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and you will be responsible for payment of all such taxes (other than taxes based on AirWorks’ income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the delivery of the Services, or the license of the Application to you. You will make all payments of fees to AirWorks without reduction for any withholding taxes; any such taxes imposed on payments of fees to AirWorks will be your sole responsibility. Upon AirWorks’ reasonable written request, you will provide AirWorks with official receipts issued by the appropriate taxing authority, or such other evidence as AirWorks may reasonably request, to establish that any and all applicable taxes have been paid. If AirWorks determines it has a legal obligation to collect any taxes from you in connection with this Agreement, AirWorks will collect such taxes from you and you agrees to pay such taxes to AirWorks for its remission to the appropriate taxing authorities. You shall indemnify, defend, and hold AirWorks harmless in connection with any proceedings brought by any taxing authorities in connection with this Agreement.
9. Intellectual Property
9.1 License Grant to Subscriber
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, logos, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws.
You acknowledge that the Content, including all associated intellectual property rights, are the exclusive property of AirWorks and its licensors.
Conditioned upon your compliance with these Terms, AirWorks grants you and your Affiliates a limited, non-exclusive, non-transferable except as set forth in Section 15.9), worldwide license during the term of this agreement, to (i) access, view, and use the Services solely for your personal use and (ii) access, use, perform, and digitally display the Application as required for use of the Services and in accordance with the Documentation; and (iii) to use and reproduce a reasonable number of copies of the Documentation solely to support your use of the Application.
You have no right to sublicense the license rights granted in this Section 9. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, transmit, broadcast, or otherwise exploit the Services, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by AirWorks or its licensors, except for the licenses and rights expressly granted in these Terms.
You agrees that it will not, and will not permit any Authorized User or other party to: (a) permit any party to access the Application or Documentation or use the Services, other than the Authorized Users authorized under this Agreement; (b) modify, adapt, alter, translate, or create derivative works of the Application or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Application or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Application; (e) use or copy the Application or Documentation, except as expressly allowed herein. Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding the Services, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Application. AirWorks shall have the right to review and monitor all use of the Services to ensure compliance with the terms and conditions of this Agreement.
The Services (including the Application and Documentation), and all modifications and derivative works thereof, including all worldwide Intellectual Property Rights in any of the foregoing, are the exclusive property of AirWorks and its suppliers. All rights in and to the Services (including the Application and Documentation) not expressly granted to you in this Agreement are reserved by AirWorks and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding the Services (including the Application and Documentation), or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Application.
9.4 Open Source Software
Certain items of software may be provided to you with the Application and are subject to “open source” or “free software” licenses (“Open Source Software”). Such Open Source Software may be owned by third parties. The Open Source Software is not subject to the terms and conditions of Section 9.1 or Section 13. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits your rights under, or grants Subscriber rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software.
10. Subscriber data and responsibilities
10.1 Ownership and Licenses
The Subscriber Data hosted by AirWorks as part of the Services, and all worldwide Intellectual Property Rights therein, is, as between AirWorks and you, your exclusive property.
You grant AirWorks and its suppliers a non-exclusive, worldwide, royalty-free and fully paid license (a) to use the Subscriber Data as necessary for purposes of providing the Services and enabling the operation of the Application and (b) to use your trademarks, service marks, and logos provided you to AirWorks for AirWorks to provide the Services to you. Notwithstanding anything to the contrary herein, you acknowledge and agree to grant AirWorks a non-exclusive, worldwide, royalty-free, irrevocable and fully paid license, during and after the Term, to collect, analyze, use, and disclose Usage and Subscriber Data for the purposes of contributing to analytical models developed and used by AirWorks, improving the Application, performing services related to the Application, and for other development, diagnostic, and corrective purposes in connection with the Application and any other AirWorks offerings. The term “Usage Data” means Subscriber Data that does not contain or include any references to Subscriber or any personally identifiable information.
