Last Updated - 5/24/2018At Bitfinder, we take your privacy seriously.
This document focuses on information related to the operation of Awair products and services, including the Awair consumer electronics device and other products from Awair (collectively, “Awair Products”).
In this Privacy Statement, the expression “Awair Products” also includes our Mobile App, API and other services as defined in our Terms of Service.
Update related to GDPR
What is GDPR?
GDPR stands for the General Data Protection Regulation and is effective as of May 25th, 2018. GDPR replaces national privacy and security laws that previously existed within the EU with a single, comprehensive EU-wide law that governs the use, sharing, transfer, and processing of any personal data that originates from the EU.
What is Privacy Shield?
Awair has certified certain of our services, for which we act as a data processor, under both the EU-U.S. Privacy Shield Framework and Swiss-U.S. Privacy Shield Framework (collectively, the “Privacy Shields”). For more information on the Privacy Shields, please visit the U.S. Department of Commerce’s Privacy Shield website at: https://www.privacyshield.gov/welcome. Instructions can be found on the Privacy Shield website on how to approach an arbitration with Awair if a complaint should arise.
Awair’s Privacy Pledge
We are committed to protecting the privacy and security of our users’ data. We believe that GDPR complements our existing data protection policies and processes, and consistent with strong commitment to data privacy. As part of our dedication to privacy and security, we make the following pledges to our customers:
- Where we are transferring data outside of the EU, Awair commits to having the appropriate data transfer mechanisms in place as required by GDPR.
- Awair commits to follow appropriate security measures and precautions in accordance with GDPR.
- Awair will assist with notifying regulators of breaches and promptly communicating any breaches to customers and users.
- We will ensure that employees authorized to process personal data have committed to confidentiality.
- We will use sub processors that handle personal data, including our data center partners, that have committed to strong data management, security, and privacy practices.
- Where appropriate, we will offer contractual language documenting our commitments to our customers to support their GDPR obligations.
- When requested we will verify that any personally identifying information is removed from our servers, and/or anonymized in a way that cannot be attributed to you, where appropriate.
By using Awair Products, you agree to allow us to collect and process information as described below.What information does Awair collect?
- Information input during setup
- Elective information through participation in site functions
- Environmental data from the Awair Products' sensors
- Inputs, interactions and usage of the Mobile App and site
- Technical information from the device and Mobile App
- Location Information
- Personal Data as required for the ordering process
- Non-personal data collected by the browser
Information input during setup:
When you install the Awair app, you’ll be asked several questions to create an account and in order to help us create an initial setup of your preference and device settings. Answering these questions helps us to set up an initial program. As part of the creation of an account, you will be asked to supply personal data, such as your e‐mail address and gender (“Personal Data”).
Personal Data means any information concerning the personal or material circumstances of an identified or identifiable natural person.
Elective Information through participation in site functions:
Environmental data from the Awair Products’ sensors:
We collect data from several sensors built into the Awair Products. These sensors collect data such as current temperature, humidity, VOC level, CO2 level, and dust level in the room. The collection of this data is integral to the operation of the Awair Products and app, as it is key to monitoring your air quality and is used to determine recommendations. This data can also be used to integrate with and control other devices based on your personal environmental factors. Awair records a history of the data collected by the Awair Products. This allows us to offer you features such as usage history or analytics based on the sensor data.
Inputs, interactions, and usage of the Mobile App:
Your inputs and interactions with the Mobile App and site are recorded as you use and interact with the Mobile App and site. For example, when you swipe away a solution card, that interaction is recorded so that you will not see that card again.
Technical information from the device, Mobile App and site:
In order to improve your experience over time and help troubleshoot any problem you may encounter with any Awair Services, we record technical information such as your Awair device’s model and serial number or software version. We also record other technical information such as the version number for your Mobile App.
To connect your Awair device to our Services, or to access your data over the Internet from a computer, a smartphone or a tablet, you will need to connect it to your Wi-Fi network. During setup, we will ask for your Wi-Fi network name (SSID) and password to connect to the Internet. Awair will save this along with your IP address.
Like most Internet sites, we additionally routinely record log entries (including information such as your IP address) and technical information (such as your browser type and version) when there is contact with our services, for example with your browser, mobile device, or device.
When you use location-based services on your Awair Products' application or device, such as when measuring environmental conditions, then the physical location of your device will be collected in order to provide you with location-based services. This location data is collected anonymously in a form that does not personally identify you. With your consent, we may collect and upload from your device data such as location and environmental conditions at such locations. This data would be aggregated with data from devices of other consenting users to enhance the quality of data and other content provided by us or content providers. If you provide your consent, then we may also share this data with or sell this data to third parties. This data would be shared and sold anonymously in a form that would not personally identify you.
Personal Data as required for the ordering process:
In order to process and ship orders, Awair will require the collection of Personal Data such as your address and credit card information. Except in connection with your order to purchase a product through the Site, we do not collect any credit card or other financial account information.
We will collect information on the products you purchase from us such as their serial numbers, date of purchase and (if applicable) event logs that are useful in diagnosing product or application performance related issues. We may also use this information relating to a support or service issue.
Non-personal data collected by the browser:
When you access the Awair Services through the Site, we receive and store certain personally non‐identifiable information. Such information, which are collected passively using various technologies, cannot be used to specifically identify you. Therefore, such information shall not be regarded as Personal Data. Awair may store such information itself and/or such information may be included in databases owned and maintained by Awair's affiliates, agents or service providers. This Site may use such information and pool it with other information to track, for example, the total number of visitors to our Site, the number of visitors to each page of our Site, and the domain names of our visitors' Internet service providers. It is important to note that no Personal Data is available or used in this process. In operating this Site, we may use a technology called "cookies." A cookie is a piece of information that the computer that hosts our Site gives to your browser when you access the Site. Our cookies help provide additional functionality to the Site and help us analyze Site usage more accurately. For instance, our Site may set a cookie on your browser that allows you to access the Site without needing to remember and then enter a password more than once during a visit to the Site.
On most web browsers, you will find a 'help' section on the toolbar. Please refer to this section for information on how to turn cookies off. We recommend that you leave cookies turned on because they allow you to take advantage of some of the Site's features.
How does my Awair account or data collected by Awair interact with third parties?
- Integration with third-party devices
- Use of third-party services
- Collection of data from third parties
- Collection of data by third party partners
Integration with third-party services:
Awair integrates with certain third-party services in order to enhance the functionality of the Awair Products and to allow greater options to optimize and control your air. When integrating with these services, your account information and device data may be shared.
Use of third-party services:
Awair uses or engages certain third party services for various functions such as our referral program. In order to allow the functionality of those services, Awair may share your data with those third-party services.
We also have vendors, service providers, and technicians who help with some of our processing and storage, or at times to help to answer your questions. They may also assist with monitoring our servers for technical problems. These technicians, vendors, etc. (as well as Awair employees) can access certain information about you or your account in line with this work but these technicians are not allowed to use this data for non‐Awair purposes.
Collection of data from third parties:
Awair may receive and process information from third parties, and some of this information may be associated or stored with your Awair account. We may also obtain information from other sources and combine that with the information in your account. For example, in order to offer discounts or rewards, we might collect certain information (such as which of our partners offers services where you live) to determine eligibility and efficacy of our programs.
Collection of data from third-party partners:
Any data that Awair receives from third-party products and services will be processed and stored by Awair and will be treated in accordance with this Privacy Statement. This information may be processed in the same ways as any other data that is a part of your Awair account or the Awair data logs.
Awair expects our customers are 18 years or older. We do not knowingly collect, use, or share information that could reasonably be used to identify children under age 13 without prior parental consent or consistent with applicable law.
When does Awair share your data?
Interaction with third parties:
Awair may share your data with third parties in a manner consistent with Section II (How does my Awair account or data collected by Awair interact with third parties?).
For users with enterprise account or using Awair services for a business or enterprise, users with access to the main enterprise account may have a dashboard or may be able to obtain reports to specific to an individual’s data and data generated by a specific Awair Product. If you obtain your Awair Product or Awair account from your enterprise or allow your enterprise access to information from your Awair Product or Awair account, the manager or personnel from your enterprise may have access to information from your account.
With your explicit consent:
We may share personal information when we have your consent. One example of this would be if you sign up for programs offered by our partners. If you do this, we may share certain information with the partner. This could include things like your enrollment information and the activation status of your device.
In emergency situations:
We may share information in the case of an emergency. This includes protecting the safety of our employees and agents, our customers, or any person.
As part of business transitions:
Upon the sale or transfer of the company and/or all or part of its assets, your personal information may be among the items sold or transferred. We will request a purchaser to treat our data under the privacy statement in place at the time of its collection.
For legal reasons:
We may provide information to a third party if we believe in good faith that we are required to do so for legal reasons. For example, to respond to legal process, or comply with state and federal laws (or the applicable laws of foreign countries other than the United States).
