Terms of Service
Updated JULY 25, 2023
PLEASE READ THESE TERMS OF SERVICE CAREFULLY – THIS IS ABINDING AGREEMENT BETWEEN AIRCLOUD INC (“AIRCLOUD”), A PROVIDER OF MOBILE APP COMMUNICATION SERVICES, AND YOU AS A PERSON OF AT LEAST SIXTEEN (16) YEARS OF AGE AND, IF APPLICABLE, THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT (COLLECTIVELY, “YOU”).
THIS AGREEMENT INCORPORATES BY REFERENCE (1) THE PRIVACY POLICY, (2) THE ACCEPTABLE USE POLICY, (3) THE PAYWALL TERMS OF USE, (4) PAYPAL SERVICE TERMS IF USING PAYPAL TO MAKE PAYMENTS OR COLLECT VIEWER PAYMENTS VIA THE PAYWALL, AND (5) THE TRADEMARK GUIDELINES, AS THESE POLICIES AND TERMS MAYBE MODIFIED ON AN ONGOING BASIS BY AIRCLOUD OR ITS AFFILIATES AT THEIR SOLE DISCRETION FROM TIME TO TIME.
BY ACCESSING THE AIRCLOUD PLATFORM AND/OR SERVICES, BY CLICKING THE “ACCEPT” BUTTON FOR THIS AGREEMENT, OR BY ACCEPTING ANY MODIFICATION TO THIS AGREEMENT IN ACCORDANCE WITH SECTION 2 BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING CLAUSES ON PAYMENTS, CANCELLATIONS, AND REFUNDS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU CONFIRM THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE “YOU”SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST SELECT THE“DECLINE” BUTTON AND YOU MAY NOT USE THE SERVICES.
This Agreement includes the following Sections:
1. The Services
2. Modifications to this Agreement
3. Term Termination and Suspension
4. Authorization and License to Use the Services
5. Acceptable Use Policy and Service Terms
6. License to Use AirCloud Properties
7. Downtime and Service Suspensions; Security
8. Fees
9. Confidentiality
10. Intellectual Property
11. Representations and Warranties; Disclaimers; Limitations of Liability
12. Indemnification
13. US Government License Rights; Import and Export Compliance
14. Disputes
15. Notices
16. Miscellaneous Provisions
1. The Services
The services covered by this Agreement include both free services that AirCloud and its affiliates (referred to together herein as “we” or “us”) make available for no fee (the “Free Services”), and services that we make available for a fee (the “Paid Services”). The Free Services and the Paid Services are referred to collectively in this Agreement as the “Services.” Each Free Service and Paid Service is referred to individually as a “Service.”
1.1. Free Services
The Free Services include but are not limited to:
a. Trial Accounts
b. In-App Chat Features
c. Live Streaming Services
d. Video Call Services
e. Voice Call Services
f. Support for trial accounts or support provided in excess of that described for each of the Paid Services
g. The analytics module(s).
1.2. Paid Services
The Paid Services include any and all mobile app communication services and related support services that we make available to you for a fee, except those services for which we specifically provide a separate customer agreement. Our Paid Services include, but are not limited to:
Subscription Plans (Monthly and Annual Plans)
a. In-App Chat Services
b. Live Streaming Services
c. Video Call Services
d. Voice Call Services
e. File storage overages
AirCloud Application Programming Interfaces (APIs).
We may, at our sole discretion and without notice, (i) begin charging fees for a Free Service, in which case such Service will thereafter be deemed a Paid Service, or (ii) cease charging fees for a Paid Service, in which case such Service will thereafter be deemed a Free Service.
Paid Services may be made available for functional testing at no charge with Trial Accounts. In such cases, AirCloud is under no obligation to support the tested services beyond the expiration of the Trial Account, nor to make payouts to the user of any monies collected during the Trial Account period.
1.3. Inclusion of descriptions of the Services on AirCloud websites
FOR THE PURPOSES OF THIS AGREEMENT, DEFINITIONS OF THE SERVICES INCLUDE ANY AND ALL DESCRIPTIONS PUBLISHED ON ANY AIRCLOUD WEBSITE, WHETHER INCLUDED SPECIFICALLY HERE IN OR NOT. THIS EXPLICITLY INCLUDES PRICING,SERVICE EXPIRATION TERMS, INCLUDED FEATURES, AND SUPPORT LEVELS.
In the event of a conflict between the information published on AirCloud website and that provided in this Agreement, that provided in this Agreement will be considered as accurate and binding.
Modifications to this Agreement
You agree that we may modify this Agreement, or any policy or other terms referenced in this Agreement and/or in the descriptions of the Paid Services as published on any AirCloud Website (collectively, “Additional Policies”), at any time by posting a revised version of the Agreement or such Additional Policy on any AirCloud Website. The revised terms shall be effective as follows:
– if the revised terms are for (a) any Paid Services which we are adding at the time of the revision, (b) the Privacy Policy, (c) the Acceptable Use Policy, (d) any Service Terms, (e) any other general terms and conditions applicable to our services, websites or other properties, or (f) any Free Service, then the revised terms shall be effective upon posting (unless we expressly state otherwise at the time of posting); and
– if the revised terms are otherwise for any then-existing Paid Services, then the revised terms shall be effective upon the earlier to occur of (a) fifteen (15) days after posting and (b) if we provide a mechanism for your immediate acceptance of the revised terms, such as a click-through confirmation or acceptance button, your acceptance.
By continuing to use or receive the Services after the effective date of any revisions to this Agreement or any Additional Policies, you agree to be bound by the revised Agreement or any revised Additional Policies. It is your responsibility to check the AirCloud Website regularly for changes to this Agreement or the Additional Policies, as applicable. We last modified this Agreement on the date set forth at the top of this Agreement.
Term, Termination, and Suspension
3.1. Term
The term of this Agreement ("Term") shall commence, and you may initiate the utilization of the Services, once you agree to the terms and conditions contained herein by completing the registration process for your AirCloud Web Services account and commencing the use of the services. This Agreement shall remain in force until either party terminates it as outlined in this Section 3.
3.2. Termination by You for Convenience
You retain the right to terminate this Agreement at your discretion, for any reason or without providing a reason, by:
(i) Notifying us in writing of your intent to terminate in accordance with the guidelines in this Section 3.2.
(ii) Closing your account for any Service for which we offer an account closure mechanism.
(iii) Allowing your Free Trial Account to expire without any further access.
3.2.1. Account Closure
Should a Paid Service necessitate a minimum service term or have been pre-paid for a specified duration, your account shall be closed immediately unless you specify that the account should be closed:
(a) Upon the conclusion of the minimum service term, as delineated in the service description on the AirCloud Website at the time of purchase.(b) Upon the conclusion of the pre-paid period.
If a Paid Service requires advance notice of termination or cancellation, your account shall be closed upon the culmination of the advance notice period, as specified in the service description on the AirCloud Website at the time of purchase.
Upon termination, all stored content and live streaming channels will be removed from the AirCloud servers and systems within 30 days.
Since AirCloud offers a free trial period, no refunds will be issued for any unused portion that has already been paid for or committed to at the time of purchase unless:
(i) There is a widespread network outage or issue preventing you from using your account for a minimum of seventy-two (72) hours.
OR
(ii) You cancel within 48 hours of making a payment and have not used more than 1GB of data during that period.
3.2.2. To terminate (cancel) any of the Monthly Plans, you must log into your account, click the Chat button, and submit a ticket instructing us to cancel the account, or send an email to [email protected] from the email account associated with your AirCloud account, instructing us to cancel the account. Upon receiving and processing the notice, the account will be closed as outlined in Section 3.2.1 above.
When terminating a more expensive Monthly Plan to downgrade to a less expensive Monthly Plan, or when changing plan types at your request, you acknowledge and agree that no refunds or credits will be provided unless expressly approved by AirCloud in advance.
NOTE: WHILE AIRCLOUD MAY, AT ITS SOLE DISCRETION, ACCEPT A CANCELLATION NOTICE VIA ANOTHER EMAIL OR TELEPHONE AS A COURTESY TO AVOID A PENDING CHARGE, YOU MUST SUBMIT A TICKET PURSUANT TO THIS SECTION 3.2.2 TO OFFICIALLY TERMINATE THE ACCOUNT, OR THE ACCOUNT MAY BE CONSIDERED AS CLOSED DUE TO A PAYMENT DEFAULT.
3.2.3. Following termination as per 3.2.2 above, upon your request, AirCloud will disburse to you any remaining credit balance in your account, if applicable, via PayPal or check, irrespective of the minimum payment request thresholds outlined on the AirCloud website. This can be facilitated by sending an email to [email protected] with Withdrawal instructions, including your PayPal account or Payee information and mailing address.
3.3. Termination or Suspension by Us Other Than for Cause
3.3.1. Free Services We reserve the right to suspend your access and license to use any or all Free Services and any associated AirCloud Properties (as defined in Section 6 below), or, if you solely rely on Free Services, terminate this Agreement in its entirety (and, consequently, cease providing all Services to you), for any reason or without reason, at our discretion, and with immediate effect upon notifying you in accordance with the notice provisions detailed in Section 15 below.
