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Last Updated: May 11, 2024

This Terms of Service Agreement (the “Agreement”) governs use of, and access to, any website provided by Airth, Inc. (“Airth”, “airth.io”, “we”, “our”, “us”) which links to this Agreement, any features, functionalities, and offerings provided by Airth through its web-based software application, and any other Airth products and services (collectively, “Service(s)”). For the avoidance of doubt, “Services” also includes written information (whether contained in user or technical manuals, training materials, specifications, or other similar materials) related to installation and use of Services as provided by Airth in connection with its Services, as well as such other products and services provided by Airth which link to or otherwise incorporate this Agreement by reference.

By (1) clicking a box indicating acceptance, (2) accessing or using our Services, (3) entering into an order form for the Services that is accepted by Airth and which incorporates this Agreement by reference (“Order Form”), or (4) otherwise indicating your acceptance of this Agreement, you agree to the terms of this Agreement, as of the date of the transmission of your acceptance. You hereby affirm that you are of legal age to enter into this Agreement. If you are an individual accepting this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the terms “you” and “your” shall refer to such entity. If you do not have such authority, or if you do not agree with this Agreement, you must not use our Services.

1.     Supplemental Terms

1.1.         Your access to or use of certain Services is subject to additional terms, including without limitation (i) the terms attached hereto as Appendix I, governing use of and access to the Airth Marketplace (as defined in Appendix I) (“Marketplace Terms”), (ii) the terms attached hereto as Appendix II, governing use of and access to software applications (each an “App”), including software applications offered by third parties (each a “Third-Party App”), which are made available to you through the Airth Marketplace (“App Subscription Terms”), (iii) any Order Form(s) and/or addendum/a effected between you and Airth regarding use of or access to any Services which incorporate this Agreement by reference, (iv) terms that are presented to you as a prerequisite to the download, installation, and use of a Third-Party App (“Third-Party Terms”), and/or (v) other agreement(s) relating to the Services effected between you and Airth or you and a third party which provides a Third-Party App through the Marketplace (“Additional Terms”) (collectively, “Supplemental Terms”).

1.2.         You agree to comply with the Supplemental Terms applicable to any Services that you use. In the event of any conflict or inconsistency between the provisions in the main body of this Agreement and any provisions of the Supplemental Terms, the provisions in the main body of this Agreement shall control. In the event any conflict or inconsistency between the provisions in the main body of this Agreement and the provisions of an Order Form, the provisions of the Order Form shall control. 

2.     Changes to this Agreement

2.1.         Airth reserves the right to revise, modify, or update this Agreement at any time, at its sole discretion. Such modifications will become effective upon their posting on the Services or being communicated to you. Unless expressly otherwise stated in a written agreement between Airth and you, such changes will become effective upon posting. It is your responsibility to review this Agreement periodically. By continuing to use the Services after modifications to the Agreement have been posted or communicated, you indicate your acceptance of the revised Agreement.

2.2.         Unless expressly otherwise stated in a written agreement between Airth and you, Airth may, at any time and without liability, modify or discontinue all or part of any Services, charge, modify or waive any fees required to use any Services. Any use of our Services is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We reserve the right to make modifications, additions, and improvements to the Services, and otherwise update the Services from time to time at our sole discretion; however, we will make commercially reasonable efforts to notify you of any material changes to the Services. If you disagree with our modifications to the Agreement, you should cease using the Services immediately.

3.     Registration; Usernames and Passwords

3.1.         Account Creation and Management. To access and use the Services, you may be required to create an account (“Account”) by submitting certain information about yourself, such as your first name, last name, e-mail address, password into the registration form. By creating an Account, you agree to submit only true, accurate, current and complete information through the registration form (the “Registration Data”). You are responsible for updating your Registration Data to maintain its accuracy, currency, and completeness throughout the term in which you have access to the Services, and for all authorized activities that occur under your Account.

