THESE TERMS AND CONDITIONS (THIS "Agreement") CONSTITUTE A BINDING CONTRACT BETWEEN YOU AND FUSIT, INC. ("AiR", "we", "us" and "our"), AND BY CLICKING "I AGREE" BELOW, OR BY OTHERWISE INSTALLING OR USING THE APP (AS DEFINED BELOW), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING (THE DATE OF SUCH OCCURRENCE BEING THE "Effective Date"):
THIS AGREEMENT, AND
OTHER SUPPLEMENTAL TERMS AND POLICIES REFERENCED HEREIN, WHICH ARE HEREBY INCORPORATED INTO, AND MADE A PART OF, THIS AGREEMENT BY REFERENCE.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT DOWNLOAD OR USE THE APP.
You represent that you are of a legal age in your jurisdiction to form a binding contract, but in any event at least thirteen (13) years old. Children under the age of thirteen (13) are not permitted to use the App. If you are between thirteen (13) and eighteen (18) years old, you must review this Agreement with your parent or guardian, have him/her accept it on your behalf, as well as approve your use of the App.
This Agreement (including its Schedules) represents the entire agreement between AiR and you with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between you and AiR with respect to such subject matter. You acknowledge and agree that in entering into this Agreement you have not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement; for example, statements and explanations in any FAQs or other marketing material on the Site (defined below) are for convenience only, and are not binding or a part of this Agreement. The language of this Agreement is expressly agreed to be the English language. By entering into the Agreement you hereby irrevocably waive, to the maximum extent legally permitted, any Law (defined below) applicable to you requiring that the Agreement be localized to meet your language, as well as any other localization requirements.
AiR reserves the right to make changes to this Agreement at any time by posting the changed Agreement at www.getair.app/tos . Such changes will be effective ten (10) days after such posting, and your continued use of the App shall be deemed your agreement to such changes. In such cases, we will also update the "Last Updated" date set forth above. Please check the above webpage regularly for any changes.
At AiR's sole discretion, any AiR obligation hereunder may be performed (in whole or in part), and any AiR right or remedy may be exercised (in whole or in part), by a AiR Affiliate (defined below)
Air is not yet a corporation and is represented by Bram Verhoef & Thomas Verhoef
1.DEFINITIONS AND INTERPRETATION
This Agreement contains a range of capitalized terms, some of which are defined in this Section, and some of which are defined elsewhere. The Section and sub-Section headings in this Agreement are for convenience of reading only, and may not to be used or relied upon for interpretive purposes.
"App" means AiR's mobile software application (currently known as getair.app).
"Account Content" means Content inputted, hosted, shared, posted, published, or otherwise generated by you in relation to your use of the App (such as your App Account profile picture, Messages, User Submissions, each as defined below).
"Content" means any text, data, information, images (such as logos and trademarks), graphics, sounds, videos, audio clips, links, and/or other similar materials.
"Documentation" means any electronic manuals, specifications, and similar documentation that accompany the App.
"Feature" means any module, tool, and/or feature of the App (such as those providing for creating AR holograms, ... ).
"AiR Affiliate" means, with respect to AiR, any person, organization or entity controlling, controlled by, or under common control with, AiR, where "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organization or entity, whether through the ownership of voting securities or by contract or otherwise.
"AiR Partners" means brand, media, or similar marketing partners of AiR or a AiR Affiliate.
"Intellectual Property" means any and all inventions, discoveries, improvements, new uses, works of authorship, technical information, data, technology, know-how, show-how, designs, drawings, utility models, specifications, formulas, methods, techniques, processes, databases, computer software and programs (including object code, source code, and non-literal aspects), algorithms, architecture, records, documentation, and other similar intellectual property, in any form and embodied in any media, whether or not protectable or registerable.
"Intellectual Property Rights" means any and all rights, titles, and interests in and to Intellectual Property, including without limitation patents, copyright and similar authorship rights, mask work rights, trade secret and similar confidentiality rights, design rights, industrial property rights, trademark, trade name, trade dress and similar branding rights, as well as: (a) all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing rights; and (b) all goodwill associated with the foregoing rights.
"Law" means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.
"Moral Rights" means any rights of paternity or integrity, any right to claim authorship of a work, to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, any work, whether or not such would be prejudicial to the honor or reputation of the creator of the work, and any similar right, existing under judicial or statutory law of any jurisdiction, or under any treaty.