3.3.2 Paid Services Agreement We reserve the right to suspend your license and access to any or all Paid Services (along with any associated AirCloud Properties) or terminate this Agreement in its entirety (thus discontinuing the provision of all Services to you), at our discretion, for any reason or without reason, at any time. We will provide you with a thirty (30) days advance notice in accordance with the notice provisions outlined in Section 15 below. Termination or Suspension by Us for Justifiable Reasons We may suspend your license and access to any specific Service or a set of Services, or terminate this Agreement in its entirety(along with your access to all Services), for justifiable reasons as follows:
3.4.1. Immediate Action: We may take immediate action, disregarding the notice provisions in Section 15 below, if: (i) You engage in a denial of service attack against any of the Services. (ii) You attempt to breach or circumvent any security mechanisms within any of the Services, or we otherwise determine that your utilization of the Services or the AirCloud Properties poses a security or service risk to us, our service users, third-party sellers on our websites, our customers, or their customers, potentially subjecting us or third parties to liability, damages, or danger. (iii) You use the Services in a manner that disrupts or jeopardizes the Services. (iv) You default on your payment obligations outlined herein. (v) There is an unusual and significant surge in your use of the Services. (vi) We, at our sole discretion, detect evidence of fraud related to your account. (vii) You utilize any of the AirCloud Content (as defined in Section 6.1) or Marks (as defined in Section 6.2) other than explicitly permitted herein. (viii) We receive notice or determine, at our sole discretion, that you may be employing AirCloud Services for unlawful purposes or in violation of the law, infringing upon, violating, or misappropriating the rights of any third party. (ix) We determine, at our sole discretion, that the provision of any of the Services to you is prohibited by applicable law or has become impractical or unfeasible for legal or regulatory reasons. (x) Subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, discontinuation of your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or a similar proceeding.
3.4.2. One (1) Business Day Notice: We may take action one(1) business day after providing you with notice in accordance with the notice provisions in Section 15 below if you default on any payment obligation related to any of the Services, or if any payment method you have provided becomes invalid, canceled, or charges are refused. You must rectify the payment default or payment method issue within this 1-day period, provided you do not have a sufficient credit balance to cover the obligation. This specifically includes your cancellation of a credit card or another accepted payment method used for the purchase, such as a PayPal Recurring Payment plan.
3.4.3. Immediate Action for Paywall Services: We may take immediate action after providing you with notice in accordance with the notice provisions in Section 15 below if you use Paywall services and charge-backs or disputes filed with our merchant accounts exceed 1% of your total sales over a3-month period, either by value or volume.
3.4.4. Immediate Action for Fraud: We may take immediate action after providing you with notice in accordance with the notice provisions in Section 15 below if you are found to have committed any fraud in connection with your use of the Paywall or your account.
3.4.5. Five (5) Days Notice: We may take action five (5)days after providing you with notice in accordance with the notice provisions in Section 15 below if you breach any other provision of this Agreement and fail to cure such breach within this 5-day period, as determined by us in our sole discretion. Effect of Suspension or Termination with AirCloud 3.5
3.5.1. Suspension: Upon our suspension of your use of any Services, in whole or in part, for any reason, the following provisions shall apply: (i) fees will continue to accrue for any Services that are still in use by you (including Support), notwithstanding the suspension; (ii) you remain responsible for all fees, charges, and any other obligations you have incurred through the date of suspension concerning the Services; and (iii) all of your rights with respect to the relevant Services shall be terminated during the period of suspension.
3.5.2. Termination: Upon termination of this Agreement for any reason, the following terms and conditions shall come into effect: (i) you remain responsible for all fees, charges, and any other obligations you have incurred through the date of termination with respect to the Services; (ii) all of your rights under this Agreement shall immediately cease; and (iii) you shall promptly return or, if instructed by us, destroy all AirCloud Confidential Information (as defined in Section 9 below) and any AirCloud Properties then in your possession.
3.5.3. In the event of suspension or termination for cause as per Section 3.4 above, AirCloud will apply any monetary balance that may have accrued to your account at the time of suspension or termination towards payment of any fees due for services.
3.5.4. In the event that you have a monetary balance on an expired Free Trial account from your tests of the Paywall, or other such Subscription and Pay Per View Paid Services, all sales will be refunded to the purchasers.
3.5.5. In the event your account is terminated due to non-payment and you have not submitted a Cancellation Notice as described in Section 3.2.2 herein, any credit balance on your account will revert to AirCloud as compensation for the amounts due and usage that has not been paid for at the time of termination.
3.6. Survival
If this Agreement is terminated for any reason, the following sections will survive such termination: Sections 3.5, 3.6, 3.7, 3.8,4.2, 6, 8 (with respect to payments that are accrued but unpaid at the time of termination), and 9 through 16.
3.7. Data Preservation in the Event of Suspension or Termination
3.7.1. In the Event of Suspension Other Than for Cause: In the event of a suspension by us of your access to any Service for any reason other than a for-cause suspension under Section 3.4.1, the following conditions apply: (i) we will not take any action to intentionally erase any of your data stored on the Services; and (ii) applicable Service data storage charges will continue to accrue.
3.7.2. In the Event of Termination Other Than for Cause: In the event of any termination by us of any Paid Service or any set of Paid Services, or termination of this Agreement in its entirety, other than a for-cause termination under Section 3.4.1, the following conditions shall be observed: (i) we will not take any action to intentionally erase any of your data stored on the Services for a period of thirty (30) days after the effective date of termination; and (ii) your post-termination retrieval of data stored on the Services will be conditioned on your payment of Service data storage charges for the period following termination, payment in full of any other amounts due to us, payment in advance for any professional services we perform to assist your retrieval of data, and your compliance with terms and conditions we may establish with respect to such data retrieval.
3.7.3. In the Event of Other Suspension or Termination: Except as provided in Sections 3.7.1 and 3.7.2 above, we shall have no obligation to continue to store your data during any period of suspension or termination or to permit you to retrieve the same.
Post-Termination Assistance (AirCloud 3.8)
In the event that your right to utilize the AirCloud 3.8Services is suspended or terminated, whether initiated by us or by you, for any reason other than a termination for cause as defined in Section 3.2 or Section3.3, you shall have the option to avail yourself of any post-termination assistance that we may generally offer in connection with the AirCloud 3.8Services. We may also consider providing you with specialized post-suspension or post-termination assistance, although we are not obliged to do so. Your eligibility to access such assistance, whether it is generally available for the AirCloud 3.8 Services or tailored specifically to your needs, is contingent upon your acceptance of and adherence to the fees and terms that we stipulate for such assistance.
Authorization and License to Utilize the Services (AircCloud3.8)Subject to your agreement with and compliance with the term so utlined in this Agreement and the payment requirements for the AirCloud 3.8Services, as detailed on the relevant Service description page on the AircCloud3.8 Website (with payment terms subject to periodic updates), we hereby grant you a restricted, non-exclusive, non-transferable, and non-sublicensable right and license, based on our intellectual property rights, to access and employ the AirCloud 3.8 Services, solely in accordance with the stipulations and provisions set forth in this Agreement.
Permitted Uses in General (AirCloud 3.8)4.1.1. You are authorized to create or develop software, websites, or other online services or technologies that interact with the AirCloud 3.8 Services (collectively referred to as "Applications").Applications encompass machine images comprising software applications, libraries, data, and associated configuration settings ("AMIs"). Itis understood that we may modify, deprecate, or republish APIs (as defined in Section 6.1 below) for any Service or Service feature periodically, and it is your responsibility to ensure that your calls to any Service remain compatible with the most current APIs for that Service. Additionally, you acknowledge that we retain the right to alter or remove features or functionalities of the AirCloud 3.8 Services at our discretion.
4.1.2. You are permitted to facilitate access to and usage of Your Content by your end-users in accordance with the terms outlined in this Agreement. "Your Content" refers to any Application, data, or other content that you may (a) provide to us as part of this Agreement, (b) make available to end-users in conjunction with the AirCloud 3.8 Services, or (c)develop or utilize in connection with the AirCloud 3.8 Services. You are responsible for adhering to all applicable terms and conditions governing Your Content.
4.1.3. Accounts discovered to contain legal adult content, including nudity, explicit content, excessively graphic violence, and other criteria in line with country-specific restrictions, may be restricted from utilizing AirCloud 3.8's "Expo" hosted content pages and Paywall services. Such accounts will not regain access to these features at a later date.
4.1.4. You may employ information obtained through the AirCloud 3.8 Services, provided by viewers of Your Content when they register to access said content, for the purposes of permissible direct marketing, advertising, and general customer communications, provided such actions do not violate anti-spam laws and regulations. Restricted Uses in General (AirCloud 3.8)
4.2.1. You shall not disrupt or attempt to disrupt the functionality or proper operation of the AirCloud 3.8 Services in any manner.
4.2.2. Except as allowed in 4.1.3 above, you shall not compile or utilize the AirCloud 3.8 Properties or any other information obtained through the AirCloud 3.8 Services for direct marketing, spamming, unsolicited contact with sellers or customers, or other impermissible advertising, marketing, or activities, including, but not limited to, those that contravene-spam laws and regulations.
4.2.3. You shall not remove, obscure, or alter any notice of any Mark or other intellectual property or proprietary right designation displayed within the AirCloud 3.8 Services or on any AirCloud 3.8 Properties.