We may share non‐personal information (for example, aggregated or anonymized customer data) publicly and with our partners. For example, we may publish trends about air quality or usage trends of our customers. This information may also be shared with other users to help them better understand their air quality habits compared to others in the Awair community, raise awareness about safety issues, or help us generally improve our system. We may also share non‐personal information with our partners, for example, if they are interested in providing demand‐response services or other incentive programs. We take steps to keep this non‐personal information from being associated with you and we require our partners to do the same.
Your personal information may be collected, processed and stored by Awair or its service providers in the United States and other countries where our servers reside. As a result, your personal information may be subject to legal requirements, including lawful requirements to disclose personal information to government authorities, in those jurisdictions.
If you select an outside party for the purchase, installation, or service of your Awair device and share your personal information, we cannot control the collection, storage or sharing of information collected by that party. For example, if you buy a Awair Product from a retailer, the retailer may collect personal information as part of the transaction. Or the party that installed the device may retain information that you provided to them to assist them in servicing the device if needed. Always check the privacy policies for any company that collects your personal information.
How long does Awair save my personal information?
Awair generally stores your personal information on Awair’s servers until you delete or edit it, or for as long as you remain a Awair customer in order to provide you with Awair Services.
You can access, amend or delete certain personal information through the controls in your account. Please contact us at email@example.com if you want to do that. Please note that we may ask you for proof of account ownership and/or identity before fulfilling your request. Because of the way we maintain certain Services, after your information is deleted, backup copies may linger for some time before they are deleted, and we may retain certain data for a longer period of time if we are required to do so for legal reasons.
Please note that this Privacy Statement may change from time to time. We will provide notice of any changes on the website or by contacting you.
If you have any questions, please contact us at firstname.lastname@example.org.
Last Updated - 12/1/2016
Bitfinder, Inc. and its affiliates, if any, (collectively referred to as “Bitfinder”, “we,” “us, “ “our”) manufactures, markets and sells the Awair consumer electronics products and other products made from Bitfinder (the “Product”) as well as providing B2B technology solutions. Bitfinder additionally provides services including, but not limited to: (1) a website located at www.getawair.com (the “Site”), (2) software that may be downloaded to your smartphone or tablet (“Mobile App”) which may be updated or altered from time to time, (3) an application program interface (the “API”), (4) various types of content with analytics, suggestions or information relating to your use of other Bitfinder services (“Content”) that may be delivered over e- mail or through the Mobile App, and (4) Bitfinder user accounts (“Accounts”) that may be accessed through the Mobile Apps. The term “Services” refers collectively to the Site, Mobile App, API, User Account, and other services offered by Bitfinder, Inc. in connection therewith.
THIS IS A LEGAL AGREEMENT. By accessing or using any of the Services, (1) you agree to be bound by all terms and conditions provided by Bitfinder, which includes this Terms of Service (“Agreement”) and any additional terms incorporated by reference (“Additional Terms”) (collectively, the “Terms”), on behalf of yourself or the entity you represent; (2) you represent and warrant that you have the right, authority and capacity to accept and agree to these terms on behalf of yourself or the entity you represent; and (4) you represent that you are of sufficient legal age in your jurisdiction or residence to use or access the services and enter into this agreement.
I. Overview, Eligibility, Terms and Termination
a. Overview and Relation to Other Agreements.
These Terms govern your use of the Services. Certain features of the Services may be subject to additional guidelines, terms, or rules which will be posted in connection with such features. All additional guidelines, terms, or rules (“Additional Terms”), are incorporated by reference into these Terms, and you are agreeing to accept and abide by them by using the Services, including:
You may use the Services only if you can form a binding contract with Bitfinder, and only if you are in compliance with these Terms and all applicable local, state/provincial, national, and international laws, rules, and regulations. Any use or access to the Services by anyone under the age of 18 is strictly prohibited and is a violation of these Terms. The Services are not available to any users previously prohibited from using the Services by Bitfinder.
c. Term and Termination.
These Terms will remain in full force and effect so long as you continue to access or use the Services, or until terminated in accordance with the provisions of these Terms. At any time, Bitfinder may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms with respect to you if Bitfinder in good faith believes that you have used the Services in violation of these Terms, including any incorporated guidelines, terms or rules.
II. User Accounts
a. User Account.
To use certain Services, you must register for an Account and provide certain information about yourself. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Services does not violate any U.S. or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Account, and to maintain your password securely to prevent others from gaining access without your permission. You agree to immediately notify Bitfinder of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. Bitfinder is not liable for any loss or damage arising from your failure to comply with the above requirements.
III. Access to Services
a. Access and Use.
Subject to these Terms, Bitfinder grants you a limited, non-transferable, non-exclusive, revocable, license (without the right to sublicense) to access and use the Services provided by Bitfinder. [----]
b. Automatic Software Updates.
Bitfinder may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve or alter the performance of the Services and/or the Product Software (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to stop using the application and delete the software from your device. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Services and the Product and you agree to promptly install any Updates Bitfinder provides. Your continued use of the Services and the Product is your agreement to these Terms with respect to the Services.
c. Certain Restrictions.
The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (ii) you agree not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services; (iii) you agree not to access the Services in order to build a similar or competitive service; (iv) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (v) you agree not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Services, the Product, the Product Software, or any other system, device or property; (vi) you agree not to interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Services or violate the regulations, policies, or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by Bitfinder; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Services. Any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
Bitfinder cares about the integrity and security of your personal information. However, Bitfinder cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
Bitfinder reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof with or without notice. You agree that Bitfinder will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.
g. Access Outside Certain Countries.
Although the Sites are accessible worldwide, the Products and Services provided or accessed through or on the Sites are not available to all persons or in all countries. If you choose to access the Sites from outside a country in which Bitfinder supports the Product and Services listed here ("Target Country"), you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the Sites are not designed for use in a non-Target Country and some or all of the features of the Sites may not work or be appropriate for use in such a country. To the extent permissible by law, Bitfinder accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Sites or Bitfinder Products in a non-Target Country. You will be bound by these Terms wherever you access or use the Sites or use the Services.
IV. Agreed Usage and Limitations Of Bitfinder Services
a. Intended Use of Bitfinder Services.
The Services are intended to be accessed and used for non-time-critical information and control of Bitfinder products. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond Bitfinder’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that Bitfinder is not responsible for any damages allegedly caused by the failure or delay of the Services to reflect current status or notifications.
b. No Life-Safety or Critical Uses of the Services.
You acknowledge and agree that the Products and Services, whether standing alone or when interfaced with third-party products or services are not certified for emergency response. Bitfinder makes no warranty or representation that use of the Products or Services, including integration with any third-party product or service, will affect or increase any level of safety. YOU UNDERSTAND THAT THE PRODUCTS AND SERVICES, WHETHER STANDING ALONE OR INTERFACED WITH THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM -- BITFINDER WILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME IN THE EVENT OF AN EMERGENCY. In addition, the Bitfinder customer support contacts cannot be considered a lifesaving solution for people at risk in the home, and they are no substitute for emergency services. All life threatening and emergency events should be directed to the appropriate response services.
c. Reliability of Notifications.
You acknowledge that the Services, including remote access and mobile notifications, are not intended to be 100% reliable and 100% available. We cannot and do not guarantee that you will receive notifications in any given time or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. MOBILE NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON YOUR BITFINDER PRODUCTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. The information provided by Bitfinder on what to do in an emergency is based on authoritative safety sources, but there is no way for Bitfinder to provide specific information relating to a situation in your home or elsewhere. You acknowledge that it is your responsibility to educate yourself on how to respond to an emergency and to respond according to the specifics of your situation.
d. Temporary Suspension.
The Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Bitfinder does not offer any specific uptime guarantee for the Services.
e. System Requirements.
Access to Services are limited to those with the necessary system requirements, as published in connection with such Services. Certain Services will not be accessible without: (i) a working Wi-Fi network in your home that is positioned to communicate reliably with the Products; (ii) an Account; (iii) mobile clients such as a supported phone or tablet (required from some functionality); (iv) always-on broadband Internet access in your home; and (v) other system elements that may be specified by Bitfinder. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met. In addition, you acknowledge that Bitfinder may activate Bluetooth on your smartphone or tablet, with or without prior notification, in order to facilitate proper operation of the Services, enable communication with Bitfinder Products connected to the same Bitfinder account, and enable certain features.
f. Quality Assurance.
Bitfinder is dedicated to the highest quality products. When consumers purchase a Bitfinder product new, they expect that the product comes directly from Bitfinder or its authorized distributors and the quality controls in that sales channel. You agree not sell any Bitfinder product as new and without prominent marking as a “USED” product unless you are an authorized distributor or you have passed Bitfinder’s reseller certification program to ensure quality control. To become a certified reseller, please e-mail Bitfinder at email@example.com.
g. Air Quality, Health and other Benefits.