"Update" means an upgrade, update (such as a fix or patch), or other modification, improvement, enhancement or customization to or of the App.
Subject to the terms and conditions of this Agreement, AiR grants you a limited, non-exclusive, non-assignable, non-sublicensable, revocable license, during the Term (defined below), to install the App (in executable code version) on a device that you own or control ("Device"), and use the App solely for your own personal and non-commercial use (the "License"). Use of the App must be in accordance with the Documentation.
You may make one (1) backup and one (1) archival copy of the App, provided your backup and archival copies are not installed or used on any device or other equipment, and further provided that all such copies shall bear the original and unmodified copyright, trademark, and other proprietary rights notices or legends displayed or contained on or in the App.
For the avoidance of doubt, the copy(ies) of the App, as well as the Documentation, are only licensed under this Agreement, and no title in or to such copy(ies) (or the App or Documentation themselves) passes to you. Except for the License, you are granted no other right in or to the App or Documentation, whether by implied license, estoppel, patent exhaustion, operation of law, or otherwise.
3.DATA AND PRIVACY
3.1 Storage. The App is not intended to, and will not, operate as a data storage product or service, and you agree not to rely on the App for the storage of any Account Content whatsoever. You are solely responsible and liable for the maintenance and backup of all Account Content. Notwithstanding the foregoing, AiR reserves the right to automatically download Account Content to Fusit's cloud-based database(s).
3.2 Stored On Device. You acknowledge that certain Account Content (including without limitation personal information and other information provided by you in connection with your use of the Device) may be saved to or stored on your Device (even if we do not collect that Account Content).
You shall not (and shall not permit or encourage any third party to) do any of the following: (a) reproduce the App; (b) sell, assign, lease, lend, rent, distribute, or make available the App to any third party, or otherwise use the App in a time-sharing, outsourcing, or service bureau environment; (c) modify, alter, adapt, arrange, translate, decompile, disassemble, reverse engineer, decrypt, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying ideas, algorithms, structure, sequence, organization, and interfaces) of, the App; (d) remove, alter, or conceal, in whole or in part, any copyright, trademark, or other proprietary rights notice or legend displayed or contained on or in the App; (e) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the App; (f) make a derivative work of the App, or use the App to develop any service or product that is the same as (or substantially similar to or competitive with) the App; (g) disclose to the public the results of any internal performance testing or benchmarking studies of or about the App, without first sending the results and related study(ies) to AiR , and obtaining AiR's written approval of the assumptions, methodologies and other parameters of the testing or study; (h) publish or transmit any robot, virus, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the App; and/or (i) use the App to infringe, misappropriate or violate any third party's Intellectual Property Rights or personal rights (such as Moral Rights, rights of privacy, and publicity rights), or any Law. References in this paragraph to "App" shall be taken to mean the App in whole or in part, as well as any Documentation.
Your full compliance with the above limitations is a condition to the License; provided however, that such limitations shall not apply to the extent expressly permitted otherwise in this Agreement, or to the extent any limitation is prohibited by the Law applicable to you or by any Third Party Software Terms and Notices (defined below). You acknowledge that the App contains information and materials that are confidential and proprietary to AiR (and may even constitute AiR 's, or a AiR Affiliate's, trade secrets), and therefore you agree that a breach or threatened breach of this Section (License Restrictions) may cause AiR and/or a AiR Affiliate to suffer irreparable harm or damage for which monetary damages will be inadequate, and accordingly, if AiR or a AiR Affiliate seeks an injunction, specific performance, or other equitable relief to enforce any provision under this Section, AiR or the AiR Affiliate (as the case may be) shall not be required to post a bond or to prove the likelihood of irreparable harm.
To the extent you are given the right, under any Law applicable to you, to receive information and/or materials for purposes of making the App interoperable with other software products, you agree to first request from AiR (in a reasonably detailed writing) access to such information and/or materials, and if AiR accepts such request, AiR may (in its sole discretion) impose additional conditions on such access and use (but such use shall in any event be solely for the purpose of achieving the desired inter-operability).
