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AIRSHIP TERMS OF SUBSCRIPTION SERVICE FOR OEM SERVICE

Last Updated: April 17, 2019 — Previous Version

THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE SERVICE.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU”, “YOUR” OR “CUSTOMER” SHALL REFER TO SUCH ENTITY.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.

You may not access the Service if You are a direct competitor of Airship, except with Airship’s prior written consent.  In addition, You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement is effective between You and Urban Airship, Inc. Airship d/b/a Airship as of the date of You accept this Agreement.   

1. DEFINITIONS.  In addition to the terms defined in the body of the Agreement, the following terms have the following meanings:

Acceptable Use Policy” means the Airship policy for appropriate use of the Service.  The most recent copy of such Acceptable Use Policy is available here:  https://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 or the OEM Service.  Account Users may include Customer’s employees, consultants, contractors and agents and OEM Users, but may not include any competitors of Airship.

Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.  “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

Agreement” means these Airship Terms of Subscription Service for OEM Service and all terms included in urls links referenced in this Agreement and all schedules attached hereto.

Airship” means Urban Airship, Inc., a Delaware corporation, d/b/a Airship.

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.

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 or the OEM Service.

Customer” means the company or other legal entity on behalf of which You are accepting this Agreement.

Customer Data” means electronic data and content submitted by or for Customer or any OEM User, or processed by, the Service or the OEM Service.

Data Processing Addendum” means the Airship Data Processing Addendum applicable to the processing of personal data under the EU General Data Protection Regulation or other comparable laws or regulations in connection with Customer’s use of the Service.  The most recent copy of such Data Processing Addendum is available here:  https://www.airship.com/legal/gdpr-data-processing-addendum/.

Digital Assets” shall mean mobile applications, web domains, devices, software applications and/or communication channels owned or controlled by Customer or any OEM End User and made available to End Users.

Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

Documentation” means the Airship online documentation for the Service, as updated from time to time, accessible via docs.urbanairship.com.

End User” shall mean any end user of one or more of Digital Asset(s).

Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

Notification” shall mean any communication with End Users made by or for Customer or any OEM User via the Service or OEM Service in connection with Digital Asset(s).

OEM Service” shall mean the integration of the Service with Customer’s own services and offered and/or provided to Customer’s prospective clients or clients as part of Customer’s business.

OEM Users” shall Customer’s end users of the OEM Service.

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 information under other comparable laws or regulations.

Service” means the Airship proprietary software as a service product specified in the Order Form.  “Service” includes the Airship Library, but excludes Third Party Applications.

SMS Notifications” means short message service (SMS) or text-based messages to an MSISDN (phone number) over the SMMP protocol to third party devices.

SMS Service” means the functionality within the Service that allows Customer to send SMS Notifications.

Subscription Term” means the subscription period for the Service specified in an applicable Order Form.

Third Party Applications” means third party Web-based or offline software applications, operating systems (such as iOS or Android), platforms, networks, certificates or devices that interoperate with the Service.  For purposes of clarity, Third Party Applications do not include any subcontractors or OEM providers of Airship.

You” or “Your” means the company or other legal entity on behalf of which you are accepting this Agreement.

2. OEM SERVICE.

  • Ordering.  The specifics of Customer’s order will be set forth on one or more Order Forms that reference this Agreement.  Customer’s execution of an Order Form and Airship’s acceptance of such Order Form constitute a binding commitment to purchase the items described on such Order Form under the terms and conditions of this Agreement.  All Order Forms accepted by Airship that reference this Agreement are incorporated herein. 
    • Integration and Use of Airship Interface and Airship Library.  Airship hereby provides Customer during the Term (defined in Section 10.1 below) with the right to integrate the Service into the OEM Service using applicable Airship Library(ies) and offer the Service to OEM Users as an integrated part of the OEM Service.  Customer shall access the Service only through the Airship interface for the Service as designated by Airship or an interface or platform developed by Customer for the OEM Service utilizing the Airship Library(ies).
    • OEM Account.  Customer will be provided with an administrative account to manage access to and use of the Service (the “OEM Account”).  Customer will be solely responsible for all use of the OEM Account by Account Users and OEM Users.  Customer will ensure the security and confidentiality of all usernames and passwords associated with the OEM Account and will notify Airship immediately if any such information is lost, stolen or otherwise compromised.  Customer shall be fully responsible for all liabilities and damages incurred through use of the OEM Account (whether lawful or unlawful).  Any transactions completed through any OEM Account will be deemed to have been completed by Customer.  In no event will Airship be liable for the foregoing obligations or the failure by Customer to fulfill such obligations.
    • Provision of Service.  During the Term, Airship shall (a) make the Service available to Customer pursuant to this Agreement, Documentation and the applicable Order Form, and (b) provide standard technical support for the Service to Customer at no additional charge, and/or upgraded support if purchased; provided, that, Customer is solely responsible for providing any technical support or on-boarding services to OEM Users, unless:  (a) Airship has a direct contract with the OEM User, or (b) Customer has purchased additional services from Airship to provide such services to the OEM User for an additional fee. 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. 

