Effective March-8, 2023
2. If you do not agree to these terms, do not use this site or its service.
3. As used in this Agreement, “Air Sharks” means Air Sharks LLC with offices at
1560 North 4th Street, Suite 102
San Jose, CA 95112
4. IP. Our services may contain our service marks or trademarks as well as those of our affiliates or other companies, in the form of words, graphics, and logos, and any and all intellectual property(“IP”) provided to You or anyone in connection with the Services (“Air Sharks IP”). Your use of ourServices does not constitute any right or license for you to use such service marks/trademarks. Our website is also protected under international copyright laws. The copying, redistribution, use, or publication by you of any portion of our website is strictly prohibited. Your use of our Services do not grant you ownership rights of any kind in our website or Services. Air Sharks reserves all rights not expressly granted to You in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Air Sharks IP.
5. Prohibited Uses. We authorize your use of these Services only for permitted purposes and solely for your own benefit and in accordance with the terms and conditions of this Agreement. Any other use is prohibited and, therefore, constitutes unauthorized use which may result in the violation of various laws and the deletion of your Air Sharks account. Unless you have written permission from us stating otherwise, you are not authorized to use these services in any way except the permitted purposes.
A. You will not (and will not permit any third party to):
(a) rent, lease, provide access to or sublicense the Services to a third party;
(b) use the Services to provide, or incorporate theServices into, any product or service provided to a third party;
(c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Air Sharks);
(d) copy or modify the Services, or create any derivative work from any of the foregoing;
(e) remove or obscure any proprietary or other notices contained in the Services; or
(f) publicly disseminate information regarding the performance of theServices.
6. Confidentiality. You (as “Receiving Party”) agree that all code, inventions, know-how, business, technical and financial information it obtains from Air Sharks (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the ReceivingParty to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Air Sharks technology, performance information relating to any Service, and the terms and conditions of this Agreement will be deemed ConfidentialInformation of Air Sharks without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may discloseConfidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 6 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 6. TheReceiving Party’s confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the ConfidentialInformation; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure ofConfidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the DisclosingParty will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
7. Rights to data. You hereby grant to Air Sharks a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the data to the extent necessary to provide the Services.
8. Your obligations. You are solely responsible for the accuracy, content and legality of all data your provide. You represent and warrant to Air Sharks that you have all necessary rights, consents and permissions to collect, share and use all data as contemplated in this Agreement and that no data will violate or infringe any Air Sharks or third party IP rights or, publicity, privacy, or other rights or laws.
A. No sensitive data. Except as otherwise expressly agreed between the Air Sharks and You in writing, You specifically agree not to use the Services to collect, store, process or transmit any sensitive data including but not limited to: payment card data, protected health data as defined under HIPAA, or any special category data as defined under GDPR Article 9.
B. This is a subscription agreement and you acknowledge that you are obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to You and Air Sharks retains all right, title and interest in and to the Services, integrations with the Services, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing.
9. warranty disclaimer. air sharks services are provided “as is” and air sharks hereby disclaims all warranties, whether express, implied, statutory, or otherwise. airsharks specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. air sharks makes no warranty of any kind that the air sharks ip, or services, or any products or results of the use thereof,will meet customer’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software,system, or other services, or be secure, accurate, complete, free of harmful code, or error free. air sharks strictly disclaims all warranties, with respect to any third-party integrations. this means that we do not promise you that the services are freeof problems. without limiting the generality of the foregoing, we make no warranty that the services will meet your requirements or will be uninterrupted, timely,secure, or error-free, or that defects will be corrected. we make no warranty as tothe results that may be obtained or as to the accuracy or reliability of any information obtained through the services. no advice or information, whether oralor written, obtained by you through the services or from us or our subsidiaries/other affiliated companies will create any warranty. we disclaim all equitable in demnites.
10. Limitation of liability. Air sharks will not be liable to you or others for any damages resulting from your use of the services or you’re displaying, copying, or downloading any documentation to or from the website. In no event will air sharks be liable under or in connection with this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any:
(a) Consequential, Incidental, Indirect, Exemplary, Special, Enhanced, Or Punitive Damages;
(b) Increased Costs, Diminution In Value Or Lost Business, Production, Revenues, Or Profits;
(c) Loss Of Goodwill Or Reputation;
(d) Use, inability to use, loss, interruption, delay, or recovery of any data, or breach of data or system security; OR
(e) Cost of replacement goods or services, in each case regardless of whether air sharks was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable. in no event will airsharks’s aggregate liability or air sharks’s indemnification obligations arising out for related to this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise exceed the greater of
(I) The amount paid, if any, by you to air sharks in connection with these terms in the twelve (12) months prior to the action giving rise to liability OR
(II) US$100.00. This limitation of liability is part of the basis of the agreement between youand air sharks and shall apply to all claims of liability, even if air sharks has been told of the possibility of any such damage, and even if these remedies fail their essential purpose.
11. Indemnification. You alone are responsible for any violation of these Terms by you. You agree to indemnify and hold Air Sharks, its parents, subsidiaries, affiliates, officers, agents, employees, resellers or other partners, and licensors harmless from any claim, demand, loss, or damages, including reasonable attorneys’ fees (“Losses”), resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Customer Data, or the use thereof in accordance with thisAgreement, infringes or misappropriates such third party’s intellectual property rights or violates any applicable law or regulation and any Third-Party Claims based on Customer’s or any AuthorizedUsers’ (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by thisAgreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Air Sharks or authorized by Air Sharks in writing; or (iv) modifications to the Services not made by Air Sharks, provided that Customer may not settle any Third-Party Claim against Air Sharks unless Air Sharks consents to such settlement, and further provided that AirSharks will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
12. Legal Disputes
A. NO CLASS ACTIONS. Disputes must be brought on an individual basis only, and may not be brought as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. If for any reason a dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding, or counterclaim. This does not prevent either party from participating in a class-wide settlement of claims.