3.2.         Account Security. You are responsible for maintaining the confidentiality of your Account login credentials, and you are fully responsible for all activities that occur under your Account, including (without limitation) by monitoring your Account to restrict its use by unauthorized persons, and avoiding sharing your Account credentials with any other party. You agree to notify Airth promptly upon becoming aware of any unauthorized use of your Account or any other breach of security relating to our Services. To the extent permitted by applicable law, and subject to this Agreement, we reserve the right to take action we deem necessary to preserve the security of our Services and your Account. Airth has no obligation to inquire as to the authority or propriety of any use of or action taken under your Account and will not be liable for any loss or damage arising from any such use or action, or from your failure to comply with this section.

3.3.         Account Restrictions. Unless expressly otherwise permitted by Airth in writing, you are limited to one Account (and, where applicable, the number of user accounts set forth in your Order Form). Accounts cannot be shared, sold, transferred, or used by someone other than the registered user(s) that you have authorized to access your Account (“User(s)”). Airth reserves the right to suspend or terminate Accounts that violate this Agreement at any time upon written notice. If your Account is managed by your employer or a third party, note that (a) we may share information related to your use of the Services with your employer or third-party account manager, (b) additional terms may apply to your use of any applicable Services, and (c) your Account’s administrator may be able to access (including view or modify your profile or Registration Data) or disable your Account without Airth’s involvement.

4.     Rules of Conduct

4.1.         During the Term, you will not (and will not allow your authorized users or any third party to):

• Knowingly interfere with or disrupt the functioning of our Services in any manner, including the functioning of any software, hardware, network or server connected to our Services;

• Reverse-engineer, modify, adapt, sublicense, translate, or otherwise create derivative works based on any part of our Services for any purpose, commercial or otherwise use our Services in an unlawful manner or any manner that is inconsistent with this Agreement (including by incorporating, by any means, any of our Services into a third party’s application, website, or services);

• Knowingly use our Services in any manner that is harmful, hateful, harassing, abusive, or otherwise offensive to any other person or entity;

• Use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of our Services;

• Post, email, or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment with respect to our Services;

• Collect, use, distribute, or transmit any data or content via our Services that violates any third-party rights; and/or

• Breach or otherwise circumvent any security measures incorporated into our Services.

• Gain unauthorized access to, the Services or the servers or networks used to make the Services available, including by hacking or defacing any portion of the Services; or violate any requirement, procedure or policy of such servers or networks.

• Interfere with or disrupt the integrity of any information, data, content or other materials available in or through the Services.

• Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Services, except as expressly authorized in the applicable Order Form or by separate express, written consent from Airth.

• Frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service, except as expressly authorized in the applicable Order Form or by separate express, written consent from Airth.

• Access or use any Services if you are Airth’s direct competitor, or access or use any Services for any competitive purposes, including to build a competitive product or service, or any product or service using similar ideas, features, functions or graphics as any Services, or for purposes of benchmarking or otherwise monitoring the Services’ availability, performance or functionality.

5.     Confidentiality

5.1.         Confidential Information. During the Term, each party to this Agreement (a “Disclosing Party”) may disclose its confidential and proprietary information to the other party (a “Receiving Party”). Subject to the exceptions listed below, a Disclosing Party’s “Confidential Information” shall be defined as information disclosed by the Disclosing Party to the Receiving Party that is either: (a) clearly marked or otherwise clearly designated as confidential or proprietary; or (b) should be reasonably understood by the Receiving Party to be the confidential or proprietary information of the Disclosing Party. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

5.2.         Confidential Treatment. A Receiving Party shall hold in confidence, and shall not disclose (or permit its personnel to disclose) any Confidential Information to any person or entity except to its directors, officers, employees, outside consultants, advisors or in the case of Airth to its independent contractors or subcontractors (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the Receiving Party and who are bound by a duty of confidentiality no less protective of the Disclosing Party’s Confidential Information than the terms of this section. The Receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another party without the prior written consent of the Disclosing Party or unless expressly permitted under the Agreement. Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own proprietary information of a similar nature and sensitivity, but in no event shall less than reasonable care be used.