10.2 Subscriber Warranty
You represent and warrant that any Subscriber Data hosted by AirWorks as part of the Services shall not (a) infringe or misappropriate any Intellectual Property Rights of any person; (b) be deceptive, defamatory, obscene, or unlawful; (c) contain any viruses, worms or other malicious computer programming codes intended to damage AirWorks’ systems or data; or (d) otherwise violate the rights of any person. You acknowledge that online services may suffer occasional disruptions and Subscriber may not be able to retrieve Subscriber Data as a result. AirWorks recommends that you backup Subscriber Data regularly. You are at all times responsible for storing and maintaining any such backup copies of Subscriber Data at your sole cost and expense. You agree that any use of the Services contrary to or in violation of your representations and warranties in this section constitutes unauthorized and improper use of the Services.
In general, AirWorks does not screen or review content that is posted to any Services, website or service or otherwise made available to AirWorks. AirWorks reserves the right, however, to screen and review Subscriber Data, and may block or remove content for any reason, including because it is not in compliance with these Terms (for example, illegal, offensive or phishing-related postings or spam). When you provide or make accessible your Subscriber Data, you authorize AirWorks and its designees to use, reproduce, modify, distribute and make available your Content in connection with providing you with Services and allowing AirWorks to fulfill its obligations and as otherwise permitted by these Terms.
10.3 Subscriber Responsibilities for Data and Security
You and your Authorized Users shall have access to the Subscriber Data and shall be responsible for all changes to and/or deletions of Subscriber Data and the security of all passwords and other Access Protocols required in order the access the Application. You shall have the ability to export Subscriber Data out of the Application and are encouraged to make your own back-ups of the Subscriber Data. You shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Data.
10.4 Collaboration and Sharing of Your Content
Some Services permit you to collaborate with others, including sharing Subscriber Data or publishing your Content—for example, to a forum or to other services. If you choose to share or publish your Content (whether by collaboration on or sharing files with a project, emailing, sharing a link, sharing files with other applications or services, posting in a forum or gallery or otherwise), then others (including, in some cases, the general public) may be able to use, sell, reproduce, modify, distribute, make available, display, transmit and communicate your Content. Forums and galleries may be public, and submissions are generally public. Once you share or publish your Content, suspending or terminating access will not delete or inhibit access to any of your Content that was earlier copied, transferred or otherwise shared or published. If you do not want others to have any such access or any of those rights, do not use the sharing, publishing or other collaboration features of the Services and set your permissions accordingly.
A Service may feature links to third parties that offer services, software or other materials that complement such Services. Such links are provided as a convenience to you. AirWorks does not monitor or control what such third parties will do with your Content. You are responsible for ensuring the appropriate level of access to your Content by any third party. If you authorize any of your information or your Content to be shared with any third party, AirWorks may make available your information or your Content to such third party; AirWorks will, however, have no responsibility or liability for the actions of such third party, and all governing terms and conditions, including those regarding privacy, are between you and such third party.
10.5 AirWorks’ responsibilities for Data and Security
AirWorks shall (a) maintain and enforce an information security program including safety, physical and technical security policies and procedures with respect to its processing of Subscriber Data that meets or exceeds industry practices and standards applicable to the protection of data similar to Subscriber Data, (b) provide technical and organizational safeguards against accidental, unlawful or unauthorized access to or use, destruction, loss, alteration, disclosure, transfer, or processing of Subscriber Data consistent with industry practice and standards, and designed to ensure a level of security appropriate to the risks presented by the processing of data similar to Subscriber Data, (c) periodically test its systems for potential areas where security could be breached and monitor for suspected breaches, (d) promptly report to Subscriber any breach of security or unauthorized access to Subscriber Data that AirWorks detects or becomes aware of, and (e) use diligent efforts to remedy any breach of security or unauthorized access to Subscriber Data in a timely manner.
11. Warranty, Disclaimers, Limitations of Liability
11.1 Limited Warranty
AirWorks warrants to you that the Application will operate free from material Errors during the term of the Agreement. The foregoing warranty shall not apply to performance issues of the Application (a) caused by factors outside of AirWorks’ reasonable control; (b) that result from any of your actions or inactions or any third parties; or (c) that result from your data structures, operating environment, or equipment. Provided that you notify AirWorks in writing of any breach of the foregoing warranty during the term of this Agreement, we shall, as your sole and exclusive remedy for any Errors with the operation of the Application, (i) provide the technical support services set forth in the applicable Subscription to correct such Error(s), or (ii) if AirWorks is unable to correct such Error(s) within a commercially reasonable amount of time, terminate this Agreement and refund to you the pro-rated portion of any prepaid fees attributable to any unused Services and this Agreement shall thereafter terminate.