4.2.4. You may generally publicize your use of the AircCloud3.8 Services, subject to the terms and conditions outlined in this Agreement; however, you may not issue any press release concerning the AirCloud 3.8Services or this Agreement without our prior written consent.
4.2.5. Content published on the Expo pages hosted by AirCloud 3.8 that we, at our sole discretion, deem offensive, including explicit sexual content and gratuitous violence presented for entertainment purposes, shall not be permitted.
4.2.6. While using a Free Trial Account, you may not request disbursement of funds collected through AirCloud Merchant Accounts, which are provided as part of the Subscription and Pay Per View paywall Paid Services.
4.3. Accounts and Keys
Unless otherwise stated in the applicable Service Terms, you may only create one account per business entity and email address. AirCloud accounts are associated with one or more public key/private key pairs, which are used to access the service. You are fully responsible for all activities that occur under your Account Identifiers, regardless of whether such activities are undertaken by you or a third party. Therefore, you should contact us immediately if you believe a third party may be using your private key, or if your private key is otherwise lost or stolen. You are responsible for maintaining up-to-date and accurate information (including contact information) for your AirCloud account. We are not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss, or failure to store any of Your Content or other data which you submit or use in connection with your account or the Services.
Acceptable Use Policy and Service Terms
Your utilization of the Services must adhere to the applicable Service Terms.
License to Use the AirCloud Properties
6.1. AirCloud Properties
We may, at various intervals, provide you with access to an array of software, data, and additional content, both in printed and electronic formats, along with their respective documentation (collectively referred to as the "AirCloud Properties"). Subject to your acceptance of this Agreement, continuous compliance with its stipulations concerning the relevant Service, and the payment, if applicable, for your right to use the specific Service, we hereby extend to you a limited, non-exclusive, non-transferable license during the Term, under our intellectual property or proprietary rights within the AirCloud Properties. This license authorizes you to solely install, copy, and utilize the AirCloud Properties exclusively in connection with and as necessary for your use of such Services, and strictly in accordance with all the terms and conditions delineated in this Agreement. The AirCloud Properties may encompass, but are not limited to:
Proprietary application programming interfaces("APIs").Developer tools designed for utilization in conjunction with the APIs. Documentation, which includes articles and reference materials related to the usage and implementation of the APIs. Specifications outlining operational and functional capabilities, usage limitations, technical and engineering requisites, as well as testing and performance criteria essential for the proper operation of a Service and its associated APIs and technologies. Textual materials offered as an integral part of the Service("Text Materials").Other forms of digital content, data, text, images, logos, user interface designs, creative designs, audio, and video (collectively referred to as "AirCloud Content"), together with the Text Materials.
Sample source code and libraries, which we may periodically make accessible for use in conjunction with the Services ("Sample Source Code" and "Libraries"), will be subject to separate licensing terms that accompany each Sample Source Code or Library. Notably, the term "AirCloud Properties," as used herein, does not encompass any Sample Source Code or Libraries made available under separate licenses.
Unless expressly authorized by this Agreement:
You are prohibited from, and shall not attempt to, modify, alter, tamper with, repair, or create derivative works from any software included in or accessed via the AirCloud Properties. You shall not, under any circumstances, attempt to reverse engineer, disassemble, or decompile the AirCloud Properties or the Services, or employ any other method or procedure to derive the source code of any software contained within or accessed through the AirCloud Properties. You may only edit Text Materials by means of deleting text and shortening the length of the Text Materials. Such edits must not significantly alter the meaning of the Text Materials or render them factually inaccurate or misleading. You are not permitted to add any additional information to the Text Materials, and you hereby relinquish all intellectual property or proprietary rights to us pertaining to such edited Text Materials.
6.2. Restrictions on the Use of Marks
Your utilization of any trademarks, service marks, service or trade names, logos, and other designations belonging to AirCloud and its affiliates or licensors ("Marks") must strictly adhere to the Trademark Guidelines and the following provisions. You are authorized to employ the Marks in conjunction with the presentation of AirCloud Content and for the sole purpose of indicating that your application was developed using the Services. You must promptly cease using any Mark as directed by us in written notice. We reserve the right to modify any Marks provided to you, and upon notification, you shall exclusively employ the modified Marks and discontinue the use of any previous Marks. With the exception of provisions outlined in this Agreement, you may not employ any trademark, service mark, trade name, or other business identifiers associated with AirCloud or its affiliates without obtaining prior written consent from AirCloud or its affiliates. Furthermore, you pledge not to misrepresent or embellish the relationship between us and you, including any suggestion that we endorse, sponsor, support, or financially contribute to your endeavors or business.
6.3. Nonexclusive Rights
The rights conferred upon you by AirCloud in accordance with this Agreement regarding the AirCloud Properties, the Marks, and the Services are nonexclusive. AirCloud retains the prerogative to: Act as a developer of products or services related to any products you may develop in connection with the AirCloud Properties or through your use of the Services. Appoint third parties as developers or systems integrators who may offer products or services that compete with AirCloud or your Application. Downtime and Service Suspensions; Security
7.1. Downtime and Service Suspensions
In addition to our rights to terminate or suspend Services to you as described in Section 3 above, you acknowledge that: (i) your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures, or other interruptions; and (ii) we shall also be entitled, without any liability to you, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you, or to any of our other customers if the Service was not suspended; or(c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”). Without limitation to Section 11.5, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide you email notice of any Service Suspension in accordance with the notice provisions set forth in Section 15below and to post updates on the AirCloud Websites regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.
7.2. Security
We strive to keep Your Content secure, but cannot guarantee that we will be successful at doing so, given the nature of the Internet. Accordingly, without limitation to Section 4.3 above and Section 11.5 below, you acknowledge that you bear sole responsibility for adequate security, protection, and backup of Your Content and Applications. We strongly encourage you, where available and appropriate, to (a) use encryption technology to protect Your Content from unauthorized access, (b) routinely archive Your Content, and (c) keep your Applications or any software that you use or run with our Services current with the latest security patches or updates. We will have no liability to you for any unauthorized access or use, corruption, deletion, destruction, or loss of any of Your Content or Applications.
Fees
8.1. Service Fees
In consideration of your use of any of the Paid Services, you agree to pay applicable fees for Paid Services in the amounts set forth on the respective Service detail pages on the AirCloud Website. You are responsible for any fees assessed by AirCloud Payments for transactions that you submit to the Payment Service using AirCloud, including fees charged by third parties used in processing payouts to you of account monetary balances. Fees for any new Service or new Service feature will be effective upon posting by us on the AirCloud Website for the applicable Service. We may increase or add new fees for any existing Service or Service feature, or implement a fee for any previously Free Service or Free Service feature, by giving you 30 days’ advance notice. Such notice will be posted on the AirCloud Website on the Service detail page for the affected Service. You agree that you are responsible for checking the AirCloud Website each month to confirm whether there are any new fees and their effective date(s). All fees payable by you are exclusive of applicable taxes and duties, including, without limitation, VAT and applicable sales tax. You will provide such information to us as reasonably required to determine whether we are obligated to collect VAT from you, including, without limitation, your VAT identification number.
8.2. Payment
We may specify the manner in which you will pay any fees, and any such payment shall be subject to our general accounts receivable policies from time to time in effect. All amounts payable by you under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, you shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally, you shall provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority.
Note: Payment can only be made from country where the business is registered, due to EU 5th Anti-Money Laundering Directive, 5AMLD.
8.3. Special Pricing Programs
From time to time, we may offer free or discounted pricing for compute capacity, data transfer, data storage, and other usage of certain Services (each a “Special Pricing Program”). After a Special Pricing Program ends, normal charges will apply. You must comply with any additional terms, restrictions, or limitations (e.g., limitations on the total amount of usage)we impose in connection with the Special Pricing Program as described on the Service-specific detail pages on the AirCloud Website. You may not sign up for multiple AirCloud accounts in order to receive additional benefits under a Special Pricing Program. We may immediately terminate any account that we determine, in our sole discretion, is established or used to avoid the terms, restrictions, or limitations applicable to a Special Pricing Program. Any data stored as part of a Special Pricing Program must be actively used.
Confidentiality
9.1. Use and Disclosure
You shall not disclose AirCloud Confidential Information during the Term or at any time during the three (3) year period following the end of the Term. As used in this Agreement, “AirCloud Confidential Information” means all non-public information disclosed by us, our business partners or our or their respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. AirCloud Confidential Information includes, without limitation, (i) non-public information relating to our or our business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs (including, but not limited to ,any information about or involving one of our so-called beta tests or a beta test product that you obtain as a result of your participation in such beta test), (ii) third-party information that we are obligated to keep confidential, and (iii) the nature, content and existence of any discussions or negotiations between you and us. Confidential Information does not include any information described in Section 9.2 or any information that you are required to disclose by law.
9.2. Excluded Information
Notwithstanding any other provision in this Agreement, you shall not have any confidentiality obligation to us under Section 9.1 above, with respect to any information provided or made available by us hereunder, and we shall not have any confidentiality or non-use obligation to you hereunder with respect to any information, software application, data or content provided or made available by you hereunder that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the receiving party.
9.3. Conflict with Separate Non-Disclosure Agreement
If you and we are parties to a separate non-disclosure agreement (“Stand-Alone NDA”) and there is a conflict between the terms of the Stand-Alone NDA and the terms of this Section 9, the terms of the Stand-Alone NDA shall control.
