Airship Beta Service Terms and Conditions
Modified July 15, 2019
BY CHECKING A BOX INDICATING YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS AND REQUESTING BETA ACCESS, YOU EXPLICITLY AGREE TO THESE BETA SERVICE TERMS AND CONDITIONS (“AGREEMENT”). THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE BETA SERVICE. 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 AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” OR “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. 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 ACCESS OR USE THE BETA SERVICE.
This Agreement is effective between You and Urban Airship, Inc., dba Airship (“Airship”) as of the date of Your acceptance of this Agreement.
- ACCESS TO BETA SERVICE AND/OR PARTICIPATION IN THE EARLY ACCESS PROGRAM.
- Beta Service Access. For the specific Airship product or service specified and defined as “Beta Service” on the web page where checked the box agreeing to this Agreement, Airship Airship hereby grants to you a limited, non-exclusive, non-transferable, royalty-free, revocable license during the Beta Service Term (defined in Section 3.1 below) to access and use the Beta Service and provide Feedback to Airship in accordance with this Agreement. Beta Service may include: (a) access to certain Airship product features, technologies and services that are in development, in beta or in pre-release versions, (b) participation in a specific early access program which includes access to certain features, technologies and services that are not yet generally available, and/or (c) access to any software, libraries, specifications or other technical documentation related to a specific Beta Service that may be provided to you by Airship under this Agreement
- Limitations. Your access to and use of any and all Beta Service is strictly limited to the Beta Service Term. For continued access to and use of the generally available version of the applicable product, services and/or materials provided as Beta Service, you will need to purchase a separate subscription subject to separate terms and conditions. However, Airship does not guarantee that any product or services provided as Beta Service will ever be made generally available, or that any generally available version will contain the same or similar features or functionalities as the Beta Service. Airship may modify the permitted use of or suspend Customer’s access to any Beta Service and related product, services and/or materials at any time and for any reason. Any Beta Service may be unavailable and its performance may be negatively affected by scheduled maintenance. No service levels or other uptime guarantees apply to the Beta Service. Airship’s regular support services do not apply to any Beta Service.
- Usage Restrictions. You shall not (a) make the Beta Service available to, or use the Beta Service for the benefit of, anyone other than you, (b) sell, resell, license, sublicense, distribute, rent or lease the Beta Service, include the Beta Service in a service bureau or outsourcing offering, or make the Beta Service available to any third party, (c) use the Beta Service in a manner that violates Applicable Law or any applicable third party terms, (d) use the Beta Service to store or transmit any code, files, scripts, agents or programs intended to do harm, including, without limitation, viruses, worms, time bombs and Trojan horses, (e) interfere with or disrupt the integrity or performance of the Beta Service or third-party data contained therein, (f) attempt to gain unauthorized access to the Beta Service or its related systems or networks or other products or services of Airship, (g) permit direct or indirect access to or use of the Beta Service in a way that circumvents a contractual usage limit, or bypass or breach any security device or protection included in the Beta Service, (h) copy the Beta Service or any part, feature, function or user interface thereof, (i) access the Beta Service in order to build a competitive product or service or for other competitive purposes, (j) use the Beta Service to make a decision regarding an individual based solely on automated processing which produces legal effects concerning such individual or similarly significantly affects such individual, including, without limitation, establishing an individual’s eligibility for credit, employment or insurance, or (k) use the Beta Service to submit, collect, transmit, process or store any Prohibited Data. Airship shall have the right (but not the obligation) in its reasonable discretion to refuse to transmit or remove any Customer Data that violates any of the terms of this Agreement, Airship Acceptable Use Policy or any Applicable Laws. Notwithstanding the foregoing, Airship has no obligation to review Customer Data or any content. Your or any Account User’s use of the Beta Service that in Airship’s reasonable judgment imminently threatens the security, stability, integrity or availability of the Beta Service or otherwise harms other customers or third parties, may result in immediate suspension of your access to and use of the Beta Service. Airship will have no liability for any such suspension made in good faith. As used herein, “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 your account on the Beta Service), or (e) “special categories of personal data” under the EU General Data Protection Regulation) or similar information under other comparable laws or regulations.
- Ownership. Airship owns and shall retain all right, title and interest in and to the Beta Service and any products, services and materials that are part of the Beta Service, and any modifications, customizations or derivations thereto. As between you and Airship, you own all right, title and interest in and to Customer Data.
- Usage Data. You hereby grant to Airship and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, copy, modify, distribute, create derivative works of and otherwise exploit anonymous usage data derived from your and Account Users’ use of the Beta Service (“Usage Data”), and to aggregate or compile Customer Data with other data, including the customer data of other Airship customers so long as such aggregation, compilation or Usage Data does not include any personal data or any data that could reasonably identify you or any of your customers or end-users, solely for its own business purposes such as operational support and planning, product innovation and sales and marketing of Airship’s services, and to provide consultative and analytical information.
- FEEDBACK. In consideration of the rights granted to you in this Agreement, you will provide Feedback. “Feedback” means all information relating to your use, testing or evaluation of the Beta Service and any products, services or materials that are part of the Beta Service, including all observations or information regarding the performance, features and functionality of such Beta Service. “Feedback” also includes all feedback, suggestions, and ideas you provide to Airship or its affiliates concerning modifications, additions, changes, features, functionalities, ideas, improvements, enhancements or derivations to any of Airship’s products or services. Contemporaneous with providing any Feedback, you and each feedback provider grant Airship with worldwide, non-exclusive, perpetual, irrevocable, royalty free and fully paid up rights: (i) to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of the Feedback as part of any Airship product, services and/or materials; (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any Airship product, services and/or materials; and (iii) solely with respect to copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties. Feedback shall not be deemed your Confidential Information.
