WE HAVE UPDATED THE APPTIMIZE TERMS OF SUBSCRIPTION SERVICE
Airship announced on August 27, 2019 that we have acquired Apptimize. In order to enable our customers to subscribe to and use the full range of the services provided by the combined companies, we have updated these terms. We have not changed your ability to use our Service resulting from change of these terms, and you may continue to access and use the Airship Service and Apptimize Service as you have previously.
These updated terms are effective as of November 15 2019, except if You have previously agreed to a version of these terms before November 15, 2019, these updated terms shall be effective as of December 15, 2019 for You.
Please review these updated terms, as these terms are legally binding and by continuing to use the Service after November 15, 2019 (or December 15, 2019, respectively), you are accepting these updated terms.
APPTIMIZE TERMS OF SUBSCRIPTION SERVICE
Effective Date: November 15, 2019 (or December 15, 2019, respectively). Previous Versions.
THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE SERVICE.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU”, “YOUR” OR “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
You may not access the Service if You are a direct competitor of Airship, except with Airship’s prior written consent. In addition, You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement is effective between You and Airship as of the date of You accept this Agreement.
1. DEFINITIONS. In addition to the terms defined in the body of the Agreement, the following terms have the following meanings:
“Acceptable Use Policy” means the Airship policy for appropriate use of the Service. The most recent copy of such Acceptable Use Policy is available here: http://airship.com/legal/acceptable-use-policy. “Account User” means an individual who is authorized by Customer to use the Service and to whom Customer (or Airship at Customer’s request) has supplied a login ID and password to access and use the Service. Account Users may include Customer’s employees, consultants, contractors and agents, but may not include any competitors of Airship.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means these Airship Terms of Subscription Service and all terms included in urls links referenced in this Agreement.
“Airship” means Urban Airship, Inc., d/b/a Airship, a Delaware corporation and its subsidiary, Apptimize LLC. (“Apptimize”).
“Airship Library” means the latest version of Airship’s proprietary code and binary library made available by Airship for use in connection with the Service, and includes Airship SDKs and APIs, and Apptimize SDKs and APIs.
“Applicable Laws” means laws, statutes, regulations or directives created by common or statutory laws that are applicable to the provision or use of the Service.
“Customer” means You or if You are accepting this Agreement on behalf of a company or other legal entity, Customer shall mean such company or other legal entity.
“Customer Data” means electronic data and content submitted by or for Customer, or processed by, the Service and includes Notifications. “Customer Digital Asset” shall mean mobile applications, web domains, devices, software applications and/or communication channels owned by Customer and made available to End Users.
“Data Processing Addendum” means the Airship Data Processing Addendum applicable to the processing of personal data under the EU General Data Protection Regulation, the California Consumer Privacy Act or other comparable data privacy laws or regulations in connection with Customer’s use of the Service. The most recent copy of such Data Processing Addendum is available here: https://www.airship.com/legal/data-processing-addendum/.
“Documentation” means the Airship online documentation for the Service, as updated from time to time, accessible via https://docs.airship.com/.
“End User” shall mean any end user of one or more of Customer Digital Asset(s).
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Notification” shall mean any communication with End Users made by or for Customer via the Service in connection with a Customer Digital Asset, and if the Service includes SMS Service, then “Notification” includes “SMS Notifications”.
“Order Form” means an ordering document entered into between Customer and Airship specifying the Service and/or Professional Services to be provided, including any addenda, exhibits and schedules attached thereto and additional terms relevant to a specific Service included therein.
“Professional Services” means consulting services, implementation services, configuration services, technical support services, and/or other professional services identified in the applicable Order Form or statement of work, and relating to the Service.
“Prohibited Data” means: (a) government issued ID numbers such as passport numbers, taxpayer numbers, driver’s license numbers, (b) individual medical or health information (including without limitation, protected health information under HIPAA), (c) individual financial information or account numbers (including without limitation, credit or debit card numbers or bank account numbers), (d) security codes or passwords (other than passwords for Customer’s account on the Service), or (e) “special categories of personal data” under the EU General Data Protection Regulation) or similar sensitive information under other comparable laws or regulations.
“Service” means, to the extent specified in the applicable Order Form, (1) the Airship proprietary platform technology, including the Airship Library, and programs, features, functions, developer tools, report formats and any updates or upgrades of any of the foregoing made generally available by Airship (“Airship Service”), and (2) Apptimize proprietary platform technology, including the Apptimize Library, and programs, features, functions, developer tools, report formats and any updates or upgrades of any of the foregoing made generally available by Airship (“Apptimize Service”). “Service” includes the Airship Library, but excludes Third Party Applications.