THE LIMITED WARRANTY SET FORTH IN SECTION 11.1 IS MADE FOR YOUR BENEFIT ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 11.1 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING THE APPLICATION AND DOCUMENTATION) ARE PROVIDED “AS IS,” AND AIRWORKS MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE APPLICATION, Documentation, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO YOU BY AIRWORKS. AIRWORKS DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE APPLICATION SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
11.3 Limitations of liability
Neither AirWorks nor any of its licensors or suppliers will have any liability (directly or indirectly) for any incidental, special, indirect, consequential or punitive damages; loss of profits or revenue; business interruption or loss of use; cost of procurement of substitute goods or services or other cover; failure of or defects in the Output; loss, corruption or deletion of (or failure to delete) data or your content; or damages resulting from Force Majeure (in each case, regardless of the legal theory for seeking such damages or other liability). In addition, the aggregate liability of AirWorks and its licensors and suppliers with respect to any Services or deliverable thereof will in no event exceed the amount paid or payable by you for the Service in the one-year period before the events or circumstances giving rise to the liability first occurred.
The limitations of liability in these Terms will apply to the maximum extent permitted by applicable law to any damages or other liability, however caused and regardless of the theory of liability, whether based on contract, tort (including negligence and strict liability), indemnification, recourse, statute or otherwise, even if AirWorks has been advised of the possibility of the liability and regardless of whether the limited remedies in these Terms fail of their essential purpose.
You acknowledge that the amounts payable for the Services are based in part on and reflective of the disclaimers of warranties and limitations on liability in these Terms and that such disclaimers and limitations are an essential element of the bargain between you and AirWorks.
Nothing in these Terms purports to restrict or exclude AirWork’s liability for (i) death or personal injury caused by AirWorks’s willful intent or gross negligence or (ii) your damages or losses caused by AirWorks’s fraud. AirWorks does not seek to limit your warranties, your other rights and remedies, or the liability of AirWorks for damages or losses to the extent the limits are not permitted by applicable law (such as statutory warranties, conditions, remedies or liabilities that cannot be excluded by applicable law). Nothing in these Terms restricts the effect of warranties, the liability of AirWorks for damages or losses or other terms that cannot be excluded or otherwise modified under applicable law notwithstanding a contractual restriction to the contrary. These Terms give you specific legal rights, and you may also have other legal rights, which vary from jurisdiction to jurisdiction. For example, some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
11.4 Third Party Content
By using the Services, AirWorks may provide you with access to third party websites, information, and services, including but not limited to third party databases, networks, servers, software, programs, systems, directories, applications, or products. You hereby acknowledge that AirWorks does not control such third-party websites and services, and cannot be held responsible for their content, operation, or use. AirWorks does not give any representation, warranty, or endorsement, express or implied, with respect to the legality, accuracy, quality, or authenticity of content, information, or services provided by such third-party websites and services. AirWorks disclaims any and all responsibility or liability for any harm resulting from your use of such third-party websites and services, and you hereby irrevocably waive any claim against AirWorks with respect to the content or operation of any such third-party websites and services.
12.1 Confidential Information
During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). For the avoidance of doubt, the Application, Documentation, and all enhancements and improvements thereto, will be considered Confidential Information of AirWorks, and the Subscriber Data will be considered Confidential Information of Subscriber.
12.2 Protection of Confidential Information.
The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to its employees and contractors who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party written notice certifying compliance with this sentence.