- TERM AND TERMINATION.
- Term of Beta Service. Each Beta Service will start on the day you accept this Agreement and we enable the Beta Service for your use, and will automatically terminate (“Beta Service Term”) upon the earliest of (a) if term is specified in the web sign up page for the Beta Service, upon the expiration of such term, (b) upon written notice to the other party, (c) upon the conclusion of the Beta Service, or (d) Airship’s release of the applicable Beta Service as a commercially generally available version.
- Termination. Upon any expiration or termination of the Beta Service, this Agreement will automatically terminate. Upon termination of this Agreement, you will immediately destroy all materials provided to you as part of any Beta Service, and each party will, upon written request from the other party, use commercially reasonable efforts to destroy all Confidential Information of the other party; provided, however, that copies of Confidential Information that are stored on backup and/or disaster recovery systems may be retained until the ordinary course deletion thereof. The following sections will survive any termination of this Agreement: Section 2, Sections 4 through 7.
- CONFIDENTIAL INFORMATION.
- Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“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. Your Confidential Information includes Customer Data. 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 owed to the Disclosing Party.
- Protection of Confidential Information. The Receiving Party will use the same degree of care to protect the Confidential Information of the Disclosing Party as it uses to protect its own Confidential Information (but not less than reasonable care). The Receiving Party may not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. The Receiving Party may disclose Disclosing Party’s Confidential Information to its Affiliate’s or its investors, and their respective officers, directors, principals, employees, attorneys and accountants only to the limited extent necessary to carry out the purpose of this Agreement. To the extent that the Receiving Party desires to make a disclosure to any persons other than its officers, directors, principals, employees, attorneys and accountants, as condition precedent to disclosure, such recipient must execute a confidentiality agreement substantially similar to this Section before disclosure is made.
- Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
- DISCLAIMER OF WARRANTIES.THE BETA SERVICE IS NOT READY FOR GENERAL COMMERCIAL RELEASE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. ACCORDINGLY, Airship IS PROVIDING THE BETA SERVICE AND PRODUCTS, SERVICES AND MATERIALS THAT ARE PART OF SUCH BETA SERVICE TO YOU “AS IS”. Airship MAKES NO WARRANTIES OR ANY KIND WITH RESPECT TO THE BETA SERVICE OR PRODUCTS, SERVICES AND MATERIALS THAT ARE PART OF THE BETA SERVICE WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Airship DOES NOT WARRANT THAT THE BETA SERVICE OR PRODUCTS, SERVICES AND MATERIALS THAT ARE PART OF THE BETA SERVICE WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVELS OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.
- LIMITATION OF LIABILITY. OTHER THAN FOR BREACH OF CONFIDENTIALITY, NEITHER PARTY, NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, ANY PRE-RELEASE PROGRAM OR PRODUCTS, SERVICES AND/OR MATERIALS THAT ARE PART OF SUCH PROGRAM, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OTHER THAN FOR BREACH OF CONFIDENTIALITY, THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES AND LICENSORS ARISING FROM OR RELATED TO THIS AGREEMENT, ANY PRE-RELEASE PROGRAM OR PRODUCTS, SERVICES AND/OR MATERIALS THAT ARE PART OF SUCH PROGRAM, WILL NOT EXCEED $10,000.
- GENERAL PROVISIONS.
- Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d) the first business day after sending by email. Notices to you shall be addressed to contact information you provided when agreeing to this Agreement and signing up to participate in the Beta Service. Notwithstanding the foregoing, Airship occasionally may need to notify you and Account Users of important announcement regarding operation of the Beta Service, such as notice of downtime, and may provide such information by online notice.
- Modifications. Airship reserves the right to change or modify this Agreement, the Beta Service or any policy governing the Beta Service at any time by posting the new Agreement to the Airship website located at: https://www.airship.com/legal/beta-program-terms, or notifying you of such change or modification by email. Airship will use reasonable efforts to notify you of the changes, which may include posting an announcement on the such site, in-product notices or via email. Your continued use of the Beta Service following Airship’s posting or notifying you of the change(s) will constitute your acceptance of such change(s). If you do not agree to such change, you may cancel your participation in the Beta Service immediately by providing Airship with notice.
- Marketing. You agree that Airship may use your name and logo to identify you as a participant and user of the Beta Service on Airship’s website, and as a part of a general list of Airship’s customers for use and reference in its corporate, promotional and marketing literature. Additionally, you agree to participate in an Airship press release and case study regarding your participation in and use of the Beta Service.
- Export Compliance. The Beta Service 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 Beta Service, or Customer Data is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and you shall not provide access to the Beta Service 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 Beta Service 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 you and any of its Account Users are located.
- Force Majeure. Each party will be excused from any failure or delay caused by or the result of causes beyond its reasonable control and could not have been avoided or corrected through the exercise of reasonable diligence, including, but not limited to, acts of God, fire, flood, hurricane or other natural catastrophe, terrorist actions, laws, orders, regulations, directions or actions of governmental authorities having jurisdiction over the subject matter hereof, or any civil or military authority, national emergency, insurrection, riot or war, general failure of telecommunication or digital transmission links, general failure of the Internet, failure of any third party operating systems, platforms, applications or networks not under reasonable control of Airship, or other similar occurrence.
- Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety, without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Governing Law; Jurisdiction. Each party agrees to the laws of the State of California without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the courts located in San Francisco, California.
- 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 you from obtaining services similar to the Beta Service from a third party.
- Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
- Electronic Signature. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including facsimile or e-mail electronic signatures.
- Entire Agreement. This Agreement, including terms and conditions referenced in this Agreement, 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 you to Airship will have no effect.