“SMS Notifications” means short message service (SMS), multimedia messaging service (MMS) or text-based messages to an MSISDN (phone number) to third party devices.
“SMS Service” means the functionality within the Service that allows Customer to send SMS Notifications.
“Subscription Term” means the subscription period for the Service specified in an applicable Order Form.
“Third Party Applications” means third party Web-based or offline software applications, operating systems (such as iOS or Android), platforms, networks, certificates or devices that interoperate with the Service that is provided by the Customer or a third party.
“You” or “Your” means the individual who has accepted this Agreement or if you are accepting this Agreement on behalf of a company or other legal entity, You shall mean such company or other legal entity.
Ordering. The specifics of Customer’s order will be set forth on one or more Order Forms that reference this Agreement. Customer’s execution of an Order Form and Airship’s acceptance of such Order Form constitute a binding commitment to purchase the Service, Professional Services and/or items described on such Order Form under the terms and conditions of this Agreement. All Order Forms accepted by Airship that reference this Agreement are incorporated herein. Each Account User authorized by Customer shall be provided a separate login to the Service. An Account User’s login and password may not be shared with any other individual. Customer is responsible for the confidentiality and use of Account User logins and passwords.
Affiliate Orders. Customer’s Affiliates may procure their subscriptions to the Service directly from Airship under the terms and conditions of this Agreement by executing Order Forms hereunder. This Agreement shall apply to each such Affiliate, and such Affiliate shall be deemed “Customer” under this Agreement. Each Affiliate of Customer that enters into a separate Order Form will be provided separate pricing and separate account on the Service. In such case, the terms of this Agreement apply to each authorized Customer Affiliate and Customer is directly and primarily responsible for all access to and use of the Service by such Affiliate.
Provision of Service. During the Subscription Term, Airship shall (a) make the Service available to Customer pursuant to this Agreement, the Documentation and the applicable Order Form, and (b) provide standard technical support for the Service to Customer at no additional charge, and/or upgraded support if purchased. Customer’s access to and use of the Service is conditioned on connecting to the Service using the applicable Airship Library, and connecting to the Service using any other method, code or libraries is prohibited.
Airship Responsibilities. During the Subscription Term, Airship shall (a) maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, which safeguards will include measures designed for preventing unauthorized access, use, modification or disclosure of Customer Data, (b) be responsible for the performance of the Airship personnel (including employees and contractors) and their compliance with Airship’s obligations under this Agreement, (c) make the Service available to Customer in accordance with Applicable Laws relevant to Airship’s provision of the Service to its customers generally (i.e., without regard for Customer’s particular use of the Service), when used according to this Agreement and the Documentation, and (d) if applicable to Customer and Customer Data, the terms of the Data Processing Addendum are hereby incorporated by reference and Airship shall comply with its obligations under the Data Processing Addendum as a data processor.
3. USE OF SERVICE.
Subscriptions. Unless otherwise provided in the applicable Order Form or in the applicable online ordering portal, access to the Service is purchased as a subscription to access and use the Service during the Subscription Term. Delivery of the Service occurs upon Airship’s delivery of the initial login to the Service to the Account User designated by Customer.
Usage Restrictions. Customer shall not (a) make the Service available to, or use the Service for the benefit of, anyone other than Customer or Account Users, (b) sell, resell, license, sublicense, distribute, rent or lease the Service, include the Service in a service bureau or outsourcing offering, or make the Service available to any third party, (c) use the Service in a manner that violates Applicable Law or any applicable Third Party Application terms, (d) use the Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, (f) attempt to gain unauthorized access to the Service or its related systems or networks, (g) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, or bypass or breach any security device or protection included in the Service, (h) copy the Service or any part, feature, function or user interface thereof, (i) access the Service in order to build a competitive product or service or for other competitive purposes, (j) use the Service to make a decision regarding an individual based solely on automated processing which produces legal effects concerning such individual or similarly significantly affects such individual, including, without limitation, establishing an individual’s eligibility for credit, employment or insurance, or (k) use the Service to submit, collect, transmit, process or store any Prohibited Data. Airship shall have the right (but not the obligation) in its reasonable discretion to refuse to transmit or remove any Customer Data that, in Airship’s reasonable judgment violates any of the terms of this Agreement, the Acceptable Use Policy or any Applicable Law. Notwithstanding the foregoing, Airship has no obligation to review Customer Data or any Notification content. If Customer’s or any Account User’s use of the Service, in Airship’s reasonable judgment, imminently threatens the security, stability, integrity or availability of the Service or otherwise harms other customers or third parties or violates the Acceptable Use Policy or Applicable Law, Airship may immediately suspend the Service; provided that Airship will use commercially reasonable efforts under the circumstances to provide Customer with prior notice and opportunity to correct usage prior to any suspension. Airship will have no liability for any such suspension made in good faith.
