By using the AirLabs Services, you the Customer (the entity or person listed in the registration form) acknowledge and agree to be bound by the terms and conditions of this AirLabs Services agreement (this "Agreement") between Customer (also called "you" and "your") and AirLabs. Do not use the site and services if you do not agree to these terms. AirLabs reserves the right to change these terms and you should review these terms periodically. Your continued use of the AirLabs site and service indicates you agree to the then-current terms.
AIRLABS MAKES EVERY REASONABLE EFFORT TO PROVIDE ACCURATE AND TIMELY INFORMATION, BUT THERE MAY BE MISTAKES AND TYPOGRAPHIC ERRORS ON THIS SITE. THEREFORE YOU SHOULD NOT ASSUME THAT ALL INFORMATION ON THIS SITE IS ACCURATE OR COMPLETE.
You may not:
Customer shall access the AirLabs Services either by posting and maintaining at the Customer site software to the AirLabs Services or by providing other direct means for accessing the AirLabs Services. All costs associated with Customer's accessing and supporting the AirLabs Services shall be the sole responsibility of Customer. Customer will establish and enforce reasonable procedures to ensure that Customer can control and account for access to and use of the AirLabs Services by Customer Users.
AirLabs may collect, retain, and use data and information regarding Customer and Customer Users who use the Service. AirLabs may only use and disclose any personally identifiable information about Customer Users for AirLabs's own internal purposes.
AirLabs grants you a non-exclusive, nontransferable and terminable license to use the AirLabs Premium APIs and the information provided therein (the "AirLabs Data"), upon your acceptance of this Agreement. Individuals working as employees or contractors hired by Customer are called "Customer Users" in this Agreement.
SERVICE LEVEL AGREEMENT
Hosting. AirLabs shall host the AirLabs Services hosting facilities. Power, Internet connectivity and hosting hardware shall have redundant systems to minimize the likelihood of a site outage.
Availability. The AirLabs Services will be available at least 99% of the time each month. The following will not be counted as an availability outage: an outage that continues for an hour or less that AirLabs fails to identify and which Customer fails to report to AirLabs within three business days, or an outage resulting from maintenance by AirLabs for which Customer receives an advance notice. AirLabs shall maintain the ability to perform software updates and system maintenance without taking the system offline, through the use of redundant hardware.
Monitoring and Support. The AirLabs infrastructure shall be monitored continually via a variety of automated mechanisms that continually check the health of the overall system and subsystems.
Marketing. Neither party shall make any public statement, press release, or other announcement relating to the terms and conditions of or existence of this Agreement without the prior written approval of the other party.
Branding. If Customer publishes AirLabs Data via a public website, Customer can put a "Powered by AirLabs" or similar label on related website pages and will include a link to the AirLabs website.
AirLabs can publish on own web pages that fact what the Customer use an AirLabs services for marketing reasons.
OWNERSHIP AND USE OF SERVICES AND DATA
Ownership and Use of AirLabs Services. Customer acknowledges the AirLabs Services and documentation are owned by and shall remain the exclusive property of AirLabs. No rights in the AirLabs Services and documentation are granted or conveyed by AirLabs other than the limited right to use them as set forth in this Agreement.
Ownership and Use of AirLabs Data. Customer acknowledges that all AirLabs Data provided or available to Customer or Customer Users through the AirLabs Services is owned either by AirLabs or by AirLabs's third-party data providers and that neither Customer nor Customer Users shall acquire any ownership or interest whatsoever in such data.
Confidential Information. The Customer acknowledge that, in the course of their dealings hereunder, each may acquire Confidential Information about AirLabs. For the purposes of this Agreement, "Confidential Information" means any information in any form presented to the Customer, excluding information in the public domain or developed independently by the receiving part hereunder.
Nondisclosure and Nonuse. Customer agrees (i) that it will not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement and (ii) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of AirLabs in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.
Permitted Disclosures. Notwithstanding the foregoing, Customer may disclose Confidential Information (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law or (ii) on a "need-to-know" basis under an obligation of confidentiality to its legal counsel, accountants, banks, and other financing sources and their advisors.
AirLabs is of the view that the GDPR does not apply to its activities, as it does not have an establishment in the EU (it has no offices or employees in the EU), does not proactively target data subjects in the EU, and does not monitor the behavior of EU data subjects on its website.
DISCLAIMER, LIMITATION OF WARRANTIES AND LIABILITY
Warranties. Customer warrants that (a) it has the full power and authority to enter into this Agreement and to perform the obligations contained in this Agreement, and (b) its entry into, and performance under, this Agreement will not violate any law, statue or regulation or result in a breach of any material agreement or understanding to which it is bound.
No Performance Warranties. The AirLabs Data available through the AirLabs Services has been compiled from various sources, and AirLabs disclaims all responsibility for checking and verifying that the AirLabs Data is 100% accurate. Consequently, AirLabs provides no performance warranties to Customer or to Customer Users, AND IN THE ABSENCE OF SUCH WARRANTIES AIRLABS SPECIFICALLY PROVIDES THE AIRLABS SERVICES AND AIRLABS DATA ON AN "AS IS" BASIS.
