Terms & Conditions
Table of contents
- Customer Responsibilities
- Intellectual Property Rights & Data
- Payment of Fees
- Term; Termination
- Client Software Security
- Warranty; Disclaimer
- Limitation of Liability
- Force Majeure
- U.S. Government Matters
- Governing Law; Disputes
- Support Services
- Implementation Services
- Free Trial Customers
- Order of Precedence
- Airkit shall provide the Services subject to and in accordance with the terms of this Agreement.
- Airkit may from time to time make Third-Party Products and/or Services available to Customer. For purposes of this Agreement, such Third-Party Products and/or Services are subject to their own terms and conditions (“Third Party T&Cs)”. If Customer does not agree to abide by Third Party T&Cs for any such Third-Party Products and/or Serivces, then Customer should not install or use such Third-Party Products and/or Services. Any claim which Customer may seek to bring arising from Third Party Products and/or Services shall be brought against the applicable third party and not against Airkit. Notwithstanding the foregoing, to the extent Customer brings a claim against Airkit arising from Third-Party Products and/or Services then Airkit’s liability to Customer in relation to such a claim shall be: (i) subject to the applicable Third Party T&Cs; (ii) subject to the terms of this Agreement; and (iii) limited to the recovery which Airkit makes from the applicable third party in relation to the liability claimed by the Customer.
- Customer will cooperate with Airkit in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required and taking such other actions as Airkit may reasonably request.
- Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Airkit.
- The Customer shall comply with the Airkit Policies.
- Before the start date of any Services under this Agreement (including utilizing the Platform) the Customer shall obtain and maintain all necessary licenses, approvals and consents and comply with all Applicable Laws and Standards as required to enable Airkit to provide the applicable Services and for the Customer to receive and use the applicable Service (including utilizing the Platform).
- The Customer shall co-operate with Airkit in all matters relating to the Services and this Agreement.
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
- The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Either party may disclose this Agreement to its advisors and potential investors and acquirers (subject to reasonable confidentiality obligations).
Intellectual Property Rights & Data
- Except as expressly set forth herein, Airkit alone (and its licensors, where applicable) will retain all right, title, and interest in and to the Services, and all software, products, works and other intellectual property and moral rights relating thereto or created, used, or provided by Airkit for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Document) shall subject to all the terms and conditions of this Agreement.
- Customer may (but is not obligated to) provide suggestions, comments, feedback, recommendations, or other comments with respect to the Service and/or the Software (“Feedback”). Customer shall, and hereby does, grant to Airkit (and its successors and assigs) a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose. Airkit acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind.
- Airkit will obtain and process Customer Content only to perform its obligations under this Agreement or as otherwise set forth herein. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Customer Content distributed through the Services and the intellectual property rights with respect to that Customer Content. Customer, not Airkit, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Content. If Airkit receives any notice or claim that any Customer Content, or activities hereunder with respect to any Customer Content, may infringe or violate rights of a third party (a “Customer Content Claim”), Airkit may (but is not required to) suspend activity hereunder with respect to that Customer Content and Customer will indemnify Airkit from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Customer Content Claim, as incurred.
- Notwithstanding anything to the contrary, Customer acknowledges and agrees that Airkit may (i) use and modify Customer Content for the purposes of (A) providing the Services to Customer and (B) generating aggregated and/or anonymized Customer Content (“Aggregated Anonymized Data”), and (ii) freely use and make available Aggregated Anonymous Data for Airkit’s business purposes (including, without limitation, for purposes of improving, testing, operating, promoting and marketing Airkit’s products and services).
- Customer acknowledges and agrees that Airkit may utilize Customer Script’s for the purpose of improving and developing the Services. Customer shall, and hereby does, grant to Airkit (and its successors and assigs) a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Customer Script’s for the purposes specified in this section.
- Airkit owns all right, title and interest, including any intellectual property rights, in the Airkit Data.
- The parties shall comply with the Security Terms.