SMS Service. This Section applies only if Customer’s use of the Service includes SMS Service. In sending SMS Notifications or in accessing or using the SMS Service, Customer shall, and shall ensure that all Account Users, comply with (i) all Applicable Laws in every applicable jurisdiction, including without limitation the United States Telephone Consumer Protection Act (TCPA), (ii) the additional requirements applicable to the use of the SMS Service set forth in the Acceptable Use Policy, and (iii) all applicable telecommunications or network provider rules. Airship shall not be liable, either directly or vicariously, for Customer’s or any Account User’s failure to comply with any Applicable Law. Airship shall have the right, but not the obligation, to audit Customer’s access or use of the SMS Service, upon reasonable notice to Customer. Customer will provide Airship with any information or material relating to Customer’s access or use of the SMS Service as reasonably requested by Airship in order to carry out any such audit.
Third Party Applications. The Service may enable Customer to link Third Party Applications with the Service. By linking a Third Party Application with the Service, Customer: (i) authorizes Airship to access, receive and, in certain cases, store data from the Third Party Application via the Service (all such data accessed, received and/or stored being Customer Data), and (ii) grants Airship permission to allow the provider of that Third Party Application to access Customer Data via the Service, in each case solely as required for the interoperation of that Third Party Application with the Service. Airship is not responsible for any usage, transmission, disclosure, loss, modification or deletion of Customer Data or any other content sent to, provided by or accessed by a Third Party Application that Customer links to the Service. Customer is solely responsible for obtaining and securing from the Third Party Application provider all rights and permissions necessary for Customer to link such Third Party Application to the Service, and Airship shall have no liability in connection therewith. Customer’s access to and use of any Third Party Application (including the linking of the Third Party Application to the Service) is subject to such Third Party Application provider’s terms and conditions that govern the access and use of the Third Party Application, or any separate agreement or transaction that Customer enters into with the Third Party Application provider, and Airship shall have no liability in connection therewith.
4. FEES AND PAYMENT.
Fees. Customer shall pay all fees specified in all applicable Order Forms. Except as otherwise specified herein or in an Order Form, (a) fees are based on the Service subscribed and the usage metrics specified in the applicable Order Form, (b) payment obligations are non-cancelable and fees paid are non-refundable, other than pursuant to Section 10.4 (Refund or Payment upon Termination), and (c) the purchased Service cannot be decreased during the relevant Subscription Term.
Invoicing and Payment. Unless an Order Form specifies otherwise, fees for the Service are (a) electronically invoiced up front upon execution of the Order Form, and (b) due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Airship and notifying Airship of any changes to such information. All amounts payable shall be in the currency stated in the applicable Order Form.
Late Payments. Customer’s failure to pay any undisputed amounts due under this Agreement or any Order Form on a timely basis will be deemed material breach of this Agreement. If any amount owing by Customer under this Agreement or any Order Form is overdue, Airship may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreement or Order Form (including any minimum contract value amount specified in the applicable Order Form) so that all such fees become immediately due and payable, and/or suspend applicable Service and/or Professional Services until all overdue amounts are paid in full. Airship shall provide at least 7 days’ prior notice that Customer’s account is overdue, in accordance with Section 12.1 (Manner of Giving Notice), before any suspension. Customer will continue to be charged Service fees during any period of suspension. Airship shall not exercise such acceleration or suspension rights specified above if Customer is disputing the applicable charges reasonably and in good faith, and is working with Airship to resolve the dispute. If Airship takes action to collect overdue fees under this Agreement or any Order Form, Customer agrees to pay all reasonable costs and expenses incurred by Airship for collecting such overdue fees, including but not limited to, collection fees, reasonable attorney fees and court costs.
Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If any withholding tax applies, Airship’s prices will be adjusted to account for such withholding tax so that the amount received by Airship after the withholding tax is deducted is the full amount Airship would have received if no withholding or deduction had been made of the fees. If Airship has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Airship will invoice Customer and Customer shall pay that amount unless Customer provides Airship with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Airship is solely responsible for taxes assessable against it based on its income, property and employees.
Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Airship regarding future functionality or features.
5. PROPRIETARY RIGHTS AND LICENSES.
Ownership of the Service. Airship (and its licensors, where applicable) shall own all right, title and interest, including all inventions (whether patented or not), patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and trade secrets, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world, in and to the Service and all modifications, extensions, customizations, scripts or other derivative works of the Service. Airship owns all right, title and interest in the technical, performance, usage and operational data of its Service, which Airship will use to analyze, improve, develop, support and operate the Service. No rights are granted to Customer hereunder other than as expressly set forth herein, and Airship (and its licensors, where applicable) reserve all rights not expressly granted herein.
License to Use the Airship Library. Airship hereby grants to Customer a worldwide, limited-term license to use the Airship Library solely in connection with the Service and in accordance with this Agreement and the Documentation during the applicable Subscription Term.
Ownership of Customer Data. As between Customer and Airship, Customer exclusively owns all right, title and in and to all Customer Data and all Customer Digital Assets. Customer hereby grants to Airship a non-exclusive, royalty-free, non-transferable (except pursuant to a permitted assignment under this Agreement), worldwide license during the applicable Subscription Term to receive, copy, modify, display, store, perform and distribute copies of Customer Data for the purpose of providing the Service (including interoperation of the Service with any linked Third Party Applications) and any applicable Professional Services in accordance with this Agreement. Customer has all the rights or permissions (including, but not limited to, permissions from any Third Party Application providers) necessary to grant Airship the rights in the Customer Data under this Agreement.
Aggregated Usage Data. Airship aggregates and compiles de-identified Customer Data with de-identified data from Airship’s other customers (“Aggregated Usage Data”). Customer agrees that Airship may use the Aggregated Usage Data to analyze, improve, develop, support and operate the Service, and to prepare and distribute general benchmarking and industry reports derived from Aggregated Usage Data as part of the Service and publish on Airship’s blogs and websites. For clarity, this Section 5.4 does not give Airship the right to use the Aggregated Usage Data to identify an individual, an End User or Customer as the source of any Aggregated Usage Data, or permit Airship to sell or disclose the raw data included in the Aggregated Usage Data to any third party.
Feedback. Providing any suggestions, enhancement requests, recommendations, corrections or other feedback (collectively, “feedback”) is strictly voluntary. If Customer provides any feedback to Airship, orally or in writing, Customer hereby grants to Airship and its Affiliates a worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free license to use and incorporate into the Service and/or Professional Services any feedback relating to the Service and/or Professional Services.
Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by the Disclosing Party. Customer’s Confidential Information includes Customer Data, other than Notifications. Airship’s Confidential Information includes the Service and all non-public information relating to the Service. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale or all or a portion of all of the assets of any business division, or group of such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without breach of any obligations owned to the Disclosing Party.
Protection of Confidential Information. The Receiving Party will use the same degree of care to protect the Confidential Information of the Disclosing Party as it uses to protect its own Confidential Information of like kind (but not less than reasonable care). The Receiving Party may disclose Disclosing Party’s Confidential Information to its Affiliates or its investors, and their respective officers, directors, principals, employees, attorneys and accountants only to the limited extent necessary to carry out the purpose of this Agreement. To the extent that the Receiving Party desires to make a disclosure to any persons other than its officers, directors, principals, employees, attorneys and accountants, as condition precedent to disclosure, such recipient must execute a confidentiality agreement substantially similar to this Section before disclosure is made.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
Survival. Notwithstanding the expiration or termination of this Agreement for any reason, the obligations of confidentiality and non-use set forth in this Section shall extend for a period of five (5) years after such expiration or termination; except that such time limitation shall not apply to trade secrets disclosed under this Agreement.
Destroy Confidential Information. On the Disclosing Party’s written request, the Receiving Party shall use commercially reasonable efforts to promptly destroy all physical copies of Confidential Information in its and its representatives’ possession, and in the case of electronic data, use commercially reasonable efforts to delete or render practically inaccessible by the Receiving Party. Notwithstanding the foregoing, the Receiving Party may retain copies of the Confidential Information to the extent required by law or for auditing purposes, or to the extent such copies are electronically stored in accordance with the Receiving Party’s record retention or backup policies, so long as the Confidential Information is kept confidential in accordance with this Agreement.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS.