5.3.         Exceptions. Notwithstanding anything to the contrary in this Agreement, the obligations of the Receiving Party set forth in this section shall not apply to any information of the Disclosing Party that: (a) is or becomes a part of the public domain through no wrongful act of the Receiving Party; (b) was in the Receiving Party’s possession free of any obligation of confidentiality a t the time of the Disclosing Party’s communication thereof to the Receiving Party; (c) is developed by the Receiving Party completely independent from the Confidential Information of the Disclosing Party; or (d) is required by law or regulation to be disclosed, but only to the extent and for the purpose of such required disclosure after providing the Disclosing Party with advance written notice, if reasonably possible, such that the Disclosing Party (at the Disclosing Party’s expense) is afforded an opportunity to contest the disclosure or seek an appropriate protective order.

5.4.         Injunctive Relief. Notwithstanding any other provision of the Agreement, both parties acknowledge that any disclosure or use of the Disclosing Party’s Confidential Information in a manner inconsistent with the provisions of the Agreement may cause the Disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both parties agree that, in addition to any other remedy to which the Disclosing Party may be entitled hereunder, at law or in equity, the Disclosing Party shall be entitled to seek an injunction to restrain such use in addition to other appropriate remedies available under applicable law.

6.     Intellectual Property Rights

6.1.         Feedback. From time to time, you may submit to Airth ideas, suggestions, documents, and/or proposals relating to the Services, including without limitation any of the foregoing as it relates to improving or developing the Services or our products (collectively, “Feedback”). You agree that your submission of Feedback is optional, and that Airth has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. If you provide or otherwise make available to Airth any Feedback, whether related to any Services or otherwise, then you represent and warrant that you have all rights necessary to submit the Feedback, that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Airth under any fiduciary or other obligation. You hereby grant to Airth a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Services.

6.2.         Client Content

6.2.1      As between Airth and you, all documents, materials, and/or other data or information that you post, upload, share, transmit, store, or otherwise provide to us for processing by our Services (collectively, “Client Content”) is and shall remain your exclusive property, subject only to the limited license you grant to us in this Agreement. By submitting, uploading, or otherwise making Client Content available for processing by our Services, you automatically grant, and you represent and warrant that you have the right to grant, to us, our affiliates, licensees and successors, for the purpose of providing the Services to you (“Purpose”), a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit the Client Content, in any format or media now known or hereafter developed, and to grant and authorize sublicenses of the foregoing, for the maximum duration of the intellectual property rights attached to such Client Content to the extent reasonably necessary in connection with the Purpose.

6.2.2      You also acknowledge and agree to the terms set forth below for each submission of Client Content:

(a)   You are solely responsible for your Client Content, and you represent and warrant that use of your Client Content by us on the terms specified in this Agreement will not infringe or violate any applicable laws or the rights of any third party. You will not use the Services to provide inaccurate, misleading or false information to us or to any other party. If information provided to us, or another user, subsequently becomes inaccurate, misleading or false, you will promptly notify us of the change.

(b)   You acknowledge and agree that Airth has no obligation to pre-screen, refuse or remove any Client Content. Notwithstanding the foregoing, you understand and agree that we may review and delete any Client Content that would violate this Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of others. Client Content reflects only the opinions of the user who made available the Client Content and not the opinions of Airth, regardless of whether the user is affiliated with Airth, and may contain or constitute Third-Party Resources (as defined below). Airth has no control over Client Content and is not responsible for any use or misuse (including any distribution) by any third party of Client Content.

(c)   Notwithstanding the foregoing, you authorize us to use your Account information for purposes of creating, maintaining, and administering your Account as well as providing the Services to you on the terms set forth herein and our Privacy Policy.