Intellectual Property
10.1. Our Services and the AirCloud Properties Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title and interest(including all intellectual property and proprietary rights) in and to: (i) the Services; (ii) the AirCloud Properties; (iii) the Marks; and (iv) any other technology and software that we provide or use to provide the Services and the AirCloud Properties. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the AirCloud Properties, the Marks, or other technology and software (including third party technology and software), except for the limited use and access rights described in this Agreement.
10.2. Your Applications, Data, and Content
Other than the rights and interests expressly set forth in this Agreement, and excluding AirCloud Properties and works derived from AirCloud Properties, you reserve all right, title and interest (including all intellectual property and proprietary rights) in and to Your Content. We will not disclose Your Content, except: (i) if you expressly authorize us to do so in connection with your use of the Services; or (ii) as necessary to provide the Services to you, or to comply with the Agreement or the request of a governmental or regulatory body, subpoenas or court orders.
10.3. Feedback
In the event you elect, in connection with any of the Services, to communicate to us suggestions for improvements to the Services, the AirCloud Properties or the Marks (collectively, “Feedback”), we shall own all right, title, and interest in and to the same, even if you have designated the Feedback as confidential, and we shall be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to us and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback.
10.4. Non-Assertion
During and after the term of the Agreement, with respect to any of the Services that you elect to use, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our customers, end-users, vendors business partners (including third-party sellers on websites operated by or on behalf of us), licensors, sub-licensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.
Representations and Warranties; Disclaimers; Limitations of Liability
11.1. Use of the Services You represent and warrant that you will not use the Services, AirCloud Properties and/or your Application and Your Content: (i)in a manner that infringes, violates or misappropriates any rights of us or any third party; (ii) to engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations, including, without limitation, the CAN-SPAM Act of 2003; (iii) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data that is subject to export AirCloud; and/or (iv) in a way that is otherwise illegal or promotes illegal activities, including without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
11.2. Applications and Content
You represent and warrant: (i) that you are solely responsible for the development, operation, and maintenance of Your Content, including without limitation, the accuracy, security, appropriateness, and completeness of Your Content and all product-related materials and descriptions; (ii) that you have the necessary rights and licenses, consents, permissions, waivers, and releases to use and display Your Content; (iii) that Your Content (a) does not violate, misappropriate or infringe any rights of us or any third party, (b)does not constitute defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (c) is not designed for use in any illegal activity or to promote illegal activities, including, without limitation, use in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex religion, nationality, disability, sexual orientation, or age;(iv) that Your Content does not contain any unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code(collectively “Harmful Components”); and (v) to the extent to which you use any of the Marks, that you will conduct your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of AirCloud.
11.3. Public Software and Feedback
You represent and warrant that you will not use, and will not authorize any third party to use, any Public Software in connection with the Services in any manner that requires, pursuant to the license applicable to such Public Software, that any AirCloud Properties or Services be (a) disclosed or distributed in source code form, (b) made available free of charge to recipients, or (c) modifiable without restriction by recipients. With respect to any Feedback, you represent and warrant that such Feedback, in whole or in part, contributed by or through you, (i) contains no third-party software or any software that may be considered Public Software and (ii) does not violate, misappropriate or infringe any intellectual property rights of any third party. “Public Software” means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open-source software(e.g., Linux) or similar licensing or distribution models, including, but not limited to software, documentation or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL), Lesser/Library GPL (LGPL), or Free Documentation License, (ii)The Artistic License (e.g., PERL), (iii) the Mozilla Public License, (iv) the Netscape Public License, (v) the Sun Community Source License (SCSL), (vi) the Sun Industry Standards License (SISL), (vii) the BSD License and (viii) the Apache License.
11.4. Authorization and Account Information
You represent and warrant that: (i) the information you provide in connection with your registration for the Services is accurate and complete; (ii) if you are registering for the Services as an individual, that you are at least 18 years of age and have the legal capacity to enter into this Agreement; and (iii) if you are registering for the Services as an entity or organization, (a) you are duly authorized to do business in the country or countries where you operate, (b) the individual clicking “Accept” on this Agreement and completing the registration for the Services meets the requirements of subsection (ii) above and is an authorized representative of your entity, and (c) your employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind you to this Agreement and all transactions conducted under your account.
11.5. Disclaimers
AIRCLOUD PROPERTIES, THE MARKS, THE SERVICES, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THERE WITH(COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS”. WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS,IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS.
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANYIMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR-FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE SERVICE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, INCLUDING THOSE THAT AFFECT THE RECEIPT, PROCESSING,ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY PAYMENT SERVICES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
Your Applications are Your Responsibility
In addition to the foregoing, we specifically disclaim all liability, and you shall be solely responsible for the development, operation, and maintenance of your Application (including any Bundled Application) and for all materials that appear on or within your Application, and you agree that you shall, without limitation, be solely responsible for:
11.6.1. The technical operation of your Application and all related equipment;
11.6.2. The accuracy and appropriateness of any materials posted on or within your Application (including, among other things, any product-related materials);
11.6.3. Ensuring that any materials posted on your site or within your Application are not illegal and do not promote illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age;
11.6.4. Ensuring that your Application accurately and adequately discloses, either through a privacy policy or otherwise, how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors’ browsers;
11.6.5. Any of your users' or customers' claims relating to your Application or any Services utilized in connection with your Application; and 11.6.6. Your election to utilize APIs, sample code, and libraries that may be made available on the AirCloud Website, many of which maybe provided by third parties and many of which we have not tested or screened in any way.
11.7. Links.
The AirCloud Website and/or the Services may contain links to websites that are not under our control ("Third Party Sites"). We are not responsible for the contents or functionality of any Third Party Sites or any website that can be accessed via links on any Third Party Site. We provide these links to you as a convenience, and the inclusion of any such links does not constitute or imply our endorsement or validation of any Third Party Site.
11.8. Limitations of liability
NEITHER WE NOR ANY OF OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HERE UNDER FOR THE SERVICES. SOME JURISDICTIONS DONOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OFTHE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Indemnification
12.1. General
You agree to indemnify, defend, and hold us, our affiliates, and licensors, each of our and their business partners (including third-party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors, and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs, and expenses (including reasonable attorney’s fees),arising out of or in connection with any claim arising out of (i) your use of the Services and/or AirCloud Properties in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, Additional Policies, and/or applicable law, (ii) Your Content, or the combination of either with other applications, content, or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion, and/or marketing of Your Content, (iii) your violation of any term or condition of this Agreement or any applicable Additional Policies, including without limitation, your representations and warranties, or (iv) you or your employees’ or personnel’s negligence or willful misconduct.
12.2. Notification
We agree to promptly notify you of any claim subject to indemnification; provided that our failure to promptly notify you shall not affect your obligations hereunder except to the extent that our failure to promptly notify you delays or prejudices your ability to defend the claim. At our option, you will have the right to defend against any such claim with counsel of your own choosing (subject to our written consent) and to settle such claim as you deem appropriate, provided that you shall not enter into any settlement without our prior written consent and provided that we may, at anytime, elect to take over control of the defense and settlement of the claim.
Disputes14.1. General
Notwithstanding anything to the contrary, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of AirCloud’s or any third party’s intellectual property and/or proprietary rights. Any dispute relating in any way to your visit to the AirCloud Website or to products or services sold or distributed by AirCloud or its affiliates in which the aggregate total claim for relief sought on behalf of one or more parties exceeds$7,500 shall be adjudicated in any state or federal court in the city of San Francisco, California, and you consent to exclusive jurisdiction and venue in such courts. You further acknowledge that our rights in the AirCloud Properties are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.
14.2. Governing Law
By using the Services, you agree that the laws of the State of California, without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between you and us. The parties expressly exclude the application of the United Nations Convention for the International Sale of Goods to this Agreement.
Notices
15.1. To You.
Except as otherwise set forth herein, notices made by us to you under this Agreement that affect our customers generally (e.g., notices of updated fees, etc.) will be posted on the AirCloud Website. Notices made by us under this Agreement for you or your account specifically (e.g., notices of breach and/or suspension) will be provided to you via the email address provided to us in your registration for the Services or in any updated email address you provide to us in accordance with standard account information update procedures we may provide from time to time. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not you actually receive the email.
15.2. To Us
For notices made by you to us under this Agreement and for questions regarding this Agreement or the Services, you may contact AirCloud asfollows: [email protected]
15.3. Language
All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
Miscellaneous Provisions
16.1. Third-Party Activities
If you authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, you shall be deemed to have taken the action yourself.
16.2. Severability
If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
16.3. Waivers
The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.
16.4. Successors and Assigns
This Agreement will be binding upon, and inure to thebenefit of the parties and their respective successors and assigns.
16.5. Entire Agreement
This Agreement incorporates by reference all policies and guidelines posted on the AirCloud Website, including all Additional Policies, and constitutes the entire agreement between you and us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral, regarding such subject matter.
16.6. No Endorsement
You understand and acknowledge that we are not certifying nor endorsing, and have no obligation to certify or endorse, any of your Applications or Your Content.
16.7. Relationship
Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership or any employer/employee or fiduciary or franchise relationship between you and us (or any of our affiliates).