Mutual Warranties. Each party represents and warrants that (i) such party has the legal right and authority to enter into this Agreement, (ii) such party has the legal right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement, (iii) this Agreement will constitute such party’s legal, valid, and binding obligation, enforceable against such party in accordance with its terms, and (iv) no consent, approval or authorization of, or exemption by, or filing with, any governmental authority or third party is required to be obtained by such party in connection with the execution, delivery and performance by it of this Agreement or the taking of any other action contemplated hereby, which has not been obtained.
Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, THE SERVICE IS PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW, AND NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. AIRSHIP DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS OR APPLICATIONS.
Airship Indemnification. Airship shall defend, indemnify and hold Customer harmless from and against any third party claim, demand, suit or proceeding (each, a “Claim”) made or brought against Customer by a third party and any direct damages, liabilities, losses, settlements, judgments, costs and expenses (including, without limitation, reasonable attorney’s fees and costs) (collectively, “Losses”) related thereto alleging that the Service, as made available by Airship under this Agreement to Customer, infringes or misappropriates such third party’s copyrights, trademarks or trade secret rights under the laws of a country to which the Service is made available by Airship to Customer. If Airship receives information about an infringement or misappropriation claim related to a Service, Airship may in its discretion and at no cost to Customer (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim arises from or relates to: Customer Data, a Third Party Application, Notifications, Customer’s or any Account User’s breach of this Agreement, any modifications of the Service by or for Customer, or failure to timely implement any modifications, upgrades, replacements or enhancements made available by Airship to Customer at no additional cost.
Customer Indemnification. Customer shall defend, indemnify and hold Airship, its Affiliates and licensors (“Airship Indemnified Parties”) harmless from and against any Claim and related Losses made or brought against an Airship Indemnified Party in connection with or arising from (i) Customer’s or any Account User’s access and/or use of the Service, (ii) Notifications, (iii) Customer Data, (iv) Customer’s or any Account User’s infringement or misappropriation of intellectual property rights, violation of its obligation to a third party or violation of Applicable Laws, or (v) Customer’s or any Account User’s breach of Section 3.2, Section 3.3 or Section 3.4 (if applicable) above.
Indemnification Process. The indemnifying party’s obligations are conditioned upon the indemnified party (i) giving the indemnifying Party prompt written notice of the claim (provided however, the failure to give timely notice will not relieve the indemnifying party of its obligations under this Agreement except to the extent that such failure materially impairs the ability of the indemnifying party to defend), (ii) granting full control of the defense and settlement to the indemnifying party (provided however, the indemnified party may participate with counsel of its choosing at its own expense), (iii) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense with regard to out-of-pocket expenses, in defense and settlement of any such claim, and (iv) not admitting any fault or liability of the indemnifying party or itself.
Exclusive Remedy. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third party claim described in this Section 8.
9. LIMITATION OF LIABILITY.
Limitation of Liability. OTHER THAN A PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 8, NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS.
Exclusion of Consequential and Related Damages. OTHER THAN A PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 8, EACH PARTY AGREES THAT THE CONSIDERATION AIRSHIP IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY A PARTY OF THE OTHER PARTY’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUE, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILTY WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW IN THE APPLICABLE STATE OR JURISDICTION.
FOR THE PURPOSE OF CLARITY, AIRSHIP WILL NOT BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY CUSTOMER OR ACCOUNT USER FOR (A) PROHIBITED DATA SENT TO AIRSHIP; (B) VIOLATION OF ANY APPLICABLE LAW BY AIRSHIP WHEN ACTING AT CUSTOMER’S OR ANY ACCOUNT USER’S (AS APPLICABLE) INSTRUCTIONS; AND (C) THE SENDING BY AIRSHIP OF CUSTOMER’ OR ANY ACCOUNT USER’S NOTIFICATIONS. THE PROVISIONS OF THIS SECTION 9 ALLOCATE THE RISKS PURSUANT TO THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
10. TERM AND TERMINATION.
Term of Agreement. This Agreement commences on the Effective Date and continues until all Order Forms entered into hereunder have expired or have been terminated.