Payment of Fees
- Customer will pay Airkit the applicable fees as set forth on the Order Document (the “Fees”). All payments will be made in accordance with the payment schedule and the method of payment set out in the Order Document. Except as otherwise agreed to in an Order Document, payments will be due within thirty (30) days of Customer’s receipt of invoice. Except as expressly set forth in this Agreement, all Fees are non-cancellable and nonrefundable.
- Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Airkit’s net income) unless Customer has provided Airkit with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof. Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees.
- If there is a change to any Applicable Laws and Standards during the term of this Agreement which has a material impact on the provision of the Services by Airkit, Airkit may amend the provision of the Services (including the Platform) to address such a change. Any costs arising from this will be shared on a proportionate basis between all Airkit customers who are impacted by the change in Applicable Laws and Standards. The Customer agrees that it shall pay any such costs as Fees under this Agreement on written request.
- If you elect to, or are required to, pay the Fees by credit card: (i) you will register your credit card with Airkit as instructed by Airkit; (ii) you are responsible for ensuring the relevant credit card has funds available cover the Fees due. If your account / card does not have sufficient funds or your credit card declines a charge for the Fees due, Airkit may not be able to provide you with the relevant Services / products and may suspend the provision of its Services / products until the Fees due are paid in full; (iii) when Fees become due to Airkit in accordance with this Agreement (including the relevant Order Form), Airkit shall deduct (and you hereby authorize Airkit to so deduct) from your credit card all amounts due to it in accordance with this Agreement (including the relevant Order Form); (iv) you hereby authorize Airkit to give instructions to debit your credit card from time to time with an amount equal to the Fees due; and (v) unless provided for otherwise in the relevant Order Form, you will be liable to pay any charges or fees relating to your use of the relevant credit card and to the extent Airkit is required to pay any charges or fees relating to your use of the relevant credit card you will reimburse Airkit for an amount equal to such charges or fees.
- If Customer is using the Services on a free trial basis then it will be allocated a certain volume of free usage of the relevant Services (“Usage Threshold”). If Customer exceeds the Usage Threshold (“Overage”) then Customer agrees and acknowledges that it will be liable to pay Airkit for the costs for the Overage in accordance with Airkit’s then prevailing charges for such (“Overage Payment”) and that the Overage Payment will be Fees which are payable to Airkit for the purposes of this Agreement.
- If Customer pays in advance for Services then payment will be taken at the point of order completion (“Payment Date”). Renewal payments will be taken on the monthly or annual anniversary of the Payment Date (depending on the plan Customer is using). Subject to the terms of this Agreement, the renewal payment will be consistent with the first payment unless you choose to make changes to the relevant Services.
- If Customer pays for Services on a per user basis and signs up to the relevant Service during its billing period then the relevant Fee payable for the first billing period will be prorated to take into account when Customer signed up for the relevant Services. As an example (for illustrative purposes only), if Customer’s billing period is calendar months and Customer signs up to a per user based service on 15 September, then Customer’s first Fees will be prorated down by half but from 1 October Customer will pay the full monthly Fee.
- This Agreement begins on the Effective Date and will terminate as set forth below. Each Order Document will have the term set forth thereon. Thereafter, each Order Document will automatically renewal for consecutive period of equal length to the initial term unless ither party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term for such Order Document.
- Either party may terminate this Agreement on ten (10) days written notice if there are no Order Documents in effect. In addition, in the event of any material breach of this Agreement (including any failure to pay), the non-breaching party may terminate this Agreement by giving thirty (30) days (or ten (10) days in the case of nonpayment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. To be effective, termination notice must provide sufficient detail regarding the breach and express state the intent to terminate if not cured. Notice for a failure to pay Fees may be provided via email. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.