The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) the Receiving Party can prove, by clear and convincing evidence, was already known to the Receiving Party without restriction at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
You will indemnify and hold harmless (and, at AirWorks’s request, defend) AirWorks against any and all losses, liabilities, expenses (including reasonable attorneys’ fees) suffered or incurred by AirWorks by reason of any claim, suit or proceeding (“Claim”) arising out of or relating to (i) your Content; (ii) your (including Your Authorized Users’) use of Services, including any deliverables or other results produced by such use; and (iii) your (including Your Authorized Users’) breach of these Terms (including any Additional Agreement, any Special Terms or any other applicable terms), including a Claim that asserts or purports to be based on AirWorks’ negligence.
14. Term, Termination, Suspension
These Terms become effective on the first date accepted in accordance with the “Acceptance” section (Section 1) and continue in effect indefinitely unless terminated in accordance with this “Term, Termination, Suspension” section (Section 14).
14.1 Your right to terminate
You may terminate your subscriptions and these Terms if AirWorks is in material breach of these Terms (including any Additional Agreement, any Special Terms or any other applicable terms) and fails to cure such breach within 30 days after written notice of the breach.
14.2 AirWorks’ right to terminate
AirWorks may terminate any or all of your subscriptions or other Services, these Terms and/or your account, if (i) you have no current paid subscriptions and haven’t used the Services within 3 months; (ii) you have failed to timely pay any amounts (including fees and taxes) owing with respect to any Services or otherwise owing to AirWorks; (iii) you (including any of Your Authorized Users) are in material breach of these Terms (including any Additional Agreement, any Special Terms, or any other applicable terms) and fail to cure such breach within 30 days after written notice of the breach; or (iv) you become subject to bankruptcy or insolvency proceedings, become insolvent, make an arrangement with or affecting your creditors (including an assignment for the benefit of creditor) or commence a process of liquidation. These Terms will automatically terminate without further notice or action by AirWorks if you go into liquidation.
14.3 AirWorks’ right to suspend
If AirWorks believes in good faith that your content or your conduct or failure to act (including the conduct or failure of your Authorized Users) may (i) pose a security risk or otherwise adversely impact Services, systems or other users; (ii) constitute or enable tampering with, removing, disabling or otherwise limiting the effectiveness of any technical protections (including any mechanisms for managing, monitoring, controlling or analyzing the installation of, access or, or use of any Services or protections of AirWorks’ intellectual property rights); (iii) subject AirWorks, any reseller or any other user to liability; or (iv) not comply with these Terms (including any Additional Agreement, any Special Terms or any other applicable terms), including failure to pay any amounts owing with respect to any Services, AirWorks has the right, but not the obligation, to immediately disable or suspend your access to and use of any Services and access to and use of your Content. Unless AirWorks reasonably determines that immediate action is prudent, AirWorks will seek to notify you of the planned disabling or suspension before it takes effect.
14.4 Effect of termination of subscription
Upon expiration or termination of a subscription or other Services for any reason, your rights with respect to that Service, including any related Software license or subscription Benefits, will end. At that time, you will stop all access to and use of the Service (including all access and use by your Authorized Users) and uninstall any and all copies of materials related to such Services (including any related Software, Documentation, APIs or other material from AirWorks). In addition, at AirWorks’s request, you will destroy any such copies or return them to AirWorks or the reseller from which you acquired the Service. You will retain proof that you returned or destroyed all such copies. In connection with the expiration or termination of a subscription, (i) as a convenience to you for some Web Services, AirWorks may provide you with a brief period (for example, 30 days) in which you may retrieve your Content after expiration or termination of the Web Services, if you are in compliance with these Terms and pay the applicable fees, if any (for example, AirWorks’s then-current professional services fees for any assistance AirWorks provides), and (ii) otherwise, AirWorks may delete, without notice, any or all of your Subscriber Data, content, including backup and other copies thereof. For paid Subscription according to Section 8.3, AirWorks commits to keep a copy of your Subscriber Data in your account for 3 months after the expiration date of your Subscription, unless the Subscription is renewed or replaced by a paid subscription in which case you will continue to be able to access the Subscriber Data in your AirWorks account. For more information on post-expiration/termination content retrieval, please check with the individual Web Services and Section 8. This convenience for some Web Services, if available, does not relieve you of responsibility for retaining and securing complete copies of your Subscriber Data and content at all times.