3. USE OF SERVICE.

  • Subscriptions.  Unless otherwise provided in the applicable Order Form, access to the Service is purchased as a subscription to access and use the Service during the Subscription Term.  Delivery of the Service occurs upon Airship’s delivery of the initial login to the Service to the Account User designated by Customer.
    • 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, and (c) make the Service available to Customer in accordance with Applicable Laws, when used according to this Agreement.
    • Use of the Service by OEM Users.  Prior to allowing any OEM User to access or use any OEM Service, including any portion of the Service, Customer shall require that the OEM User become legally bound by an agreement covering the use of the OEM Service with Customer (an “OEM User Agreement”).  Customer is responsible for preparing the OEM User Agreement.  The OEM User Agreement will include terms consistent with Customer’s rights and obligations under this Agreement and at least as protective of the Service and the interests of Airship as those set forth in Schedule 1 hereto, but in no case less protective of the Service and the interests of Airship than of the OEM Service and Customer’s interests in the OEM User Agreement.  Upon request by Airship, Customer will provide Airship with a copy of the OEM User Agreement (including any prior versions thereof) and verify that each OEM User has agreed to be legally bound by the OEM User Agreement.  Customer assumes all responsibility and liability for the actions of all OEM Users, including all use of or access to the Service by each OEM User or by Customer on behalf of any OEM User and will be responsible for each OEM User’s compliance or failure to comply with the OEM User Agreement.  Customer will promptly notify Airship upon becoming aware of any breach of any OEM User Agreement and will enforce the terms of each OEM User Agreement against each OEM User.  If Customer fails to enforce the OEM User Agreement against any OEM User, upon the request of Airship, Customer will provide Airship with such authority and such information regarding such OEM User as is required for Airship to enforce the OEM User Agreement directly against that OEM User. Customer remains solely and entirely responsible for Customer and each OEM User’s (as applicable) compliance with, and will defend, indemnify and hold harmless Airship from and against any claims arising from any actual or alleged violation by Customer or any OEM User (as applicable) of any Applicable Laws regarding Customer’s or the OEM Users’ (as applicable) use of or access to the Service or the OEM Service or regarding Customer’s or any OEM Users’ business, products or services, including, without limitation, regarding data and data privacy and the transmission of Notifications, whether solicited or unsolicited.
    • Customer Responsibilities.  Customer is responsible for access to and use of the Service by Customer, Account Users and OEM Users, and shall and shall ensure that Account Users and OEM Users: (a) access and use the Service only in accordance with this Agreement, Documentation and Acceptable Use Policy, (b) 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 and/or password to the Service, (c) comply with reasonable requests made by Airship regarding configuration of Customer’s account to optimize performance of the Service generally, (d) comply with all Applicable Laws and the Acceptable Use Policy in accessing and using the Service, (e) have sole responsibility for the accuracy and legality of Customer Data (including, without limitation, any Customer Data sent to, provided by or accessed by a Third Party Application that Customer links to the Service, and any Customer Data sent to, provided by or accessed by an OEM User or via the OEM Service), (f) maintain legally adequate privacy policy for each Digital Asset that connects to the Service, (g) provide notice 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, and (h) if applicable, comply with its obligations under the Data Processing Addendum as a data controller or data processor and sub-processor as between Customer and Urban Airship.
    • Usage Restrictions.  Customer shall not, and shall ensure that Account Users and OEM Users do not: (a) make the Service available to, or use the Service for the benefit of, anyone other than Customer, Account Users or OEM 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, other than offering and providing the OEM Service to OEM Users in accordance with this Agreement, (c) use the Service in a manner that violates any Applicable Law or any applicable Third Party Application terms, (d) use the Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, (f) attempt to gain unauthorized access to the Service or its related systems or networks, (g) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, or bypass or breach any security device or protection included in the Service, (h) copy the Service or any part, feature, function or user interface thereof, (i) access the Service in order to build a competitive product or service or for other competitive purposes, (j) use the Service to make a decision regarding an individual based solely on automated processing which produces legal effects concerning such individual or similarly significantly affects such individual, including, without limitation, establishing an individual’s eligibility for credit, employment or insurance, or (k) use the Service to submit, collect, transmit, process or store any Prohibited Data.  Airship shall have the right (but not the obligation) in its reasonable discretion to refuse to transmit or remove any Customer Data that violates any of the terms of this Agreement, Acceptable Use Policy or any Applicable Law.  Notwithstanding the foregoing, Airship has no obligation to review Customer Data or any Notification content.  Customer’s or any Account User’s use of the Service that in Airship’s reasonable judgment imminently threatens the security, stability, integrity or availability of the Service or otherwise harms other customers or third parties, may result in immediate suspension of the Service.  Airship will have no liability for any such suspension made in good faith.
    • SMS Service.  This Section applies only if Customer’s or any OEM User’s use of the Service includes SMS Service.  In sending SMS Notifications or in accessing or using the SMS Service, Customer shall, and shall ensure that all Account Users and OEM Users comply with (i) all Applicable Laws in every applicable jurisdiction, including without limitation the United States Telephone Consumer Protection Act (TCPA), and (ii) the additional requirements applicable to the use of the SMS Service set forth in the Acceptable Use Policy.  Airship shall not be liable, either directly or vicariously, for Customer’s or any Account User’s or OEM User’s failure to comply with any Applicable Law.  Airship shall have the right, but not the obligation, to audit Customer’s access or use of the SMS Service, upon reasonable notice to Customer.  Customer will provide Airship with any information or material relating to Customer’s and any and all OEM Users’ access or use of the SMS Service as reasonably requested by Airship in order to carry out any such audit.
    • Third Party Applications.  The Service may enable Customer to link Third Party Applications with the Service.  By linking a Third Party Application with the Service, Customer: (i) authorizes Airship to access, receive and, in certain cases, store data from the Third Party Application via the Service (all such data accessed, received and/or stored being Customer Data), and (ii) grants Airship permission to allow the provider of that Third Party Application to access Customer Data via the Service, in each case solely as required for the interoperation of that Third Party Application with the Service.  Airship is not responsible for any usage, transmission, disclosure, loss, modification or deletion of Customer Data or any other content sent to, provided by or accessed by a Third Party Application that Customer links to the Service.  Customer is solely responsible for obtaining and securing from the Third Party Application provider all rights and permissions necessary for Customer to link such Third Party Application to the Service, and Airship shall have no liability in connection therewith.  Customer’s access to and use of any Third Party Application (including the linking of the Third Party Application to the Service) is subject to such Third Party Application provider’s terms and conditions that govern the access and use of the Third Party Application, or any separate agreement or transaction that Customer enters into with the Third Party Application provider, and Airship shall have no liability in connection therewith.