- Termination of this Agreement terminates all Order Documents. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
Client Software Security
Airkit warrants that it will not knowingly include, in any Airkit software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, Airkit fails to comply with the warranty in this Section, Customer may promptly notify Airkit in writing of any such noncompliance. Airkit will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM AND THE SERVICES ARE PROVIDED “AS IS” AND AIRKIT HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. AIRKIT SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AIRKIT MAKE NO WARRANTY OF ANY KIND THAT THE PLATFORM AND/OR THE SERVICES OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
THE CUSTOMER IS RESPONSIBLE AND LIABLE FOR ITS OWN USE OF THE SERVICES, INCLUDING ANY THIRD-PARTY PRODUCTS AND/OR SERVICES THAT IT DECIDES TO USE IN CONJUNCTION WITH THE SERVICES, ALL MESSAGES, ALL CUSTOMER SCRIPTS AND ALL CUSTOMER CONTENT. SAVE AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT AIRKIT DISCLAIMS ALL LIABILITY ARISING FROM THE CUSTOMER’S USE OF THE SERVICES INCLUDING ANY THIRD-PARTY PRODUCTS AND/OR SERVICES THAT CUSTOMER DECIDES TO USE IN CONJUNCTION WITH THE SERVICES, ALL MESSAGES, ALL CUSTOMER SCRIPTS AND ALL CUSTOMER CONTENT.
- Customer shall defend, indemnify, and hold harmless Airkit, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim: (i) arising from Customer’s violation of Applicable Laws and Standards, (ii) arising from the Messages, Customer Scripts, Customer Content or Customer’s use of the Service, (iii) arising from Customer’s violation of any agreement it has with any User, or (iv) arising from a User’s breach of the End User License Agreement.
- Airkit shall defend, indemnify, and hold harmless Customer, its affiliates and each of its and its affiliates’ employees, contractors, directors, and representatives from Losses that arise from or relate to any claim: (i) arising from Airkit’s violation of Applicable Laws and Standards, or (ii) that the Service infringes, violates, or misappropriates any third-party intellectual property or proprietary right. The foregoing obligations of Airkit do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Airkit (including without limitation any Customer Content), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Airkit, (iv) combined with other products, processes or materials not provided by Airkit (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Service is not strictly in accordance herewith. Customer will indemnify Airkit from all Losses related to any claim excluded from Airkit’s indemnity obligation by the preceding sentence.
- Each party’s indemnification obligations hereunder shall be conditioned upon the indemnified party providing the indemnifying party with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the indemnifying party of its indemnity obligations if the indemnifying party is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the indemnified party may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the indemnifying party’s expense).
Limitation of Liability
EXCEPT FOR A BREACH OF SECTION 3 (CONFIDENTIALITY), IN NO EVENT SHALL AIRKIT, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT:
- FOR ANY LOST PROFITS, LOST REVENUE, LOST GOODWILL, LOST ANTICIPATED SAVINGS, LOST DATA, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, EVEN IF FORESEEABLE, OR
- FOR ANY DAMAGES NOT EXCLUDED BY THE FOREGOING SUB-SECTION (I), IN EXCESS OF THE FOLLOWING AMOUNTS:
- ARISING FROM AIRKIT’S INDEMNITY OBLIGATIONS HEREUNDER, THE FEES PAID (OR PAYABLE) BY CUSTOMER TO AIRKIT FOR THE SERVICES IN THE TWENTY-FOUR (24) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM,
- FOR ANY LIABILITY NOT COVERED BY THE PRECEDING SUB-SECTION (a), IN EACH CONTRACT YEAR THE FEES PAID (OR PAYABLE) BY CUSTOMER TO AIRKIT FOR THE SERVICES IN THE THAT CONTRACT YEAR, BUT IN ALL CASES IF NO FEES HAVE BEEN PAID, OR THE SERVICES ARE PROVIDED ON A NO-CHARGE, FREE-TRIAL OR EVALUATION BASIS, AIRKIT’S LIABILITY WILL BE LIMITED TO US$100.
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, pandemic, riot, natural disaster, failure or diminishment of telecommunications, or refusal of a license by a government agency (“Force Majeure Event”). In the event a Force Majeure Event prevents a party from performing hereunder for more than fifteen (15) days, the other party may terminate this Agreement on written notice.
U.S. Government Matters
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”).
Governing Law; Disputes
This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Rules of the Judicial Arbitration and Mediation Service (“JAMS”) in accordance with such Rules. To the extent the JAMS streamlined rules are available – they shall apply. The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court. To the extent a claim cannot legal be arbitrated (as determined by an arbitrator), the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
Neither party will assign this Agreement without the written consent of the other party; provided that, either party may, without consent, assign this Agreement to a successor to all or substantially all of its business or assets. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. No agency, partnership, joint venture, or employment is created as a result of this Agreement. Except as set forth herein, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Airkit is permitted to use Customer’s name and logo on its website and promotional materials as part of a general customer list.
