AirCode Terms of Service
Last modified: 10 September 2022
Subject to these Terms of Service (this "Agreement"), AirCode Inc. ("AirCode", "we", "us" and/or "our") provides access to AirCode's cloud platform, including, without limitation, this website, certain API's and domain registration services (collectively, the "Services"). By using or accessing the Services, you acknowledge that you have read, understand, and agree to be bound by this Agreement.
If you are entering into this Agreement on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the term "you" shall refer to such entity. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Services.
IMPORTANT: PLEASE REVIEW THE MUTUAL ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH AIRCODE ON AN INDIVIDUAL BASIS (WAIVING YOUR RIGHT TO A CLASS ACTION) THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS MUTUAL ARBITRATION AGREEMENT AND HAVE TAKEN THE TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. THIS AGREEMENT ALSO CONTAINS RELEASES, LIMITATIONS ON LIABILITY, AND PROVISIONS ON INDEMNITY AND ASSUMPTION OF RISK, ALL OF WHICH MAY LIMIT YOUR LEGAL RIGHTS AND REMEDIES. PLEASE REVIEW THEM CAREFULLY.
Age and Eligibility.
You certify that you are a person at least 16 years of age. Services may only be used or accessed through an electronic device controlled of you at all times. A valid AirCode account may only be created and maintained if you provide valid information in the signup process, and you regularly update such information to assure its accuracy. You shall be responsible for maintaining the confidentiality of login information associated with your account. Each user must have unique login credentials that may not to be shared by multiple users. You are responsible for all activities that occur under your account.
Temporary Use License.
During the period for which you are authorized to use the Services, and subject to your compliance with the terms of this Agreement, you are granted a personal, non-sublicensable, nonexclusive, nontransferable, limited license, to use the Services for your internal business or personal purposes according to the service capacity of your account. Any rights not expressly granted herein are reserved and no license or right to use any trademark of AirCode or any third-party is granted to you in connection with the Services. AirCode shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto and (b) all intellectual property rights related to any of the foregoing.
You are solely responsible for all software, code, data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter "post(ing)") in connection with or relating to the Services ("Your Content"). You are responsible for maintaining the confidentiality of usernames and passwords associated with your account and for all activities that occur under your account. AirCode reserves the right to access your account in order to respond to your requests for technical support. By posting Your Content on or through the Services, you grant AirCode a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to use, copy, modify, reproduce, distribute, display, publish and perform Your Content only in connection with its provision of the Services and for security to protect the Services and third parties from fraud, malware, malicious files or content, viruses and the like. You further agree that AirCode may remove or disable any of Your Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third-parties or authorities relating to Your Content), or for no reason at all.
We offer a free hobby plan at our sole discretion. We may change the terms and conditions applicable to the hobby plan or discontinue offering the hobby plan at any time. We reserve the right to disable or remove any project or website deployment on the hobby plan with or without notice at our sole discretion. We may shut down and terminate projects or deployments using the hobby plan without notice for any reason or no reason. We may shut down affected projects or deployments on the hobby plan in case of any delays or performance problems including, without limitation, those caused by a malicious attack on a project or deployment.
We will use commercially reasonable efforts to provide all plan levels with sufficient bandwidth, builds, and serverless function invocations that we determine are typical of projects at that plan level. We don't want you to worry about usage when hosting your AirCode projects.
We will notify you if your usage is unreasonable, and we may shut down and terminate projects and accounts that are creating an unreasonable burden on our infrastructure and/or business operations.
- The Services may only be used for lawful purposes.
- You shall not attempt to undermine the security or integrity of computing systems or networks of AirCode, its partners, or any other person, and must not attempt to gain unauthorized access.
- The network resources of AirCode may not be used to impersonate another person or misrepresent authorization to act on behalf of others or AirCode.
- You must not introduce software or automated agents or scripts into AirCode's website in order to produce multiple accounts, generate automated searches, requests or queries, or to strip or mine content or data from AirCode's website.
- You shall not send unsolicited messages or use the Services to send unsolicited messages (also known as junk mail or SPAM).
- You must not interfere with or disrupt the Services or create an undue burden on AirCode's website or the networks or services connected to AirCode's website.
