Last updated December 5, 2022.
These Aircore Terms of Service (these “Terms”) of Aircore, Inc. (“Aircore,” “we,” “us,” or “our”) describe your rights and responsibilities and govern how you may access and use: (i) www.aircore.io, its subdomains, and any other website where these Terms are posted; (ii) Aircore’s online hosted services; and (iii) Aircore’s “Software”, meaning, collectively, our applications, application programming interfaces (“APIs”), software development kits (“SDKs”), Documentation (as defined below) and tools ((i) through (iii) collectively, the “Service”).
BY CLICKING A BUTTON OR CHECKING A BOX MARKED “I ACCEPT” (OR SOMETHING SIMILAR), COMPLETING THE REGISTRATION PROCESS, DOWNLOADING OR INSTALLING, ACCESSING OR OTHERWISE USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS.
THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AGREEMENT IN SECTION 18.4 (THE “ARBITRATION AGREEMENT”) AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 18.5 (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT REQUIRE, WITH ONLY SPECIFIED EXCEPTIONS IN SECTIONS 18.3 AND 18.4 OR UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 18.4, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS ONLY TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTIONS OR PROCEEDINGS.
“App” means any web page, app, or other property under your control that in any way relies on,
incorporates, interacts with, or uses the Service.
“Documentation” means any technical or other specifications or documentation that Aircore may provide to you for use in connection with the Service, including development, diagnostic, support, and user and training documentation.
“End User” means a person who will access or use your App, whether or not you derive any benefit, financial or otherwise, from such access or use.
“Updates” means bug fixes, updates, upgrades, modifications, enhancements, and supplements to, and any new releases or versions of, the Service.
You may use the Service only if you can form a legally binding contract with us (and on behalf of your Organization as applicable), and only in compliance with these Terms and all applicable local, state, national, and international laws, rules, and regulations. To use the Service, you must be at least 13 years old, and in some circumstances even older (please check your local law for the age of digital consent). You represent and warrant that you meet the applicable age requirements and are competent to agree to these Terms, or, if you are unable to form a binding contract under applicable law, you represent and warrant that you have your parent’s or legal guardian’s permission to use the Service, and that your parent or legal guardian is agreeing to these Terms concurrently. If you are a parent or legal guardian of a
user of the Service who is unable to form a binding contract under applicable law, you are agreeing to these Terms and you are responsible for such user’s activity on the Service. The Service is not available to any users who were previously removed from the Service.
You represent and warrant to Aircore that you have the right, authority, and capacity to accept and abide by these Terms on your own behalf, or, if you are entering into these Terms on behalf of a company, organization, educational institution, or agency, instrumentality, or department (each, together with its affiliates, an “Organization”), that: (i) these Terms are an agreement between us and you and us and that Organization; (ii) you have the right, authority and capacity to legally bind such entity or organization to the terms and obligations in these Terms; (iii) your acceptance of these Terms will bind such Organization to these Terms; (iv) your individual right to access and use the Service may be suspended or terminated (and ownership and administration of your Account (as defined below) may be transferred) if you cease to be associated with, or cease to use an email address associated with, owned by, or provisioned by, that Organization; (v) we may disclose information regarding you and your use of the Service with such Organization, or with individuals associated with that Organization; and (vi) the terms “you” and “your”, as used in these Terms, refer to both you and such Organization. You represent and warrant that all information that you provide to us regarding any Organization on whose behalf you use the Service, including information identifying other users associated with such Organization or email domains owned by such Organization, is and at all times will be truthful, accurate, and complete, and that you will immediately notify us should any such information change or no longer be truthful, accurate, or complete.
Further, you agree to comply with the terms of and fulfill your obligations under these Terms and that you will be solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by you in connection with the Service, your App and your related development and distribution efforts.
3. License; Access
Subject to these Terms, Aircore grants to you a limited, non-exclusive, non-sublicensable, and non-transferable (except as permitted under these Terms) license to access and use the Service solely in connection with your development of Apps as authorized under these Terms. For the avoidance of doubt, any Software is licensed, not sold. Aircore reserves the right to change the Service in whole or in part at any time in its reasonable discretion. Aircore may terminate this license at any time for any reason or no reason in its sole discretion.