Unless explicitly promising a “guarantee,” Bitfinder does not guarantee or promise any specific level of air cleanliness or any health benefits from the use of the Products or Services or any feature of them, including following any guidance provided by the Services. Actual air quality may vary with factors beyond Bitfinder’s control or knowledge. From time to time, Bitfinder may use the Services to provide you with information that is unique to you and your air monitoring situation and may suggest ways to enhance or improve or otherwise alter your habits. We do this to highlight options for your consideration based on our analysis and information that has been monitored and collected. YOU ACKNOLWEDGE THAT THESE SUGGESTIONS ARE NOT CONSIDERED MEDICAL ADVICE AND THE EFFICIACY AND APPLICABILITY OF SUCH SUGGESTIONS MAY VARY. Bitfinder, to the extent permissible by law, accepts no liability regarding your actions based on the information provided by the Services, and makes no warranties and representation about the applicability of such information or guidance to your specific needs. Any health questions regarding the information and guidance provided should be directed to a medical doctor.
h. Product Information.
The Services may, from time to time, provide you information (“Product Information”) regarding third-party products and their connection Products provided by Bitfinder and with other products and services. All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product Information through the Services is not a substitute for direct access of the information in the home.
i. Access to Content.
You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services.
V. Payment and Sales term
Purchases made on the Store are intended for end users only, and are not authorized for resale.
b. Sales Tax.
Depending on the order, Awair calculates and charges sales tax in accordance with applicable laws.
c. International Sales.
For the sales outside of US, you are responsible for any VAT, tariff, duty, taxes, handling fees, brokerage charges, customs clearance charges, etc. required by your country for importing consumer goods.
VI. Limitations of Bitfinder Services Due to Third Parties
In certain circumstances, Bitfinder Services may rely on or interoperate with third party products and services. These third party products and services are beyond Bitfinder’s control, but their operation may impact or be impacted by the use and reliability of the Bitfinder Services. You acknowledge and agree that: (i) the use and availability of the Services is dependent on third party product vendors and service providers, (ii) these third party products and services may not operate in a reliable manner 100% of the time, and they may impact the way that the Bitfinder Services operate, and (iii) Bitfinder is not responsible for damages and losses due to the operation of these third party products and services.
b. Third Party Service Providers Used By Bitfinder.
You acknowledge that Bitfinder uses third party service providers to enable some aspects of the Services. YOU AGREE NOT TO RELY ON THE SERVICES FOR ANY LIFE SAFETY OR TIME-CRITICAL PURPOSES.
c. Equipment, ISP, and Carrier.
d. Third Party Products and Services that Work With Bitfinder Services.
Bitfinder may provide the opportunity for you to interface to, integrate with or control Third Party Products and Services, for example through the Bitfinder Mobile App or API. Although the Mobile App and Bitfinder API is offered by Bitfinder, you acknowledge that Third Party Products and Services that you connect to your account or interface with are not Bitfinder products and services and you acknowledge and agree that Bitfinder does not control, and that these Terms do not apply to, any Third Party Products and Services. Use of any Third Party Products and Services is governed by separate terms and conditions provided by the operator(s) of the applicable Third Party Products and Services. You acknowledge and agree that Bitfinder makes no representation or warranty about the safety of any Third Party Products or Services. Accordingly, Bitfinder is not responsible for your use of any Third Party Product or Service or any personal injury, death, property damage (including, without limitation, to your home), or other harm or losses arising from or relating to your use of any Third Party Products or Services. You should contact the Third Party with any questions about their Products and Services.
e. App Stores.
You acknowledge and agree that the availability of the Mobile Apps is dependent on the third party websites from which you download the Mobile Apps, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). You acknowledge that these Terms are between you and Bitfinder and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from it. You agree to comply with, and your license to use the Mobile Apps is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
f. Third Party Website Links, Information and Referrals.
The Sites may contain links to other web sites operated by third parties (“Third Party Sites”) and referrals to third party vendors (“Referred Vendors”). Such Third Party Sites and Referred Vendors are not under our control. Bitfinder provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third Party Sites or Referred Vendors. Your use of these Third Party Sites is at your own risk.
g. Release Regarding Third Parties.
Bitfinder is not responsible for third parties or their products and services, including, without limitation, the App Stores, Third Party Products and Services, Third Party Sites, Referred Vendors, Equipment, ISPs, and Carriers. Bitfinder hereby disclaims and you hereby discharge, waive and release Bitfinder and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
VII. Ownership and Intellectual Property
a. Bitfinder Property.
You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in the Product and Services (i.e., the Site, Mobile App, API, etc.) are owned by Bitfinder or its affiliates or our licensors. Your possession, access, and use of the Product, Product Software, and Services do not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. Bitfinder and its affiliates and licensors and suppliers reserve all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms.
b. Use Limitation.
You may only copy parts of the Services (including this Site) on to your own computer for your own personal use. You may not use the content of the Services in any other public or commercial way nor may you copy or incorporate any of the content of the Services into any other work, including your own web site without the written consent of Bitfinder. You must have a license from us before you can post or redistribute any portion of the Services. Bitfinder retains full and complete title to all content on the Services, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services or any content therein.
You may choose to, or Bitfinder may invite you to submit comments, suggestions, or ideas about the Products or Services, including how to improve the Products or Services (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place Bitfinder under any fiduciary or other obligation. Bitfinder may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Bitfinder does not waive any rights to use similar or related ideas previously known to Bitfinder, developed by its employees, or obtained from other sources.
You agree to defend, indemnify and hold Bitfinder and its licensors and suppliers harmless from any damages, liabilities, claims or demands (including costs and attorneys’ fees) made by any third party due to or arising out of (i) your use of the Products or Services, (ii) your violation of these Terms, (iii) any User Submissions or Feedback you provide; or (iv) your violation of any law or the rights of any third party. Bitfinder reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Bitfinder and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Bitfinder’s prior written consent. Bitfinder will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
IX. Warranty Disclaimers
a. THE WARRANTY FOR THE PRODUCT IS SET FORTH IN THE LIMITED WARRANTY.
b. THE SERVICES (I.E., THE SITE, MOBILE APP, API, ETC.) ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE” AND BITFINDER AND OUR LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON- INFRINGEMENT.
c. BITFINDER AND OUR LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BITFINDER OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.
d. BITFINDER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED, INTEGRATED WITH OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE PRODUCTS OR SERVICES (INCLUDING, BUT NOT LIMITED TO, THIRD PARTY PRODUCTS AND SERVICES CONNECTED THROUGH BITFINDER MOBILE APP) OR ANY HYPERLINKED WEBSITE OR SERVICE, AND BITFINDER WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES.
e. WHEN YOU INSTALL, SETUP OR USE PRODUCTS AND SERVICES LIKE THOSE PROVIDED BY BITFINDER YOU ARE GIVEN THE OPPORTUNITY TO ALTER DEFAULTS OR CHOOSE PARTICULAR SETTINGS. THE CHOICES YOU MAKE CAN CAUSE DAMAGE OR LEAD TO NON-RECOMMENDED OPERATION OF YOUR CONNECTED EQUIPMENT OR SYSTEMS. YOU ASSUME ALL LIABILITY FOR SUCH DAMAGE WHEN YOU CHOOSE PARTICULAR SETTINGS OR SET OR ADJUST DEFAULTS.
f. BITFINDER MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND BITFINDER WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. BITFINDER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
X. Limitation of Liability
a. Nothing in these Terms and in particular within this "Limitation of Liability" clause shall attempt to exclude liability that cannot be excluded under applicable law.
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) BITFINDER BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE SERVICES OR THE PRODUCTS, EVEN IF BITFINDER KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) BITFINDER’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE SERVICES AND THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO BITFINDER OR BITFINDER’S AUTHORIZED RESELLER FOR THE SERVICES OR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. BITFINDER DISCLAIMS ALL LIABILITY OF ANY KIND OF BITFINDER’S LICENSORS AND SUPPLIERS. UNDER NO CIRCUMSTANCES WILL BITFINDER BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF OR EXPOSURE TO ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.
XI. Fees and Payment
a. Certain Services may be offered for a fee.You shall pay all applicable fees in connection with the Services selected by you in accordance with the any terms of sale stipulated.
XII. Disputes and Arbitration
a. Contact Bitfinder First.
If a dispute arises between you and Bitfinder, our goal is to learn about and address your concerns. You agree that you will notify Bitfinder about any dispute you have with Bitfinder regarding these Terms or our Products or Services by contacting Bitfinder.
b. Equipment, ISP, and Carrier.