- You must not perform any benchmark tests or analyses relating to AirCode's website or Services without express permission of AirCode.
The final decision of whether an account is in violation of any of these acceptable use terms is at the sole discretion of AirCode. You agree that violations of this Agreement by yourself or any person or entity acting under your account will, in addition to any other remedies including criminal prosecution, result in termination of your access to AirCode's website and removal (taking down) of all projects and deployments. In addition, violation of these terms or any of AirCode's policies may result in tracking information being stored to identify the offending person, and permanent restriction from holding an account on AirCode's website and Services.
Without limiting any terms of this Agreement, you shall not use the Services for, or in conjunction with, a website (including links from a website) that has any content that may be objectionable (as determined in AirCode's sole discretion), abusive, profane, hate speech or violates any applicable law. You hereby agree to indemnify and hold AirCode harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any third party claim or action that arises from an alleged violation of the foregoing or otherwise from your use of Services in a manner not authorized by this Agreement. Although AirCode has no obligation to monitor your use of the Services, AirCode may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. YOU ACKNOWLEDGE THAT AIRCODE MAY DISABLE OR TERMINATE THE SERVICES IF AIRCODE BELIEVES THERE IS ANY CONTENT THAT VIOLATES THIS AGREEMENT, INCLUDING THE ACCEPTABLE USE TERMS AND THE RESTRICTIONS ABOVE.
You understand that the operation of the Services, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to AirCode's third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. AirCode will have no liability to you for any unauthorized access or use of any of Your Content that is attributable, in whole or in part, to an insecurity in your website or project, malware or malicious content in your website or project, or any corruption, deletion, destruction or loss of any Your Content.
You will not, directly or indirectly: (i) sublicense, resell, rent, lease, transfer, assign, or otherwise commercially exploit or make the Services available to any third party; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (where reverse engineering is permitted by applicable law obtaining such information as is necessary to achieve interoperability with AirCode's services, you must first request such information from AirCode); (iii) modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by AirCode or authorized within the Services) or otherwise attempt to gain unauthorized access to the Services or its related systems or networks; (iii) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third-party; or remove any proprietary notices or labels; (iv) remove, alter or obscure in any way any proprietary rights notices (including copyright notices) of AirCode or its suppliers on or within the Services or documentation; (v) violate any applicable laws or regulations (including without limitation in violation of any data, privacy or export control laws) or infringe the rights of any third-party in connection with the use or access of the Services. You shall comply with any codes of conduct, policies or other notices, AirCode provides you or publishes in connection with the Services, and you shall promptly notify AirCode if you learn of a security breach or issue related to the Services. Without limiting the foregoing, you acknowledge that AirCode may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that data, code or other content will be retained by the Services, the maximum storage space that will be allotted on AirCode's servers on your behalf, and the maximum compute capacity provided for the execution of builds and functions and the maximum network data transferred by the Services. You further acknowledge that AirCode reserves the right to change these general practices and limits at any time, in its sole discretion.
Subject to the terms hereof, AirCode may, but is not required to, provide you with commercially reasonable remote technical support services during AirCode's normal business hours ("Support Services") in accordance.
By using the Services, you consent to receiving electronic communications from AirCode. These electronic communications may include notices about applicable Services fees and charges related to the Services and transactional or other information concerning or related to the Services. These electronic communications are part of your relationship with AirCode and you receive them as part of your use of the Services. You agree that any notices, agreements, disclosures or other communications that AirCode sends you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Representation and Warranties.
You represent and warrant that (i) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in posting and other activities (and allow AirCode to perform its obligations) in connection with the Services without obtaining any further releases or consents; (ii) Your Content and other activities in connection with the Services, and AirCode's exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party's copyright, trademark, right of privacy, or publicity, or other personal or proprietary right and Your Content is not defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iii) you will use the Services only in compliance with AirCode's standard published policies then in effect (the "Policy") and all applicable laws and regulations.
- Mutual Warranty.
Each party represents and warrants to the other that it has full right and power to enter into and perform under this Agreement, without any third-party consents or conflicts with any other agreement.