Term of Purchased Subscriptions. The Subscription Term for the Service shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to one year (unless a different renewal term is specified in the Order Form, in which case, the renewal term specified in the Order Form will apply), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. Unless otherwise stated in the Order Form, the applicable fee for any automatic renewal term will be determined using Airship’s then-current list price applicable for such renewed Service.
Termination. A party may terminate this Agreement for cause (a) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon termination of this Agreement, all rights, licenses, consents and authorizations granted by a party hereunder will immediately terminate, other than those expressly specified to continue after termination.
Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 10.3 (Termination), Airship will refund to Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Airship in accordance with Section 10.3, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will any termination relieve Customer of its obligation to pay any fees payable to Airship for the period prior to the effective date of termination.
Surviving Provisions. Sections 1 and 5 through 12 will survive any termination or expiration of this Agreement.
11. PROFESSIONAL SERVICES.
If Customer’s order includes Professional Services as specified on an Order Form or an executed statement of work referencing this Agreement, Airship shall perform such Professional Services described on such Order Form and/or in a statement of work. Each Order Form for Professional Services and statement of work will set forth the following, as applicable: (a) the Professional Services to be performed, (b) any specifications or other requirements pertaining to such Professional Services, (c) fees for such Professional Services, (d) any applicable assumptions or conditions, and (e) any other terms mutually agreed upon by the parties. Professional Services are purchased for the engagement term specified in the applicable Order Form or statement of work. If the engagement term is not specified in the Order Form or statement of work, Professional Services will expire within 12 months from the date of the applicable Order Form or statement of work, and any unused hours will expire at such time. Unless expressly stated otherwise in the applicable Order Form or statement of work, Airship shall retain all right, title and interest in and to the Professional Services performed and results thereof (including any and all intellectual property rights therein). Customer’s usage rights to the results of such Professional Services shall be the same as the rights granted to Customer under the Agreement with respect to the Service to which such Professional Services pertain. Notwithstanding the foregoing, Customer’s rights to Customer Data and Customer’s Confidential Information remain as specified in this Agreement.
12. GENERAL PROVISIONS.
Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to the Customer shall be addressed to the relevant billing contact designated by the Customer. All other notices to the Customer shall be addressed to the relevant Service system administrator designated by the Customer. Notwithstanding the foregoing, Airship occasionally may need to inform Customer and Account Users of important announcement regarding operation of the Service, such as notice of downtime, and may provide such information by posting online. Notices to Airship should be addressed to: Urban Airship Inc., dba Airship at 1225 West Burnside St., Portland, Oregon 97209, USA, with a copy to attn: General Counsel.
Modifications. Airship reserves the right to change or modify any of the terms and conditions contained in this Agreement, the Service or any policy governing the Service at any time by posting the new Agreement to the Airship website located at: https://www.airship.com/legal/subscription-terms. Airship will use reasonable efforts to notify Customer of the changes, which may include posting an announcement on such site, in-product notices or via email. Customer’s continued use of the Service following Airship’s posting or notice of the change(s) will constitute Customer’s acceptance of such change(s). If Customer does not agree to such change, Customer may cancel its subscription to the Service by providing Airship with at least seven (7) days’ prior written notice within thirty (30) days of Airship’s posting or providing notice of the change(s) to the Agreement.
Co-Marketing. Customer agrees to participate in reasonable marketing activities that promote the benefits of the Service to other potential customers and to the use of Customer’s name and logo on Airship’s website and promotional materials. Customer agrees that Airship may disclose Customer as a customer of Airship.
Export Compliance. The Service, the Airship Library and other technology Airship makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not located in any jurisdiction in which the provision of the Service, Airship Library or Customer Data is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and Customer shall not provide access to the Service, the Airship Library or Customer Data to any government, entity or individual located in any Prohibited Jurisdiction. Each party represents, warrants and covenants that (a) it is not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (b) it is not a national of, or a company registered in, any Prohibited Jurisdiction, (c) it shall not permit Account Users to access or use the Service, Airship Library or Customer Data in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, and (d) it shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which the Customer and any of its Account Users are located.
Force Majeure. Each party will be excused from any failure or delay caused by or the result of causes beyond its reasonable control and could not have been avoided or corrected through the exercise of reasonable diligence, including, but not limited to, acts of God, fire, flood, hurricane or other natural catastrophe, terrorist actions, laws, orders, regulations, directions or actions of governmental authorities having jurisdiction over the subject matter hereof, or any civil or military authority, national emergency, insurrection, riot or war, general failure of telecommunication or digital transmission links, general failure of the Internet, failure of Third Party Applications, failure of any third party operating systems, platforms, applications or networks not under reasonable control of Airship, or other similar occurrence.