You and Bitfinder agree, subject to the Protection of Confidentiality and Intellectual Property Rights clause of these Terms, to submit any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Services to binding arbitration rather than by filing any lawsuit in any forum other than set forth in this section. Further you agree arbitration is final and binding and subject to only very limited review by a court. You also waive your right to any form of appeal, review or recourse to any court or other judicial authority, insofar as such waiver may be validly made. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to your use of the Service. Subject to the Protection of Confidentiality and Intellectual Property Rights clause of these Terms, any dispute or claim made by you against us or us against you arising out of or relating to these Terms or your use of the Services (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration except that you may take claims to small claims court if they qualify for hearing by such a court.
c. Arbitration Procedures.
You must first present any claim or dispute to us by contacting Bitfinder to allow us an opportunity to resolve the dispute. You may request arbitration if your claim or dispute cannot be resolved within 60 days after presenting the claim or dispute to Bitfinder. Bitfinder may request arbitration against you at any time after it has notified you of a claim or dispute in accordance with the Notifications section of these Terms. The arbitration of any dispute or claim shall be conducted in accordance with the then current and applicable rules of the American Arbitration Association as modified by this agreement. The place of any arbitration will be Palo Alto, California, USA, and will be conducted in the English language. Claims will be heard by a single arbitrator. The arbitrator may not award relief in excess of or contrary to what this agreement provides, order consolidation or arbitration on a class wide or representative basis, award punitive or consequential damages or any other damages aside from the prevailing party’s actual damages, or order injunctive or declaratory relief, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither you, nor Bitfinder nor the arbitrator may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
d. No Class Actions.
There shall be no right or authority for any claims subject to this arbitration clause to be arbitrated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not limited to, as a private attorney general).
e. Fees and Expenses.
All administrative fees and expenses of arbitration will be divided equally between you and Bitfinder. Each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration hearing.
YOU MUST CONTACT BITFINDER WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS, OR DISPUTE.
a. Changes to these Terms.
Bitfinder reserves the right to make changes to these Terms. We'll post notice of modifications to these Terms on this page. You should ensure that you have read and agree with our most recent Terms when you use the Services. Continued use of the Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Terms.
b. Governing Law.
The courts in some countries will not apply California law to some types of disputes. If you reside in one of those countries, then where California law is excluded from applying, your country's laws will apply to such disputes related to these terms. Otherwise, you agree that these Terms, and any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Products and Services shall be governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state and federal courts in or for Santa Clara County, California for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in an above section.
c. Protection of Confidentiality and Intellectual Property Rights.
Notwithstanding the foregoing, Bitfinder may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
d. Entire Agreement/Severability.
These Terms constitute the entire agreement between you and Bitfinder regarding the use of the Services. Any failure by Bitfinder to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither party is an agent or partner of the other party.
All provisions of this Agreement which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without Bitfinder’s prior written consent. These Terms may be assigned by Bitfinder without restriction. These Terms are binding upon any permitted assignee.
Bitfinder may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Account, mobile notifications, hard copy, or posting of such notice on www.Bitfinder.com. Bitfinder is not responsible for any automatic filtering you or your network provider may apply to email notifications. Bitfinder recommends that you add @getawair.com email addresses to your email address book to help ensure you receive email notifications from Bitfinder.
If you are a California resident, 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 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
i. Copyright/Trademark Information.
Copyright © 2015, Bitfinder Inc. All rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the Services are the property of Bitfinder or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Bitfinder or such respective holders. Bitfinder reserves the right to alter product and services offerings, specifications, and pricing at any time without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.
Last Updated - 12/1/2016
IMPORTANT: By using Awair consumer electronics products and other products made from Awair (the “Device”) you are agreeing to be bound by the terms of this Limited Warranty set forth below. If you do not agree to the terms of this Limited Warranty you may return the Device (in its original, unused condition) within thirty days of the date of purchase (or the return period provided by your place of purchase, whichever is longer) for a refund in accordance with our returns policy as set forth in Section 3 of this Limited Warranty.
This Limited Warranty gives you specific legal rights. You may also have other legal rights that vary by state, province or jurisdiction. The disclaimers, exclusions, and limitations of liability under this Limited Warranty will not apply to the extent prohibited by applicable law. For a full description of your legal rights you should refer to the laws applicable in your jurisdiction and you may wish to contact a relevant consumer advisory service.
Duration and Coverage. One (1) year Limited Hardware Warranty. Subject to the additional terms and conditions set forth below, Awair provides the following Limited Warranty only to the person or entity that originally purchased the Device from Awair or from one of its authorized resellers or distributors;
Limited Warranty. Awair warrants the Device against defects in materials and workmanship under normal use for a period of one (1) year from the date of original purchase and with respect to pre-orders from the date the pre-orders are shipped (“Warranty Period”). If a Device is returned to Awair during the Warranty Period as provided below, and Awair determines that the Device is defective, Awair will either repair or replace the unit with either a new or a refurbished Device, or refund the original purchase price (less any discounts or promotional codes) in return for the Device, at its option. If the Warranty Period has expired or is otherwise not applicable as per the Scope and Limitation on Warranty (below), we will return the Device to you. More information about this warranty can be found at http://support.getawair.com.
Satisfaction Return Policy. If you are the original purchaser of the Product and you are not satisfied with this Product for any reason, you may return it in its original condition within thirty (30) days of the original purchase and receive a full refund. To return your product you need to contact customer support for an RMA number. RMA numbers are valid for 30 days after issuance, product returned after that will be returned to the customer.
Return and Warranty Service Process. Please review the online help resources at http://support.getawair.com prior to seeking warranty service. To obtain warranty service, you must first obtain a Return Merchandise Authorization (RMA) number from a Customer Support Representative (CSR) at Awair. Customer Support contact information can be found by visiting http://support.getawair.com. Awair may attempt to troubleshoot a warranty-related problem prior to issuing a RMA number. Awair may ask for additional information upon request. Issued RMA numbers remain valid for thirty days from issuance. Once an RMA number is obtained, your Device must be shipped freight prepaid; together with proof of purchase and all accessories, either its original packaging or packaging affording an equal degree of protection, to the Awair authorized distribution facility identified by the CSR. Failure to return any of the accessories may result in a delay and/or result in a credit to Awair or an invoice for the missing accessories.
In performing warranty service, Awair may furnish replacement parts on an exchange basis and replaced parts will become the property of Awair. Replacement parts provided by Awair shall be new or refurbished and of comparable quality, and may be a different part that contains compatible features and functions. You will reimburse Awair for the inspection, testing and repair of returned equipment determined by Awair not to be defective or which falls under one of the warranty exclusions described below (as well as pay all shipping and handling charges). In all cases, Awair’s determination as to whether or not the equipment is defective and covered by warranty will be final. Any replacement equipment will be warranted hereunder for remaining period of one (1) year from original purchase or with respect to pre-orders one (1) year from shipment of the pre-order.
Awair reserves the right to change the method by which Awair may provide warranty service to you, and your Device’s eligibility to receive a particular method of service.
Scope of and Limitation of Warranty. The warranty on this Device is limited to the repair or replacement of defective Devices as described in the Limited Warranty section above. This warranty does not cover customer training and education, installation, set up or adjustment, signal or reception problems.
The Device is not a medical device and has not been submitted for approval by the FDA and Awair makes no medical claims regarding the Device.
This warranty does not cover damage (i) due to acts of God, other forces beyond our reasonable control, such as internet or power outages, wars, riots, terrorism, labor disputes, earthquakes, floods or other events of “force majeure,” accident, misuse, abuse, negligence, commercial use or modification of, or to any part of your Device; (ii) caused by any third party product, service or system, use of the Device for purposes other than for which the Device was designed or intended, abnormal physical or electrical stress, or use in improper environmental conditions, or use of the Device in violation of written instructions provided by Awair (which may be provided at the time of purchase or on its website at http://support.getawair.com). This warranty does not cover defects due to normal wear and tear, scratches, nicks and dents or aging. This warranty does not cover damage due to improper repair, operation or maintenance or connections to improper voltage supply or, to the extent allowed by law, attempted repair by anyone other than a facility authorized by Awair to service your Awair Device. This warranty does not cover consumable parts (such as batteries). This warranty gives you specific legal rights, and you may also have other rights which vary from state to state (and jurisdiction to jurisdiction).
Wood is a natural product containing natural variations in color, tone, and graining. Awair does not warrant against natural variations in color, mineral streaks, small knots, and grain variations from plank to plank. Nor does Awair warrant against natural variations, color, gloss level, or U.V. discoloration between samples/ models and products. Any sample or model is for demonstrative purposes only, and such sample or model does not create a warranty of any kind that the goods you purchased shall conform thereto. Any warranties based on any such sample or models are specifically disclaimed.