4. FEES AND PAYMENT.

  • Fees.  Customer shall pay all fees specified in all applicable Order Forms and statements of work.  Except as otherwise specified herein or in an Order Form, (a) fees are based on the Service subscribed and the usage metrics specified in the applicable Order Form, (b) payment obligations are non-cancelable and fees paid are non-refundable, other than pursuant to Section 10.4 (Refund or Payment upon Termination), and (c) the purchased Service cannot be decreased during the relevant Subscription Term.  Customer’s obligation to pay Airship is not dependent on Customer’s receipt of related fees from one or more OEM Users.
    • Invoicing and Payment.  Unless an Order Form or applicable statement of work specifies otherwise, fees for the Service are (a) electronically invoiced up front upon execution of the Order Form or applicable statement of work, and (b) due net 30 days from the invoice date.  Customer is responsible for providing complete and accurate billing and contact information to Airship and notifying Airship of any changes to such information.  Unless otherwise stated in the Order Form, all amounts payable shall be in the currency of the United States.
    • Late Payments.  Customer’s failure to pay any undisputed amounts due under this Agreement or any Order Form on a timely basis will be deemed material breach of this Agreement.  If any amount owing by Customer under this Agreement or any Order Form is overdue, Airship may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreement or Order Form (including any minimum contract value amount specified in the applicable Order Form) so that all such fees become immediately due and payable, and/or suspend applicable Service and/or Professional Services until all overdue amounts are paid in full.  Airship shall provide at least 7 days’ prior notice that Customer’s account is overdue, in accordance with Section 12.1 (Manner of Giving Notice), before any suspension. Customer will continue to be charged Service fees during any period of suspension.  Airship shall not exercise such acceleration or suspension rights specified above if Customer is disputing the applicable charges reasonably and in good faith, and are working with Airship to resolve the dispute.  If Airship must take action to collect overdue fees under this Agreement or any Order Form, Customer agrees to pay all reasonable costs and expenses incurred by Airship for collecting such overdue fees, including but not limited to, collection fees, reasonable attorney fees and court costs.
    • Taxes.  Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”).  Customer is responsible for paying all Taxes associated with its purchases hereunder. If any withholding tax applies, Urban Airship’s prices will be adjusted to account for such withholding tax so that the amount received by Urban Airship after the withholding tax is deducted is the full amount Urban Airship would have received if no withholding or deduction had been made of the fees. If Airship has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Airship will invoice Customer and Customer shall pay that amount unless Customer provides Airship with a valid tax exemption certificate authorized by the appropriate taxing authority.  For clarity, Airship is solely responsible for taxes assessable against it based on its income, property and employees.
    • Future Functionality.  Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Airship regarding future functionality or features.

