Legal
Terms of Subscription Service
WE HAVE UPDATED THE AIRSHIP TERMS OF SUBSCRIPTION SERVICE
These updated terms are effective as of November 1, 2024, except if You have previously agreed to a version of these terms before November 1, 2024, these updated terms shall be effective thirty (30) days later, as of December 1, 2024 for You or longer to the extent otherwise provided below for specific requirements under local laws subject to the terms of the Local Law Requirements Addendum.
Please review these updated terms, as they are legally binding and by continuing to use the Service after November 1, 2024 (or December 1, 2024 respectively), You are accepting these updated terms.
AIRSHIP TERMS OF SUBSCRIPTION SERVICE
Effective Date: The earlier of November 1, 2024 (or December 1, 2024 respectively) or the date of Customer’s acceptance as applicable. Previous Version
THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE SERVICE.
BY ACCEPTING THIS AGREEMENT, EITHER BY (A) SUBMITTING A REGISTRATION FORM OR ORDER INDICATING YOUR ACCEPTANCE, (B) CREATING AN ACCOUNT TO THE SERVICE, OR (C) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, THE CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. ”YOU”, “YOUR” OR “CUSTOMER” SHALL BE USED INTERCHANGEABLY THROUGHOUT THIS AGREEMENT AND MEAN THE ENTITY YOU REPRESENT IN ACCEPTING THESE TERMS OR, IF THAT DOES NOT APPLY, YOU INDIVIDUALLY. 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. 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.
Customer may not access the Service if Customer is a direct competitor of Airship, except with Airship’s prior written consent. In addition, Customer may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement supersedes all prior agreements between the parties regarding the subject matter contained herein.
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://www.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: (1) these Airship Terms of Subscription Service and all terms included in urls and relevant links referenced in this Agreement; and (2) any applicable Orders.
“Airship” means Airship Group, Inc., a Delaware corporation doing business as Airship, 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 (including email and SMS channels) owned by Customer and made available to End Users.
“DPA” means the Airship Data Processing Addendum applicable to the processing of personal data under the data privacy laws or regulations in connection with Customer’s use of the Service. The most recent copy of such DPA 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).
“Generative AI” shall mean artificial intelligence systems or technologies that can autonomously create or synthesize new content, including but not limited to text, images, and sounds, using machine learning and algorithms trained on input data and by identifying patterns, correlations, and associations within that dataset. For the purposes of this Agreement, Generative AI encompasses any artificial intelligence or machine learning models, neural networks, or algorithms employed by the Service to produce or modify content autonomously without explicit human direction for each instance of generation.
“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. If the Service ordered by the Customer includes: (a) SMS Service, then “Notification” includes SMS Notifications; (b) email, then “Notification” includes email.
“Order” means either: (a) a Registration Form or (b) an Order Form.
“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.
“Registration Form” means an account creation form, online ordering document or process, or account settings page completed by the Customer in the Self-Service Account or a No-Charge Account which may detail, among other things, the applicable Service subscription plan, fees, usage parameters and limits, functionalities, or Subscription Term.
“Self-Service Account” means an account created by the Customer from a Registration Form or via the https://go.airship.com/accounts/onboarding/register/ for access and use of Services, subject to the terms of this Agreement.
“Service” means, to the extent specified in the applicable Order, (1) the Airship proprietary platform technology, including the Airship SDKs and APIs included in 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 SDKs and APIs included in 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 (“Apptimize Service”). “Service” includes the Airship Library but excludes Third Party Applications.
“SMS Service” means the functionality within the Service that allows Customer to send SMS or MMS Notifications.
“SOW” means a statement of work entered into between the parties on an as-needed basis to describe a particular Professional Service that is not covered specifically in an Exhibit hereto, but has been agreed to be provided pursuant to the terms of this Agreement except as otherwise set forth in such SOW.
“Subscription Term” means the subscription period for the Service specified in an applicable Order.
“Third Party Applications” means third party Web-based or offline software applications, application programming interfaces (APIs), 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.