You will indemnify and hold harmless AirCode against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this Agreement, any claim of infringement or misappropriation arising out of your websites or any of Your Content, or your other access, contribution to, use or misuse of the Services. AirCode shall provide notice to you of any such claim, suit or demand. AirCode reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting AirCode's defense of such matter.
Confidentiality; Proprietary Rights.
Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical, product or financial information or data relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of AirCode includes non-public information regarding features, functionality and performance of the Services. Your Proprietary Information of includes non-public personal data provided by you to AirCode to enable the provision of the Services and that you upload to the Services (collectively, "Your Data"). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was rightfully in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without confidentiality restrictions by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party as evidenced by its internal files. If a Receiving Party is required by law or a governmental agency to disclose the Disclosing Party's Confidential Information, the Receiving Party must provide reasonable notice to the Disclosing Party of such required disclosure so as to permit the Disclosing Party a reasonable period of time to seek a protective order or limit the amount of Confidential Information to be disclosed.
- Use of Your Data.
You shall own and retain all right, title and interest in and to Your Data. AirCode may use and disclose Your Data solely to the extent necessary to provide the Services to you and for security to protect the Services and third parties from fraud, illegal activities, malware, malicious files or content, viruses and the like and for no other purpose. Otherwise, AirCode will not sell, disclose, or share any Your Data (or any part or product thereof) with anyone else. AirCode will implement and maintain reasonable information security policies and processes (including technical, administrative and physical safeguards) that are designed to prevent unauthorized access to or use or disclosure of the Services or any Your Data.
- Company Ownership.
AirCode shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto and (b) all intellectual property rights related to any of the foregoing.
To the extent you or any of your users provide any suggestions to AirCode regarding the functioning, features, and other characteristics of the Services, documentation, or other material or services provided or made available by AirCode ("Feedback"), you hereby grant AirCode a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully transferable, worldwide license (with rights to sublicense through multiple tiers of sublicenses) under all of your intellectual property rights, for AirCode to use and exploit in any manner and for any purpose.
- Aggregate Data.
AirCode shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (excluding Your Data and data derived therefrom), and AirCode will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other AirCode offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
- Customer Name.
During the term of this Agreement, you grant AirCode a non-exclusive, royalty-free, fully-paid up license to use and reproduce your trademarks, tradenames and logos in AirCode's marketing materials and website(s) and to indicate that you are a AirCode customer. AirCode will abide by any written trademark usage guidelines provided by you. All goodwill arising out of the use of your trademarks, tradenames and logos shall inure to your benefit. To decline AirCode this license you need to email email@example.com stating that you do not wish to be used as a reference.
Payment of Fees.
The Services will be provided according to the plan level you select. There is a free hobby plan and there are paid self-service subscription plans ("self-service subscriptions"). For an enterprise license, you may contact AirCode separately. You may opt to upgrade or downgrade to any other plan level that AirCode offers at any time during the period of your plan; provided that a downgrade will be not be effective until the next renewal date.
For self-service subscriptions, additional Services added to your self-service subscription, and domain registrations, you will be charged a fee and any applicable tax. Fees will be billed to the credit card or other payment account you provide in accordance with the billing terms in effect at the time a fee or charge is due and payable. You acknowledge and agree that AirCode will automatically charge your credit card or other payment account on record with AirCode in connection with your use of the Services: (i) in advance of each self-service subscription term, for the self-service subscription you have selected and any additional Services added to your self-service subscription; (ii) in arrears for any additional Services you have used or added to your self-service subscription during the prior self-service subscription term; and (iii) on purchase of any domain registration and up to thirty (30) days prior to each annual anniversary of your purchase. The self-service subscription and any additional Services added to your self-service subscription will automatically-renew for the same term as the initial term, and any domain registrations will renew on an annual basis as set forth. You represent and warrant to AirCode that all of your payment information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. If payment is not received or cannot be charged to your credit card or other payment account for any reason in advance, AirCode reserves the right to either suspend or terminate your access to the Services and terminate this Agreement and for domain registrations, AirCode may not register the domain or may allow the domain registration to expire. All fees are non-refundable, except as expressly stated otherwise in this Agreement.