14.5 Effect of termination of terms
Upon any termination of these Terms for any reason, (i) your account and your subscriptions and other Services, including those of your Authorized Users, will immediately terminate, (ii) you will cease all access to and use of any Services (including all access and use by your Authorized Users), and (iii) the effects described above with respect to expiration or termination of a subscription or other Services will apply. Your payment obligations as per Section 8.5 and 8.6, ownership of work as described in Section 10.1, indemnity obligations (including those in the “Indemnification” section (Section 13)); the license as to Feedback (in the “Feedback” section (Section 6)); AirWorks’s rights and your obligations with respect to proprietary rights (including the rights and obligations under Section 9.2 and 9.3)); both parties rights and obligations in terms of “Confidentiality” as per Section 12; the disclaimers and limitations on liability in the “Limited Warranty, Disclaimers, Limitation on Liability” Section 11; the rights and obligations of termination under this Section 14.4 and 14.5; the governing law and dispute resolution provisions in “Contracting AirWorks Entity, Governing Law, and Dispute Resolution” and other “Miscellaneous” provisions as per Section 15; your responsibility for anyone who accesses or uses (or obtains) Services through you or your account (including your Authorized Users) (including the responsibility described in the “Account” section (Section 5)), and the Definitions per Section 16, will survive termination for any reason.
15.1 Changes to the offerings
AirWorks reserves the right from time to time to (and you acknowledge and agree that AirWorks may) (i) modify or release subsequent versions of an Services, or may discontinue a Service and/or provide instead a substitute Service; (ii) modify or discontinue the Benefits, features and functionality, or supporting services or availability with respect to an Service, whether generally or in any geographic area or language; or (iii) add or modify license keys, authorizations or other means of controlling access to or use of the Services. AirWorks will endeavor to inform you of major changes to the Services.
15.2 Changes to terms
To the maximum extent permitted by applicable law, AirWorks reserves the right from time to time to (and you acknowledge that AirWorks may) modify these Terms. AirWorks will endeavor to notify you of any material modification to the Terms that may have a materially adverse effect on you (“Modification Notice”), and you will then have an opportunity to review such modification. Except as otherwise expressly set forth in these Terms (including any Additional Agreement or Special Terms), if any such modification has a material adverse effect on you and you do not agree to the modification, you may reject the modification by notifying AirWorks of the rejection within 30 days of the Modification Notice. If you reject a modification under these circumstances, (i) your access to and use of any Services affected by the modification will continue to be governed by the terms in effect immediately before the modification (except to the extent the modification was made for security, privacy or legal compliance reasons) until (a) the end of the then-current period for the Subscription or other Services, if applicable, or (b) 180 days after the Modification Notice, whichever is earlier; and (ii) your rights to such Services, including any related subscription Benefits, will then terminate. In the event of such a termination by you, AirWorks (or an applicable reseller) will refund the prorated portion of any prepaid fees applicable to the remaining term of your subscription for the affected Services after the effective date of termination. Such date will be the end of the term of such Services. If the Subscription is renewed or extended, it will be under the then-current Terms. Notices by you or AirWorks will be provided as set forth below, except that you may also provide your notice of rejection (within the 30-day period described above) to the email address, or in any other manner, specified in the Modification Notice.
Notwithstanding the forgoing, modifications to the Privacy Statement, Special Terms, Subscription Types, Subscription Benefits or other policies will be handled as described therein.
You acknowledge that your commitments with respect to the Services and Subscription Benefits are not contingent on delivery of future features or functionality (or oral or written statements about future features or functionality).
15.3 Language of terms; Interpretation
The English language version of these Terms will be the version used when interpreting or construing these Terms, and any notices or other communications in connection with these Terms will be provided in the English language. Any reference in these Terms to “days” are to calendar days unless otherwise specified. The words “including” and “for example” or “e.g.”, and words of similar import, are not limiting or exclusive and will be deemed followed by “without limitation”, whether or not such language is included. Section and other headings are for ease of reference only and are not to be used to interpret the meaning of any provision. Any rights and remedies provided for in these Terms are cumulative and are in addition to, and not in lieu of, any other rights and remedies available under applicable law.