2. SERVICE.
2.1 Ordering. The specifics of the Services available to Customer and associated fees will be set forth on one or more Orders that reference this Agreement. Customer’s execution of an Order and Airship’s acceptance of such Order constitute a binding commitment to access or purchase the Service, Professional Services and/or items described on such Order under the terms and conditions of this Agreement. All Orders that reference this Agreement are incorporated herein. As to Self-Service Accounts, the Customer must complete the registration process by providing Airship with current, complete and accurate information specified in the Registration Form. Each Account User shall be provided a separate login to the Service. An Account User’s login and password may not be shared with any other individual.
2.2 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, (b) provide technical support for the Service to Customer in accordance with the Airship Support Terms and the tiers subscribed to on the Order, and (c) provide Customer with Professional Services, if purchased, as listed on the Order Form or an applicable Statement of Work (“SOW”). 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.
2.3 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 and to the extent signed by Airship and Customer, the terms of the DPA are hereby incorporated by reference and Airship shall comply with its obligations under the DPA as a data processor.
2.4 Data Hosting. Airship hosts and stores the Customer Data in the Airship data center location selected by Customer on the Order and in accordance with the terms of the DPA.
3. USE OF SERVICE.
3.1 Subscriptions. Access to the Service is provided to the Customer via an applicable Order as a subscription to access and use the Service during the Subscription Term and subject to the Service plans, parameters, and packages listed on the Order. Delivery of the Service occurs upon Airship’s delivery of the initial login to the Service to the Account User designated by Customer. If the Customer’s usage of the Service exceeds applicable usage limitations, the Customer must either (i) purchase an upgraded Service plan or package to allow for such increased usage, (ii) purchase additional volume capacity, or (iii) adjust usage of the Service so that the usage level is within the applicable limitations. With regard to Self-Service Accounts only, Airship shall provide notice at least 7 calendar days in advance to the Customer’s billing account administrator when the Customer’s account usage will exceed the applicable plan or package volume or usage parameters plan and before upgrading the plan and charging the Customer’s payment method. Where Customer does not purchase an upgraded Service plan or package or adjust usage following notification from Airship, Airship may, at its sole discretion, suspend or terminate the Customer’s access to and use of the Service subject to the terms of Section 4.3 (Late Payments) below.
3.2 Customer Responsibilities. Customer is responsible for access to and use of the Service by Customer and Account Users, and shall (a) access and use the Service only in accordance with this Agreement, the Documentation, the Acceptable Use Policy, and Applicable Laws, (b) be responsible for maintaining the confidentiality and for the use of the Account User logins and passwords, (c) promptly notify Airship of any breach of security or unauthorized access or use of Customer’s account on the Service or any loss or unauthorized disclosure of any Account User’s login, password and/or multifactor authentication (“MFA”) factor to the Service, (d) comply with reasonable requests made by Airship regarding configuration of Customer’s account to optimize performance of the Service generally, (e) have sole responsibility for the accuracy of Customer Data, and have appropriate permissions for legally processing and using the Customer Data as contemplated in this Agreement (including, without limitation, any Customer Data sent to, provided by or accessed by a Third Party Application that Customer links to the Service, any Aggregated Service Data or any Aggregate Usage Data), (f) maintain legally adequate privacy policy and notices for each Customer Digital Asset that connects to the Service, (g) provide notice, respond to individual rights requests, and obtain all legally required rights, releases and consents to allow Customer Data to be collected, processed, stored, used, transmitted and disclosed in the manner contemplated by this Agreement and the Documentation. If applicable to Customer and Customer Data, the terms of the DPA are hereby incorporated by reference, and Customer shall comply with its obligations under the DPA as a data controller.
3.3 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 with other products or services not approved by Airship, 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) develop or allow Account Users to develop a similar or competing product or services to the Generative AI functions or the artificial intelligence or machine learning models used in the Generative AI functions, (k) 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, (l) use the Service to submit, collect, transmit, process or store any Prohibited Data, or (m) use the Service to distribute text messaging “spam,” bulk unsolicited messages, or any other form of unsolicited electronic communications distributed on a bulk basis to recipients who have not consented to such messages. 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.