You agree not to (and not to allow any third party to): (a) sublicense, distribute, or use the Service outside of the scope of the license granted in these Terms; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Service or otherwise attempt to discover any proprietary source code or trade secrets related to the Service; (c) rent, lease, sell, assign or otherwise transfer rights in or to the Service; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service; (e) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of Aircore; (f) register, attempt to register, or assist anyone else to register any
trademark, trade name, service marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Aircore (or its wholly owned subsidiaries) other than in the name of Aircore (or its wholly owned subsidiaries, as the case may be); or (g) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.
5. Proprietary Rights
You do not have any rights in or to the Service except as expressly granted in these Terms. Aircore reserves all rights to the Service not expressly granted to you in accordance with these Terms. Aircore retains all intellectual property rights in and to the Service, and you acknowledge and agree that the Service and all intellectual property rights therein are the sole and exclusive property of Aircore and contain Aircore’s confidential and proprietary materials.
6. Your Account, Password, and Security
Your account on the Service (your “Account”) gives you access to the services and functionality that we may establish and maintain from time to time. We may maintain different types of Accounts for different types of users. You acknowledge and agree that you do not own your Account.
To access and use the Service using an API, you must obtain a license key from Aircore (“API Key”) and create an Account. Aircore reserves the right to revoke any and all API Keys for any reason or no reason, at any point in time.
When creating your Account, you agree to provide true, accurate, current, and complete information. You further agree to maintain and update any information you provide as needed to keep it true, accurate, current, and complete. You agree to create only a reasonable number of accounts and to ensure that all accounts you create are associated with you. If you provide us with your email address, we may use the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other marketing or advertising messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences by contacting us at email@example.com or by clicking the unsubscribe link within each marketing or advertising message. Opting out will not prevent you from receiving Service-related notices.
You may not use another user’s Account without such user’s permission. You are solely responsible for monitoring the use of your Account and API Key, and for maintaining the confidentiality of your Account and password, and for restricting access to your computer(s) and other related equipment, and you agree to accept responsibility for all activities that occur under your account or password, including any use of your API Key. You must keep your Account password(s) strong and secure. If you have reason to believe that your Account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your ID, password, or any credit, debit or charge card number), you agree to immediately notify Aircore. You may be liable for the losses incurred by Aircore or others due to any unauthorized use of your Account and/or API Key.
7. Updates; No Support or Maintenance
Aircore may extend, enhance, or otherwise modify the Service at any time without notice, but Aircore is not obligated to provide you with any Updates. If Aircore makes Updates available, these Terms will govern such Updates, unless the Update is accompanied by a separate license in which case the terms of that license will govern. Aircore is not obligated to provide any maintenance, technical or other support for the Service. You acknowledge that Aircore has no express or implied obligation to announce or make available any Updates to anyone in the future. Should an Update be made available, it may have features, services or functionality that are different from those found in the Service.
8. Export Control; U.S. Government and Other Governmental Entity Rights
You understand that the Service is or may be subject to export control laws and regulations. YOU MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE SERVICE OR ANY UNDERLYING INFORMATION OR TECHNOLOGY (INCLUDING, WITHOUT LIMITATION, THE SOFTWARE) EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. THE SERVICE AND ANY UNDERLYING INFORMATION OR TECHNOLOGY (INCLUDING, WITHOUT LIMITATION, THE SOFTWARE) MAY NOT BE DOWNLOADED OR OTHERWISE EXPORTED OR RE-EXPORTED: (i) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (ii) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. YOU HEREBY AGREE TO THE FOREGOING AND REPRESENT AND WARRANT THAT YOU ARE NOT LOCATED IN, UNDER THE CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
This paragraph of this Section 8 applies if you are a “Governmental Entity”, defined as the United States or any nation, state, municipality, or other political subdivision thereof, and any entity, body, agency, commission, department, board, bureau, or court, whether domestic, foreign, or multinational, exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to government, and any employee or official thereof. For purposes of the United States government, the Software is “commercial computer software” as defined at 48 C.F.R. § 2.101 and 48 C.F.R. § 252.227-7014(a)(1) and as the term is used in 48 C.F.R. §§ 12.212 and 227.7202, and the Service is a “commercial service” as defined in 48 C.F.R. § 2.101. The Service and related documentation is provided to all Governmental Entity customers and their users, for use by the Governmental Entity customer or on its behalf, subject to these Terms and with only those rights as are granted to all other customers and authorized users pursuant to the terms and conditions herein. These Terms apply to Governmental Entities and their authorized users except as prohibited by applicable law. If and to the extent any provision or term herein is so prohibited, such provision will be deemed modified only to the extent reasonably necessary to conform to applicable law but to give maximum effect to the provision or terms as written.
