This End User License Agreement (“Agreement”) is between you (both the individual installing and using the Service and any single legal entity on behalf of which such individual is acting) (“You” or “Your”) and Air Labs, Inc. (“Vendor”).
IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THIS AGREEMENT. BY CLICKING THE “I ACCEPT” BUTTON LOCATED ON THIS PAGE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT AND DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE CLICK THE “I DO NOT ACCEPT” BUTTON. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU WILL NOT BE REGISTERED TO USE OR ACCESS THE APP.
1.1 “App” means a mobile software application together with any materials and services available therein, successor application(s) or updates thereto, together with any media or Documentation provided therewith.
1.2 “Documentation” means the user guides for installation and use of the Service that Vendor makes generally available.
1.3 “Feedback” means any ideas, proposals, suggestions or other materials provided to Vendor by You whether related to the Service or otherwise.
1.4 “Service” means the App together with any successor applications thereto and any associated internet web site or sites whether accessed through the mobile software application or separately.
1.5 “Submission” means information on profile pages or on the Service’s interactive services, such as message boards and other forums, chatting, commenting and other messaging functionality, and media content in any form now or hereafter in existence, provided to Vendor through or in connection with the Services.
2. Program License
2.1 Limited License. Vendor hereby grants to You a limited, non-exclusive, non-transferable (without the right to sublicense), and non-sublicensable license:
(a) to use a single copy (in object code) of the App solely for Your own personal use on the equipment on which the App was first installed for operation and not for any commercial use or evaluation of the structure (including any form of competitive analysis) or design of the App; and
(b) to use the Documentation provided with the Service in support of Your authorized use of the Service.
2.2 Restrictions. You will not copy or use the Service (including the Documentation) except as expressly permitted by this Agreement. You will not relicense, sublicense, rent or lease the Service or use the Service for third-party training, commercial time-sharing or service bureau use. You will not allow any unauthorized users to use the Service. You will not, and will not permit any third party to, reverse engineer, disassemble or decompile the Service, except to the extent expressly permitted by applicable law, and then only after You have notified Vendor in writing of Your intended activities. You will not modify or create any derivative works based on the Service. You will not alter or remove any copyright, trademark or other protective notices contained in or on any portion of the Service.
(a) Vendor will retain all right, title and interest in and to the patent, copyright, trademark, trade secret and any other intellectual property rights in the Service and any derivative works thereof, including any Feedback provided by You to Vendor, subject only to the limited licenses set forth in this Agreement. You do not acquire any other rights, express or implied, in the Service other than those rights expressly granted under this Agreement. You acknowledge and agree that any Feedback is not confidential, and that the provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Vendor under any fiduciary or other obligation.
(b) For purposes of clarity, You retain ownership of your Submissions. For each Submission, You hereby grant to Vendor a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to You or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials). You represent and warrant that You have all rights necessary to grant the licenses granted in this section, and that Your Submissions, and Your provision thereof through and in connection with the Service, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that You may have under any applicable law under any legal theory.
2.4 No Support. Vendor has no obligation to provide support, maintenance, upgrades, modifications or new releases under this Agreement.
3. Warranties and Remedies
VENDOR MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO THE APP. THE APP IS PROVIDED “AS IS” WITH NO WARRANTY. YOU AGREE THAT YOUR USE OF THE APP IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, VENDOR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE APP, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. Vendor does not warrant that the Service will operate in combination with hardware, software, systems or data except as expressly specified in the Documentation, or that the operation of the Service will be uninterrupted or error-free.
Rules of Conduct.
In connection with the Service, You hereby agree to not:
4.1 Post, transmit or otherwise make available through or in connection with the Service any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
4.2 Post, transmit or otherwise make available through or in connection with the Service any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.
4.3 Use the Service for any purpose that is fraudulent or otherwise tortious or unlawful.
4.4 Harvest or collect information about users of the Service.
4.5 Interfere with or disrupt the operation of the Service or the servers or networks used to make the Service available, including by hacking or defacing any portion of the Service; or violate any requirement, procedure or policy of such servers or networks.
4.6 Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Service content, or reproduce or circumvent the navigational structure or presentation of the Service.