3.4 SMS Service. This Section applies only if Customer’s use of the Service includes SMS Service as provided on an Order. 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, including Customer’s records of obtaining all legally required consents for sending SMS Notifications to End Users. 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. By providing the SMS Service with an End User’s mobile phone number , Customer or Account User certifies that Customer has received from the End User consents or opt-ins to receiving or transacting with SMS Notifications in accordance with Applicable Laws, and that the End User is the owner of that mobile number.
3.5 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. Airship makes no representations or warranties as to the suitability of such Third-Party Applications or for the acts of omissions of such Third-Party Application providers.
3.6 Use of Generative AI. The Service incorporates Generative AI functions to enhance Account User experience by generating Notification content and images, automating responses, and generating Journeys based on Customer’s prompts in the Service, (“Generated Output”). Airship will not use Personal Data or End User data contained in the Customer Data to train or fine-tune any Generative AI models without Customer’s prior permission or instruction. Where prompted by Customer or otherwise approved by Customer in the Service settings, Airship may use Customer provided content, logos, Journeys and Notifications performance data, and other associated information to improve the Generative AI functions. As between Customer and Airship, Airship does not assert any ownership rights in any new intellectual property created in the Generated Output, and Generated Output is considered Customer Data to the extent Generated Output is retained in the Airship Service. The use of Generative AI within the Service is subject to inherent limitations, including the potential for unintended or unpredictable Generated Outputs. While measures are in place to mitigate risks, such as content filters and oversight protocols, the Customer acknowledges that the Generative AI may not always produce content that is accurate, complete, unique, or aligns with the Customer’s expectations or standards. Customer is responsible for reviewing Generated Outputs for accuracy and appropriateness.
4. FEES AND PAYMENT.
4.1 Fees. Customer shall pay all fees specified in all applicable Orders. Except as otherwise specified herein or in an Order, (a) fees are based on the Service subscribed, the usage metrics, and the Professional Services as specified in the applicable Order, (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.
4.2 Invoicing and Payment. Unless an Order specifies otherwise, fees for the Service are invoiced electronically as follows: (i) up front upon execution of the Order, and due in full upon commencement of the Subscription Term in accordance with the payment terms listed on the Order; and (ii) to the extent applicable as provided in the Customer’s Order, monthly in arrears for overages or other usage-based metrics. Customer is responsible for maintaining complete and accurate billing, payment method, and contact information with Airship. For Self-Service Accounts, as part of the registration process or prior to incurring any fees, Customer shall provide Airship with valid and updated debit/credit card information and authorizes Airship to charge such debit/credit card for payment of applicable fees. All amounts payable shall be in the currency stated in the applicable Order. If Customer issues a purchase order upon entering into an Order, then: (a) any such purchase order submitted by Customer is for its internal purposes only, and Airship rejects, and in the future is deemed to have rejected, any purchase order terms to the extent they add to or conflict in any way with this Agreement or the applicable Order and such additional or conflicting terms will have no effect; (b) it shall be without limitation to Airship’s right to collect Fees owing hereunder; (c) it shall be for the total Fees owing under the applicable Order; and (d) on request, Airship will reference the purchase order number on its invoices (solely for administrative convenience), so long as Customer provides the purchase order at least ten (10) business days prior to the invoice date. Except as otherwise provided in Section 10.4 (Effect of Termination), neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Airship cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and Airship will attempt to charge the payment method again. Airship shall have the right to suspend the Customer’s access and use of the Service as provided in section 4.3 (Late Payments) where the Customer’s selected payment method does not issue payment after three (3) attempts. In accordance with local law, Airship may update information regarding Customer’s selected payment method if provided such information by Customer’s financial institution.
4.3 Late Payments. Customer’s failure to pay any undisputed amounts due under this Agreement or any Order or failure to update payment information upon Airship’s request, on a timely basis will be deemed material breach of this Agreement. If any amount owing by Customer under this Agreement or any Order is overdue, Airship may, without limiting its other rights and remedies, suspend applicable Service and/or Professional Services until all overdue amounts are paid in full. Airship shall provide at least seven (7) calendar days’ prior notice that Customer’s account is overdue to Customer’s account administrator or as otherwise provided 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 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, 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.