Updated JULY 25, 2023
PLEASE READ THESE TERMS OF SERVICE CAREFULLY – THIS IS ABINDING AGREEMENT BETWEEN AIRCLOUD INC (“AIRCLOUD”), A PROVIDER OF MOBILE APP COMMUNICATION SERVICES, AND YOU AS A PERSON OF AT LEAST SIXTEEN (16) YEARS OF AGE AND, IF APPLICABLE, THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT (COLLECTIVELY, “YOU”).
THIS AGREEMENT INCORPORATES BY REFERENCE (1) THE PRIVACY POLICY, (2) THE ACCEPTABLE USE POLICY, (3) THE PAYWALL TERMS OF USE, (4) PAYPAL SERVICE TERMS IF USING PAYPAL TO MAKE PAYMENTS OR COLLECT VIEWER PAYMENTS VIA THE PAYWALL, AND (5) THE TRADEMARK GUIDELINES, AS THESE POLICIES AND TERMS MAYBE MODIFIED ON AN ONGOING BASIS BY AIRCLOUD OR ITS AFFILIATES AT THEIR SOLE DISCRETION FROM TIME TO TIME.
BY ACCESSING THE AIRCLOUD PLATFORM AND/OR SERVICES, BY CLICKING THE “ACCEPT” BUTTON FOR THIS AGREEMENT, OR BY ACCEPTING ANY MODIFICATION TO THIS AGREEMENT IN ACCORDANCE WITH SECTION 2 BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING CLAUSES ON PAYMENTS, CANCELLATIONS, AND REFUNDS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU CONFIRM THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE “YOU”SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST SELECT THE“DECLINE” BUTTON AND YOU MAY NOT USE THE SERVICES.
This Agreement includes the following Sections:
1. The Services
2. Modifications to this Agreement
3. Term Termination and Suspension
4. Authorization and License to Use the Services
5. Acceptable Use Policy and Service Terms
6. License to Use AirCloud Properties
7. Downtime and Service Suspensions; Security
8. Fees
9. Confidentiality
10. Intellectual Property
11. Representations and Warranties; Disclaimers; Limitations of Liability
12. Indemnification
13. US Government License Rights; Import and Export Compliance
14. Disputes
15. Notices
16. Miscellaneous Provisions
1. The Services
The services covered by this Agreement include both free services that AirCloud and its affiliates (referred to together herein as “we” or “us”) make available for no fee (the “Free Services”), and services that we make available for a fee (the “Paid Services”). The Free Services and the Paid Services are referred to collectively in this Agreement as the “Services.” Each Free Service and Paid Service is referred to individually as a “Service.”
1.1. Free Services
The Free Services include but are not limited to:
a. Trial Accounts
b. In-App Chat Features
c. Live Streaming Services
d. Video Call Services
e. Voice Call Services
f. Support for trial accounts or support provided in excess of that described for each of the Paid Services
g. The analytics module(s).
1.2. Paid Services
The Paid Services include any and all mobile app communication services and related support services that we make available to you for a fee, except those services for which we specifically provide a separate customer agreement. Our Paid Services include, but are not limited to:
Subscription Plans (Monthly and Annual Plans)
a. In-App Chat Services
b. Live Streaming Services
c. Video Call Services
d. Voice Call Services
e. File storage overages
AirCloud Application Programming Interfaces (APIs).
We may, at our sole discretion and without notice, (i) begin charging fees for a Free Service, in which case such Service will thereafter be deemed a Paid Service, or (ii) cease charging fees for a Paid Service, in which case such Service will thereafter be deemed a Free Service.
Paid Services may be made available for functional testing at no charge with Trial Accounts. In such cases, AirCloud is under no obligation to support the tested services beyond the expiration of the Trial Account, nor to make payouts to the user of any monies collected during the Trial Account period.
1.3. Inclusion of descriptions of the Services on AirCloud websites
FOR THE PURPOSES OF THIS AGREEMENT, DEFINITIONS OF THE SERVICES INCLUDE ANY AND ALL DESCRIPTIONS PUBLISHED ON ANY AIRCLOUD WEBSITE, WHETHER INCLUDED SPECIFICALLY HERE IN OR NOT. THIS EXPLICITLY INCLUDES PRICING,SERVICE EXPIRATION TERMS, INCLUDED FEATURES, AND SUPPORT LEVELS.
In the event of a conflict between the information published on AirCloud website and that provided in this Agreement, that provided in this Agreement will be considered as accurate and binding.
Modifications to this Agreement
You agree that we may modify this Agreement, or any policy or other terms referenced in this Agreement and/or in the descriptions of the Paid Services as published on any AirCloud Website (collectively, “Additional Policies”), at any time by posting a revised version of the Agreement or such Additional Policy on any AirCloud Website. The revised terms shall be effective as follows:
– if the revised terms are for (a) any Paid Services which we are adding at the time of the revision, (b) the Privacy Policy, (c) the Acceptable Use Policy, (d) any Service Terms, (e) any other general terms and conditions applicable to our services, websites or other properties, or (f) any Free Service, then the revised terms shall be effective upon posting (unless we expressly state otherwise at the time of posting); and
– if the revised terms are otherwise for any then-existing Paid Services, then the revised terms shall be effective upon the earlier to occur of (a) fifteen (15) days after posting and (b) if we provide a mechanism for your immediate acceptance of the revised terms, such as a click-through confirmation or acceptance button, your acceptance.
By continuing to use or receive the Services after the effective date of any revisions to this Agreement or any Additional Policies, you agree to be bound by the revised Agreement or any revised Additional Policies. It is your responsibility to check the AirCloud Website regularly for changes to this Agreement or the Additional Policies, as applicable. We last modified this Agreement on the date set forth at the top of this Agreement.
Term, Termination, and Suspension
3.1. Term
The term of this Agreement ("Term") shall commence, and you may initiate the utilization of the Services, once you agree to the terms and conditions contained herein by completing the registration process for your AirCloud Web Services account and commencing the use of the services. This Agreement shall remain in force until either party terminates it as outlined in this Section 3.
3.2. Termination by You for Convenience
You retain the right to terminate this Agreement at your discretion, for any reason or without providing a reason, by:
(i) Notifying us in writing of your intent to terminate in accordance with the guidelines in this Section 3.2.
(ii) Closing your account for any Service for which we offer an account closure mechanism.
(iii) Allowing your Free Trial Account to expire without any further access.
3.2.1. Account Closure
Should a Paid Service necessitate a minimum service term or have been pre-paid for a specified duration, your account shall be closed immediately unless you specify that the account should be closed:
(a) Upon the conclusion of the minimum service term, as delineated in the service description on the AirCloud Website at the time of purchase.(b) Upon the conclusion of the pre-paid period.
If a Paid Service requires advance notice of termination or cancellation, your account shall be closed upon the culmination of the advance notice period, as specified in the service description on the AirCloud Website at the time of purchase.
Upon termination, all stored content and live streaming channels will be removed from the AirCloud servers and systems within 30 days.
Since AirCloud offers a free trial period, no refunds will be issued for any unused portion that has already been paid for or committed to at the time of purchase unless:
(i) There is a widespread network outage or issue preventing you from using your account for a minimum of seventy-two (72) hours.
OR
(ii) You cancel within 48 hours of making a payment and have not used more than 1GB of data during that period.
3.2.2. To terminate (cancel) any of the Monthly Plans, you must log into your account, click the Chat button, and submit a ticket instructing us to cancel the account, or send an email to [email protected] from the email account associated with your AirCloud account, instructing us to cancel the account. Upon receiving and processing the notice, the account will be closed as outlined in Section 3.2.1 above.
When terminating a more expensive Monthly Plan to downgrade to a less expensive Monthly Plan, or when changing plan types at your request, you acknowledge and agree that no refunds or credits will be provided unless expressly approved by AirCloud in advance.
NOTE: WHILE AIRCLOUD MAY, AT ITS SOLE DISCRETION, ACCEPT A CANCELLATION NOTICE VIA ANOTHER EMAIL OR TELEPHONE AS A COURTESY TO AVOID A PENDING CHARGE, YOU MUST SUBMIT A TICKET PURSUANT TO THIS SECTION 3.2.2 TO OFFICIALLY TERMINATE THE ACCOUNT, OR THE ACCOUNT MAY BE CONSIDERED AS CLOSED DUE TO A PAYMENT DEFAULT.
3.2.3. Following termination as per 3.2.2 above, upon your request, AirCloud will disburse to you any remaining credit balance in your account, if applicable, via PayPal or check, irrespective of the minimum payment request thresholds outlined on the AirCloud website. This can be facilitated by sending an email to [email protected] with Withdrawal instructions, including your PayPal account or Payee information and mailing address.
3.3. Termination or Suspension by Us Other Than for Cause
3.3.1. Free Services We reserve the right to suspend your access and license to use any or all Free Services and any associated AirCloud Properties (as defined in Section 6 below), or, if you solely rely on Free Services, terminate this Agreement in its entirety (and, consequently, cease providing all Services to you), for any reason or without reason, at our discretion, and with immediate effect upon notifying you in accordance with the notice provisions detailed in Section 15 below.