You will pay all applicable taxes, duties, withholdings, backup withholding and the like; when AirCode has the legal obligation to pay or collect such taxes, the appropriate amount shall be paid by you directly to AirCode. You will reimburse AirCode any pre-approved and agreed upon costs. AirCode may change its fees and payment terms at its discretion; provided however, that such changes will not take effect for you until the start of the next payment period. AirCode will provide written notice to you for any changes to the fees that affect the Services purchased by you. Your continued use of the Services after the price change becomes effective constitutes your agreement to pay the changed amount.
Term and Termination.
Subject to earlier termination as provided below, the term of this Agreement will commence on your acceptance of this Agreement and will continue for as long as the Services are being provided to you under this Agreement. The term of your hobby plan, self-service subscription, and any Services purchased or added to your self-service subscription, shall automatically renew for successive terms equal in duration to the initial term unless you cancel your hobby plan or self-service subscription in advance of the renewal date. Any domain registrations will renew on an annual basis unless you remove the domain registration from your account at least thirty (30) days in advance of the annual anniversary date of your purchase of the domain registration or unless your account is otherwise terminated.
You have the right to terminate your account at any time by sending a cancellation request to AirCode Support via firstname.lastname@example.org. Such termination will be effective at the start of the next billing or renewal period. Subject to earlier termination as provided below, AirCode may terminate your account and this Agreement at any time by providing thirty (30) days prior notice to the administrative email address associated with your account. In addition to any other remedies AirCode may have, AirCode may also terminate this Agreement upon ten (10) days' notice (or two (2) days in the case of nonpayment), if you breach any of the terms or conditions of this Agreement. AirCode may terminate your account and this Agreement immediately if you exceed any AirCode limits concerning use of the Services, including without limitation, the maximum period of time that data, code or other content will be retained by the Services, the maximum storage space that will be allotted on AirCode's servers on your behalf, and the maximum compute capacity provided for the execution of builds and functions and the maximum network data transferred by the Services. You acknowledge that AirCode reserves the right to terminate accounts that are inactive for an extended period of time and the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof). All of Your Content on the Services (if any) may be permanently deleted by AirCode upon any termination of your account in its sole discretion. If AirCode terminates your account without cause and you have signed up for a self-service subscription, AirCode will refund the pro-rated, unearned portion of any amount that you have prepaid to AirCode for such Services. Upon termination, if requested by you within fourteen (14) days of the effective termination date, AirCode will use commercially reasonable efforts to assist you to transfer any un-expired domain registrations to an alternative registrar of your choice.
All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, confidentiality obligations, warranty disclaimers, and limitations of liability.
- Effect of Termination.
Upon the termination of this Agreement for any reason: (i) the licenses granted under this Agreement in respect of the Services shall immediately terminate and you and your users shall cease use of the Services; (ii) AirCode will cease providing any Support Services; (iii) you shall pay to AirCode the full amount of any outstanding fees due hereunder; and (iv) within fourteen (14) calendar days of such termination, each party shall destroy or return all Proprietary Information of the other party in its possession or control, and will not make or retain any copies of such information in any form, except that the receiving party may retain one (1) archival copy of such information solely for purposes of ensuring compliance with this Agreement.
THE SERVICES AND SUPPORT SERVICES ARE PROVIDED "AS IS" AND AIRCODE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. AIRCODE DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR DELIVERABLES.
Limitation of Liability.
- Limit of Liability and Waiver of Consequential Damages.
EXCEPT FOR YOUR BREACH OF THIS TERMS, OR YOUR BREACH OF ANY REPRESENTATIONS OR WARRANTIES OR YOUR INDEMNITY OBLIGATIONS, NEITHER PARTY NOR ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES; OR (C) FOR ANY DIRECT DAMAGES, COSTS, LOSSES, OF LIABILITIES IN AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE GREATER OF ONE HUNDRED DOLLARS AND THE FEES PAID BY YOU TO AIRCODE FOR THE SERVICES UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER THIS AGREEMENT.