4.4 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.
4.5 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.
4.6 No-Charge Accounts. Airship shall make No-Charge Accounts available to the Customer until the earlier of: (a) the end date specified in an applicable Registration Form or other applicable terms, or (b) the start date of any paid subscription to such Service purchased by the Customer, or (c) termination of the No Charge Account subject to terms of this Section 4.6 (No-Charge Accounts). The Customer must complete the registration process by providing Airship with current, complete and accurate information specified in the Registration Form. Customer may terminate their No-Charge Account from the account settings page in the Service. Termination will be effective within 10 business days. Use of No-Charge Accounts may be subject to additional terms and conditions and any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Except as to the terms related to the payment of fees and as otherwise set forth in this Section 4.6 (No-Charge Accounts), these Terms governing the Services, including Section 3.3 (Usage Restrictions) and Section 8.2 (Customer Indemnity), fully apply to No-Charge Accounts. Airship may modify or terminate Customer’s right to use No-Charge Accounts at any time and for any reason in our sole discretion, without liability to Customer. All information regarding the characteristics, features or performance of any No-Charge Accounts constitutes Airship Confidential Information. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AIRSHIP DISCLAIMS ALL OBLIGATIONS OR LIABILITIES WITH RESPECT TO NO-CHARGE ACCOUNTS, INCLUDING ANY WARRANTY AND INDEMNITY OBLIGATIONS. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, AIRSHIP’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER IN RESPECT OF NO-CHARGE ACCOUNTS WILL BE $100 U.S. DOLLARS. Upon termination of the No-Charge Account, Customer Data in the No-Charge Account and any configurations or customizations Customer makes in the No-Charge Account by Customer or for Customer will be permanently deleted unless Customer purchases a subscription to the applicable Service or exports such Customer Data before the end of the trial period.
5. PROPRIETARY RIGHTS AND LICENSES.
5.1 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.
5.2 License to Use the Airship Library. Airship hereby grants to Customer a worldwide, limited-term license to (a) make calls to the Airship API and (b) use the Airship Library solely in connection with the Service and in accordance with the Order, this Agreement and the Documentation during the applicable Subscription Term.
5.3 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 (i) to receive, copy, modify, display, store, perform and distribute copies of Customer Data and to create Generative Outputs solely 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, and (ii) to the extent Customer’s subscription includes usage based functionalities, to receive, copy, modify, display, store, and analyse End User usage based data in the Service for purposes of invoicing Customer based on such factors as consumption, access or any other relevant metric to the extent provided in the applicable Order. 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.
5.4 Aggregated Data. To the extent applicable to the Services subscribed to by Customer under an Order, Airship aggregates and compiles (1) anonymized End User Data in the Customer’s account to provide the Customer with functionalities in the Service (e.g. optimal messaging timeframes), (“Aggregated Service Data”); and (2) anonymized quantitative data from the Customer’s usage of the Service with de-identified usage data from Airship’s other customers (“Aggregated Usage Data”). Customer agrees that Airship may use the Aggregated Service Data to provide the Customer with the functionalities in the Service. Airship shall not combine Aggregated Service Data from Customer’s account with other Airship customers’ End User data. Customer agrees that Airship may use the Aggregated Usage Data to analyze, improve, develop, support and operate the Service performance, and to prepare and distribute to Airship’s customers and publish on Airship’s blogs and websites general benchmarking and industry reports derived from Aggregated Usage Data. For clarity, this Section 5.4 does not give Airship the right to use the Aggregated Service Data or the Aggregated Usage Data to identify an individual, an End User or Customer as the source of any Aggregated Service Data or Aggregated Usage Data, and Airship shall not sell or disclose the raw data or personal data included in the Aggregated Service Data or Aggregated Usage Data to any third party.
5.5 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.
6. CONFIDENTIALITY.
6.1 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 (to the extent such Notifications have been sent to an End User and are no longer within Airship’s control). 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.