5.THIRD PARTY SOFTWARE
The App may include third party software components that are subject to open source and/or pass-through commercial licenses and/or notices ("Third Party Software" and "Third Party Software Terms and Notices", respectively). AiR will reasonably comply with any valid written request submitted by you to AiR for exercising your rights under such Third Party Software Terms and Notices. You acknowledge that your use of the App is also governed by such Third Party Software Terms and Notices, and that to the extent of any conflict between this Agreement and any Third Party Software Terms and Notices, the latter shall control. Any undertakings, representations, warranties, guarantees, conditions, indemnities or other commitments made by AiR in this Agreement concerning the App (if any), are made by AiR and not by any authors, licensors, or suppliers of, or contributors to, such Third Party Software. Notwithstanding the foregoing sentence or anything in this Agreement to the contrary, AiR does not make any representation, warranty, guarantee, or condition, and does not undertake any defense or indemnification, with respect to any Third Party Software.
6.THIRD PARTY CONTENT AND SOURCES
The App may present, or otherwise allow you to view, access, link to, and/or interact with, Content from third parties and other sources that are not owned or controlled by AiR (such Content, "Third Party Content"). The App may also enable you to communicate with the related third parties. The display or communication to you of such Third Party Content does not (and shall not be construed to) in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by AiR of such Third Party Content or third party, nor any affiliation between AiR and such third party.
7.1.Responsibility. You are solely responsible and liable for your Account Content. Needless to say, AiR is not responsible or liable for your Account Content, or for the way in which it is used by others. For example, when you send someone Content using the App, he or she will have a copy of that Content and will then be able to send it to, or share it with, others (whether via the App, through other online services, or offline). You hereby represent and warrant that: (a) your Account Content does not, and will not, infringe, misappropriate, or violate any third party's Intellectual Property Rights or personal rights (such as Moral Rights, rights of privacy, and publicity rights), or any Law; (b) your Account Content is not, and will not be, disparaging, threatening, offensive, harassing, deceptive, abusive, promoting of violence, and does not, and will not, contain obscenity or pornography; (c) your Account Content does not, and will not, contain any robot, virus, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the App; and (d) you have obtained, and will maintain during and after any termination of this Agreement, any and all licenses, permissions, consents, and authorizations required to grant each of the Account Content License, Promotion License, and Cross User Submission License (each as defined below).
7.2 Obligation by AiR. AiR has no obligation to accept, display, review or maintain any of your Account Content. AiR may, without notice, edit, replace and/or delete your Account Content in our sole discretion, including, without limitation, if we: (a) determine that you are in breach of any provision of this Agreement (for example, if your App Account profile picture contains nudity or impersonates another person, we may replace the picture with another picture we deem appropriate) or have violated (or are suspected by us of violating) any Law; and/or (b) deem it helpful or reasonably necessary to comply with any applicable Law, legal process, or governmental request, to enforce the Agreement (including investigations of potential violations thereof), to detect, prevent, or otherwise address fraud, security issues, and/or to protect against harm to the rights, property or safety of AiR, our users, yourself or the public.
7.3.Messages. Without limiting the generality of the foregoing subsections, the App may permit you to send messages (such as invitations) or similar Content to AiR or third parties ("Messages"). You are solely responsible and liable for the Content of your Messages, for the manner in which you send them, for the timing of sending them, and generally for the consequences of sending them. You acknowledge that many jurisdictions have Laws that require a recipient of a Message to give his/her prior consent (and that in certain cases such consent must be express, written and/or signed) to receive the Message, and you agree to: (a) obtain such consent prior to sending the Message; (b) provide AiR, upon request, with a record or other evidence of such consent; and (c) immediately notify AiR if the recipient revokes his/her consent. In any event, you agree to hold us harmless, and expressly release us, from any and all liability arising from Messages you send or receive.
7.4.User Submissions. Without limiting the generality of the foregoing subsections, the App may permit the posting and uploading of Content (such as mashups) by you and other users to online platforms, such as Instagram, Facebook, and Twitter ("User Submissions"). You understand that whether or not your User Submissions are published, we do not guarantee any confidentiality with respect to any User Submissions. You shall be solely responsible and liable for your User Submissions and the consequences of publishing them (including without limitation, for obtaining any consents from individuals appearing therein), and you agree to hold us harmless, and expressly release us, from any and all liability arising from your User Submissions. We have complete discretion whether to permit your User Submissions to be published, and we reserve the right without further notice to you, to monitor, censor, edit, delete, and/or remove any and all User Submissions at any time and for any reason.