6.3          Airth Content. As between you and us, we own all rights (including without limitation intellectual property rights), title and interest in and to our Services, all content, data, information, and other materials made available on or through the Services, excluding your Client Content, and any copy, modification, revision, enhancement, adaptation, translation, or derivative work of or created from the foregoing (collectively, “Airth Content”). The Airth Content is protected by U.S. and international copyright and intellectual property laws, and all rights in Airth Content not expressly granted in this Agreement is reserved by Airth.

6.4          Personal Information. Airth may process your personal information in connection with its provision of the Services and performance of obligations under this Agreement. Our processing of personal information shall be in accordance with the Privacy Policy. In addition, to the extent permitted by applicable laws, Airth may track or analyze your access to or use of any Services, and may use and disclose to certain third parties information regarding your access to and use of any Services, and the circumstances surrounding such access and use, for any reason or purpose (including for diagnostic or marketing purposes), except to the extent set forth otherwise in the Privacy Policy.

7      Third-Party Resources; Links

7.1          Our Services may provide links to third-party websites, services, and/or resources, or may otherwise make available access to products, services, information, data, content and other materials provided by or on behalf of third parties (“Third-Party Resources”). Additionally, Airth may, at its discretion, choose to integrate the Services with third-party services or applications in the future. By using such functionality, you are directing Airth to access, route and transmit to you the applicable Third-Party Resources. In addition, your installation and other use of Third-Party Resources may result in transmission of your information, data, content or other materials outside of Airth’s systems, or otherwise result in third-party access to or use of your information, data, content or other materials. We are not responsible for such Third-Party Resources, and do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from Third-Party Resources, including (without limitation) with respect to accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety, or any applicable intellectual property rights of such Third-Party Resources. Nothing in the Agreement will be deemed to be a representation or warranty by Airth with respect to any Third-Party Resources. Airth has no obligation to monitor Third-Party Resources, and may block or disable access to any Third-Party Resources (in whole or part) through any Services at any time.

7.2          You acknowledge and agree that Provider and Airth are not liable for any loss or damage which may be incurred by you or your users as a result of the availability of, or as a result of any reliance placed by you or your users on the completeness, accuracy or existence of, any advertising, products, services, content or other materials on, or available from, such Third-Party Resources. YOUR USE OF THIRD-PARTY RESOURCES IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD-PARTY RESOURCES (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD-PARTY RESOURCES).

8              Disclaimer of Warranties. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY OTHERWISE SET FORTH HEREIN, AIRTH DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. WHILE AIRTH TRIES TO MAINTAIN THE TIMELINESS, INTEGRITY, AND SECURITY OF THE SERVICES, IT DOES NOT GUARANTEE THAT ANY SERVICES IS OR WILL REMAIN UPDATED, COMPLETE, CORRECT OR SECURE, OR THAT ACCESS TO ANY SERVICES WILL BE UNINTERRUPTED. THE SERVICES MAY INCLUDE INACCURACIES, ERRORS AND MATERIALS THAT VIOLATE OR CONFLICT WITH THE AGREEMENT. THIRD PARTIES MAY ALSO MAKE UNAUTHORIZED ALTERATIONS TO THE SERVICES.

9              Limitation of Liability

9.1          EXCEPT AS OTHERWISE SET FORTH IN AN ORDER FORM OR APP SUBSCRIPTION TERMS, IN NO EVENT WILL AIRTH’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED TEN U.S. DOLLARS ($10.00). THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT WILL AIRTH HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF AIRTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF ANY REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

9.2          WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, (A) AIRTH SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM THE OPERATION OR PROVISION OF, OR YOUR USE OF OR INABILITY TO USE, ANY APP(S) OR ANY THIRD-PARTY RESOURCES, INCLUDING FROM ANY VIRUS, WORM, TROJAN HORSE, EASTER EGG, TIME BOMB, SPYWARE OR OTHER SIMILAR COMPUTER CODE, FILE OR PROGRAM THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH; AND (B) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH ANY APP(S) OR ANY THIRD-PARTY RESOURCES IS TO STOP USING THE APPLICABLE APP(S) OR THIRD-PARTY RESOURCES.