6.2 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.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by applicable law or any competent judicial, supervisory or regulatory authority 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 or obtain a protective order or other appropriate remedy. If, however in the opinion of the counsel of the Receiving Party, the Receiving Party or its Representatives are nonetheless, in the absence of such order or remedy, compelled to disclose such Confidential Information, then the Receiving Party may disclose only such portion of the Confidential Information which, in the opinion of its counsel, the Receiving Party is compelled to disclose. 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.
6.4 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.6.5 Destruction of 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.
7.1 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. To the extent Customer requires Airship to obtain additional registrations or licenses specific to the Customer’s industry and requirements outside of Airship’s standard scope of operating its organization (e.g. vendor gaming licenses or other special operating licenses or certifications), Customer shall reimburse Airship for any costs incurred for such registration or licensing fees.
7.2 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, THE SERVICE (INCLUDING THE GENERATED OUTPUTS AND GENERATIVE AI FUNCTIONS) 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 DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY, AND APPROPRIATENESS, OR COMPLETENESS OF GENERATIVE AI FUNCTIONS OR GENERATED OUTPUTS. CUSTOMER ACKNOWLEDGES THAT GENERATED OUTPUTS MAY CONTAIN ERRORS AND MISSTATEMENTS, AND MAY BE INCOMPLETE OR INACCURATE. THE CUSTOMER AGREES TO HOLD AIRSHIP HARMLESS FOR ANY DIRECT OR INDIRECT DAMAGES RESULTING FROM THE USE OF GENERATIVE AI WITHIN THE SERVICE. AIRSHIP SHALL NOT BE LIABLE FOR ANY GENERATED OUTPUTS THAT MAY BE DEEMED OFFENSIVE, INACCURATE, OR INAPPROPRIATE.
8. INDEMNIFICATION.
8.1 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: (a) Customer Data or Generated Outputs, (b) a Third Party Application, (c) the Notifications, (d) Customer’s or any Account User’s breach of this Agreement, (e) Generative AI models, (f) any modifications of the Service by or for Customer, (g) failure to timely implement any modifications, upgrades, replacements or enhancements made available by Airship to Customer at no additional cost, or (h) No-Charge Accounts.
8.2 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.
8.3 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.8.4 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.
9.1 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.
9.2 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 LIABILITY WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW IN THE APPLICABLE STATE OR JURISDICTION.
9.3 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’S 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.
10.1 Term of Agreement. This Agreement commences on the Effective Date and remains in effect until the earlier of (a) all Orders entered into hereunder have expired or have been terminated, or (b) the Customer’s account has been otherwise terminated in accordance with the terms hereof, whichever occurs first.
10.2 Term of Purchased Subscriptions. The Subscription Term for the Service shall be as specified in the applicable Order. Except as otherwise specified in an Order or unless Customer terminates the Agreement subject to the terms of this Section 10 (Term and Termination), subscriptions will automatically renew as follows: (a) for Self-Service Accounts, for a subscription term equivalent in length to the then-expiring subscription term; or (b) for all other types of accounts in the Service, 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). Customer may: (i) for Self-Service accounts, terminate Customer’s account and subscription from the Account Settings page and such termination will be effective within 10 business days; and (ii) for all other account types, Customer may provide Airship with notice of non-renewal at least sixty (60) calendar days before the end of the relevant subscription term. Unless otherwise stated in the Order, the applicable fee for any automatic renewal term will be determined using Airship’s then-current list price applicable for such renewed Service.
10.3 Termination. A party may terminate this Agreement for cause: (a) upon 30 calendar 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. Additionally, Airship may terminate this Agreement immediately if it has reasonable basis to believe that Customer’s use of the Service results in a violation of Applicable Laws, Acceptable Use Policy or Section 3.2 (Customer Responsibilities) of this Agreement. 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.
10.4 Effect of Termination. Upon termination or expiry of any Agreement, the Customer shall cease all access to and use of the Service and remove Airship Library from all Customer Digital Assets, and all rights, licenses, consents and authorizations granted by a party hereunder will immediately terminate other than those expressly specified to continue after termination. If this Agreement is terminated by Customer for Airship’s material breach in accordance with Section 10.3 (Termination), Airship will refund to Customer any prepaid fees covering the remainder of the term of all Order after the effective date of termination. If this Agreement is terminated by Airship for Customer’s material breach in accordance with Section 10.3, Customer will pay any unpaid fees covering the remainder of the Subscription Term of all Orders. 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.10.5 Surviving Provisions. Sections 1, 4.6, and 5 through 12 will survive any termination or expiration of this Agreement.