5. PROPRIETARY RIGHTS AND LICENSES; CUSTOMER DATA.

  • 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.  No rights are granted to Customer hereunder other than as expressly set forth herein, and Airship (and its licensors, where applicable) reserve all rights not expressly granted herein.
    • License to Use the Airship Library.  Airship hereby grants to Customer a worldwide, limited-term license to use the Airship Library solely in connection with the Service and in accordance with this Agreement and the Documentation during the applicable Subscription Term.
    • Ownership of Customer Data.  As between Customer and Airship, Customer exclusively owns all right, title and interest in and to all Customer Data and all Digital Assets.  Customer, on behalf of Customer and each OEM User, hereby grants to Airship a non-exclusive, royalty-free, non-transferable (except pursuant to a permitted assignment under this Agreement), worldwide license during the Term to receive, copy, modify, display, store, perform and distribute copies of Customer Data for the purpose of providing the Service (including interoperation of the Service with any linked Third Party Applications and OEM Service).  Customer has all the rights or permissions (including, but not limited to, permissions from any Third Party Application providers and each OEM User) necessary to grant Airship the rights in the Customer Data and Usage Data under this Agreement.
    • Usage Data.  Customer, on behalf of Customer and each OEM User, hereby grants 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 Customer’s, Account Users’ and each OEM User’s use of the Service and OEM 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 Customer or any particular customer or end-user of Customer, 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.  Providing any suggestions, enhancement requests, recommendations, corrections or other feedback (collectively, “feedback”) is strictly voluntary.  If Customer or any Account User provides any feedback to Airship, orally or in writing, Customer, on behalf of itself and each Account User, 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.

  • 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.  Airship’s Confidential Information includes the Service and all non-public information relating to the Service.  Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale or all or a portion of all of the assets of any business division, or group of such party.  However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without breach of any obligations owned to the Disclosing Party.
    • Protection of Confidential Information.  The Receiving Party will use the same degree of care to protect the Confidential Information of the Disclosing Party as it uses to protect its own Confidential Information of like kind (but not less than reasonable care).  The Receiving Party may 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.
    • 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 all trade secrets and Customer Data provided by the Disclosing Party under this Agreement shall be treated as Confidential Information without any such time limitation.
    • Destroy Confidential Information.  On the Disclosing Party’s written request, the Receiving Party shall use commercially reasonable efforts to promptly return or destroy all physical copies of Confidential Information in its and its representatives’ possession, and in the case of electronic data, use commercially reasonable efforts to delete or render practically inaccessible by the Receiving Party.  Notwithstanding the foregoing, the Receiving Party may retain copies of the Confidential Information to the extent required by law or for auditing purposes, or to the extent such copies are electronically stored in accordance with the Receiving Party’s record retention or backup policies, so long as the Confidential Information is kept confidential in accordance with this Agreement.

7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS.

  • Mutual Warranties.  Each party represents and warrants that (i) such party has the legal right and authority to enter into this Agreement; (ii) such party has the legal right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement; (iii) this Agreement will constitute such party’s legal, valid, and binding obligation, enforceable against such party in accordance with its terms; and (iv) no consent, approval or authorization of, or exemption by, or filing with, any governmental authority or third party is required to be obtained by such party in connection with the execution, delivery and performance by it of this Agreement or the taking of any other action contemplated hereby, which has not been obtained.
    • OEM Service Warranties.  Customer represents, warrants and covenants for the benefit of Airship that:  (i) Customer Data or Customer’s, any Account User’s and any OEM User’s use of the Service or the OEM Service does not and will not violate this Agreement, Acceptable Use Policy or any Applicable Law, (ii) Customer has all necessary right, title, interest and consent necessary to allow Airship to use Customer Data for the purposes for which Customer or any OEM User provides Customer Data to Airship, including without limitation, the delivery of all Notifications, (iii) Customer will not make any representation, warranty or guarantee to OEM User on behalf of Airship concerning the Service, and (iv) Customer will only offer the Service to OEM Users as an integrated part of the OEM Service.
    • Disclaimers.  EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, 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.  BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER.  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.