- This Section 15 only applies where the Customer is utilizing the Platform as part of the Services.
- Subject to Customer’s compliance with this Agreement (including any limitations and restrictions set forth on the applicable Order Document), Airkit grants Customer the right to use the Platform during the applicable Service Term for the internal business purposes of Customer, only as provided herein and only in accordance with the Documentation. From time to time, Airkit may make upgrades, patches, enhancements, or fixes for the Services generally available to its customers without additional charge (“Updates”), and such Updates will become part of the applicable Platform and subject to this Agreement. Customer understands that Airkit may cease supporting old versions or releases of the Platform (or part thereof) at any time in its sole discretion.
- Customer will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Platform or any software, documentation or data related to the Platform (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) except as allowed by the functionality of the Platform, modify, translate, or create derivative works based on the Platform or Software; use the Platform or Software for timesharing or service bureau purposes or for any purpose other than its own internal use and benefit; or use the Platform or Software other than in accordance with this Agreement. Customer will use the Platform and Implementation Services (and any output therefrom) in compliance with all Applicable Laws and Standards.
- Customer may, through the Platform or use of the Platform, send a variety of messages, communications, and other information (collectively, “Messages”) to Users who have elected to receive Messages or who have provided their contact information. Airkit is not involved in, and shall bear no responsibility for, any Messages except for providing the Platform that facilitate the creation and delivery of such Messages. Without limiting the foregoing, Customer is wholly responsible for Messages, including without limitation, for (i) the content thereof, (ii) obtaining User consents to receive such messages and (iii) honoring any User privacy choices and terms with respect to such Messages.
- The Customer shall ensure that all Journeys are in accordance with Applicable Laws and Standards.
- Customer will cooperate with Airkit in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Platform.
- Although Airkit has no obligation to monitor the content provided by Customer or Customer’s use of the Platform, Airkit may do so and may remove any such content or prohibit any use of the Platform it believes may be (or alleged to be) in violation of the foregoing.
- Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
- Customer acknowledges and agrees that the Platform operates on or with or using application programming interfaces (APIs) and/or other services (or products provided on an “as a service” basis) operated or provided by third parties (“Third Party Services”). Airkit is not responsible for the operation of any Third Party Services nor the availability or operation of the Platform to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Airkit does not make any representations or warranties with respect to Third Party Services or any third-party providers. Any exchange of data or other interaction between Customer and a third-party provider is solely between Customer and such third-party provider and is governed by such third party’s terms and conditions.
- Notwithstanding any other provision of this Agreement, access to and hosting of the Platform are provided by or are dependent on underlying internet, cellular circuits and third party services (e.g., cloud service providers) (collectively, the “Connectivity Infrastructure”). The parties agree that such Connectivity Infrastructure is beyond Airkit’s reasonable control, and Airkit expressly disclaims any warranties, responsibilities or liabilities for such Connectivity Infrastructure, or for failures of the Platform due to lack of coverage, connectivity failures, or downtime of any component of the Connectivity Infrastructure.
- If Customer’s use of the Platform exceeds any usage limitations (including, for example, session limitations) set forth on the applicable Order Document, Customer will be invoiced at the end of each calendar month for the excess usage over such usage limitation, at the rate set forth on the applicable Order Document, and Customer agrees to pay the additional fees without any right of set-off or deduction.
- Airkit warrants that the Platform will operate in substantial conformity with the Documentation. Airkit does not warrant that Customer’s use of the Platform will be uninterrupted or error-free. Airkit’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in Airkit’s sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity, or if Airkit determines such remedies to be impracticable, to allow Customer to terminate this Agreement and receive as its sole remedy a refund of any fees Customer has pre-paid for the remainder of the term. The limited warranty set forth in this Section shall not apply: (i) if the error was caused by Customer’s misuse, unauthorized modifications, or third-party hardware, software or services used by Customer, or (ii) if the Services are provided on a no-charge or evaluation basis.
- EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PLATFORM AND AIRKIT PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. AIRKIT (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- This Section 16 only applies where the Customer is receiving the Support Services.
- Airkit’s Customer Support team works as a traditional safety net for our customers. When customers are working within Airkit’s platform and encounter a bug or are unable to carry out a desired action, they’re able to reach out for help via our ticketing system and our support agents will assist them with their needs.
- This Section 17 only applies where the Customer is receiving Implementation Services.
- The Implementation Services will be set out in a statement of work agreed by the parties. Such statement of work shall substantially be the form attached to this Agreement.
- Airkit agrees to provide the Implementation Services to the Customer, and the Customer agrees to acquire the Implementation Services from Airkit, at the prices and on the terms of this Agreement.
- Airkit will perform the Implementation Services with reasonable care and skill.
- Airkit will use reasonable endeavours to meet any performance dates, timeframes or milestones set out in applicable statement of work but these dates are estimates only and time for performance by Airkit is not of the essence.
- The Customer shall provide to Airkit, in a timely manner: (i) access to all such Customer equipment, premises and other materials; and (ii) all information and data, including answers to queries, decisions and approvals, in both cases which are reasonably required for the provision of the Implementation Services. The Customer is responsible for ensuring, and warrants that the data, information and answers it provides are accurate and complete.
- To the extent the statement of work for the Implementation Services sets out Customer responsibilities, the Customer shall perform such Customer responsibilities and all other obligations on it set out in this Agreement in a timely and efficient manner.
- Airkit owns all rights, title and interest in the know-how, methods, techniques, procedures, expertise and knowledge accumulated by it and its staff in course of performing the Implementation Services and similar services for other customers and nothing in this Agreement provides the Customer with any right, title or interest to such know-how, methods, techniques, procedures, expertise and knowledge.
- The Customer agrees and acknowledges that when Airkit is providing Implementation Services it is only advising on technical matters which relate to its products and services. Airkit will never provide advice relating to legal or regulatory compliance related matters. Airkit’s Implementation Services cannot be, and should not be, relied up by the Customer for legal or regulatory compliance. It is the Customer’s responsibility to ensure that its business operations, including any of Airkit’s interactions with such, are in compliance with Applicable Laws and Standards.
- Unless the applicable Order Document states otherwise: (i) the Customer is only entitled to use any reports providing as part of the Implementation Services for its own internal business purposes; (ii) the Customer is not permitted to publish any such reports (or sell or make the reports available to a third party), or allow any other person to do so; and (iii) all right, title and interest (including intellectual property rights) in such reports at all times, remain with Airkit.
- Unless expressly agreed otherwise in an Order Document, Airkit does not warrant that any result or objective can or will be achieved or attained at all or by a given date through the provision of the Implementation Services.
In this Agreement, unless otherwise stated: (i) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; (ii) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time; (iii) a reference to a “person” includes any natural person, firm, partnership, corporation, unincorporated association, trust, governmental or agency, or other entity; (iv) a reference to “writing” or similar expressions includes email; (v) a reference to a clause, paragraph, Schedule or annexure is to a clause or paragraph of, or Schedule or annexure to, this Agreement, as amended or renewed from time to time in accordance with this Agreement; (vi) a reference to a party is to a party to this Agreement, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes; (vii) the singular includes the plural and vice versa, and a reference to one gender includes all genders; (viii) another grammatical form of a defined word or expression has a corresponding meaning; (ix) all periods expressed to start and end between two dates are inclusive of those dates; (x) any undertaking by a party not to do any act or thing includes an undertaking not to permit or suffer the doing of that act or thing; (xi) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it; (xii) the words “includes”, “in particular”, “for example” or any similar expression must be construed as illustrative and read as if followed by the words “without limitation”; and (xiii) headings are for ease of reference only and do not affect interpretation.