AirCode may change this Agreement from time to time by providing thirty (30) days prior notice either by emailing the email address associated with your account or by posting a notice at https://aircode.io. The revised Agreement will become effective thirty (30) days after AirCode posts or sends you notice of such changes, and if you use the Services after that date, your use will constitute acceptance of the revised Agreement. If any change to this Agreement is not acceptable to you, your only remedy is to stop using the Services and send a cancellation email to AirCode Support via email@example.com. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. You may not assign, transfer or sublicense without the prior written consent of AirCode, but AirCode may assign or transfer this Agreement, in whole or in part, without restriction. Any attempted assignment or transfer of this Agreement by the parties in contravention of the foregoing shall be null and void. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all amendments must be in writing signed by both parties, except as otherwise provided herein. AirCode's failure to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
Any delays in or failure of performance of AirCode shall not constitute a default hereunder or give rise to any claims for damages if, to the extent that, and for such period that, such delays or failures of performance are caused by any events beyond the reasonable control of AirCode including, without limitation, any of the following specific occurrences: acts of God or the public enemy, acts of terrorism, pandemics, epidemics, labor strikes, expropriation or confiscation of facilities, compliance with any unanticipated duly promulgated governmental order, acts of war, rebellion or sabotage or damage resulting therefrom, fires, floods, explosion, or riots.
Governing Law; Disputes; Arbitration.
- Binding Contract.
You acknowledge that this Agreement is a contract between you and AirCode, even though it is electronic and is not physically signed by you and AirCode, and it governs your use of the Services.
This Section can only be amended by mutual agreement. For purposes of this Section, "Claims" means collectively, and without limitation, any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence, or other tort theories), proceedings, obligations, debts, liens, fines, charges, penalties, contracts, promises, costs, expenses (including attorneys' fees, whether incurred pre-litigation, pre-trial, at trial, on appeal, or otherwise), damages of any kind whatsoever (including consequential, compensatory, or punitive damages), or losses (whether known, unknown, asserted, non-asserted, fixed, conditional, or contingent) that arise from or relate to (i) the Services, including any and all contents, materials and software related thereto, and/or (ii) your use of the Services.
- Informal Dispute Resolution.
If any Claim arises out of or relates to the Services or this Agreement, other than as may be provided herein, then you and AirCode agree to send notice to the other providing a reasonable description of the Claim, along with a proposed resolution of it. AirCode notice to you will be sent based on the most recent contact information that you provided AirCode. If no such information exists or if such information is not current, AirCode has no obligation under this Section. For a period of sixty (60) days from the date of receipt of notice from the other party, you and AirCode will engage in a dialog to attempt to resolve the Claim, though nothing will require either you or AirCode to resolve the Claim on terms with respect to which you and AirCode, in each of the parties' sole discretion, is not comfortable.
You and AirCode will pay the administrative and arbitrator's fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require AirCode to pay a greater portion or all of such fees and costs in order for this Section to be enforceable, then AirCode will have the right to elect to pay the fees and costs and proceed to arbitration. Arbitration rules may permit AirCode to recover attorneys' fees. AirCode will not seek to recover attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
- Class Action Waiver.
YOU AND AIRCODE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
Notwithstanding the agreement to resolve all disputes through arbitration, you or AirCode may bring suit in court to enjoin infringement or other misuse of intellectual property rights (including patents, copyrights, trademarks, trade secrets, and moral rights, but not including privacy rights). You or AirCode may also seek relief in small claims court for Claims within the scope of that court's jurisdiction. In the event that the arbitration provisions above are found not to apply to you or to a particular Claim, either as a result of your decision to opt-out of the arbitration provisions or as a result of a decision by the arbitrator or a court order, you agree that the venue for any such Claim or dispute is exclusively that of a state or federal court located in San Francisco County, California. You and AirCode agree to submit to the personal jurisdiction of the courts located within San Francisco County, California for the purpose of litigating all such Claims or any other disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement or your use of the Services in the event that the arbitration provisions are found not to apply. In such a case, should AirCode prevail in litigation against you to enforce its rights under this Agreement, AirCode shall be entitled to its costs, expenses, and reasonable attorneys' fees (whether incurred at or in preparation for trial, appeal or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which AirCode may be entitled.