11. PROFESSIONAL SERVICES.
If Customer’s Order Form or an executed SOW includes Professional Services (as applicable) referencing this Agreement, Airship shall perform such Professional Services described on such Order Form and/or in the SOW. 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.
12.1 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, or (c) the first business day after sending by email (provided email shall not be sufficient for 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 announcements 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: Airship Group, Inc. at 1225 West Burnside St., Portland, Oregon 97209, USA, attn: Airship Legal Team and with an email copy sent to airshiplegal@airship.com.
12.2 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 or to the relevant policy document link. 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 or with respect to a Self-Service Account or No-Charge Account, by deactivating the Customer’s account in the Service account settings.
12.3 Co-Marketing. Unless otherwise prohibited by local law, 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. We will promptly stop doing so upon Your written request sent via email to airshiplegal@airship.com.
12.4 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.
12.5 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.
12.6 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 Orders), 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.
12.7 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 | England | London, England |
| France | France | Paris, France |
| Germany | Germany | Munich, Germany |
| Singapore, or a country in Asia | Singapore | Singapore |
12.8 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.
12.9 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.
12.10 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.11 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.
12.12 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.
12.13 Entire Agreement. This Agreement includes all Orders 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 (which includes the terms included in any exhibits, schedules or annexes attached to the Order and any url links to additional terms referenced in the Order), (ii) this Agreement (which includes url links to additional terms referenced in this Agreement, and (iii) the Documentation.
Local Law Requirements Addendum
The following terms and conditions supplement or modify the terms and conditions of this Agreement to the extent Customer is domiciled in one of the jurisdictions set out below. In the event of any inconsistencies between this Addendum and the provisions of this Agreement, this Addendum shall prevail. Unless expressly amended in this Addendum, the provisions of this Agreement shall remain in full force and effect.
A. 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, and the following shall apply:
Section 1 Definitions “Control” above is replaced with the following: “Control shall have the meaning defined under article L.233-3 of French Commercial Code”
Section 3.4 (SMS Service) above is replaced with the following: “This Section applies only if Customer’s use of the Service includes SMS Service as provided on an Order. 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 French Postal and Electronic Communications Code and the United States Telephone Consumer Protection Act (TCPA) if applicable, (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, including Customer’s records of obtaining all legally required consents for sending SMS Notifications to End Users. 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. By providing a mobile phone number through the SMS Service, Customer or Account User is deemed to have certified that it is the owner of that mobile number, agrees to opt-in to the SMS Service, and agrees to notify Airship in the event it ceases to use that mobile number.”
Section 4.3 (Late Payments) above is replaced with the following: “Customer’s failure to pay any undisputed amounts due under this Agreement or any Order or failure to update payment information upon Airship’s request on a timely basis will be deemed material breach of this Agreement. Late payments are moreover subject to an interest charge on all sums outstanding beyond the due date of the relevant invoice. Such interest shall be charged from the due date until the date of payment at the European Central Bank’s interest rate at its most recent refinancing operation, increased by 10 %. If any amount owing by Customer under this Agreement or any Order is overdue, Airship may, without limiting its other rights and remedies, suspend applicable Service and/or Professional Services until all overdue amounts are paid in full. Airship shall provide at least 7 calendar days’ prior notice that Customer’s account is overdue to Customer’s account administrator or as otherwise provided 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, Customer agrees to pay a lump sum indemnity of forty (40) euros for recovery charges as well as 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.”
Section 5.5 (Feedback) above is replaced by the following: “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, 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, for the maximum period of any intellectual property rights afforded under Applicable Laws for such feedback.”
Section 7 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) above is replaced by the following :
7.1 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. To the extent Customer requires Airship to obtain additional registrations or licenses specific to the Customer’s industry and outside of Airship’s normal scope of operating its organization (e.g. vendor gaming licenses or other special operating licenses or certifications), Customer shall reimburse Airship for any costs incurred for such registration or licensing fees.