In the usage of Awair Glow, Awair does not warrant against usages outside of the following safety clauses:
- When connecting a device to your Awair Glow, check that the power requirements are within the maximum allowed power ratings for your device. It is rated for 100~125VAC, 50/60Hz, 15A Max,1800W.
- Awair Glow is designed to be used indoors in a dry location. Avoid liquid contact with the Awair Glow. Do not submerge the devices in liquid or attempt to clean them with liquids or solvents. To clean the device, disconnect from the power outlet and use a damp towel.
- Awair Glow is designed for residential applications.
- Do not insert any objects into the outlet openings or ventilation holes. Do not place any objects on top of the unit.
- There should be at least 1-2 inch clearance if you are placing your Awair Glow behind any furniture.
- Always plug your Awair Glow directly into your wall power outlet. Do not plug it into an extension cord, surge protector or any other power tap device.
- Confirm that your Awair Glow is properly plugged in fully into your wall power outlet. Your device should sit as flush as possible with the wall outlet. If it seems loose, please contact an electrician.
- Inspect the power outlet you intend to plug your Awair Glow into. If there is any damage or excessive wear on the outlet, please contact an electrician.
- Do not disassemble or open Awair Glow. Disassembling and opening Awair Glow is very dangerous when it is connected to any power outlet. Disassembly of the device will void your warranty.
Disclaimer of Warranties. TO THE EXTENT PERMITTED BY LAW, THIS WARRANTY AND THE REMEDIES SET FORTH ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. AWAIR DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS, TO THE EXTENT PERMITTED BY LAW. IN SO FAR AS SUCH WARRANTIES CANNOT BE DISCLAIMED, AWAIR LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION OF THIS EXPRESS WARRANTY AND, AT AWAIR’S OPTION, THE REPAIR OR REPLACEMENT SERVICES DESCRIBED ABOVE. SOME STATES (COUNTRIES AND PROVINCES) DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY (OR CONDITION) MAY LAST, SO THE LIMITATION DESCRIBED ABOVE MAY NOT APPLY TO YOU.
Limitation of Damages. IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER AWAIR NOR ITS SUPPLIERS SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS OR CONDITIONS RELATED THERETO UNDER ANY BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO HEALTH CLAIMS, BUSINESS INTERRUPTION, LOSS OF REVENUES AND LOSS OF PROFITS. THE FOREGOING SHALL APPLY EVEN IF AWAIR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AWAIR’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED THE ORIGINAL PURCHASE PRICE PAID FOR THE DEVICE THAT CAUSED SUCH DAMAGE. CERTAIN STATES (COUNTRIES AND PROVINCES) DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
Awair 3rd Party Commercial Services Terms of Service
Last Updated: May 1, 2017
Bitfinder, Inc., d/b/a Awair, Inc. ("Awair") provides a collection of application programming interfaces (APIs), referred to collectively as "Services" that provide communication and/or interoperability with Awair devices, systems and user accounts, as well as third party devices, systems and accounts that are supported by the Awair platform.
You wish to develop software which interacts with the Awair Services, this software referred to here as the "Implementation". Awair wishes to make these Services available to you for use in your Implementation, subject to your compliance with the terms and conditions set forth below (the "Agreement").
This Agreement applies to both commercial and non-commercial uses of the Services. There may be charge a fee for commercial use of the Service. By accessing, or using these Services, you are agreeing to be bound by the Agreement. If you do not wish to be bound by the Agreement, you may not access or otherwise use the Services.
1) Your Relationship with Awair
a) Your use of any of the Services is subject to the terms of a legal agreement between you and Awair, Inc., whose principle place of business is at 40 Boardman Place, San Francisco, California ("Awair").
c) Nothing contained in this Agreement shall be deemed to constitute either party as partner, joint venture or employee of the other party for any purpose.
d) Nothing contained in this Agreement shall be deemed to constitute a non-compete agreement. Awair may choose to independently develop products and services which compete with your Implementation.
e) You represent that you have full power, capacity and authority to accept this Agreement. If you are accepting on behalf of your employer or another entity, you represent that you have full legal authority to bind your employer or such entity to this Agreement. If you do not have the legal authority to bind, please ensure that an authorized person from your entity consents to and accepts these Agreements.
2) Term of the Agreement
a) This Agreement begins upon you signing and returning this Agreement to Awair (the Effective Date) and lasts for a term of one year.
b) This Agreement may be renewed annually.
c) Continued usage of the Services will be deemed a renewal of this Agreement. You may terminate your participation in the Agreement by ceasing use of the Services, and by removing the Awair API code from your Implementation. Awair, at its discretion, may cancel this Agreement at any time upon notice to you. If there is a material breach of the Agreement, then this notice period is waived, and the Agreement may be cancelled immediately.
d) The restrictions and obligations in sections 3, 4, 6, 7, 10, 11 and 12 survive the termination or cancellation of this Agreement, and shall continue to bind you, your successions and heirs.
3) Privacy and Personal Information
c) Security. You will use all reasonable efforts to protect Customer Data (as defined below) collected by you, including without limitation any personally identifiable information (PII), from unauthorized access or use. In the event your systems or infrastructure that are used for storage, processing or hosting Customer Data are breached or compromised, or if Customer Data is inadvertently exposed to non-authorized third parties, you shall inform Awair at [firstname.lastname@example.org] promptly of such a breach or exposure and provide all available information, including root cause analysis, remediation steps and compensating controls to ensure such a breach does not occur in the future. You are responsible for providing customer notification under the state breach notification statutes and any other applicable privacy laws and you will bear the costs incurred by you and Awair resulting from your breach or exposure. “Customer Data” means any and all technical information, PII, device usage information, or other information derived from access to or use of any of the Awair API and Awair Services, including but not limited to data acquired from or through the Awair API that relates to any end users of any Awair products and services or pertains to use of any Awair products and services by such end users. Before collecting any Customer Data or other information from end users of your Client, you must provide adequate notice of what Customer Data and other information you collect and how it will be used and/or shared and obtain any necessary consents. You will comply with all privacy laws and regulations (including those applying to PII) in connection with your access and use of the Services.
d) Data Use. You will not permit use of any Customer Data or disclose any Customer Data to any third party except to those third party service for your own benefit and under reasonable confidentiality terms. You will not use or disclose any information derived directly or indirectly from the Customer Data for any purpose other than as set forth above.
4) Awair Proprietary Rights
a) Awair shall own and retain all right, title and interest in and to the Intellectual Property Rights in the Services, subject only to the limited license expressly set forth in the section entitled "Permitted Uses". You do not acquire any other rights, express or implied, in the Services. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO AWAIR.
b) Awair claims no ownership over your software or data, as provided in the Implementation, and you retain copyright and any other rights you already hold. By using the Service, you grant Awair a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, perform, display and distribute your data through the Service for the sole purpose of Awair providing the Service to your Implementation.
c) Promotional and Marketing Use. In the course of promoting, marketing, or demonstrating the Awair API and Nest Products, Awair may produce, distribute and use depictions, screenshots, video, or other content from your products, and may use your company or product name and logos. You hereby grant Nest all necessary rights for these purposes.
5) Permitted Uses
a) Limited License. Subject to the terms and conditions of this Agreement, Awair grants to you a non-exclusive, non-transferable license (without the right to sublicense) to use the Services for commercial and non-commercial purposes within your Implementation. Also subject to the terms and conditions of this Agreement, Awair further grants to you a non-exclusive, non-transferable license (without the right to sublicense) to resell the Services as an integrated component of your Implementation.
b) Identification. In your Implementation, you shall identify to your users Services which come from Awair. Under no circumstance shall you identify Services as coming from any source other than Awair. For the purposes of this Identification, you are granted a limited, non-exclusive license to use Awair's trade-marks for the purposes of this Identification, provided that all titles, trade-marks, copyright and restricted rights notices are reproduced on such copies.
c) Limits on your Use of the Service. You acknowledge and agree that Awair may limit your usage of the Services. These limitations are specified in Appendix A. Such limits may be set by Awair at any time, at Awair's discretion. You further acknowledge and agree that Awair may adjust the rate at which such queries are received and processed by the Service in order to maintain the integrity of the Service. Such adjustments may be set by Awair at any time, at Awair's discretion. If you want your Implementation to use the Services outside these usage limits or usage policies, please contact Awair for information on additional licensing options.
i) You shall not copy or use the Services, or any related documentation except as expressly permitted in this Agreement.
ii) You will not, and will not permit any third party to, retain, sublicense, rent, copy, modify, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any portion of the Services.
iii) You and your Implementation will not use the Services to harm Awair, such harm including, but not being limited to, disrupting Awair business and customers, overloading Awair's network or conducting Denial of Services attacks, finding or exploiting vulnerabilities in Awair's security, contacting Awair customers who do not have an explicit and preexisting relationship with you.