Free Trial Customers
- Notwithstanding any of provision of this Agreement, if the Customer is using the Services on a free trial basis: (i) to the maximum extent allowed by applicable law, Airkit shall have no liability to the Customer arising from the Services or this Agreement; (ii) to the maximum extent allowed by applicable law, the Services are provided on an “as is” basis without warranty or guarantee of any kind; (iii) Airkit may terminate the Customer’s access to the Services and/or this Agreement at any time on notice; and (iv) there is no fixed term of this Agreement. The Agreement will apply for as long as the Customer continues to use the Services on a free trial basis.
Order of Precedence
- “Airkit Authoring Tool” means the hosted interface, software, and service provided by Airkit to Customer as part of the Services to empower Customer to utilize and access certain Airkit Components.
- “Airkit Components” means Airkit’s software and service components that allow Customer to manipulate Customer Content, including, but not limited to, credit card capture, location, forms, signature, and scheduler.
- “Airkit Data” means all data or information relating to the operation and delivery of the Services by Airkit, including, but not limited to, account information of Airkit customers, usage information relating to the use of the Services (such as action logs) and information or data derived from Airkit’s monitoring or oversight of the Services such as statistical and performance information and data on how the Platform is utilized by users.
- “Airkit Policies” means the policies, user guides and/or codes of practice which are applicable to the Services provided to the Customer as published Airkit’s website from time to time.
- “Airkit Sample Scripts” means illustrative workflow instructions written by Airkit in or utilizing the Airkit Authoring Tool or Airkit Components to illustrate how components can be used and how content can be manipulated.
- “Applicable Laws and Standards” means all applicable laws, regulations and rights, including but not limited to those related to privacy, intellectual property, consumer and child protection, SPAM, text messaging, obscenity or defamation (including the Telephone Consumer Protection Act of 1991 and any amendments or supplements and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 and any amendments or supplements thereto, the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act and any rules or regulations promulgated thereunder, the California Consumer Privacy Act and the General Data Protection Regulation and in each case any rules or regulations promulgated thereunder) and other applicable industry standards (including the Payment Card Industry Data Security Standard).
- “Contract Year” means a period of twelve months commencing on the date of this Agreement and on each successive anniversary of the date of this Agreement and ending on the day before each successive anniversary of the date of this Agreement.
- “Customer Content” means all data or information submitted by or on behalf of Customer or its clients or Users while using the Services, including but not limited to data about Customer’s clients and Customer’s business, in all cases which is not Airkit Data.
- “Customer Script” means workflow instructions written by Customer utilizing the Airkit Authoring Tool or Airkit Components. Typically, Customer Scripts are designed to help Customer improve speed, quality, and cost of its client and constituency relationships.
- “Documentation” means any official user documentation for the Platform, which Airkit publishes on its website.
- “Implementation Services” means the implementation services, if any, specified in an Order Document.
- “Journey” means a unique experience of User that can be as short as a minute and long as weeks, depending on the configuration. A single Journey can include multiple email, SMS, and/or voice contact points but is unique to one end user experience. A Journey is consumed once it is started, whether or not it reaches completion.
- “Messages” has the meaning given in Section 15.4.
- “Order Document” means one or more order forms, quotes, statements of work, or other ordering document executed with Customer which references these terms. Upon mutual execution, each Order Document shall be incorporated into and form a part of this Agreement. If the Customer is using the Services on a free trial basis the “Order Document” shall be the record of the Services used or to be used by the Customer which is created by Airkit from time to time.
- “Platform” means Airkit’s web-based customer experience applications and tools that you have subscribed to by an Order Document which are accessible via https://ruist.com or another designated URL, and all related tools, modules and functionality you have subscribed to by an Order Document, in all instances, as such are updated from time to time.
- “Security Terms” means the security terms and/or security practices data sheet which are applicable to the Services provided to the Customer as published Airkit’s website from time to time.
- “Services” means the provision of the Platform, the Support Services and/or the Implementation Services, in each case as specified in the applicable Order Document.
- “Support Services” means the support services, if any, specified in an Order Document.
- “Service Term” has the meaning given in the relevant Order Document.
- “Terms and Conditions” means this Schedule 1.
- “Third-Party Products and/or Services” means any third-party services, products, materials, or information that is provided with or incorporated into the Services, including any products provided on an “as a service” basis.
- “User” means the Customer’s end user.