B. You agree to the following mandatory arbitration and class action waiver provisions:
i. MANDATORY ARBITRATION. You and BeMine agree to resolve any claims relating to theseTerms or our Services through final and binding arbitration.
ii. Arbitration Forum. Either party may commence binding arbitration through ADR Services, an alternative dispute resolution provider. The parties will pay equal shares of the arbitration fees.
iii. Arbitration Procedures. The arbitration will be conducted in Santa Clara County, California or at another mutually agreed location. All issues are for the arbitrator to decide, including but not limited to issues relating to the scope, enforceability, and arbitrability of this Section 12.The amount of any settlement offer will not be disclosed to the arbitrator by either party until after the arbitrator determines the final award, if any.
13. Injunctive Relief. Notwithstanding anything in this Agreement, Air Sharks may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
14. Subscription, fees and termination.
A. Termination for cause. Either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty(30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
i. If Your account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Air Sharks reserves the right to suspend Your access to the applicable Service without liability to You until such amounts are paid in full.
B. Effect of termination. Upon any expiration or termination of this Agreement, You will immediately cease any and all use of and access to all Services and delete any ConfidentialInformation in your possession. Following termination, You will have no further access to any data input into the Service, and that Air Sharks may delete any such data as may have been stored by Air Sharks at any time.
C. You may terminate your subscription and close your account by going to your account settings.
i. The Services are paid with credit card, debit card or other payment card (“CreditCard”) or Stripe payment, Apple Pay, or Google Pay. If paying by Credit Card the following terms apply
1. Recurring Billing Authorization. By providing Credit Card information and agreeing to purchase any Services, You hereby authorize Intercom (or its designee) to automatically charge Your Credit Card in order to provide theServices. You acknowledge and agree that the amount billed and charged may vary depending on Your use of the Services.
2. Foreign Transaction Fees. You acknowledge that for certain Credit Cards, the issuer of Customer’s Credit Card may charge a foreign transaction fee or other charges.
3. Invalid Payment. If a payment is not successfully settled due to expiration ofa Credit Card, insufficient funds, or otherwise, You remain responsible for any amounts not remitted to Air Sharks and Air Sharks may, in its sole discretion, either (i) invoice You directly for the deficient amount, (ii)continue billing the Credit Card once it has been updated by You (if applicable) or (iii) terminate this Agreement.
4. Changing Credit Card Information. At any time, You may change its CreditCard information by entering updated Credit Card information.
5. Please note that additional terms may apply if you use Stripe payment,Apple Pay, or Google Pay
E. At this time Air Sharks does not offer a subscription model but may add one on the future.
15. Assignment and Subcontracting. Except as set out below, neither party may assign or novate thisAgreement in whole or in part without the other party’s express written consent.
A. Air Sharks may: (1) by written notice to You, assign or novate this Agreement in whole or in part to an affiliate of Air Sharks, or otherwise as part of a sale or transfer of any part of its business; or (2) subcontract any performance associated with the Air Sharks to third parties, provided that such subcontract does not relieve Air Sharks of any of its obligations under this Agreement.
16. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, including but not limited to a strike, war, act of terrorism, riot, natural disaster, or failure or diminishment of power or telecommunications or data networks or services.
17. Independent Contractors. Air Sharks and You are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the AirSharks and You. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
18. Changes. These Terms are current as of the Effective Date set forth above. We may amend ourTerms at any time by publishing revised Terms on this website. If you continue to use Air Sharks after those changes are in effect, you agree to the revised Terms. If you object to any such modifications, your sole recourse will be to cease using this website. Air Sharks reserves the right to change any and all features of our services, at any time, without notice.
19. Government end users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the US Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with FAR 12.212 for civilian purposes and Defense FAR Supplement 227.7202 for military purposes. All Services were developed fully at private expense. All other use is prohibited.
20. Export. The Services are subject to U.S. and local export control and sanctions laws. You acknowledge and agree to the applicability of and Your compliance with those laws, and You will not receive, use, transfer, export or re-export any Air Sharks Services Products in a way that would causeAir Sharks to violate those laws. You also agree to obtain any required licenses or authorizations.
21. Governing Law and Venue. This Agreement, and any disputes arising from it, will be governed exclusively by Washington law, The courts and venues within Santa Clara County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement. Each party consents and submits to the exclusive jurisdiction of such courts.
22. Notice. Any notice delivered by Air Sharks to You under this Agreement will be delivered via email, regular mail or postings on www.airsharks.com. Notices to Air Sharks shall be sent to 1560 North 4th Street, Suite 102 San Jose, CA 95112 unless Air Sharks specifically allows other means of notice.
23. No Waiver. Failure by either party to enforce any right under this Agreement will not waive that right.
24. Severability. If any portion of this Agreement is not enforceable, it will not affect any other terms.
25. Entire agreement. These Terms are the complete agreement between the parties regarding the subject matter of this Agreement and supersedes all prior or contemporaneous communications, understandings or agreements (whether written or oral).
26. Contact us. If you have any questions or comments about this Agreement, please contact us at www.airsharks.com