You acknowledge that when accessing and using the App: (a) you will be exposed to User Submissions from a variety of sources, and that we are not responsible for the accuracy, usefulness, safety, or Intellectual Property Rights of, or relating to, such User Submissions; and (b) you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable. You hereby irrevocably waive any legal or equitable rights or remedies you may have against us with respect to (a) and (b) herein. If you suspect that any crime or other unlawful activity has been, or is being committed, please do not rely on AiR's ability to edit or delete; rather, contact your applicable emergency services or law enforcement authority.
8.1.General. All references herein to the "App" shall include its Features as well. AiR reserves the right to remove, modify, and/or add Features at any time, without any notice or obligation to you, and for any reason whatsoever. Some Features may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by AiR in its sole discretion. Moreover, if AiR determines that you are in breach of any provision of this Agreement, we reserve the right to block you from certain Features. We make Features available because we believe it enhances the user experience of the App; but you acknowledge and agree that just because we make a Feature available, it does not mean we endorse, or can otherwise control, every manner in which such Feature is used. A new or modified Feature may be accompanied by separate or additional terms and conditions, in which case such terms will (as determined in such terms and conditions) apply instead of, or in addition to, this Agreement. AiR may in its sole discretion charge for new Features and/or require additional personally identifiable information.
Without limiting the generality of the foregoing, you acknowledge that whereas Features currently make the App compatible for use with your Device, these Features may be removed or modified in the future.
All references herein to the "App" shall include the Updates we provide as well. AiR may from time to time provide Updates, but shall not be under any obligation to do so. Such Updates will be supplied according to whatever then-current policies we may have in place, and some Updates may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by AiR in its sole discretion. Some Updates may include automatic updating or upgrading without any notice or obligation to you, and you consent to any such automatic updating or upgrading of the App. In some cases, you may be required to install the Update manually. An Update may be accompanied by separate or additional terms and conditions, in which case such terms will (as determined in such terms and conditions) apply instead of, or in addition to, this Agreement. AiR may in its sole discretion charge for Updates and/or require additional personally identifiable information. AiR is under no obligation to provide any technical support for the App. Thereby, we cannot be held responsible for any accidental damage you may occur while running our App on any of the devices you use AiR on .
10.1App and Documentation. You hereby acknowledge that the App and Documentation are or may be protected by Intellectual Property (and similar) Laws, treaties, and conventions. Any rights not expressly granted herein are hereby reserved by AiR and its licensors and suppliers. As between you and AiR (and except for the License), AiR is the sole and exclusive owner of: (a) the copy of the App and Documentation installed on your Device; and (b) all Intellectual Property Rights in and to the App, the Documentation, and all Content generated or otherwise provided or appearing on or in the App (except to the extent such Content constitutes your Account Content). For the avoidance of doubt, "AiR" (and their respective logos) is a trademark of AiR and/or AiR Affiliates, and all other trademarks appearing within the App are the trademarks of their respective owners.
10.2.Account Content Ownership and Licenses. As between you and AiR, you are the sole and exclusive owner of your Account Content. Notwithstanding such ownership:
(A)You hereby grant AiR and all AiR Affiliates a worldwide, assignable, non-exclusive, royalty-free, fully-paid, sublicensable (through multiple tiers of sublicensees), irrevocable and perpetual license, in any media format and through any media channels, to access and use: (a) your Account Content to perform under this Agreement, including without limitation to provide you with the functionality of the App and any technical support; and (b) your Account Content on an aggregated or otherwise anonymous basis for improving the App, analytics, and generally research and development (collectively, the "Account Content License"). The Account Content License shall survive any termination of this Agreement.
(B)You hereby grant AiR, all AiR Affiliates, and all AiR Partners a worldwide, assignable, non-exclusive, royalty-free, fully-paid, sublicensable (through multiple tiers of sublicensees), irrevocable and perpetual license, in any media format and through any media channels, to access and use the User Submissions portion of your Account Content to reproduce, distribute (and otherwise broadcast and make available to the public), create derivative works of, publicly display, and publically perform such User Submissions in connection with: (a) marketing and promoting the App; (b) marketing and promoting AiR, AiR Partners, and/or any other third parties; and/or (c) monetizing the User Submissions (for example, through advertising) (collectively, the "Promotion License").