3.3.2 Paid Services Agreement We reserve the right to suspend your license and access to any or all Paid Services (along with any associated AirCloud Properties) or terminate this Agreement in its entirety (thus discontinuing the provision of all Services to you), at our discretion, for any reason or without reason, at any time. We will provide you with a thirty (30) days advance notice in accordance with the notice provisions outlined in Section 15 below. Termination or Suspension by Us for Justifiable Reasons We may suspend your license and access to any specific Service or a set of Services, or terminate this Agreement in its entirety(along with your access to all Services), for justifiable reasons as follows:
3.4.1. Immediate Action: We may take immediate action, disregarding the notice provisions in Section 15 below, if: (i) You engage in a denial of service attack against any of the Services. (ii) You attempt to breach or circumvent any security mechanisms within any of the Services, or we otherwise determine that your utilization of the Services or the AirCloud Properties poses a security or service risk to us, our service users, third-party sellers on our websites, our customers, or their customers, potentially subjecting us or third parties to liability, damages, or danger. (iii) You use the Services in a manner that disrupts or jeopardizes the Services. (iv) You default on your payment obligations outlined herein. (v) There is an unusual and significant surge in your use of the Services. (vi) We, at our sole discretion, detect evidence of fraud related to your account. (vii) You utilize any of the AirCloud Content (as defined in Section 6.1) or Marks (as defined in Section 6.2) other than explicitly permitted herein. (viii) We receive notice or determine, at our sole discretion, that you may be employing AirCloud Services for unlawful purposes or in violation of the law, infringing upon, violating, or misappropriating the rights of any third party. (ix) We determine, at our sole discretion, that the provision of any of the Services to you is prohibited by applicable law or has become impractical or unfeasible for legal or regulatory reasons. (x) Subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, discontinuation of your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or a similar proceeding.
3.4.2. One (1) Business Day Notice: We may take action one(1) business day after providing you with notice in accordance with the notice provisions in Section 15 below if you default on any payment obligation related to any of the Services, or if any payment method you have provided becomes invalid, canceled, or charges are refused. You must rectify the payment default or payment method issue within this 1-day period, provided you do not have a sufficient credit balance to cover the obligation. This specifically includes your cancellation of a credit card or another accepted payment method used for the purchase, such as a PayPal Recurring Payment plan.
3.4.3. Immediate Action for Paywall Services: We may take immediate action after providing you with notice in accordance with the notice provisions in Section 15 below if you use Paywall services and charge-backs or disputes filed with our merchant accounts exceed 1% of your total sales over a3-month period, either by value or volume.
3.4.4. Immediate Action for Fraud: We may take immediate action after providing you with notice in accordance with the notice provisions in Section 15 below if you are found to have committed any fraud in connection with your use of the Paywall or your account.
3.4.5. Five (5) Days Notice: We may take action five (5)days after providing you with notice in accordance with the notice provisions in Section 15 below if you breach any other provision of this Agreement and fail to cure such breach within this 5-day period, as determined by us in our sole discretion. Effect of Suspension or Termination with AirCloud 3.5
3.5.1. Suspension: Upon our suspension of your use of any Services, in whole or in part, for any reason, the following provisions shall apply: (i) fees will continue to accrue for any Services that are still in use by you (including Support), notwithstanding the suspension; (ii) you remain responsible for all fees, charges, and any other obligations you have incurred through the date of suspension concerning the Services; and (iii) all of your rights with respect to the relevant Services shall be terminated during the period of suspension.
3.5.2. Termination: Upon termination of this Agreement for any reason, the following terms and conditions shall come into effect: (i) you remain responsible for all fees, charges, and any other obligations you have incurred through the date of termination with respect to the Services; (ii) all of your rights under this Agreement shall immediately cease; and (iii) you shall promptly return or, if instructed by us, destroy all AirCloud Confidential Information (as defined in Section 9 below) and any AirCloud Properties then in your possession.
3.5.3. In the event of suspension or termination for cause as per Section 3.4 above, AirCloud will apply any monetary balance that may have accrued to your account at the time of suspension or termination towards payment of any fees due for services.
3.5.4. In the event that you have a monetary balance on an expired Free Trial account from your tests of the Paywall, or other such Subscription and Pay Per View Paid Services, all sales will be refunded to the purchasers.
3.5.5. In the event your account is terminated due to non-payment and you have not submitted a Cancellation Notice as described in Section 3.2.2 herein, any credit balance on your account will revert to AirCloud as compensation for the amounts due and usage that has not been paid for at the time of termination.
3.6. Survival
If this Agreement is terminated for any reason, the following sections will survive such termination: Sections 3.5, 3.6, 3.7, 3.8,4.2, 6, 8 (with respect to payments that are accrued but unpaid at the time of termination), and 9 through 16.
3.7. Data Preservation in the Event of Suspension or Termination
3.7.1. In the Event of Suspension Other Than for Cause: In the event of a suspension by us of your access to any Service for any reason other than a for-cause suspension under Section 3.4.1, the following conditions apply: (i) we will not take any action to intentionally erase any of your data stored on the Services; and (ii) applicable Service data storage charges will continue to accrue.
3.7.2. In the Event of Termination Other Than for Cause: In the event of any termination by us of any Paid Service or any set of Paid Services, or termination of this Agreement in its entirety, other than a for-cause termination under Section 3.4.1, the following conditions shall be observed: (i) we will not take any action to intentionally erase any of your data stored on the Services for a period of thirty (30) days after the effective date of termination; and (ii) your post-termination retrieval of data stored on the Services will be conditioned on your payment of Service data storage charges for the period following termination, payment in full of any other amounts due to us, payment in advance for any professional services we perform to assist your retrieval of data, and your compliance with terms and conditions we may establish with respect to such data retrieval.
3.7.3. In the Event of Other Suspension or Termination: Except as provided in Sections 3.7.1 and 3.7.2 above, we shall have no obligation to continue to store your data during any period of suspension or termination or to permit you to retrieve the same.
Post-Termination Assistance (AirCloud 3.8)
In the event that your right to utilize the AirCloud 3.8Services is suspended or terminated, whether initiated by us or by you, for any reason other than a termination for cause as defined in Section 3.2 or Section3.3, you shall have the option to avail yourself of any post-termination assistance that we may generally offer in connection with the AirCloud 3.8Services. We may also consider providing you with specialized post-suspension or post-termination assistance, although we are not obliged to do so. Your eligibility to access such assistance, whether it is generally available for the AirCloud 3.8 Services or tailored specifically to your needs, is contingent upon your acceptance of and adherence to the fees and terms that we stipulate for such assistance.
Authorization and License to Utilize the Services (AircCloud3.8)Subject to your agreement with and compliance with the term so utlined in this Agreement and the payment requirements for the AirCloud 3.8Services, as detailed on the relevant Service description page on the AircCloud3.8 Website (with payment terms subject to periodic updates), we hereby grant you a restricted, non-exclusive, non-transferable, and non-sublicensable right and license, based on our intellectual property rights, to access and employ the AirCloud 3.8 Services, solely in accordance with the stipulations and provisions set forth in this Agreement.
Permitted Uses in General (AirCloud 3.8)4.1.1. You are authorized to create or develop software, websites, or other online services or technologies that interact with the AirCloud 3.8 Services (collectively referred to as "Applications").Applications encompass machine images comprising software applications, libraries, data, and associated configuration settings ("AMIs"). Itis understood that we may modify, deprecate, or republish APIs (as defined in Section 6.1 below) for any Service or Service feature periodically, and it is your responsibility to ensure that your calls to any Service remain compatible with the most current APIs for that Service. Additionally, you acknowledge that we retain the right to alter or remove features or functionalities of the AirCloud 3.8 Services at our discretion.
4.1.2. You are permitted to facilitate access to and usage of Your Content by your end-users in accordance with the terms outlined in this Agreement. "Your Content" refers to any Application, data, or other content that you may (a) provide to us as part of this Agreement, (b) make available to end-users in conjunction with the AirCloud 3.8 Services, or (c)develop or utilize in connection with the AirCloud 3.8 Services. You are responsible for adhering to all applicable terms and conditions governing Your Content.
4.1.3. Accounts discovered to contain legal adult content, including nudity, explicit content, excessively graphic violence, and other criteria in line with country-specific restrictions, may be restricted from utilizing AirCloud 3.8's "Expo" hosted content pages and Paywall services. Such accounts will not regain access to these features at a later date.
4.1.4. You may employ information obtained through the AirCloud 3.8 Services, provided by viewers of Your Content when they register to access said content, for the purposes of permissible direct marketing, advertising, and general customer communications, provided such actions do not violate anti-spam laws and regulations. Restricted Uses in General (AirCloud 3.8)
4.2.1. You shall not disrupt or attempt to disrupt the functionality or proper operation of the AirCloud 3.8 Services in any manner.
4.2.2. Except as allowed in 4.1.3 above, you shall not compile or utilize the AirCloud 3.8 Properties or any other information obtained through the AirCloud 3.8 Services for direct marketing, spamming, unsolicited contact with sellers or customers, or other impermissible advertising, marketing, or activities, including, but not limited to, those that contravene-spam laws and regulations.
4.2.3. You shall not remove, obscure, or alter any notice of any Mark or other intellectual property or proprietary right designation displayed within the AirCloud 3.8 Services or on any AirCloud 3.8 Properties.