10           Indemnity. To the maximum extent permitted under applicable law, you will defend Airth against any claim, demand, suit or proceeding made or brought against Airth by a third party arising out of or relating to: (a) your use of, or activities in connection with, the Services (including all Submissions), and/or (b) any violation or alleged violation of the Agreement by you (each, a “Claim Against Airth”); and you will indemnify Airth from any damages, attorney fees and costs finally awarded against Airth as a result of, or for any amounts paid by Airth under a settlement approved by you in writing of, a Claim Against Airth, provided Airth (i) promptly gives you written notice of the Claim Against Airth, (ii) gives you sole control of the defense and settlement of the Claim Against Airth (except that you may not settle any Claim Against Airth unless it unconditionally releases Airth of all liability), and (iii) gives you reasonable assistance, at your request and expense.

11           Term; Termination

11.1       Term. The Term of this Agreement commences on the date that you accept this Agreement and will continue in effect until terminated in accordance with its terms.

11.2       Termination. Except as otherwise provided in an Order Form or applicable Supplemental Terms:

• Airth may terminate or suspend your use of any Services at any time and without prior notice, for any reason, with or without notice to you and without liability to you or any third party, for any reason, including (i) if Airth deems such suspension necessary as a result of your material breach of your obligations; (ii) if Airth reasonably believes such suspension is necessary to prevent or stop the conduct of illegal activity or suspected illegal activity or to prevent or mitigate damage or imminent damage to Airth systems or data stored on such systems; and/or (iii) as required by law or at the request of governmental entities. In connection with such termination or suspension, Airth may deactivate or delete your login credentials and account, and all associated information, data, content or other materials, without any obligation to provide further access to those materials. If Airth terminates your right to use our Services, then the applicable Supplemental Terms will terminate, unless those Supplemental Terms also apply to your use of other Services, in which case those Supplemental Terms will remain in effect solely with respect to the other Services.

• You may terminate your use of any Services at any time by ceasing to use the Services. To request that we delete your Account, please contact Airth using the contact information in Section 12. Note that deleting your Account may not result in the deletion of all information related to your Account unless expressly requested.

• Upon termination of this Agreement, all provisions which by their nature are intended to survive termination will survive, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to Airth for Services purchased will remain due.

12           Notices. Except as otherwise set forth in this Agreement (including applicable Supplemental Terms), all notices shall be in writing and shall be addressed to (a) the address and contact information provided in your Order Form or (b) where the parties have not entered into an Order Form, to the address and contact information that you provide as part of your Registration Data. Notices to Airth shall be provided to the address below:

PO Box 35242

Tucson, AZ 85740

contact@Airth

Notice given in accordance with this Agreement will be effective upon the earlier of actual receipt and the fifth business day following mailing or transmission by email. You are responsible for providing Airth with your most current contact information and updating such information.

13           Export Controls. You are responsible for complying with U.S. export controls and economic sanctions, including the Export Administration Regulations (EAR) and the regulations administered by the Treasury Department’s Office of Foreign Assets Control (OFAC), any applicable import laws, regulations and requirements of the country of importation, and all other applicable laws, regulations and requirements which may apply to downloads of software. You are responsible for any violation of those laws, regulations and requirements. Airth provides no assurances that requests passing through any Services to you have been screened in any way. For example, we do not provide screening to identify parties that may be subject to EAR or OFAC restrictions, nor do we provide screening to identify destinations that may be subject to embargo or other restrictions. You represent, warrant and covenant that you are not: (a) located in, or a resident or national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any U.S. government list of restricted end-users.

14           Miscellaneous

14.1       Governing Law; Jurisdiction. This Agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Arizona, without regard to its conflict of laws provisions. The parties hereby irrevocably consent to the non-exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Arizona for the purpose of adjudicating any action or proceeding to enforce this Agreement. Notwithstanding the foregoing, any party may seek injunctive relief in any court of competent jurisdiction to prevent or stop the infringement or misappropriation of a party’s intellectual property rights.