Violating any of these restrictions shall be considered a material breach of the Agreement.
e) Third-Party Software. The terms and conditions of this Agreement shall not apply to any Third-Party Software accompanying the Services. Any such Third-Party Software is provided under the terms of the license agreement or copyright notice accompanying such Third-Party Software.
f) Open Source Software. The terms and conditions of this Agreement shall not apply to any Open Source Software accompanying the Services. Any such Open Source Software is provided under the terms of the open source license agreement or copyright notice accompanying such Open Source Software.
g) Monitoring. Awair may monitor the use of the Services to ensure quality, improve Awair products and services, or verify your compliance with this Agreement. You will not interfere with such monitoring.
6) Changes to Service or Termination of Service
a) Awair may make provide periodic Upgrades to the Services. Awair will provide you with prompt notice if we intend to depreciate an existing API or otherwise make backwards incompatible changes to the Services in an Upgrade ("Depreciation Policy"). Your continued access and use of the Services shall be deemed your conclusive acceptance of the modified Services. If a modification is unacceptable to you, you must terminate use of the Services. In no way shall Awair be held liable for any costs or damages caused by the changes to the Services beyond refunding any unused pre-paid purchases of queries that have been requested by you.
7) Confidential Information
a) Services are proprietary to, and include confidential information belonging to Awair. For greater certainty, confidential information includes all trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, hardware, schematics, and software source documents relating to the Services, and other information provided by Awair, whether disclosed orally, in writing, or by examination or inspection, other than information which you can demonstrate (i) was already known to you, other than under an obligation of confidentiality, at the time of disclosure; (ii) was generally available in the public domain at the time of disclosure to you; (iii) became generally available in the public domain after disclosure other than through any act or omission of you; (iv) was subsequently lawfully disclosed to you by a third party without any obligation of confidentiality; or (v) was independently developed by you without use of or reference to any information or materials disclosed by Awair. Confidential Information shall include without limitation the APIs, documentation relating to the APIs, Performance Data, and any Updates. For greater certainty, any Service (including any API) which is published under an open source license will no longer be considered confidential information, without affecting the confidentiality of the other non-published Awair Services.
You agree to not
i) disclose to any party not involved in the Implementation any information about the Service's performance, content, specifications or its code;
ii) copy any portion of Services code, appearance or documentation, except to the extent necessary to perform integration with Awair devices and services; or
iii) reverse engineer, decompile or disassemble the Services or any portion of it.
c) Without limiting the foregoing, you shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of Confidential Information
d) Information regarded as confidential will be held in confidence by the you in perpetuity, or until Awair or a competent Court of Law no longer considers such information confidential.
e) You agree that monetary damages would not be a sufficient remedy for any breach of this Agreement, and that any court having jurisdiction may enter a preliminary and/or permanent restraining order, injunction or order for specific performance in the event of an actual or threatened breach of any of the provisions of this Agreement, in addition to any other remedy available to Awair.
a) The Terms may be assigned by Awair and will inure to the benefit of Awair, its successors, and assigns.
b) You shall not assign or otherwise transfer any rights or obligations under this Agreement, without the written authorization by Awair, such authorization not to be unreasonably withheld.
9) Changes to the Agreement
a) Awair reserves the right to make changes to the Agreement from time to time. When these changes are made, Awair will make a new copy of the Agreement available at [include hyperlink to terms of service](or such successor URLs that Awair may designate from time to time). You are therefore responsible for reviewing the Agreement and additional terms sent to you, or notices posted on the Awair website. Your continued access and use of the Services shall be deemed your conclusive acceptance of the modified agreement. If a modification is unacceptable to you, you may terminate this Agreement by ceasing use of the Services. In no way shall Awair be held liable for any costs or damages caused by the changes or termination to the Agreement.
b) If there is any contradiction between the Agreement and other API-related documents (including but not limited to the API documentation), then this Agreement will take precedence.
10) Exclusion of Warranties
a) The accuracy, reliability and fitness of purpose of the Services are not guaranteed. You should monitor your use of the Services on a regular basis to ensure their proper performance. You waive any and all claims that they may have against Awair arising out of the performance or nonperformance of the Services.
b) SERVICES ARE PROVIDED AS IS, AND AWAIR DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO IT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11) Limitations of Liabilities
a) THESE SERVICES AND RELATED INFORMATION ARE PROVIDED BY Awair Inc. ON AN "AS IS" AND "AS AVAILABLE" BASIS. AWAIR MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND, OR AS TO THE OPERATION OF THE SERVICES OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED IN THIS SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THESE SERVICES IS AT YOUR SOLE RISK.
b) TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, AWAIR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AWAIR WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES.
c) CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
a) You agree to indemnify, defend and hold harmless Awair Inc., each of its officers, directors, owners, partners, employees, agents, licensors, suppliers and any third party information provider to the website from and against all losses, expenses, damages and costs, including legal fees, resulting from any violation of these Agreement (including negligent or wrongful conduct) by you or your use and access of the Awair Services.
b) You agree to agree to indemnify, defend and hold harmless Awair Inc., each of its officers, directors, owners, partners, employees, agents, licensors, suppliers and any third party information provider to the website from and against all losses, expenses, damages and costs, including legal fees, resulting from any claim by a 3rd party that your Implementation violates their intellectual property rights (including patent, copyright or trademark infringement, or violation of trade-secrets by you).
c) You will cooperate as fully as reasonably required in the defense of any claim. Awair reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. You acknowledge that damages for improper use of the Services may be irreparable; therefore, Awair is entitled to seek equitable relief, including but not limited to preliminary injunction and injunction, in addition to all other remedies.
13) General Legal Terms
a) Severability: If a court finds any provision of this Agreement invalid or unenforceable, then that provision will be removed from the Agreement without affecting the rest of the Agreement. The remaining provisions of the Agreement will continue to be valid and enforceable.
b) Integration: This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations and understandings. This Agreement may not be amended except in a writing signed by both parties.
c) Waiver: The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.
d) Attorney Fees and Expenses: In a dispute arising out of or related to this Agreement, the prevailing party shall have the right to collect from the other party its reasonable attorney fees and costs and necessary expenditures.
e) Governing Law: This Agreement shall be governed in accordance with the laws of the State of California.
f) Jurisdiction: The parties consent to the exclusive jurisdiction and venue of the federal and state courts located in San Francisco, California in any action arising out of or relating to this Agreement. The parties waive any other venue to which either party might be entitled by domicile or otherwise.
g) International Use. Given the global nature of the Internet, you agree to comply with all local rules including, without limitation, rules about the Internet, data, e-mail, privacy, copyright, and trademark infringement. Additionally, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
h) Communication. When you send e-mails to us, you are communicating with us electronically, and thereby you are consenting to receive communications from us electronically or by other means available. We will communicate with you electronically, by telephone or by facsimile. It is further understood that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing
i) Language. It is the express wish of the parties that this Agreement and any related documents be drawn up in the English language.
j) Contact Information. Please send notices or requests by care of e-mail to: legal@Awair.com
(or) by our Mailing Address:
40 Boardman Place, 2F
San Francisco, CA
Appendix A: Service Level and Usage Limits
1. If your Implementation generates a high volume of queries, Awair reserves the right to set usage limits, as are described below. Awair also reserves the right to set other usage policies for the Services from time to time. If you want to engage in use outside these usage limits or usage policies, please contact Awair for information on licensing options to address your needs.
2. Usage Limits.
a. Implementations using the Services may at no cost generate up to 7,000 queries ("usage limit"), per day starting on the date you register for developer access ("Registration Date"). Every day, your Implementation receives a new allotment of 7,000 queries. Unused free queries are not carried over from day to day.
b. If your Implementation exceeds the usage limits, Awair reserves the right to restrict access to the Services by your Implementation, including but not limited to, throttling access to the server or denying access to the Services by your Implementation. In no way will Awair be liable for any losses or damages caused by the restriction of access to the Services by your Implementation caused by excess queries.
c. To avoid restriction of access to the Services by your Implementation, you can respond in one of the following ways:
i. Modify your Implementation to reduce the number of queries per day to be below the usage limit.
ii. Purchase an annual subscription for enhanced Usage Limits, which provides additional queries from Awair. These additional queries may be governed by different terms than the free queries provided in this Agreement.
d. Every query made by your Implementation is associated with a user account. Queries that are made by a user account that is identified as your Developer account(s) is/are considered to be test queries, and are not counted against your Implementation's usage limits. Awair reserves the right to limit the number of Developer accounts provided to you.
3. Other Limitations.
a. Rate Restrictions. Your Implementation may not request queries from the Services at a rate greater than 1 request per second per device. If your Implementation requests queries at a greater rate, Awair may throttle or otherwise limit access to the Services by your Implementation.
b. Data Restrictions. Awair may also, at its sole discretion, limit the volume of data transferred to or from the Services to your Implementation.