4.2.4. You may generally publicize your use of the AircCloud3.8 Services, subject to the terms and conditions outlined in this Agreement; however, you may not issue any press release concerning the AirCloud 3.8Services or this Agreement without our prior written consent.
4.2.5. Content published on the Expo pages hosted by AirCloud 3.8 that we, at our sole discretion, deem offensive, including explicit sexual content and gratuitous violence presented for entertainment purposes, shall not be permitted.
4.2.6. While using a Free Trial Account, you may not request disbursement of funds collected through AirCloud Merchant Accounts, which are provided as part of the Subscription and Pay Per View paywall Paid Services.
4.3. Accounts and Keys
Unless otherwise stated in the applicable Service Terms, you may only create one account per business entity and email address. AirCloud accounts are associated with one or more public key/private key pairs, which are used to access the service. You are fully responsible for all activities that occur under your Account Identifiers, regardless of whether such activities are undertaken by you or a third party. Therefore, you should contact us immediately if you believe a third party may be using your private key, or if your private key is otherwise lost or stolen. You are responsible for maintaining up-to-date and accurate information (including contact information) for your AirCloud account. We are not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss, or failure to store any of Your Content or other data which you submit or use in connection with your account or the Services.
Acceptable Use Policy and Service Terms
Your utilization of the Services must adhere to the applicable Service Terms.
License to Use the AirCloud Properties
6.1. AirCloud Properties
We may, at various intervals, provide you with access to an array of software, data, and additional content, both in printed and electronic formats, along with their respective documentation (collectively referred to as the "AirCloud Properties"). Subject to your acceptance of this Agreement, continuous compliance with its stipulations concerning the relevant Service, and the payment, if applicable, for your right to use the specific Service, we hereby extend to you a limited, non-exclusive, non-transferable license during the Term, under our intellectual property or proprietary rights within the AirCloud Properties. This license authorizes you to solely install, copy, and utilize the AirCloud Properties exclusively in connection with and as necessary for your use of such Services, and strictly in accordance with all the terms and conditions delineated in this Agreement. The AirCloud Properties may encompass, but are not limited to:
Proprietary application programming interfaces("APIs").Developer tools designed for utilization in conjunction with the APIs. Documentation, which includes articles and reference materials related to the usage and implementation of the APIs. Specifications outlining operational and functional capabilities, usage limitations, technical and engineering requisites, as well as testing and performance criteria essential for the proper operation of a Service and its associated APIs and technologies. Textual materials offered as an integral part of the Service("Text Materials").Other forms of digital content, data, text, images, logos, user interface designs, creative designs, audio, and video (collectively referred to as "AirCloud Content"), together with the Text Materials.
Sample source code and libraries, which we may periodically make accessible for use in conjunction with the Services ("Sample Source Code" and "Libraries"), will be subject to separate licensing terms that accompany each Sample Source Code or Library. Notably, the term "AirCloud Properties," as used herein, does not encompass any Sample Source Code or Libraries made available under separate licenses.
Unless expressly authorized by this Agreement:
You are prohibited from, and shall not attempt to, modify, alter, tamper with, repair, or create derivative works from any software included in or accessed via the AirCloud Properties. You shall not, under any circumstances, attempt to reverse engineer, disassemble, or decompile the AirCloud Properties or the Services, or employ any other method or procedure to derive the source code of any software contained within or accessed through the AirCloud Properties. You may only edit Text Materials by means of deleting text and shortening the length of the Text Materials. Such edits must not significantly alter the meaning of the Text Materials or render them factually inaccurate or misleading. You are not permitted to add any additional information to the Text Materials, and you hereby relinquish all intellectual property or proprietary rights to us pertaining to such edited Text Materials.
6.2. Restrictions on the Use of Marks
Your utilization of any trademarks, service marks, service or trade names, logos, and other designations belonging to AirCloud and its affiliates or licensors ("Marks") must strictly adhere to the Trademark Guidelines and the following provisions. You are authorized to employ the Marks in conjunction with the presentation of AirCloud Content and for the sole purpose of indicating that your application was developed using the Services. You must promptly cease using any Mark as directed by us in written notice. We reserve the right to modify any Marks provided to you, and upon notification, you shall exclusively employ the modified Marks and discontinue the use of any previous Marks. With the exception of provisions outlined in this Agreement, you may not employ any trademark, service mark, trade name, or other business identifiers associated with AirCloud or its affiliates without obtaining prior written consent from AirCloud or its affiliates. Furthermore, you pledge not to misrepresent or embellish the relationship between us and you, including any suggestion that we endorse, sponsor, support, or financially contribute to your endeavors or business.
6.3. Nonexclusive Rights
The rights conferred upon you by AirCloud in accordance with this Agreement regarding the AirCloud Properties, the Marks, and the Services are nonexclusive. AirCloud retains the prerogative to: Act as a developer of products or services related to any products you may develop in connection with the AirCloud Properties or through your use of the Services. Appoint third parties as developers or systems integrators who may offer products or services that compete with AirCloud or your Application. Downtime and Service Suspensions; Security
7.1. Downtime and Service Suspensions
In addition to our rights to terminate or suspend Services to you as described in Section 3 above, you acknowledge that: (i) your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures, or other interruptions; and (ii) we shall also be entitled, without any liability to you, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you, or to any of our other customers if the Service was not suspended; or(c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”). Without limitation to Section 11.5, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide you email notice of any Service Suspension in accordance with the notice provisions set forth in Section 15below and to post updates on the AirCloud Websites regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.
7.2. Security
We strive to keep Your Content secure, but cannot guarantee that we will be successful at doing so, given the nature of the Internet. Accordingly, without limitation to Section 4.3 above and Section 11.5 below, you acknowledge that you bear sole responsibility for adequate security, protection, and backup of Your Content and Applications. We strongly encourage you, where available and appropriate, to (a) use encryption technology to protect Your Content from unauthorized access, (b) routinely archive Your Content, and (c) keep your Applications or any software that you use or run with our Services current with the latest security patches or updates. We will have no liability to you for any unauthorized access or use, corruption, deletion, destruction, or loss of any of Your Content or Applications.
Fees
8.1. Service Fees
In consideration of your use of any of the Paid Services, you agree to pay applicable fees for Paid Services in the amounts set forth on the respective Service detail pages on the AirCloud Website. You are responsible for any fees assessed by AirCloud Payments for transactions that you submit to the Payment Service using AirCloud, including fees charged by third parties used in processing payouts to you of account monetary balances. Fees for any new Service or new Service feature will be effective upon posting by us on the AirCloud Website for the applicable Service. We may increase or add new fees for any existing Service or Service feature, or implement a fee for any previously Free Service or Free Service feature, by giving you 30 days’ advance notice. Such notice will be posted on the AirCloud Website on the Service detail page for the affected Service. You agree that you are responsible for checking the AirCloud Website each month to confirm whether there are any new fees and their effective date(s). All fees payable by you are exclusive of applicable taxes and duties, including, without limitation, VAT and applicable sales tax. You will provide such information to us as reasonably required to determine whether we are obligated to collect VAT from you, including, without limitation, your VAT identification number.
8.2. Payment
We may specify the manner in which you will pay any fees, and any such payment shall be subject to our general accounts receivable policies from time to time in effect. All amounts payable by you under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, you shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally, you shall provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority.
Note: Payment can only be made from country where the business is registered, due to EU 5th Anti-Money Laundering Directive, 5AMLD.
8.3. Special Pricing Programs
From time to time, we may offer free or discounted pricing for compute capacity, data transfer, data storage, and other usage of certain Services (each a “Special Pricing Program”). After a Special Pricing Program ends, normal charges will apply. You must comply with any additional terms, restrictions, or limitations (e.g., limitations on the total amount of usage)we impose in connection with the Special Pricing Program as described on the Service-specific detail pages on the AirCloud Website. You may not sign up for multiple AirCloud accounts in order to receive additional benefits under a Special Pricing Program. We may immediately terminate any account that we determine, in our sole discretion, is established or used to avoid the terms, restrictions, or limitations applicable to a Special Pricing Program. Any data stored as part of a Special Pricing Program must be actively used.
Confidentiality
9.1. Use and Disclosure
You shall not disclose AirCloud Confidential Information during the Term or at any time during the three (3) year period following the end of the Term. As used in this Agreement, “AirCloud Confidential Information” means all non-public information disclosed by us, our business partners or our or their respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. AirCloud Confidential Information includes, without limitation, (i) non-public information relating to our or our business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs (including, but not limited to ,any information about or involving one of our so-called beta tests or a beta test product that you obtain as a result of your participation in such beta test), (ii) third-party information that we are obligated to keep confidential, and (iii) the nature, content and existence of any discussions or negotiations between you and us. Confidential Information does not include any information described in Section 9.2 or any information that you are required to disclose by law.
9.2. Excluded Information
Notwithstanding any other provision in this Agreement, you shall not have any confidentiality obligation to us under Section 9.1 above, with respect to any information provided or made available by us hereunder, and we shall not have any confidentiality or non-use obligation to you hereunder with respect to any information, software application, data or content provided or made available by you hereunder that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the receiving party.
9.3. Conflict with Separate Non-Disclosure Agreement
If you and we are parties to a separate non-disclosure agreement (“Stand-Alone NDA”) and there is a conflict between the terms of the Stand-Alone NDA and the terms of this Section 9, the terms of the Stand-Alone NDA shall control.