7.2 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, and each party specifically disclaims all warranties, 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 disclaims all warranties, express or implied, regarding the accuracy, reliability and appropriateness, or completeness of the Generative AI functions or Generated Outputs. Customer acknowledges that Generated Outputs may contain errors and misstatements, and may be incomplete or inaccurate. The Customer agrees to hold Airship harmless for any direct or indirect damages resulting from the use of Generative AI within the Service. Airship shall not be liable for any Generated Outputs that may be deemed offensive, inaccurate, or inappropriate.
Section 8 (Indemnification) above is replaced by the following:
8.1 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, costs and expenses (including, without limitation, reasonable attorney’s fees and costs) (collectively, “Losses”) which are awarded to such third party by a court of competent jurisdiction or that is agreed to in a settlement approved by Airship, 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: (a) Customer Data or Generated Outputs, (b) a Third Party Application, (c) the Notifications, (d) Customer’s or any Account User’s breach of this Agreement, (e) Generative AI models, (f) any modifications of the Service by or for Customer, (g) failure to timely implement any modifications, upgrades, replacements or enhancements made available by Airship to Customer at no additional cost, or (h) to No-Charge Accounts.
8.2 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.
8.3 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.
8.4 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.”
Section 9 (LIMITATION OF LIABILITY) above is replaced by the following:
9.1 Limitation of Liability. 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. However, the above limitations will not limit customer’s payment obligations.
9.2 Exclusion of Indirect Damages. Each party agrees that the consideration Airship is charging hereunder does not include consideration for assumption by a party of the other party’s damages. In no event will either party have any liability to the other party for any indirect damages including, but not limited to lost profits or revenue, business interruption, failure to realize expected savings, additional personal and running costs, cost of substitute products or services, reputational damage, loss and corruption of data, cost of publicity and notices to consumers or End Users, costs of forensic investigations, even if a party has been advised of the possibility of such damages.
9.3 Exceptions. The foregoing liability limits and liability exclusions will apply to the fullest extent permitted under Applicable Law and will not apply to either party’s obligations under section 8 (Indemnification), or to the extent prohibited by law in the applicable state or jurisdiction. 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.”
B. Local Law Requirements: Germany. With respect to Customers domiciled in Germany, the following shall apply:
Section 1 Definitions “Business day” shall be amended to mean, in terms of this Agreement, each day which is not a Saturday, a Sunday and/or a public holiday in the US or in the Federal State of “Bavaria”, Germany
Section 3 Use of Service shall be amended as follows: Section 3.3 (i) and the last sentence of Section 3.3 shall not apply.
Section 4.2(a) – (d) Invoicing and Payment shall be replaced with the following: “(i) any such purchase order submitted by Customer is for its internal purposes only, and general terms and conditions of Customer or third parties referred to in such purchase order do not apply even if Airship does not specifically object to them in a given case and supplies the Service without reservation. Even if Airship references a purchase order containing the general terms and conditions of Customer or third parties, such reference does not imply Airship’s agreement with the applicability of such general terms and conditions;”
Section 6.1 Definition of Confidential Information shall be replaced with the following: “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 and, in particular Airship’s fees (including any discounts), product roadmap, technology and any individual business terms agreed with Customer. 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.
Section 6.3 Compelled Disclosure shall be replaced in its entirety with the following: ”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.”
Section 7.2 Disclaimers is entirely replaced with the following provision: “Airship warrants that the Service will materially comply with the Documentation and as agreed. Airship’s liability regardless of fault due to initial defects (§ 536a(1) Alt. 1 of the German Civil Code (“BGB”) is excluded, unless Airship acted intentionally. The limitation period for any remedies under this Section against Airship expires after one (1) year, provided that Airship did not cause the relevant breach of the warranty intentionally, with gross negligence or was in breach with a relevant guarantee. Customer shall not have any claims to the extent a defect was caused by the Customer not using the Service in accordance with this Agreement or the Documentation.”