(C)You hereby grant each App user a worldwide, non-assignable, non-exclusive, royalty-free, fully-paid, non-sublicensable, irrevocable and perpetual license to access and use the User Submissions portion of your Account Content to reproduce, distribute, create derivative works of, publicly display and publicly perform such User Submissions to the extent permitted by the functionality of the App, and under this Agreement (the "Cross User Submission License"). The Cross User Submission License shall survive any termination of this Agreement.
10.3 Feedback. If you provide AiR with any ideas, suggestions, or similar feedback about performance of the App and/or for improving the App ("Feedback"), you hereby grant AiR and all AiR Affiliates a worldwide, assignable, non-exclusive, royalty-free, fully-paid, sublicensable (through multiple tiers of sublicensees), irrevocable, and perpetual license, in any media format and through any media channels, to use, copy, distribute, transmit, modify, create derivative works of, publicly display, publicly perform, and otherwise commercially exploit such Feedback (the "Feedback License"). You hereby represent and warrant that: (A) your Feedback does not, and will not, infringe, misappropriate or violate any third party's Intellectual Property Rights or personal rights (such as Moral Rights, rights of privacy, and publicity rights), or any Law; and (B) you have obtained, and will maintain during and after any termination of this Agreement, all licenses, consents, permissions and approvals required to grant the Feedback License. The Feedback License shall survive any termination of this Agreement.
10.4.Moral Rights Waiver. You hereby irrevocably waive (and agree never to assert) against AiR, a AiR Affiliate, AiR's licensors and suppliers, and/or any other App user, any Moral Rights you may have in and to any of your Account Content and/or Feedback.
10.5.Copyright Infringement Takedowns (DMCA Policy). It is AiR's policy to respect the legitimate rights of copyright owners, and we will respond to clear notices of alleged copyright infringement in accordance with our DMCA Policy set forth in Schedule 2 below. 10.6. Do not use information from Contacts, Photos, or other APIs that access user data to build a contact database for your own use or for sale/distribution to third parties, and don’t collect information about which other apps are installed on a user’s device for the purposes of analytics or advertising/marketing.
11.1.THE APP, DOCUMENTATION, AND ANY CONTENT WHATSOEVER ARE PROVIDED AND MADE AVAILABLE TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, QUIET POSSESSION, TITLE, QUALITY OF SERVICE, NON-INFRINGEMENT, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY FUSIT AND ITS LICENSORS AND SUPPLIERS.
11.2ADDITION, NEITHER FUSIT NOR ITS LICENSORS OR SUPPLIERS MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION:
REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY, OR COMPLETENESS OF THE APP, DOCUMENTATION, OR SUCH CONTENT;
THAT YOUR USE OF, OR RELIANCE UPON, THE APP, DOCUMENTATION, OR SUCH CONTENT WILL MEET YOUR REQUIRMENTS OR EXPECTATIONS;
THAT THE APP, DOCUMENTATION, OR SUCH CONTENT WILL BE UNINTERRUPTED, SECURE, ERROR-FREE OR VIRUS-FREE, OR THAT DEFECTS IN THE APP WILL BE CORRECTED; OR
REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY GOVERNMENT REGULATIONS OR STANDARDS.
11.3.Some jurisdictions' Laws do not allow the disclaimer of certain implied warranties or conditions, and to the extent applicable to you, AiR limits the duration of such warranties and conditions to the duration of ninety (90) days from the Effective Date.
11.4ACKNOWLEDGE AND AGREE THAT THIS SECTION (DISCLAIMER) IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND AiR
12.LIMITATION OF LIABILITY
12.1NO EVENT SHALL AiR, ANY AiR AFFILIATE, OR ANY OF OUR LICENSORS OR SUPPLIERS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
(A)ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
(B)ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS;
(C)ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR
(D)THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
13.2.THE COMBINED AGGREGATE LIABILITY OF AiRAND ALL AiR AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE LOWER OF: (A) FIVE EURO'S (US €5), AND (B) THE AMOUNTS ACTUALLY PAID BY YOU (IF ANY) TO AiR OR A AiR AFFILIATE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU BRING YOUR CLAIM.