14.2       Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Airth’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Airth may freely assign this Agreement including its rights herein, in whole or in part, without your prior consent.

14.3       Force Majeure. Airth shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

14.4       Waiver. Performance of any obligation required by a party under this Agreement may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described in such written waiver. The failure of either party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions of this Agreement.

14.5       Relationship of the Parties. The relationship between Airth and you are that of an independent contractor, and nothing in this Agreement shall be construed as making the parties hereto partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other party’s name or on its behalf.

14.6       Entire Agreement. This Agreement (together with the Privacy Policy, Order Form(s), and Supplemental Terms, in each case as applicable between the parties) constitute the entire and final agreement between you and Airth, superseding any prior agreements between us with respect thereto.

APPENDIX I – Terms of Use for Airth Marketplace

These Terms of Use for Airth Marketplace (the “Marketplace Terms”) is a legal agreement between you and Airth, and set forth the terms and conditions applicable to your access to and use of the marketplace provided by Airth, currently located at https://miningportal.io and https://miningportal.ai, together with any add-on, buildpack, information, data, content and other materials, products and services available through such site, and any successor site(s) (the “Airth Marketplace”). These Marketplace Terms are incorporated by reference into the Agreement, and form part of the Agreement between you and Airth. Airth may also update these Marketplace Terms from time to time, as described in the Agreement.

By (1) clicking a box indicating acceptance of these Marketplace Terms, and/or (2) signing up for an Account to use the Marketplace, you agree to these Marketplace Terms, effective between you and Airth, as of the date of your acceptance of these Marketplace Terms. You hereby affirm that you are of legal age to enter into these Marketplace Terms. If you are an individual accepting these Marketplace Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these Marketplace Terms, in which case the terms “you” and “your” shall refer to such entity. If you do not have such authority, or if you do not agree with these Marketplace Terms, you must not accept these Marketplace Terms. Capitalized terms used but not defined in these Marketplace Terms have the meanings given in the Agreement.

1.             Use of Airth Marketplace

1.1.         The Airth Marketplace enables users to publish listings of Apps and related products and services. Any such publication is subject to the terms set forth in the Agreement as well as these Marketplace Terms. For clarity, Airth has no obligation to publish any listings or Apps that you may provide, whether or not on Airth Marketplace. 

1.2.         Notwithstanding anything to the contrary stated in these Marketplace Terms, you agree that your access to and use of any App provided through the Airth Marketplace may be subject to additional or different terms, conditions and policies applicable to such App (such as, in the case of a Third-Party App, terms of service or privacy policies of the person or entity that makes available the Third-Party App (“Provider”)) (collectively, “Third-Party Terms”). Provider may provide notice of such Third-Party Terms by attaching such terms to the App’s listing, or otherwise in accordance with the Agreement. You agree that you will be subject to and will comply with the Third-Party Terms applicable to your App. You further acknowledge that your access to and use of the Marketplace (“Subscription”) is subject to the Agreement. In the event of any conflict between the terms and conditions of the various components of the Subscription, the following order of precedence will apply: (1) the Agreement; (2) the relevant Third-Party Terms or App Subscription Terms; and (3) these Marketplace Terms.

2.             User Rights

2.1.         License Grant. Subject to the terms and conditions of the Order Form effected between the parties and to the Agreement, Airth hereby grants to you, and you hereby accept from Airth, a royalty-free, non-exclusive, non-sublicensable (except as specified below), and nontransferable license for the duration of the Term to, as applicable: (a) access and use the Airth Marketplace, as made available by Airth to you, solely in accordance with any applicable documentation; and (b) to the extent specified in the Order Form, authorize a number of Users not exceeding the number specified in the Order Form to access and to use the Services in accordance with the Agreement. For clarity, no rights are granted under the Agreement (including these Marketplace Terms) with respect to any Apps (including Airth Apps) or any Third-Party Resource(s).