This Agreement is effective until terminated. Vendor may terminate this Agreement at any time upon Your breach of any of the provisions hereof. Upon termination of this Agreement, You will cease all use of the Service and remove the App from your device(s) and all Documentation and related materials in Your possession. Except for Sections 2, 4, 5, and 6, which shall survive indefinitely, the terms of this Agreement will survive termination.
6. General Terms
6.1 Law. This Agreement and all matters arising out of or relating to this Agreement will be governed by the internal laws of the State of New York without giving effect to any choice of law rule. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. The Service is controlled or operated (or both) from the United States, and is not intended to subject Vendor to any non-U.S. jurisdiction or law. The Service may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Service is at your own risk, and You must comply with all applicable laws, rules and regulations in doing so. Vendor may limit the Service’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that Vendor chooses. In the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement, such controversy, claim or dispute may be tried solely in a state or federal court for New York County, New York, and the parties hereby irrevocably consent to the jurisdiction and venue of such courts.
6.2 Limitation of Liability. In no event will either party be liable for any indirect, incidental, special, consequential or punitive damages, or damages for loss of profits, revenue, business, savings, data, use or cost of substitute procurement, incurred by either party or any third party, whether in an action in contract or tort, even if the other party has been advised of the possibility of such damages or if such damages are foreseeable. In no event will Vendor’s liability for damages hereunder exceed the amounts actually paid by You to Vendor for the App. The parties acknowledge that the limitations of liability in this Section 6.2 and in the other provisions of this Agreement and the allocation of risk herein are an essential element of the bargain between the parties, without which Vendor would not have entered into this Agreement. Vendor’s pricing reflects this allocation of risk and the limitation of liability specified herein.
6.3 Indemnity. Except to the extent prohibited under applicable law, You agree to defend, indemnify and hold harmless Vendor from and against all claims, losses, costs and expenses (including attorneys’ fees) arising out of (a) Your use of, or activities in connection with, the Service (including all Submissions); and (b) any violation or alleged violation of this Agreement by You.
6.4 Copyright Infringement Claims. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Service infringe your copyright, you (or your agent) may send to Vendor a written notice by mail, e-mail or fax, requesting that Vendor remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Vendor a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA (see 17 U.S.C 512(c)(3) for detail). Notices and counter-notices must be sent in writing to the Vendor’s DMCA Agent by e-mail as follows firstname.lastname@example.org.
We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice. You acknowledge that if you fail to comply with all of the requirements the DMCA applicable to either original or counter-notices, your DMCA notice may not be valid.
6.5 Severability and Waiver. If any provision of this Agreement is held to be illegal, invalid or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
6.6 No Assignment. You may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Vendor. Any purported assignment, transfer or delegation by You will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
6.7 Export Administration. You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively “Export Controls”). Without limiting the generality of the foregoing, You will not, and You will require Your representatives not to, export, direct or transfer the Service, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
6.8 Entire Agreement. This Agreement constitutes the entire agreement between the parties and, other than any Vendor standard form customer agreement signed by the parties, supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. In the event of a conflict between the terms of this Agreement and a signed Vendor standard form customer Agreement, the terms of the signed customer agreement will control. This Agreement may not be modified or amended except as set forth below or in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom will be deemed to amend or modify this Agreement. It is expressly agreed that the terms of this Agreement will supersede the terms in any of Your purchase orders or other ordering documents. Notwithstanding the foregoing, Vendor may change this Agreement by notifying You of such changes by any reasonable means, including by posting a revised Agreement through the Service. Any such changes will not apply to any dispute between You and Vendor arising prior to the date on which Vendor posted the revised Agreement incorporating such changes, or otherwise notified You of such changes. Vendor may, at any time and without liability, modify or discontinue all or part of the Service; charge, modify or waive any fees required to use the Service; or offer opportunities to some or all Service users.
BY CLICKING “I ACCEPT”, YOU ACKNOWLEDGE THAT (1) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY, (2) YOU AGREE TO BE BOUND BY THIS AGREEMENT, (3) THE INDIVIDUAL SO CLICKING HAS THE POWER, AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOU AND, (4) BY SO CLICKING, THIS AGREEMENT CONSTITUTES BINDING AND ENFORCEABLE OBLIGATIONS OF YOU.