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Governing Law; Jurisdiction. Each party agrees to the applicable governing law below without regard to choice or conflicts of law rules, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods, and to the exclusive jurisdiction of the applicable courts below.
If Customer is domiciled in:
Governing law is:
Courts with exclusive jurisdiction are:
USA, Canada, or a country in Central or South America, the Caribbean or Africa
California and controlling United States federal law
San Francisco, California
United Kingdom, Australia, New Zealand, a country in Europe (other than France or Germany), or a country in the Middle East
Singapore, or a country in Asia
Government End Use Provisions. This Section applies only if the Customer is the government of a sovereign nation, state or province or one of its agencies. Airship provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with this Agreement. If a government agency has a need for rights not granted under these terms, it must negotiate with Airship to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement. The Service was developed fully at private expense.
Relationship of the Parties; Non-exclusivity. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the parties. Nothing in this Agreement will be construed to prevent Airship from marketing, licensing, selling or otherwise providing Service or any aspects of Airship’s technology or services to any third party. Nothing in this Agreement will be construed to prevent the Customer from obtaining services similar to the Service from a third party.
Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
Electronic Signature. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including facsimile or e-mail electronic signatures.
Entire Agreement. This Agreement includes all Order Forms agreed to by the parties that reference this Agreement and all expressly referenced documents. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof, and therefore the parties expressly disclaim all prior discussions, emails, RFPs and/or agreements between the parties. This Agreement supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by Airship. The terms on any purchase order or similar document submitted by Customer to Airship will have no effect. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (i) the applicable Order Form (which includes the terms included in any exhibits, schedules or annexes attached to the Order Form and any url links to additional terms referenced in the Order Form), (ii) this Agreement (which includes url links to additional terms referenced in this Agreement, and (iii) the Documentation.
Local Law Requirements: France. With respect to Customers domiciled in France, in the event of any conflict between any statutory law in France applicable to Customer, and the terms and conditions of this Agreement, the applicable statutory law shall prevail.
Local Law Requirements: Germany. With respect to Customers domiciled in Germany, the following shall apply:
Section 7 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) above is replaced with the following: Airship warrants that for a period of 12 months form the data on which Customer enters into this Agreement, the Service will materially comply with the Documentation. Airship’s liability regardless of fault due to initial defects (§ 536a(1) Alt. 1 BGB) is excluded, unless Airship acted intentionally. The limitation period for any remedies under this Section against Airship expires after one (1) year. This Section states Airship’s entire liability and Customer’s sole and exclusive warranty rights with respect to defects of quality (“Sachmängel”). However, the statutory provisions and not this Section shall apply if Airship, its representatives or its agents have caused a defect of quality (“Sachmängel”) intentionally or in case of breach of a guarantee. All other warranties are excluded. Customer shall have no claims under this warranty if a defect was caused by the Customer not using the Service in accordance with this Agreement or the Documentation.
Section 9 (LIMITATION OF LIABLITY) above is replaced with the following: (i) the parties shall only be fully liable for intent and gross negligence as well as damages with respect to injury to life, body or health caused by a party; (ii) in an event of slight negligence, the parties shall be liable only for breaches of a material contractual obligation (cardinal duty), “cardinal duty” in the sense of this provision is an obligation whose fulfillment makes the processing of this Agreement possible in the first place and on the fulfillment of which the other party may therefore generally rely; (iii) in any of the above mentioned cases, the parties shall not be liable for any lack of commercial success, lost profits and indirect damages; (iv) liability in accordance with the above clauses shall be limited to the typical, foreseeable damages; and (v) except where otherwise stated in this Agreement, the parties shall not be liable for any loss or damage or any costs, expenses or other claims including without limitation loss of profit, business, revenue, goodwill or anticipated savings, loss of any data or information and/or special or indirect loss or consequential loss or otherwise which arise out of or in connection with this Agreement or the Service.
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Apptimize empowers product teams to efficiently run A/B tests, rollout and manage new features, and deliver personalized user experiences. Based in San Francisco, Apptimize is backed by US Venture Partners, Google Ventures, Y Combinator, and others.