Appendix B: Enhanced Usage Limits Subscriptions
If the usage limits provided in Appendix A are insufficient for your Implementation, you may purchase an annual subscription from Awair to increase your monthly usage limits. Subscriptions will be managed through our sales staff at [email@example.com].
Last Updated - 7/10/2017
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 order form. (“Effective Date”).
1. “Awair Dashboard” (“Dashboard”) means the pre-release software platform provided by Awair to Partner.
2. “Awair Devices” (“Devices”) means the products manufactured and sold or leased from Awair, such as Awair Air Quality Monitor and Awair Glow.
B. PARTNER BENEFITS
Partner benefits include but not limited to:
1. Early access to the Awair Dashboard as well as the upcoming features
2. Business-level white glove support
3. 30-day money back guarantee
4. Marketing and PR Opportunities (To be determined)
C. PARTNER RESPONSIBILITIES
1. Partner should have more than 5 Devices from Awair.
2. The Dashboard shall always remain in Partner’s possession and not provided to any third party, unless there is a written consent from the Awair.
3. Partner is encouraged to provide feedback to Awair when being asked. Any test results, error data, reports or other information provided by Partner to Awair relating to the Products shall be referred to as "Feedback" and shall be owned by Awair.
4. Partner may not duplicate the Dashboard 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.
5. Except as otherwise provided by law, Partner may not modify or create derivative works of the Dashboard, or reverse engineer, disassemble or decompile binary portions of the Device, or otherwise attempt to derive the source code from such portions.
D. TERM AND TERMINATION OF AGREEMENT
1. This Agreement will commence on the date on which Partner access the Dashboard (the "Effective Date") and will terminate in accordance to any Order Form or the terms of this Agreement.
2. 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.
3. 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.
4. Upon termination of this Agreement, Partner will immediately cease using the Dashboard. If the Agreement is terminated during the 30 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.
5. Upon expiration of this agreement, Partner can either continue or stop the engagement. If Partner wants to continue, partner is subject to pay the price specified in seperate pricing proposal.
6. 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.
E. PRICE AND ORDER
1. The prices for the Program is specified in a separate pricing proposal.
2. Partner can get a full refund within the 30 days of purchase for any reason. The product should be returned in original condition to get the full refund.
F. CONFIDENTIAL INFORMATION
1. 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.
2. 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.
3. 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.
G. DISCLAIMER OF WARRANTY
1. 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.
2. 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.
H. LIMITATION OF LIABILITY
1. Partner acknowledges that the Devices may have defects or deficiencies, which cannot or will not be corrected by Awair.
2. 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.
I. GENERAL TERMS
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
This Partner Program Agreement may be executed (including, without limitation, by facsimile or electronic signature or via PDF) in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the duly authorized representatives of each party hereto have duly executed this Agreement as of the Effective Date.
Last Updated - 2/9/2017
Awair Partner Program Agreement Terms and Conditions
I. Partner Responsibilities
A. Marketing Activities
- Partner shall bear all costs and expenses related to Partner's marketing or promotion of Awair.
- In no event shall Partner engage in any email marketing or promotion with respect to Awair except as expressly set forth in the Partner Program Agreement, together with these Terms and Conditions (the “Agreement”). In the event that Partner has a list of emails where the individuals on the list have expressly elected to receive emails from Partner (“Opt-in List”), Partner may make a written request to Awair to send emails regarding the offering of Awair to the individuals on the Opt-in List. In the event Awair approves such request, Partner shall comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to email marketing and “spamming”.
- Without limiting the generality of the foregoing, Partner shall (i) not send any email regarding Awair to any individual or entity that has not requested such information; (ii) always include Partner’s contact information and “unsubscribe” information at the top and bottom of any email regarding Awair or its products; and (iii) not imply that such emails are being sent on behalf of Awair.
- A Partner shall not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to Awair; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Awair; (iii) make any false, misleading or disparaging representations or statements with respect to Awair; (iv) copy, resemble or mirror the look and feel of Awair’s websites, Awair trademarks or products or otherwise misrepresent Partner’s affiliation with Awair; or (v) engage in any other practices which may adversely affect the credibility or reputation of Awair, including but not limited to, sending email communications or using any Website in any manner, or having any content on any Website, that (a) uses aggressive or low-quality marketing, including marketing services that are unrelated to Awair or the Partner’s products, (b) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, and/or any illegal or objectionable activities, or (c) violates any intellectual property or other proprietary rights of any third party.
In addition to, and without limiting the provisions of the Agreement, Partner shall perform its obligations hereunder in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulations.C. Partner Duty to Inform
Partner shall promptly inform Awair of any information known to Partner that could reasonably lead to a claim, demand or liability of or against Awair by any third party.D. Other Partner Terms
- If the Partner is an individual, the Partner must be 18 years or older or at least the age of majority in the jurisdiction where the Partner resides.
- To become a Partner, Partner must create a Partner Account by providing first name, last name and company name (if applicable), email address, and any other information indicated as required. Awair may reject an application for a Partner Account for any reason, in its sole discretion. Partner acknowledges that Awair will use the email address provided by Partner as the primary method for communication. Partner is responsible for keeping its Partner Account password secure. Awair cannot and will not be liable for any loss or damage arising from Partner’s failure to maintain the security of the Partner Account and password.
- If you sign up for a Partner Account on behalf of your employer, your employer shall be deemed to be the Partner for the purpose of the Agreement, and you represent and warrant that you have the authority to bind your employer to the Agreement. Each Partner is responsible for assuring that its employees, agents and subcontractors comply with the Agreement.
- Partner acknowledges and agrees that Partner will be responsible for the performance of all of its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any affiliates or subsidiaries of Partner.
- Other than the limited license to use the Awair trademarks pursuant to the Agreement, Partner shall not use the Awair trademarks and/or variations or misspellings thereof in Partner’s business name, logo, branding, advertising, social media or domain name (including without limitation top-level domains, sub-domains and page URLs).
II. Fees and Payments
A. Revenue Sharing Plans
Subject to: (i) Partner’s compliance with the Agreement, and (ii) the revenue sharing plan associated with a Partner’s activities pursuant to the Partner Program, Partner shall be entitled to receive certain fees from Awair (the “Fees”).B. Payment
- Fees due to Partner will be reported and paid by Awair once per month and only following receipt of payment from the customer.
- Awair distributes Fees owing to its Partners once per calendar month (a “Payment Period”). Where the Fees owing to Partner are greater than USD $25 at the end of any Payment Period, the Fees will be paid to Partner. If the Fees owing to Partner are less than USD $25 at the end of any Payment Period, Awair shall be entitled to withhold payment of Fees until the end of the next Payment Period in which the balance of unpaid Fees owing to Partner from any previous Payment Period and Fees owing to Partner under the current Payment Period are USD $25 or more.
- All payments are subject to fraud and risk analysis considerations and anti-money laundering procedures and may be withheld during the period of investigation.
- Notwithstanding anything to the contrary in the Agreement, Awair shall not be responsible to pay any Fees:
- related to revenues that have been refunded to customer by Awair;
- for a customer created or owned in whole or in part by a Partner;
- related to fraudulent sales;
- related to revenues that have been subject to chargebacks; or
- to Partners who are employed by or who are contractors of Awair.
- If any Fees paid by Awair are subsequently discovered to be subject to one or more of the exclusions set out in Section II.C.2, or to have been paid in error, Awair shall have the right, at its sole discretion, to: (a) reclaim any Fees paid to Partner in error; or (b) set off the amounts described in Section II.C.3 from payments due to Partner in future Payment Periods. If the Agreement is terminated before such amounts are fully repaid by Partner to Awair, Partner shall pay to Awair the remaining balance within thirty (30) days of the effective date of termination of the Agreement.
- Awair reserves the right to modify the Fees and/or the payment terms at any time upon reasonable advance notice to Partner. Such notice will be provided by email or posting a notice on the Awair blog. In the event of any disputes over Fees, Awair’s determination will be final and binding absent mathematical error.
III. TerminationA. Termination
- Awair may terminate this Agreement at any time, with or without cause, effective immediately upon notice to Partner. Partner may terminate the Agreement at any time, with or without cause, effective immediately upon notice to Awair.
- Awair reserves the right to cancel or modify the Partner Program Agreement in its entirety, including Fees, at any time. If a significant change is made to the Partner Program Agreement, including any material change to Fees, Awair will provide reasonable notice by email or posting a notice on the Awair blog.
Upon termination of the Agreement: (a) each Party shall return to the other Party, or destroy (and provide certification of such destruction), all property of the other Party in its possession or control (including all Awair documentation and marketing materials and all Confidential Information (as defined below)); (b) Partner shall immediately cease displaying any Awair information and/or any Awair trademarks on any website or otherwise; and (c) all rights granted to Partner hereunder will immediately cease, including but not limited to the right of Partner to receive any payments of Fees hereunder, unless otherwise determined by Awair in its sole discretion.