General Disclaimer. AIRLABS DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, AND ALL IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. AIRLABS ASSUMES NO RESPONSIBILITY AND ACCEPTS NO LIABILITY FOR ANY FAILURE IN TELECOMMUNICATION LINES OR ELECTRIC POWER SOURCES CONNECTING CUSTOMER OR CUSTOMER USERS TO THE AIRLABS SERVICES. AIRLABS DOES NOT WARRANT THAT ACCESS TO, OR OPERATION OF, THE AIRLABS SERVICES OR THE AIRLABS DATA WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED.
Limitation of Liability. IN NO EVENT SHALL AIRLABS, OR ITS OFFICERS, DIRECTORS, OR EMPLOYEES, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. NOTWITSTANDING THE FOREGOING, THE AGGREGATE LIABILITY OF AIRLABS FOR ALL DAMAGES, INJURIES, AND LIABILITY INCURRED BY CUSTOMER, ANY CUSTOMER USER, AND ALL OTHER PARTIES IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED US$1.
Exclusive Remedy. In the event the AirLabs Services do not operate as represented on the AirLabs site, AirLabs will make commercially reasonable efforts to correct the problem upon receiving notice of it. If AirLabs cannot reasonably remedy the problem, then Customer will be notified and may terminate this Agreement in accordance with the termination provisions below. This remedy is the sole remedy available to Customer.
Customer Indemnity of AirLabs. Customer shall indemnify, defend, and hold AirLabs and its officers, directors, agents, and employees harmless against any action, judgment, liability, loss, cost, or damage (including attorneys' fees) resulting from third-party claims arising exclusively from any violation by Customer or a Customer User of the restrictions set forth herein on use of the AirLabs Services or AirLabs Data contained therein.
TERM AND TERMINATION
Term. The term of this Agreement shall commence on the date of this Agreement. This Agreement shall remain in effect until such time that your AirLabs Services plan is exhausted.
Customer's Termination Rights. Customer may terminate this Agreement for breach following AirLabs's receipt of written notice of a breach, provided such breach has not been cured within a reasonable time. In the event of such termination, or if AirLabs has voluntarily terminated the Agreement, Customer shall be entitled to a pro rata return of amounts paid. This refund is the sole monetary remedy available to Customer as a result of any alleged service failure or AirLabs termination. In all other cases, Customer shall not be entitled to a refund of any amounts paid, regardless of level of AirLabs Services usage.
Entire Agreement; Severance. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter. Each separate provision or term herein shall be treated as a separate and independent "clause”, and the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. The parties agree that should a court determine that any clause hereof is unenforceable, then the court may strike only that clause and interpret the Agreement without such unenforceable clause in order to give effect, to the fullest extent permissible, to the intentions of the parties manifested in such unenforceable clause.
Modifications; Waiver and Amendments. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties. No waiver of any breach or default shall constitute a waiver of any other or subsequent breach or default. Notwithstanding the foregoing terms, AirLabs may alter, modify or substitute Company IDs, passwords, or any other device or method used for controlling access to the AirLabs Services and the AirLabs Data, at any time, without the consent of Customer or Customer Users, by giving reasonable notice to Customer of such change.
Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s written consent (which shall not be unreasonably withheld), except that no such consent will be required in connection with the assignment to a legal successor in interest that assumes all obligations hereunder as part of (i) a merger, reorganization, or sale of all, or substantially all, of such party’s assets or (ii) either party's assignment or delegation of its rights and responsibilities hereunder to a wholly owned subsidiary or joint venture in which the assigning party holds an interest. The assigning party in any authorized assignment without consent shall be required to provide reasonable notice to the other party, and in all events not less than five (5) business days' notice. Any attempt to assign this Agreement other than as permitted above shall be null and void.
Notices. Any notice under this Agreement shall be in writing and delivered by personal delivery, express courier, confirmed facsimile, confirmed email, or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, one (1) day after deposit with express courier, upon confirmation of receipt of facsimile or email, or five (5) days after deposit in the mail. Notices shall be sent to a party at its contact address set forth in this Agreement or such other address as that party may specify in writing pursuant to this Section.
Independent Contractors; No Agency. The parties are independent contractors and have no power or authority to assume or create any obligation or responsibility on behalf of each other. Notwithstanding any public references to a "partnership", this Agreement does not, and shall not be construed to create or imply any partnership, agency, or joint venture.
Force Majeure. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party, including, but not limited to, acts of God, power outages, telecommunication system failures, and governmental restrictions.
No Third-Party Beneficiaries. The provisions of this Agreement are intended solely for the benefit of Customer and shall create no rights or obligations enforceable by any other party unless such beneficiaries are expressly set forth in an amendment hereto.
In the event that any matter of disagreement shall arise under this Agreement, such disagreement shall be resolved in accordance with the terms contained in this paragraph. Neither party shall institute a proceeding in any court or administrative agency to resolve a dispute between the parties before that party has sought to resolve the dispute through direct negotiations with the other party. If the dispute is not resolved within three (3) weeks after a demand for direct negotiations, the parties shall attempt to resolve the dispute through mediation.
The Parties shall use their best efforts to agree upon a mediator. If no agreement can be reached with forty-eight (48) hours, then each party shall nominate a mediator or other neutral party for purposes of selecting a mediator for the dispute, and those two neutral parties shall have an additional forty-eight (48) hours to agree on the final mediator, who alone shall mediate the dispute.
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