15.4 Governing Law and Venue
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Massachusetts, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. You hereby expressly consents to the personal jurisdiction and venue in the state and federal courts located in Boston, Massachusetts for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from AirWorks, or any products utilizing such data, in violation of the United States export laws or regulations.
If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
You acknowledge that the Services contain valuable trade secrets and proprietary information of AirWorks, that any actual or threatened breach of Section 9 or Section 12 or any other breach by you of your obligations with respect to Intellectual Property Rights of AirWorks will constitute immediate, irreparable harm to AirWorks for which monetary damages would be an inadequate remedy. In such case, AirWorks will be entitled to seek immediate injunctive relief without the requirement of posting bond.
15.9 No Assignment
You shall not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of AirWorks, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that you may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets without the consent of AirWorks. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
15.10 Force Majeur
Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
15.11 Independent Contractors
Your relationship to AirWorks is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.
Any notices by you to AirWorks will be sent by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service to AirWorks Solutions, Inc., 205 Portland Street, #200, Boston, Massachusetts 02114, USA, Attention: General Counsel.
Such notice will be effective upon receipt or refusal of delivery by AirWorks. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt.
Except as otherwise expressly stated in these Terms (including any Additional Agreement or Special Terms), any notices by AirWorks to you will be provided (i) by email to the registered email address associated with your account, (ii) by posting to your account, (iii) by posting within a Service (for example, through an in-Offering notification function or sign-in notification), (iv) by postal mail or delivery service to the address associated with your account, or (v) in any other manner deemed reasonable by AirWorks that involves specific notification to you. Notices from AirWorks to you will, (a) in the case of notices by email, be effective one day after being sent and (b) in the case of other notices, five days after being posted or sent. You hereby agree to service of process being effected on you by registered mail sent to the address set forth on your Customer Information Form (or, if no Customer Information Form has been provided, your last address known by AirWorks) if so permitted by applicable law.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
15.14 Entire Agreement
This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of you and AirWorks.
Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
“Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow you or any Authorized Users to access the Services.
“Affiliate” means any individual, corporation, partnership, limited liability company, or other entity that directly or indirectly, controls, or is controlled by, or is under common control with, a party. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of any such entity or organization, whether through the ownership of securities, by contract, or otherwise.
“Application” means the software described here-in, hosted on AirWorks’ servers or those of its hosting services providers, and accessed and used by Subscriber via the worldwide web, including all changes, corrections, bug fixes, enhancements, updates and other modifications to such software, whether made by or on behalf of AirWorks, you, or any third party.
“Authorized User” means (i) you “User” (if you are an individual) and (ii) identified individuals (such as your individual employees, consultants and contractors and other individuals accessing and using a Service for your benefit) for whom you have acquired a subscription to a Service. If a Service allows you to designate Authorized Users for such Service, you will be responsible for providing notice to, and obtaining agreement from, any such Authorized Users regarding the application of these Terms to their access to and use of such Service prior to their access and use.
“Documentation” means the technical materials and documentation provided by AirWorks to you in hard copy or electronic form describing the use and operation of the Application.
“Error” means a reproducible failure of the Software to substantially conform to the Documentation.
“Error Corrections” means bug fixes or workarounds intended to correct Errors in the Software.
“Intellectual Property Rights” means any and all intellectual property, industrial property, and other proprietary rights throughout the world, including all rights in, to, or arising out of patents, patent applications, inventions (whether patentable or not), invention disclosures, trade secrets, know-how, proprietary information, works of authorship, copyrights, mask works, moral rights, trademarks, service marks, software, data, technology, layout designs, and design rights, and all registrations, applications, renewals, extensions, or reissues of any of the foregoing.
“Subscription” means a contract executed by you identifying the Services to be made available by AirWorks pursuant to this Agreement. A separate order confirmation will be provided and will become a part to this agreement.
“Services” means the Application, Documentation, and any related services agreed by the parties in a Subscription and Order Form.
“Subscriber Data” means any (a) data provided or transmitted by you to the Application, and (b) the Subscriber-specific output “Output” resulting from your use of the Application.