Intellectual Property
10.1. Our Services and the AirCloud Properties Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title and interest(including all intellectual property and proprietary rights) in and to: (i) the Services; (ii) the AirCloud Properties; (iii) the Marks; and (iv) any other technology and software that we provide or use to provide the Services and the AirCloud Properties. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the AirCloud Properties, the Marks, or other technology and software (including third party technology and software), except for the limited use and access rights described in this Agreement.
10.2. Your Applications, Data, and Content
Other than the rights and interests expressly set forth in this Agreement, and excluding AirCloud Properties and works derived from AirCloud Properties, you reserve all right, title and interest (including all intellectual property and proprietary rights) in and to Your Content. We will not disclose Your Content, except: (i) if you expressly authorize us to do so in connection with your use of the Services; or (ii) as necessary to provide the Services to you, or to comply with the Agreement or the request of a governmental or regulatory body, subpoenas or court orders.
10.3. Feedback
In the event you elect, in connection with any of the Services, to communicate to us suggestions for improvements to the Services, the AirCloud Properties or the Marks (collectively, “Feedback”), we shall own all right, title, and interest in and to the same, even if you have designated the Feedback as confidential, and we shall be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to us and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback.
10.4. Non-Assertion
During and after the term of the Agreement, with respect to any of the Services that you elect to use, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our customers, end-users, vendors business partners (including third-party sellers on websites operated by or on behalf of us), licensors, sub-licensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.
Representations and Warranties; Disclaimers; Limitations of Liability
11.1. Use of the Services You represent and warrant that you will not use the Services, AirCloud Properties and/or your Application and Your Content: (i)in a manner that infringes, violates or misappropriates any rights of us or any third party; (ii) to engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations, including, without limitation, the CAN-SPAM Act of 2003; (iii) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data that is subject to export AirCloud; and/or (iv) in a way that is otherwise illegal or promotes illegal activities, including without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
11.2. Applications and Content
You represent and warrant: (i) that you are solely responsible for the development, operation, and maintenance of Your Content, including without limitation, the accuracy, security, appropriateness, and completeness of Your Content and all product-related materials and descriptions; (ii) that you have the necessary rights and licenses, consents, permissions, waivers, and releases to use and display Your Content; (iii) that Your Content (a) does not violate, misappropriate or infringe any rights of us or any third party, (b)does not constitute defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (c) is not designed for use in any illegal activity or to promote illegal activities, including, without limitation, use in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex religion, nationality, disability, sexual orientation, or age;(iv) that Your Content does not contain any unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code(collectively “Harmful Components”); and (v) to the extent to which you use any of the Marks, that you will conduct your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of AirCloud.
11.3. Public Software and Feedback
You represent and warrant that you will not use, and will not authorize any third party to use, any Public Software in connection with the Services in any manner that requires, pursuant to the license applicable to such Public Software, that any AirCloud Properties or Services be (a) disclosed or distributed in source code form, (b) made available free of charge to recipients, or (c) modifiable without restriction by recipients. With respect to any Feedback, you represent and warrant that such Feedback, in whole or in part, contributed by or through you, (i) contains no third-party software or any software that may be considered Public Software and (ii) does not violate, misappropriate or infringe any intellectual property rights of any third party. “Public Software” means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open-source software(e.g., Linux) or similar licensing or distribution models, including, but not limited to software, documentation or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL), Lesser/Library GPL (LGPL), or Free Documentation License, (ii)The Artistic License (e.g., PERL), (iii) the Mozilla Public License, (iv) the Netscape Public License, (v) the Sun Community Source License (SCSL), (vi) the Sun Industry Standards License (SISL), (vii) the BSD License and (viii) the Apache License.
11.4. Authorization and Account Information
You represent and warrant that: (i) the information you provide in connection with your registration for the Services is accurate and complete; (ii) if you are registering for the Services as an individual, that you are at least 18 years of age and have the legal capacity to enter into this Agreement; and (iii) if you are registering for the Services as an entity or organization, (a) you are duly authorized to do business in the country or countries where you operate, (b) the individual clicking “Accept” on this Agreement and completing the registration for the Services meets the requirements of subsection (ii) above and is an authorized representative of your entity, and (c) your employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind you to this Agreement and all transactions conducted under your account.
11.5. Disclaimers
AIRCLOUD PROPERTIES, THE MARKS, THE SERVICES, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THERE WITH(COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS”. WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS,IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS.
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANYIMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR-FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE SERVICE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, INCLUDING THOSE THAT AFFECT THE RECEIPT, PROCESSING,ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY PAYMENT SERVICES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
Your Applications are Your Responsibility
In addition to the foregoing, we specifically disclaim all liability, and you shall be solely responsible for the development, operation, and maintenance of your Application (including any Bundled Application) and for all materials that appear on or within your Application, and you agree that you shall, without limitation, be solely responsible for:
11.6.1. The technical operation of your Application and all related equipment;
11.6.2. The accuracy and appropriateness of any materials posted on or within your Application (including, among other things, any product-related materials);
11.6.3. Ensuring that any materials posted on your site or within your Application are not illegal and do not promote illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age;
11.6.4. Ensuring that your Application accurately and adequately discloses, either through a privacy policy or otherwise, how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors’ browsers;
11.6.5. Any of your users' or customers' claims relating to your Application or any Services utilized in connection with your Application; and 11.6.6. Your election to utilize APIs, sample code, and libraries that may be made available on the AirCloud Website, many of which maybe provided by third parties and many of which we have not tested or screened in any way.
11.7. Links.
The AirCloud Website and/or the Services may contain links to websites that are not under our control ("Third Party Sites"). We are not responsible for the contents or functionality of any Third Party Sites or any website that can be accessed via links on any Third Party Site. We provide these links to you as a convenience, and the inclusion of any such links does not constitute or imply our endorsement or validation of any Third Party Site.
11.8. Limitations of liability
NEITHER WE NOR ANY OF OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HERE UNDER FOR THE SERVICES. SOME JURISDICTIONS DONOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OFTHE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Indemnification
12.1. General
You agree to indemnify, defend, and hold us, our affiliates, and licensors, each of our and their business partners (including third-party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors, and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs, and expenses (including reasonable attorney’s fees),arising out of or in connection with any claim arising out of (i) your use of the Services and/or AirCloud Properties in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, Additional Policies, and/or applicable law, (ii) Your Content, or the combination of either with other applications, content, or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion, and/or marketing of Your Content, (iii) your violation of any term or condition of this Agreement or any applicable Additional Policies, including without limitation, your representations and warranties, or (iv) you or your employees’ or personnel’s negligence or willful misconduct.
12.2. Notification
We agree to promptly notify you of any claim subject to indemnification; provided that our failure to promptly notify you shall not affect your obligations hereunder except to the extent that our failure to promptly notify you delays or prejudices your ability to defend the claim. At our option, you will have the right to defend against any such claim with counsel of your own choosing (subject to our written consent) and to settle such claim as you deem appropriate, provided that you shall not enter into any settlement without our prior written consent and provided that we may, at anytime, elect to take over control of the defense and settlement of the claim.
Disputes14.1. General
Notwithstanding anything to the contrary, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of AirCloud’s or any third party’s intellectual property and/or proprietary rights. Any dispute relating in any way to your visit to the AirCloud Website or to products or services sold or distributed by AirCloud or its affiliates in which the aggregate total claim for relief sought on behalf of one or more parties exceeds$7,500 shall be adjudicated in any state or federal court in the city of San Francisco, California, and you consent to exclusive jurisdiction and venue in such courts. You further acknowledge that our rights in the AirCloud Properties are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.
14.2. Governing Law
By using the Services, you agree that the laws of the State of California, without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between you and us. The parties expressly exclude the application of the United Nations Convention for the International Sale of Goods to this Agreement.
Notices
15.1. To You.
Except as otherwise set forth herein, notices made by us to you under this Agreement that affect our customers generally (e.g., notices of updated fees, etc.) will be posted on the AirCloud Website. Notices made by us under this Agreement for you or your account specifically (e.g., notices of breach and/or suspension) will be provided to you via the email address provided to us in your registration for the Services or in any updated email address you provide to us in accordance with standard account information update procedures we may provide from time to time. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not you actually receive the email.
15.2. To Us
For notices made by you to us under this Agreement and for questions regarding this Agreement or the Services, you may contact AirCloud asfollows: [email protected]
15.3. Language
All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
Miscellaneous Provisions
16.1. Third-Party Activities
If you authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, you shall be deemed to have taken the action yourself.
16.2. Severability
If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
16.3. Waivers
The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.
16.4. Successors and Assigns
This Agreement will be binding upon, and inure to thebenefit of the parties and their respective successors and assigns.
16.5. Entire Agreement
This Agreement incorporates by reference all policies and guidelines posted on the AirCloud Website, including all Additional Policies, and constitutes the entire agreement between you and us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral, regarding such subject matter.
16.6. No Endorsement
You understand and acknowledge that we are not certifying nor endorsing, and have no obligation to certify or endorse, any of your Applications or Your Content.
16.7. Relationship
Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership or any employer/employee or fiduciary or franchise relationship between you and us (or any of our affiliates).