You agree that the Service, including all Documentation or other information or materials provided or made available by or for Aircore are Aircore’s confidential information, you will not use, disclose or make available any of such Aircore confidential information to any third party except as expressly permitted under, and in accordance with, these Terms.
10. Privacy Notice; DPA
You understand and acknowledge that Aircore will collect, use, disclose, and otherwise process certain personal information in connection with providing the Service, as set forth in the Aircore Privacy Notice. For more information on the data that may be processed through the use of the Aircore APIs, please see the Aircore API Privacy Notice. You agree to comply with the provisions of any Data Processing Addendum (DPA) between you and Aircore. In the event of any conflict between Aircore’s privacy notice and a DPA, the DPA shall govern.
11. Your Obligations
Portions of the Service utilize or include third-party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the Documentation, and your use of such material is governed by their respective terms. Nothing in these Terms authorizes you to subject any portion of the Service to the terms of any “open source” license, including a license that requires, as a condition of use, modification, or distribution of technology subject to such license, that such technology or other technology combined or distributed with such technology (a) be disclosed or distributed in source code form, (b) be licensed for the purpose of making derivative works, or (c) be re-distributable at no charge.
The Service may allow you to capture audio or video recordings. You hereby agree and affirm that you are solely responsible for your use of the Service in compliance with all applicable laws, including but not limited to monitoring, recording and wiretapping laws. YOU EXPRESSLY REPRESENT AND WARRANT TO AIRCORE THAT YOU WILL OBTAIN CONSENT AS REQUIRED BY THE AFOREMENTIONED LAWS PRIOR TO ANY MONITORING OR RECORDING. AIRCORE RECOMMENDS THAT YOU ALWAYS SECURE CONSENT BEFORE RECORDING. WHILE AIRCORE MAY PROVIDE FEATURES TO HELP YOU COMPLY WITH MONITORING AND RECORDING LAWS, AIRCORE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO MONITORING OR RECORDING. Without limiting the terms of Section 14, you agree to indemnify, defend and hold harmless Aircore and its officers, directors, owners, employees, agents, consultants and vendors from and against any and all liabilities, losses, claims, damages, causes of action, costs and expenses (including attorneys’ fees) that may be incurred by Aircore arising out of or related to your acts or omissions in connection with recordings and your use of the Service, whether such claims arise under contract, tort, statute or other legal theory, including but not limited to your failure to comply with monitoring, recording and wiretapping laws.
12. Compliance with Laws
You agree that neither you nor any of your App will disable, override or otherwise interfere with any Aircore-implemented system alerts, warnings, display panels, consent panels and the like. You understand and agree that you and your Apps must comply with all applicable criminal, civil and statutory laws and regulations (including privacy, data collection and location service laws and regulations) in any jurisdictions in which your Apps may be delivered. You will be solely responsible for, and Aircore will have no responsibility or liability whatsoever with respect to, any and all claims, suits, liabilities, losses, damages, costs and expenses arising from, related or attributable to, or otherwise involving your Apps.
You agree not to use the Service for any unlawful or illegal activity, nor to develop any App that would commit or facilitate the commission of a crime, or other tortious, unlawful, or illegal act. You agree that, to the best of your knowledge and belief, no App of yours will violate, misappropriate, or infringe any Aircore or third-party copyrights, trademarks, rights of privacy and publicity, trade secrets, patents, or other proprietary or legal rights (e.g. musical composition or performance rights, video rights, photography or image rights, logo rights, third-party data rights, etc. for content and materials that may be included in your App). Further, you agree not to use the Service to create any App or other software program that would disable, hack or otherwise interfere with any security, digital signing, digital rights management, content protection, verification or authentication mechanisms implemented in or by the Service, or by other Aircore software, services or technology, or enable others to do so, unless otherwise permitted by Aircore in writing.