IV. Intellectual Property Rights
A. Awair Creative
- All Awair Creative (product and marketing materials) will be solely created and provided by Awair unless otherwise agreed to by Awair in writing in advance. Awair will provide Partner with copies of or access to Awair Creative. By using the Awair Creative, you indicate your acceptance of our Awair Trademark Usage Guidelines and you understand that a violation of these guidelines or the Agreement will result in the termination of your license and/or permission to use the Awair Creative. The Awair Creative is provided “as is” and without warranty of any kind.
- Partner may display Awair Creative on the Websites solely for the purpose of marketing and promoting the product and any Awair brands promoted by Awair during the term of the Agreement, or until such time as Awair may, upon reasonable prior notice, instruct Partner to cease displaying the Awair Creative. Partner may not alter, amend, adapt or translate the Awair Creative without Awair's prior written consent. Nothing contained in any Awair Creative shall in any way be deemed a representation or warranty of Awair. The Awair Creative shall at all times be the sole and exclusive property of Awair and no rights of ownership shall at any time vest with Partner even in such instances where Partner has been authorized by Awair to make changes or modifications to the Awair Creative.
B. Awair Trademarks
During the term of the Agreement, Awair hereby grants to Partner a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to display the Awair Trademarks solely as necessary to perform Partner’s obligations under the Agreement. Partner acknowledges and agrees that: (a) it will use Awair’s Trademarks only as permitted hereunder; (b) it will use the Awair Trademarks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Awair in writing from time to time; (c) the Awair Trademarks are and shall remain the sole property of Awair; (d) nothing in the Agreement shall confer in Partner any right of ownership in the Awair Trademarks and all use thereof by Partner shall inure to the benefit of Awair; and (e) Partner shall not, now or in the future, contest the validity of any Awair Trademarks or use any term or mark confusingly similar to any Awair Trademarks.
C. Restrictions on Partner’s Use of the Awair Trademarks
Notwithstanding Section IV.B., Partners shall not use any Awair Trademark including but not limited to the word mark AWAIR or variations of the word “Awair” in Partner’s business name, logo, products or services unless granted express written permission by Awair in advance of such use.
D. Proprietary Rights of Awair
As between Partner and Awair, the Awair Creative, Awair Trademarks, all demographic and other information relating to customers, the Awair products, and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of Awair or otherwise related to the product, Awair Partner Program, Awair, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Awair Property”) shall be and remain the sole and exclusive property of Awair. To the extent, if any, that ownership of any Awair Property does not automatically vest in Awair by virtue of the Agreement, or otherwise, Partner hereby transfers and assigns to Awair, upon the creation thereof, all rights, title and interest Partner may have in and to such Awair Property, including the right to sue and recover for past, present and future violations thereof. All of the information, property and intellectual property you have access to as a result of your participation in the Partner Program belongs entirely to Awair.
- “Confidential Information”shall include, but shall not be limited to, any and all information associated with a Party’s business and not publicly known, including specific business information, technical processes and formulas, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, customer data, product designs, sales, costs, price lists, and other unpublished financial information, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary.
- Each Party agrees to use the other Party’s Confidential Information solely as necessary for performing its obligations under the Agreement. Each Party agrees that it shall take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (i) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such Party’s obligations hereunder, who each shall treat such Confidential Information as provided herein, and who are each subject to obligations of confidentiality to such Party that are at least as stringent as those contained herein; or (ii) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in the Agreement, provided that, if legally permitted, the receiving Party shall give the disclosing Party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. Confidential Information shall not include any information that the receiving Party can prove: (a) was already in the public domain, or was already known by or in the possession of the receiving Party, at the time of disclosure of such information; (b) is independently developed by the receiving Party without use of or reference to the other Party’s Confidential Information, and without breaching any provisions of the Agreement; or (c) is thereafter rightly obtained by the receiving Party from a source other than the disclosing Party without breaching any provision of the Agreement.
The Awair Trademarks, the Awair Creative are provided “as-is”. Awair makes no warranties hereunder, and Awair expressly disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability and fitness for a particular purpose. Without limiting the foregoing, Awair further disclaims all representations and warranties, express or implied, that the Awair Trademarks or the Awair Creative do not infringe or otherwise violate any intellectual property or other proprietary right of any third party in any jurisdiction. Partner understands and agrees that the Awair Trademarks, the Awair Creative, and the Awair product may not satisfy all of Partner’s or customer’s requirements and may not be uninterrupted, error-free or free from harmful components and while Awair provides a limited warrant to customers, that warranty does not extend to Partner.
VII. Limitation of Liability and Indemnification
A. Limitation of Liability
Neither party shall have any liability for indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for losses of profits, goodwill, use, data or other intangible losses even if the party has been advised of the possibility of such damages. In any event, either Party’s liability to the other Party under the Agreement for any reason will be limited to the Fees paid to Partner by Awair during the one (1) year period immediately preceding the event giving rise to the claim for damages. This limitation applies to all causes of action in the aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts, other than with respect to confidentiality and misappropriation of intellectual property. The relationship between a customer and a Partner is strictly between the customer and the Partner, and Awair is not obligated to intervene in any dispute arising between the customer and the Partner. Under no circumstances shall Awair be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from the Partner’s relationship with any customer. These limitations shall apply even if Awair has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
B. Partner Indemnification
Partner agrees to indemnify, defend and hold harmless Awair and the directors, officers, employees, subcontractors and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “claims”), to the extent that such claim is based upon or arises out of: (a) Partner’s breach of any representation, warranty, obligation or covenant under the Agreement; (b) Partner’s gross negligence or willful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to Awair Entities granted by Partner to any customer or other third party; (d) Partner’s breach of any term of the Agreement; (e) Partner’s relationship with any customer.
C. Notice of Indemnification
In claiming any indemnification hereunder, the Indemnified Party shall promptly provide Partner with written notice of any claim which the Indemnified Party believes falls within the scope of the indemnifications provided under the Agreement. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that Partner shall control such defense and all negotiations relative to the settlement of any such claim and further provided that in settling any claim the Partner will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.
D. Non-exclusive remedies
In the event of any breach or threatened breach by Partner of any provision of Sections I, IV and/or V above, in addition to all other rights and remedies available to Awair under the Agreement and under applicable law, Awair shall have the right to (a) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security, (b) immediately terminate the Agreement and Partner’s engagement hereunder, (c) receive a prompt refund of all amounts paid to Partner hereunder, and (d) be indemnified for any losses, damages or liability incurred by Awair in connection with such violation, in accordance with the provisions of this Section VII.
VIII. General provisions
A. Force Majeure
If the performance of any part of the Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated hereunder and/or the failure or refusal of a government agency to issue a license required for any performance pursuant to the Agreement), labor disputes, act of God or any cause beyond the reasonable control of that Party, the Party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything herein to the contrary, the Party prevented from performing hereunder by a force majeure event shall nevertheless use its best efforts to recommence its performance hereunder as soon as reasonably practicable and to mitigate any damages resulting from its non-performance hereunder.
B. Independent Contractors
The Parties to the Agreement are independent contractors. Neither Party is an agent, representative or related entity of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or otherwise bind, the other Party. The Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
Nothing in the Agreement is intended to create, nor shall it be construed as creating, any exclusive arrangement between the Parties to the Agreement. The Agreement shall not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under the Agreement by doing so.
Any notice, approval, request, authorization, direction or other communication under the Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered personally, or by email to Partner’s email address listed in the Partner Account, and to firstname.lastname@example.org; (b) two (2) business days after deposit with an internationally recognized commercial overnight courier service, with written verification of receipt; or (c) five (5) business days after deposit in certified or registered mail, return receipt requested, postage and charges prepaid, to the address provided in the Partner Account, and for Awair to email@example.com.
E. No Waiver
The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of the Agreement or to exercise any right under the Agreement shall not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect. Each waiver shall be set forth in a written instrument signed by the waiving Party.
F. Entire Agreement
The Agreement, including any completed application form and all guidelines and other documents linked or otherwise reference herein, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the subject matter hereof (including, but not limited to, any prior version of the Agreement). Neither Party shall be bound by, and each Party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of the Agreement (whether or not it would materially alter the Agreement) and which is proffered by the other Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.
All the terms and provisions of the Agreement shall be binding upon and inure to the benefit of the Parties to the Agreement and to their respective heirs, successors, permitted assigns and legal representatives. Neither Party shall have the right to assign or otherwise transfer the Agreement, or any of its rights or obligations hereunder, to any third party without the other Party’s prior written consent.
H. Applicable Laws
The Agreement shall be governed by and interpreted in accordance with the laws of the State of California USA applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of San Francisco, California with respect to any dispute or claim arising out of or in connection with the Agreement.