Section 8 Indemnification shall be replaced in its entirety with the following: “Customer shall compensate Airship, its Affiliates and licensors (“Airship Indemnified Parties”) for all claims and losses of an Airship Indemnified Party that result from or arise out of negligence or a more culpable act or omission of Customer and are in connection with or arise from (i) Customer’s access and/or use of the Service other than agreed, (ii) Notifications, (iii) Customer Data, (iv) Customer’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 breach of Section 3.2, Section 3.3 or Section 3.4 (if applicable) above.”
Section 9 LIMITATION OF LIABILITY shall be replaced in its entirety with the following:
“9.1 Airship will be liable without limitation in the event of claims for damages on the basis of gross negligence or willful intent, as well as in cases where a guarantee of quality has been assumed or any defects have been concealed with malicious intent. Moreover, Airship will be liable without limitation in the event of a culpable injury to life, limb or health. In the case of slight negligence, Airship will be liable only if an obligation is violated and the fulfilment of this obligation is of essential importance for the proper execution of the Agreement (cardinal obligations) and the contractual partner may rely on the fulfilment of this obligation. Airship’s liability based on the German Product Liability Act remains unaffected. Any further liability of Airship is excluded.
9.2. The limitation period for claims for damages against Airship expires after one (1) year, except for such cases covered by Section 9.1.”
Section 10.3 Termination shall be replaced in its entirety with the following: “A party may terminate this Agreement for cause upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period. The right to termination with immediate effect for important reasons remains unaffected. 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.”
In Section 11 Professional Services the following paragraph shall be added to the end of the Section: “If the Professional Services are regarded as works in terms of §§ 631 et seqq. BGB, any defects in the Professional Services in terms of § 633(2) BGB shall be remedied by Airship through either free-of-charge removal of defects (repair) or replacement, in Airship’s sole discretion. If the defect cannot be remedied within a reasonable period, or if the repair or replacement has failed for other reasons, Customer may, at its discretion, either withdraw from the relevant Order Form or reduce the fees for the Professional Services. The limitation period for any remedies under this Section against Airship expires after one (1) year, provided that Airship did not cause the relevant breach of the warranty intentionally, with gross negligence or was in breach with a relevant guarantee.”
Section 12.2 Modifications shall be replaced in its entirety with the following: “Airship reserves the right to change this Agreement, the Service or any policy governing the Service, to the extent that the respective change is necessary to depict any modifications which were not foreseeable upon formation of the Agreement and the non-observance of which would harm contractual balance between Airship and Customer, including, but not limited to, the extent to which Airship (i) is obligated to cause the Service to be in conformity with the law applicable thereto, particularly if the applicable legal framework changes; and/or (ii) is therewith in compliance with a court judgement or other official decision directed against Airship; and/or (iii) must adjust the Service due to mandatory security-related issues. In no case shall the primary contractual obligations of the parties be restricted by any changes to this Agreement or the Service. In cases other than those in the first sentence of this Section 12.2, Airship shall notify Customer about any changes to this Agreement or the Service as well as Customer’s respective right for termination (within three weeks after receipt of the notification) six (6) weeks in advance. To the extent Customer terminates the Agreement, Customer will receive a refund of all unused Fees. To the extent that Customer does not terminate the Agreement within three (3) weeks upon notification, the changes shall be deemed as accepted.”
Section 12.4 Export Compliance shall be replaced in its entirety with the following: “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. The Customer represents that it is not located in any jurisdiction in which the provision of the Service, Airship Library or Customer Data is prohibited under German 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. The Customer represents, warrants and covenants that (a) it is not a national of, or a company registered in, any Prohibited Jurisdiction, (b) it shall not permit Account Users to access or use the Service, Airship Library or Customer Data in violation of any German or other applicable export embargoes, prohibitions or restrictions, and (c) 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.”
Section 12.5 Force Majeure shall only apply to the extent the respective event was unforeseeable at the time when the Agreement, an Order, or a SOW was concluded and shall also cover events in form of any kind of unforeseeable pandemics (statements/recommendations by the Foreign Office/WHO are considered indicative) or epidemics.
Section 12.6 Assignment shall be amended so that the first sentence of this Section shall not apply to monetary claims.