12.3.THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF AiR OR A AiR AFFILIATE HAS BEEN ADVISED, OR SHOULD HAVE BEEN A WARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, INCLUDING WITHOUT LIMITATION MATERIAL BREACH, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHER CONTRACT OR TORT LIABILITY.
12.4.Some jurisdictions' Laws do not allow the exclusion or limitation of incidental or consequential damages, or of other damages, and to the extent applicable to you, such exclusions and limitations shall not apply. Furthermore, nothing in this Agreement shall be deemed to exclude or limit liability for death or personal injury resulting from negligence, or for fraud or fraudulent misrepresentation.
12.5 ACKNOWLEDGE AND AGREE THAT THIS SECTION (LIMITATION OF LIABILITY) IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND AiR.
If any third party (including, but not limited to, a regulatory or governmental authority) brings any kind of demand, claim, suit, action or proceeding against AiR, a AiR Affiliate, and/or any of our respective directors, officers, employees, or representatives (each, an "Indemnitee"), and it is based upon or arises from:
(a)your use of the App; and/or
(b)your breach of any provision of this Agreement
(each of the foregoing, an "Indemnity Claim") then, upon written request by AiR (to be decided in our sole discretion), you agree to assume full control of the defense and settlement of the Indemnity Claim; provided, however, that (c) AiR reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Indemnity Claim, and in such cases you agree to reasonably cooperate with AiR's defense activities at your own cost and expense; and (d) you shall not settle any Indemnity Claim, or admit to any liability thereunder, without the express prior written consent of the Indemnitee(s).
In addition, and regardless of whether (or the extent to which) you controlled or participated in the defense and/or settlement of an Indemnity Claim, you agree to indemnify and hold harmless the Indemnitee(s) for and against: (e) any costs and expenses (including reasonable attorneys' fees) incurred by the Indemnitee(s) in the defense of the Indemnity Claim; and (f) any amounts awarded against, or imposed upon, the Indemnitee(s) under such Indemnity Claim, or otherwise paid in settlement of the Indemnity Claim (including without limitation any fines or penalties).
14.TERM AND TERMINATION
14.1.Term. This Agreement commences on the Effective Date and shall continue in full force and effect until terminated in accordance herewith (the "Term").
14.2.Termination by AiR. AiR reserves the right to immediately terminate this Agreement, or otherwise modify, suspend or discontinue your access to and use of the App (or any part thereof), for any reason whatsoever, at any time, and without notice or obligation to you, and you agree that AiR shall have no liability to you for any such termination, modification, suspension, or discontinuance.
14.3.Termination by You. You may terminate this Agreement at any time and for any reason, but only by either: (a) uninstalling the App and cancelling your App Account; or (b) giving AiR ten (10) days' prior written notice, at firstname.lastname@example.org . If you object to any term or condition of this Agreement or any subsequent changes thereto, or become dissatisfied with the App in any way, your sole remedy is to terminate this Agreement. To uninstall the App, please use the application manager provided with your Device (or otherwise consult your Device manual).
15.CONSEQUENCES OF TERMINATION; SURVIVAL
Upon termination of this Agreement: (a) the License will automatically terminate and be deemed revoked, and you must immediately cease use of the App and uninstall and permanently delete it from the Device (as well as any other copies); and (b) your access to your App Account will be disabled, and AiR may permanently delete your Activity Data. Sections 11 (Ownership) through 19 (Miscellaneous) shall survive termination of this Agreement, as shall any right, obligation or provision that is expressly stated to so survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.
This Agreement (including without limitation its validity and formation) shall be governed by, and construed in accordance with, the laws of the State of New York, USA without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed.
17.1.Assignment. AiR may assign this Agreement (or any of its rights and/or obligations hereunder) without your consent, and without notice or obligation to you. This Agreement is personal to you, and you shall not assign (or in any other way transfer) this Agreement (or any of your obligations or rights hereunder) without AiR's express prior written consent. Any prohibited assignment shall be null and void.
17.2.Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such affected provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity, illegality, or unenforceability), and shall be substituted (in respect of such jurisdiction) with a valid, legal, and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
17.3.Remedies. Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
17.4.Waiver. No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by you, emails will be acceptable; for waivers by AiR, the writing must be duly signed by an authorized representative of AiR), and shall be valid only in the specific instance in which given.