8. MUTUAL INDEMNIFICATION.

  • Airship Indemnification.  Airship shall defend, indemnify and hold Customer harmless from and against any third party claim, demand, suit or proceeding (each, a “Claim”) and related fees and expenses (including reasonable attorney’s fees) made or brought against Customer by a third party 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 () modify the Service so that it no longer infringes or misappropriates, without breaching its warranties under Section 7.2, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions.  The above defense and indemnification obligations do not apply to the extent a Claim arises from or relates to: Customer Data, a Third Party Application, Notifications, Customer’s or any Account User’s breach of this Agreement, any modifications of the Service by or for Customer, or failure to timely implement any modifications, upgrades, replacements or enhancements made available by Airship to Customer at no additional cost.
    • Customer Indemnification.  Customer shall defend, indemnify and hold Airship and its Affiliates, employees, agents, contractors, assigns, licensees and successors in interest (“Indemnified Parties”) harmless from and against any Claim and related fees and expenses (including reasonable attorney’s fees) made or brought against any Indemnified Party in connection with or arising from (i) Customer’s, any Account User’s  or any OEM User’s access and/or use of the Service or the OEM Service, (ii) any Notifications, (iii) Customer Data, (iv) Customer’s, any Account User’s  or any OEM User’s infringement or misappropriation of intellectual property rights, violation of its obligation to a third party or violation of Applicable Laws, (v) Customer’s or any Account User’s breach of this Agreement including, without limitation, the Acceptable Use Policy, or (vi) Customer’s, any Account User’s or any OEM User’s breach of Section 3.3, Section 3.4, Section 3.5 or Section 3.6 above.
    • Indemnification Process.  The indemnifying party’s obligations are conditioned upon the indemnified party (i) giving the indemnifying Party prompt written notice of the claim (provided however, the failure to give timely notice will not relieve the indemnifying party of its obligations under this Agreement except to the extent that such failure materially impairs the ability of the indemnifying party to defend), (ii) granting full control of the defense and settlement to the indemnifying party (provided however, the indemnified party may participate with counsel of its choosing at its own expense), (iii) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense with regard to out-of-pocket expenses, in defense and settlement of any such claim, and (iv) not admitting any fault or liability of the indemnifying party or itself.
    • Exclusive Remedy.  This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third party claim described in this Section 8.

9. LIMITATION OF LIABILITY.

  • Limitation of Liability.  OTHER THAN A PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 8, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, 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.  EACH PARTY ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF AIRSHIP WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN.  AIRSHIP HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER THE RIGHTS TO ACCESS AND USE THE SERVICE AND PROFESSIONAL SERVICES PROVIDED FOR IN THIS AGREEMENT AT THE CHARGES AGREED TO BY THE PARTIES. 
    • Exclusion of Consequential and Related Damages.  OTHER THAN A PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 8, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, EACH PARTY AGREES THAT THE CONSIDERATION AIRSHIP IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY A PARTY OF THE OTHER PARTY’S INCIDENTAL OR CONSEQUENTIAL DAMAGES.  IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUE, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING LIMITATION OF LIABILTY WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW IN THE APPLICABLE STATE OR JURISDICTION.
    • FOR THE PURPOSE OF CLARITY, AIRSHIP WILL NOT BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY CUSTOMER, ACCOUNT USER OR OEM USER, FOR (A) PROHIBITED DATA SENT TO AIRSHIP; (B) VIOLATION OF ANY APPLICABLE LAW BY AIRSHIP WHEN ACTING AT CUSTOMER’S, ANY ACCOUNT USER’S OR ANY OEM USER’S (AS APPLICABLE) DIRECTION; AND (C) THE SENDING BY AIRSHIP OF CUSTOMER’S, ANY ACCOUNT USER’S OR ANY OEM USER’S NOTIFICATIONS.

10. TERM AND TERMINATION.

  1. Term of Agreement.  This Agreement commences on the Effective Date and continues until all Order Forms entered into hereunder have expired or have been terminated (“Term”).
  1. Term of Purchased Subscriptions.  The Subscription Term for the Service shall be as specified in the applicable Order Form.  Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to one year (unless a different renewal term is specified in the Order Form, in which case, the renewal term specified in the Order Form will apply), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.  The applicable fee for any automatic renewal term will be determined using Airship’s then-current list price applicable for such renewed Service.

    1. Termination.  A party may terminate this Agreement for cause (a) upon 14 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.  Upon termination of this Agreement, all rights, licenses, consents and authorizations granted by a party hereunder will immediately terminate, other than those expressly specified to continue after termination.
  1. Refund or Payment upon Termination.  If this Agreement is terminated by Customer in accordance with Section 10.3 (Termination), Airship will refund to Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination.  If this Agreement is terminated by Airship in accordance with Section 10.3, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms.  In no event will any termination relieve Customer of its obligation to pay any fees payable to Airship for the period prior to the effective date of termination.
  1. Surviving Provisions.  Sections 1 and 5 through 12 will survive any termination or expiration of this Agreement.

11.  PROFESSIONAL SERVICES.

If Customer’s order includes Professional Services as specified on an Order Form or an executed statement of work referencing this Agreement, Airship shall perform such Professional Services described on such Order Form and/or in a statement of work.  Each Order Form for Professional Services and statement of work will set forth the following, as applicable: (a) the Professional Services to be performed, (b) any specifications or other requirements pertaining to such Professional Services, (c) fees for such Professional Services, (d) any applicable assumptions or conditions, and (e) any other terms mutually agreed upon by the parties.  Professional Services are purchased for the engagement term specified in the applicable Order Form or statement of work.  If the engagement term is not specified in the Order Form or statement of work, all ordered 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 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 and any OEM User’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 OEM 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.

  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, (c) the second business day after sending by confirmed facsimile, or (d) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim).  Billing-related notices to the Customer shall be addressed to the relevant billing contact designated by the Customer.  All other notices to the Customer shall be addressed to the relevant Service system administrator designated by the Customer.  Notwithstanding the foregoing, Airship occasionally may need to notify Customer and Account Users of important announcement regarding operation of the Service, such as notice of downtime, and may provide such information by online notice.
    1. Modifications.  Airship reserves the right to change or modify any of the terms and conditions contained in this Agreement, the Service or any policy governing the Service at any time by posting the new Agreement to the Airship website located at: https://www.airship.com/legal/subscription-terms.  Airship will use reasonable efforts to notify Customer of the changes, which may include posting an announcement on such site, in-product notices or via email.  Customer’s continued use of the Service following Airship’s posting or notice of the change(s) will constitute Customer’s acceptance of such change(s).  If Customer does not agree to such change, Customer may cancel its subscription to the Service by providing Airship with at least seven (7) days’ prior written notice within thirty (30) days of Airship’s posting or providing notice of the change(s) to the Agreement.
    1. Marketing.  Customer agrees that Airship may use Customer’s name and logo to identify Customer as a customer of Airship 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, Customer agrees to participate in Airship’s press release and case study regarding Customer’s use of the Service.
    1. 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, and in the case of Customer, no Account User or OEM User is not located in any jurisdiction, in which the provision of the Service or OEM 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 OEM User, Account User, government, entity or individual located in any Prohibited Jurisdiction.  Each party represents, warrants and covenants that (a) it is not (and in the case of Customer, no OEM User is) 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 (and in the case of Customer, no OEM User is) a national of, or a company registered in, any Prohibited Jurisdiction, (c) Customer shall not permit Account Users or OEM Users to access or use the Service or OEM Service, Airship Library or Customer Data in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, and (d) it shall (and in the case of Customer, shall ensure that OEM Users) comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which the Customer, any of its Account Users or OEM Users are located.
    1. 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.
    1. Assignment.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    1. 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.
    1. Federal Government End Use Provisions.  This Section applies only if the Customer is the United States federal government or one of its agencies.  Airship provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement.  This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).  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.
    1. 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: (a) the Customer from obtaining services similar to the Service from a third party, or (b) for Airship from selling, offering and/or providing the Service, Professional Services and/or any other products or services directly to any OEM User.
    1. Third-Party Beneficiaries.  There are no third-party beneficiaries under this Agreement.
    1. 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.
    1. Electronic Signature.  Each party agrees that any 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.
    1. Entire Agreement.  This Agreement includes all Order Forms agreed to by the parties that reference this Agreement and all expressly referenced documents.  Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof, and therefore the parties expressly disclaim all prior discussions, emails, RFPs and/or agreements between the parties.  This Agreement supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by Airship.  The terms on any purchase order or similar document submitted by Customer to Airship will have no effect.  In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (i) the applicable Order Form (which includes the terms included in any exhibits, schedules or annexes attached to the Order Form and any url links to additional terms referenced in the Order Form), (ii) this Agreement (which includes url links to additional terms referenced in this Agreement and schedules attached hereto), and (iii) Documentation.

SCHEDULE 1

OEM USER AGREEMENT

This OEM User Agreement (this “Agreement”) is part of that certain Terms of Subscription Service for OEM Service between Customer and Airship (the “TOS”).  For purposes of this Agreement: (a) Customer is referred to herein as the “OEM”, (b) Airship shall be considered a Third Party Provider (as defined below), and (c) Third Party Service (as defined below) shall include the OEM Service (as defined in the TOS). 

Third-Party Service.  The services provided to OEM User under this Agreement include certain services developed, provided or maintained by third-party service providers of OEM (“Third Party Providers”).  Access to or use of any those services (“Third Party Services”) by OEM User is subject to any separate agreement that OEM User may enter into (or may have entered into) relating to those Third Party Services (each, a “Third Party Service Agreement”).  The terms of any Third Party Service Agreement will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of this Agreement.  Except as set forth in this Agreement, the terms of any Third Party Service Agreement will control in the event of a conflict between the terms of this Agreement and that Third Party Service Agreement.  All other Third Party Services will be subject to the terms of this Agreement. Each Third Party Provider retains all right, title and interest in and to all Third Party Services and all software, hardware or other technology used to provide those services, and any additions, improvements, updates, and modifications thereto.  Each Third Party Provider will be a beneficiary of the terms of this Agreement as to the Third Party Services provided by the Third Party Provider and will have all rights necessary to enforce this Agreement against OEM User in the case of any breach of those terms. 

Representations, Warranties and Covenants.  OEM User represents, warrants, and covenants that: (a) OEM User has the legal right and authority to enter into this Agreement; (b) OEM User has the legal right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement OEM User enter into in connection with any of the Third Party Services provided under this Agreement; (c) all OEM Data (as defined below) is in compliance with the terms of this Agreement; (d) OEM User will access and use the Third Party Services provided under this Agreement in compliance with the terms of this Agreement and all laws, rules and regulations applicable to its obligations under this Agreement, and the Acceptable Use Policy available here: https://www.airship.com/legal/acceptable-use-policy/ (the “Acceptable Use Policy”); (e) OEM User is not located in any jurisdiction in which the provision of the Third Party Services is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and OEM User shall not provide access to the Third Party Services or OEM Data to any government, entity or individual located in any Prohibited Jurisdiction; (f) 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, (g) it is not a national of, or a company registered in, any Prohibited Jurisdiction, (h) it shall not permit any access to of use of the Third Party Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, (i) if applicable, it shall comply with the Data Processing Addendum available here:  https://www.airship.com/legal/gdpr-data-processing-addendum/, as the data controller and (j) it shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which the OEM User is located.   “OEM Data” means electronic data and content submitted by or for OEM User, or processed by, the Third Party Services.  In addition, if the OEM Service includes SMS, the following shall apply:  in sending SMS Notifications or in accessing or using the SMS Service that is a part of the Third Party Services, OEM User shall comply with (i) all Applicable Laws, including without limitation the United States Telephone Consumer Protection Act (TCPA), and (ii) the additional requirements applicable to the use of the SMS Service set forth in the Acceptable Use Policy.  No Third Party Provider shall be liable, either directly or vicariously, for OEM User’s failure to comply with any Applicable Law.

Disclaimer.  THE SOLE WARRANTIES REGARDING THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE THOSE EXPRESS WARRANTIES (IF ANY) PROVIDED TO OEM USER BY OEM UNDER THIS AGREEMENT.  ALL THIRD PARTY SERVICES ARE PROVIDED BY EACH THIRD PARTY PROVIDER STRICTLY “AS IS” AND “AS AVAILABLE” and ALL THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ALL THIRD PARTY SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITILE OR NON-INFRINGEMENT. THE THIRD PARTY SERVICES ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR PROHIBITED DATA (AS DEFINED BELOW). NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OEM OR ANY THIRD PARTY PROVIDER WILL CREATE ANY WARRANTIES BY OR ON BEHALF OF THIRD PARTY PROVIDER. 

Indemnification.  OEM User agrees to and hereby does indemnify, defend, and hold harmless OEM, its Third Party Providers and their respective affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from or relate to any claim or allegation against any Indemnified Party arising from OEM User accessing or using the services provided under this Agreement (including any Third Party Services) or from any notifications or other communication generated or sent through such services or any content contained therein, whether or not in breach of this Agreement. 

Limitation on Liability.  OEM USER AGREES THAT RESPOSIBILITY AND LIABLITY FOR THE SERVICES PROVIDED UNDER THIS AGREEMENT (INCLUDING THE THIRD PARTY SERVICES) IS STRICTLY WITH THE OEM. NO THIRD PARTY PROVIDER WILL HAVE ANY LIABILTY UNDER THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SERVICES PROVIDED UNDER THIS AGREEMENT (INCLUDING THIRD PARTY SERVICES), INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR OTHER FORM OF DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.  IN JURISDICTIONS WHERE THE FOREGOING LIMITATION OF LIABILITY IS NOT PERMITTED, THE LIABLITY OF THE THIRD PARTY PROVIDER SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.  NEITHER OEM NOR ANY THIRD PARTY PROVIDER WILL BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY OEM USER, FOR (A) PROHIBITED DATA (AS DEFINED BELOW) SENT TO OEM OR SUCH THIRD PARTY PROVIDER; (B) VIOLATION OF ANY LAW BY OEM OR SUCH THIRD PARTY PROVIDER WHEN ACTING AT OEM USER’S DIRECTION; OR (C) THE SENDING BY OEM OR SUCH THIRD PARTY PROVIDER OF OEM USER’S EMAILS, INCLUDING ANY CLAIMS AGAINST OEM OR SUCH THIRD PARTY PROVIDER DUE TO OEM USER’S SENDING OR DATA COLLECTION PRACTICES OR CONTENT (AS DEFINED BELOW).

Data Privacy and Usage Data. OEM User shall: (a) have sole responsibility for the accuracy and legality of OEM Data, (b) maintain legally adequate privacy policy for each mobile applications, web domains, devices, software applications and/or communication channels owned or controlled by OEM End User (“Digital Assets”) that connects to the Third Party Services, and (c) provide notice and obtain all legally required rights, releases and consents to allow OEM Data to be collected, processed, stored, used, transmitted and disclosed in the manner contemplated by this Agreement. OEM User hereby grants to OEM and each Third Party Provider a worldwide, perpetual, irrevocable, royalty-free license to use, copy, modify, distribute, create derivative works of and otherwise exploit anonymous usage data derived from OEM User’s use of the Third Party Services (“Usage Data”),  and to aggregate or compile OEM 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 OEM User or any particular customer or end-user of OEM User, solely for its Third Party Provider’s own business purposes such as operational support and planning, product innovation and sales and marketing of Third Party Provider’s services, and to provide consultative and analytical information. Usage Restrictions. OEM User shall not: (a) make the Third Party Services available to, or use the Third Party Services for the benefit of, anyone other than OEM User, (b) sell, resell, license, sublicense, distribute, rent or lease the Third Party Services, include the Third Party Services in a service bureau or outsourcing offering, or make the Third Party Services available to any third party, (c) use the Third Party Services in a manner that violates any applicable law or regulations, (d) use the Third Party Services to store or transmit any code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses, (e) interfere with or disrupt the integrity or performance of the Third Party Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Third Party Services or its related systems or networks, (g) permit direct or indirect access to or use of the Third Party Services in a way that circumvents a contractual usage limit, or bypass or breach any security device or protection included in the Third Party Services, (h) copy the Third Party Services or any part, feature, function or user interface thereof, (i) access the Third Party Services in order to build a competitive product or service or for other competitive purposes, (j) use the Third Party Services 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 Third Party Services to submit, collect, transmit, process or store any Prohibited Data. Third Party Provider shall have the right (but not the obligation) in its reasonable discretion to refuse to transmit or remove any OEM Data that violates any of the terms of this Agreement, Acceptable Use Policy or any applicable law or regulations. Notwithstanding the foregoing, Third Party Provider has no obligation to review OEM Data. OEM User’s use of the Third Party Services that in Third Party Provider’s reasonable judgment imminently threatens the security, stability, integrity or availability of the Third Party Services or otherwise harms other customers or third parties, may result in immediate suspension of the access to the Third Party Services by OEM User. Third Party Provider will have no liability for any such suspension made in good faith.


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