Apps must not contain any malware, malicious or harmful code, program, or other internal component (e.g., computer viruses, trojan horses, or “backdoors”) and may not use any Aircore software or services in a way that could damage, destroy, or adversely affect Aircore hardware, software or services, or any other software, firmware, hardware, data, systems, services, or networks.
13. DMCA Notice
Since we respect artist and content owner rights, it is Aircore’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Aircore’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Service;
4. Information reasonably sufficient to permit Aircore to contact you, such as your address, telephone number, and, e-mail address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent: Attn: DMCA Notice
Address: 10 Jay St, 4th Floor
Brooklyn, NY 11201 Tel.: +1 646-717-0442
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL
PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Aircore and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Aircore’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Aircore has adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. Aircore may also at its sole discretion limit access to the Service and/or terminate the Accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
To the extent permitted by applicable law, you will indemnify, hold harmless and defend, at your expense, Aircore, its wholly owned subsidiaries, directors, officers, employees, independent contractors, agents and affiliates (each an “Indemnified Party”) from any and all claims, actions, proceedings and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including attorneys’ fees and other litigation expenses) (collectively “Losses”) incurred by an Indemnified Party, arising out of or relating to (a) your breach of any term or condition of these Terms, (b) your use of the Service, (c) your violations of applicable laws, rules or regulations in connection with the Service, including non-compliance with any part of applicable data protection and/or privacy laws, (d) any representations and warranties made by you concerning any aspect of the Service; (e) any claims made by or on behalf of any third party pertaining directly or indirectly to your use of any aspect of the Service, including any claims that your Apps violate or infringe any third-party intellectual property or proprietary rights; (f) violations of your obligations of privacy to any third party; and (g) any claims with respect to acts or omissions of any third party in connection with the Service.
You acknowledge that the Service is not intended for use in the development of Apps in which errors or inaccuracies in the content, functionality, services, data or information provided by the App or the failure of the App could lead to death, personal injury, or severe physical or environmental damage, and, to the extent permitted by law, you hereby agree to indemnify, defend and hold harmless each Indemnified Party from any Losses incurred by such Indemnified Party by reason of any such use.
In no event may you enter into any settlement or like agreement with a third party that affects Aircore’s rights or binds Aircore in any way, without the prior written consent of Aircore. Aircore will provide you with written notice of any Losses from which you must indemnify Aircore. You will cooperate as fully as reasonably required in the defense of any claim. Aircore reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
15. DISCLAIMER OF WARRANTIES
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICE, ANY PORTION OR COMPONENT OF THE SERVICE, AND ALL DOCUMENTATION OR OTHER INFORMATION OR MATERIALS PROVIDED OR MADE AVAILABLE BY OR FOR AIRCORE ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. ALL EXPRESS OR IMPLIED WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, (a) ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, QUIET POSSESSION OR TITLE, (b) ANY WARRANTIES THAT THE SERVICE, ANY PORTION OR COMPONENT OF THE SERVICE, OR ANY DOCUMENTATION OR OTHER INFORMATION OR MATERIALS PROVIDED OR MADE AVAILABLE BY OR FOR AIRCORE (i) WILL MEET ANY OF YOUR REQUIREMENTS (INCLUDING, WITHOUT LIMITATION, YOUR REQUIREMENTS RELATING TO ANY DESIGN OR PERFORMANCE) OR (ii) WILL BE UNINTERRUPTED OR ERROR-FREE, (c) ANY WARRANTIES THAT THE SERVICE OR ANY PORTION OR COMPONENT OF THE SERVICE IS FREE OF ANY MALWARE, VIRUSES, HACKS, BOTS, TROJAN HORSES AND OTHER HARMFUL OR MALICIOUS CODE AND (d) ANY WARRANTIES THAT THE SERVICE OR ANY PORTION OR COMPONENT OF THE SERVICE IS FUNCTIONAL ON ANY HARDWARE OR IN ANY ENVIRONMENT.
SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO YOU MAY HAVE ADDITIONAL RIGHTS UNDER APPLICABLE LAW.
16. LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL AIRCORE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR CORRUPTION, LOSS OF REVENUES, LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA OR INFORMATION, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THESE TERMS, YOUR USE OF OR INABILITY TO USE THE SERVICE, OR YOUR DEVELOPMENT EFFORTS, HOWEVER CAUSED, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF AIRCORE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) WILL AIRCORE’S (AND ITS WHOLLY OWNED SUBSIDIARIES’) TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS, DEMANDS, OR
ACTIONS ARISING OUT OF OR RELATING TO THESE TERMS EXCEED ONE HUNDRED U.S. DOLLARS ($100 USD).
17. Modifications to Terms of Service and Other Policies
Aircore may modify these Terms or any additional terms that apply to the Service to, for example, to reflect changes to the law or changes to the Service. You should review this page regularly. When we change these Terms in a material manner, we may post notice of such modifications at aircore.io/terms. Similarly, when we change other policies referenced in these Terms in a material manner, we may post notice of such modifications at the applicable URLs for such policies. If you do not agree to the modified terms for the Service, you should discontinue your use of the Service.
18.1 Force Majeure: Aircore will be excused from performance of its obligations under these Terms to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.
18.2 Entire Agreement/Severability: These Terms, as amended from time to time, represent the complete agreement between you and Aircore concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of these Terms is held to be unenforceable for any reason, such provision will be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of these Terms will continue in full force and effect.
18.3 Governing Law. These Terms shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the Arbitration Agreement in Section 18.4 and preempts all state laws to the fullest extent permitted by law. If the FAA is determined to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue shall be resolved under and governed by the law of your state of residence. The application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are expressly excluded. The Service is controlled by U.S. Export Regulations and may not be exported to or used by embargoed countries or individuals. You agree to submit to the personal jurisdiction of the federal and state courts located in New York County, New York for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration Agreement below, including any provisional relief required to prevent irreparable harm. You agree that New York County, New York is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
18.4 Arbitration: READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM AIRCORE. This Arbitration Agreement applies to and governs any dispute, controversy, or claim between you and us
that arises out of or relates to, directly or indirectly: (a) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of the Service, including receipt of any advertising, marketing, or other communications from us; (c) any transactions through, by, or using the Service; or (d) any other aspect of your relationship or transactions with us, directly or indirectly, as a user or consumer (“Claim” or collectively, “Claims”). This Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your consent to these Terms.
If you are a new user, you can reject and opt-out of this Arbitration Agreement within thirty (30) days of accepting these Terms by emailing us at firstname.lastname@example.org with your first and last name and stating your intent to opt-out of the Arbitration Agreement. Opting out of this Arbitration Agreement does not affect the binding nature of any other part of these Terms, including the provisions regarding controlling law or in which courts any disputes must be brought.
For any Claim, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that we have not been able to resolve a Claim after sixty (60) days, we each agree to resolve any Claim through binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS (the “Rules”), except as provided herein. JAMS may be contacted at www.jamsadr.com, where the Rules are available. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. The arbitration will be conducted in New York County, New York, unless you and we agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator will include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and we agree that the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms, or any provision of these Terms, is unconscionable or illusory or any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
NOTHING IN THIS SECTION WILL BE DEEMED AS: PREVENTING US FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF OUR DATA SECURITY, INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS; OR PREVENTING YOU FROM ASSERTING CLAIMS IN SMALL CLAIMS COURT, IF YOUR CLAIMS QUALIFY AND SO LONG AS THE MATTER REMAINS IN SUCH COURT AND ADVANCES ON ONLY AN INDIVIDUAL (NON-CLASS, NON-COLLECTIVE, AND NON-REPRESENTATIVE) BASIS.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of this Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver in Section 18.5 is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
18.5 Class Action/Jury Trial Waiver: WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND WE AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER USERS. YOU AND WE AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
18.6 No Waiver: A waiver of any default is not a waiver of any subsequent default.
18.7 Assignment: These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without Aircore’s prior written consent, but may be assigned by Aircore without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
18.8 Independent Contractors: The relationship between Aircore and you is not one of a legal partnership relationship but is one of independent contractors.
18.9 Successors and Assigns; Survival: These Terms will be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. The following sections of these Terms will survive any termination thereof: 1, 4, 5, and 8 through 18 (inclusive).
18.10 California Residents. The provider of the Service is Aircore, Inc. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.