17.5.Relationship. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties.
17.6.Notices. You agree that AiR may send you notices by email, via your App Account, by regular mail, and/or via postings on or through App. Except as stated otherwise in this Agreement or required by Law applicable to you, you agree to send all notices to AiR, to email@example.com .
17.7 Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as AiR Affiliates, AiR's licensors and suppliers, other App users, and Indemnitees), there shall be no third-party beneficiaries of or under this Agreement.
17.8.Force Majeure. AiR shall not be responsible for any failure to perform any obligation or provide any service hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, and/or (d) other similar cause beyond AiR's reasonable control. For the avoidance of doubt, any problems relating to the hosting of the App shall not be deemed within AiR's reasonable control.
17.9.Use of the App in a Vehicle. If you are using the App in a vehicle, you agree: (a) to comply with all applicable traffic Laws; and (b) if you are the driver, not to use the App unless your vehicle is stationary and legally parked.
17.10.Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
You should print a copy of this Agreement for future reference.
APP PLATFORM USAGE RULES
If you download the App from the Apple, Inc. ("Apple") App Store (or in any event if you download an Apple iOS app) then, without derogating from the warranty disclaimers and limitation of liability as set forth in the Agreement:
You acknowledge and agree that:
the Agreement is concluded between AiR and you only, and not with Apple, and AiR and its licensors, and not Apple, are solely responsible for the App and the content thereof.
your use of the App is also subject to the Usage Rules established by Apple, including those set forth in the Apple App Store Terms of Service, effective as of the date that you enter into this Agreement.
the License granted herein is limited to a non-transferable right to use the App on an Apple iPhone, iPod Touch, iPad, or other Apple-branded product that you own or control and that runs the iOS;
AiR is solely responsible for providing any maintenance and support services with respect to the App, as specified in the Agreement, or as required under applicable Law. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
AiR is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will, to the extent applicable, refund any purchase price paid (if any) by you for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be AiR's sole responsibility;
AiR, and not Apple, is responsible for addressing any product claims you, or any third party, may have relating to the App or your possession and/or use of the App, including, but not limited to: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation;
in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Apple shall not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim;
Apple and its subsidiaries are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third party beneficiary thereof.
You represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you have any questions, complaints, or claims regarding the App, please contact AiR at firstname.lastname@example.org .
By entering into the Agreement you, to the extent legally permitted, hereby waive any applicable law requiring that the Agreement be localized to meet your language and other local requirements. To the extent that the foregoing is not permitted, you agree to be bound by the standard Apple Licensed App End User License Agreement which is part of the Apple App Store Terms of Service, at www.apple.com/legal/itunes/us/terms.html#SERVICE (as amended from time to time).
Removal of Content. It is the policy of AiR to respect the legitimate rights of copyright owners, and we will respond to clear notices of alleged copyright infringement. Pursuant to the Digital Millennium Copyright Act (the "DMCA"), we have designated a Copyright Agent (as specified below) to receive notifications of claimed copyright infringement in connection with the App. Please be advised that we enforce a policy that provides for the termination in appropriate circumstances of App users who are repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide the Copyright Agent with the following information in accordance with the DMCA:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright;
A description of the copyrighted work you claim has been infringed;
A description of where the material that you claim is infringing is located on the App, with enough detail that we may find it. Providing URLs in the body of an email is the best way to help us locate content quickly;
Your address, telephone number, and email address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Counter-Notification. If you believe that the material you posted was removed from the App by mistake, and that you have the right to post the material, you may elect to send us a counter-notification. To be effective the counter-notification must be a written communication provided to our Copyright Agent that includes substantially the following (please consult your legal counsel or see the DMCA to confirm these requirements):
Your physical or electronic signature;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled. Providing URLs in the body of an email is the best way to help us locate content quickly;
A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which the App may be found or accessed, and that you will accept service of process from the person who provided notification of infringement or an agent of such person.
Misrepresentations. Please note that under the DMCA (at 17 U.S.C. Section 512(f)) any person who knowingly materially misrepresents that material or activity is infringing or was removed or disabled by mistake or misidentification may be subject to liability.
Copyright Agent. Our agent for notice of claims of copyright infringement ("Copyright Agent") can be reached as follows: