Awair for Business Program Agreement
This Partner Program Agreement (the “Agreement”) is entered into by and between Bitfinder, Inc., d/b/a Awair, Inc., a Delaware corporation (“Awair”) and it's (“Partner”), from the effective date specified in the separate invoice. (“Effective Date”).
- “Awair Software Products” (“Software”) includes the Awair web analytics Dashboard, Awair’s enterprise API and Data storage.
- “Awair Devices” (“Devices”) means the products manufactured and sold or leased from Awair, such as Awair Omni.
B. PARTNER RESPONSIBILITIES
- The Software shall always remain in Partner’s possession and not provided to any third party, unless there is a written consent from the Awair.
- Partner may not duplicate the Software or any part or portion thereof even internally, without the written consent of Awair. The Products will always be represented to third parties as an Awair product.
- Except as otherwise provided by law, Partner may not modify or create derivative works of the Software, or reverse engineer, disassemble or decompile binary portions of the Device, or otherwise attempt to derive the source code from such portions.
C. TERM AND TERMINATION OF AGREEMENT
- This Agreement will commence on the date on which Partner access the Software (the "Effective Date") and will terminate in accordance to any Invoice or the terms of this Agreement.
- Awair may terminate this Agreement immediately should any part of the Device become, or in Awair's opinion be likely to become, the subject of a claim of infringement of a patent, trade secret or copyright.
- Awair may terminate this Agreement immediately should Partner materially breach any of provisions of THIS AGREEMENT or take any action in derogation of Awair's rights to the Confidential Information licensed to Partner.
- Upon termination of this Agreement, Partner will immediately cease using the Software. If the Agreement is terminated during the 45 day period, the Devices will be returned and return of the Devices will be in accordance with Awair’s instructions and the third party shipping costs will be Awair’s responsibility.
- Partner’s subscription term will automatically renew for the subscription term or one year, unless Partner tell Awair that Partner doesn’t want to renew at least 30 days before the end of the subscription term.
- Sections F will remain in effect after termination or expiration hereof and the provisions that by their nature are intended to survive termination or expiration of this Agreement shall survive.
D. PRICE AND ORDER
- The prices for the Program is specified in a separate Invoice.
- Partner can get a full refund within the 45 days of purchase for any reason. The product should be returned in original condition to get the full refund.
- For purposes of this Agreement, "Confidential Information" means: (i) business and technical information and any binary code, which Awair discloses to Partner related to Devices; (ii) Partner's feedback based on the Devices; and (iii) the terms, conditions, and existence of this Agreement. Partner may not disclose or use Confidential Information, except for the purposes specified in this Agreement. Partner will protect the Confidential Information with the same degree of care, but not less than a reasonable degree of care, as Partner uses to protect its own Confidential Information. Partner's obligations regarding Confidential Information will expire five (5) years from the date of receipt of the Confidential Information, except for Awair code which will be protected in perpetuity.
- Notwithstanding any provisions contained in this Agreement concerning nondisclosure and non-use of the Confidential Information, the nondisclosure obligations of F.1. will not apply to any portion of Confidential Information that Partner can demonstrate in writing is: (i) now, or hereafter through no act or failure to act on the part of Partner becomes, generally known to the general public; (ii) known to Partner at the time of receiving the Confidential Information without an obligation of confidentiality; (iii) hereafter rightfully furnished to Partner by a third party without restriction on disclosure; or (iv) independently developed by Partner without any use of the Confidential Information. In the event the Partner is required to disclose the Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, then prior to any such compelled disclosure, the Partner will (i) notify Awair of the legal process and allow Awair to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) cooperate fully with Awair in protecting against any such disclosure and allow Awair to obtain a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event that protection against disclosure is not obtained, Partner will be entitled to disclose the Confidential Information, but to the minimum extent necessary to legally comply with such compelled disclosure. Partner shall notify Awair promptly in the event of any disclosure of Confidential Information not authorized under this Agreement.
- Partner must restrict access to Confidential Information to its employees with a need for this access to perform their employment obligations and who have agreed in writing to be bound by a confidentiality obligation, which incorporates the protections and restrictions substantially as set forth in this Agreement. Partner shall be liable for any disclosure by such employees.
F. DISCLAIMER OF WARRANTY
- Partner acknowledges that Devices may contain defects or errors and is not designed, licensed, or intended for use in the design, construction, operation or maintenance of any inherently dangerous products like nuclear power plants ("High Risk Activities"). Awair disclaims any express or implied warranty of fitness for such uses. Partner represents and warrants to Awair that it will not use, distribute or license the Device for High Risk Activities.
- THE DEVICES ARE PROVIDED "AS IS". ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
G. LIMITATION OF LIABILITY
- Partner acknowledges that the Devices may have defects or deficiencies, which cannot or will not be corrected by Awair.
- To the extent not prohibited by law, in no event will either party be liable to the other party for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this Agreement (including loss of business, revenue, profits, use, data or other economic advantage), however it arises, whether for breach or in tort, even if either party has been previously advised of the possibility of such damage.
H. GENERAL TERMS
- Any action relating to or arising out of this Agreement will be governed by the laws of California without regard to its conflict-of-laws rules. The parties further submit to and waive any objections to the exclusive jurisdiction of and venue in any of the following forums: US District Court for the Northern District of California and California Superior Court for San Francisco County for any litigation arising out of this Agreement. In an action to enforce the terms of this Agreement, the prevailing party shall be entitled to costs and expenses, including reasonable legal fees. The U.N. Convention for the International Sale of Goods and the choice of law rules of any jurisdiction will not apply.
- The Devices and technical data delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Partner agrees to comply strictly with all such laws and regulations and acknowledges that it has the responsibility to obtain such licenses to export, re-export or import as may be required after delivery to Partner.
- It is understood and agreed that, notwithstanding any other provision of this Agreement, Partner's breach of the provisions of Section F of this Agreement will cause Awair irreparable damage for which recovery of money damages would be inadequate, and that Awair will therefore be entitled to seek timely injunctive relief to protect Awair's rights under this Agreement in addition to any and all remedies available at applicable law.
- Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement, without the prior written consent of the other party.
- This Agreement is the parties' entire agreement relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter, including any binary code or other licenses contained within Devices. No modification to this Agreement will be binding, unless in writing and signed by an authorized representative of each party.