2.2.         Your Responsibilities. You will be responsible for your and your authorized users’: (a) use of the Marketplace, App(s), and all activities occurring using your Account(s), in compliance with the Agreement, these Marketplace Terms, applicable Supplemental Terms, and the AUP; (b) use and submission of all Content made available to or submitted by you or your authorized users by accessing a part of or through the use of the Marketplace and/or an App (“User Content“), including any web application(s) that you develop using the Services. In connection with the foregoing, you agree that you are solely responsible for (and that Airth has no responsibility to you or to any third party for) any User Content that you or your authorized users create, submit, transmit or display while using the Services. You agree that Provider and Airth have no responsibility or liability for the security, backup, deletion or failure to store any User Content and other communications maintained or transmitted through use of the Services. 

2.3.         Usage Restrictions. In the event that you become aware of any violation of the AUP or Agreement by any user of the Services, you shall immediately terminate such user’s account and access to the Services. Further, you shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and to notify Airth promptly of any such unauthorized access or use. Airth reserves the right to disable your Account for any Services in response to a violation (whether actual or suspected) of the Agreement, AUP, and/or applicable Supplemental Terms. 

3.             Proprietary Rights

3.1.         Licenses From You. By submitting, posting or displaying any App or other User Content for listing on or through the Marketplace or Services (including by creating or using any Application(s) in connection with the Services), you hereby grant to Airth: (a) a worldwide, royalty-free, sublicensable, transferable, and non-exclusive license to use, reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute, host, and make available such User Content and/or App as necessary to enable Airth to provide you and your authorized users with use of or access to the Marketplace and/or Services on the terms set forth in the Agreement; and (b) a limited, non-exclusive, royalty-free, sublicensable, transferable, worldwide license to use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings for the purpose of marketing, advertising or publicizing your User Content, your App, and/or your use of the Marketplace.

3.2.         Analytics. Without limiting Airth’s rights under the Agreement, if you access (including download) or use any App, data or other information about your access to or use of such App may be collected by Airth and shared with the provider of that App, including to enable such App provider to monitor usage of, enforce usage limitations of, and improve and tailor such App. Such data or other information may include (without limitation) aggregated usage information about such App provider’s App(s) or the number of started but incomplete installations for a particular App.

3.3.         Discontinuation. Airth reserves the right, including without prior notice, to discontinue making available, or to refuse to provide any user with, any Apps or other products or services available on or through the Airth Marketplace, and to bar any user from making any payment transaction at Airth’s sole discretion. Any refunds of fees relating to Apps will be subject to Airth’s applicable refund policies as in effect at the time of incurrence.

4.             Payments

4.1.         You will pay Airth the fees applicable to your Subscription, as set forth in an Order Form that has been executed and effected by you and accepted by Airth. Unless stated otherwise, all Subscription fees are exclusive of any and all federal, state or local use, excise, value-added, gross receipts, sales taxes, duties, universal service assessments or other similar liabilities, other than general income or property taxes imposed on Airth. All such taxes, however denominated, that are levied on the Subscription fees paid by you, chargeable to or against Airth by any governmental authority, shall be passed through to, and shall be payable by, you. However, nothing in this section shall be construed to make you responsible for any general income tax, gross receipts tax, or employment taxes due from and chargeable against Airth.

4.2.         Unless expressly otherwise stated, your Subscription to the Services will be automatically renewed for a term of equal duration to the prior term at the end of each billing cycle, unless terminated by you in accordance with the termination provisions of the Agreement (collectively, the “Term”). You understand and agree that your payment method will be automatically charged for the then-current Subscription fee at the time of each renewal. Note that Airth does not provide pro-rata refunds for cancellations made in the middle of a billing cycle.

4.3.         Unless otherwise specified in an applicable Order Form, the first invoice will be submitted to you within 30 days after the start date of the Order Form and on a monthly basis thereafter. you must pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid; provided that you may withhold payment of any invoiced Fees that are the subject of a good faith dispute of which you has provided Airth written notice prior to the payment due date. All owed fees which are not in dispute shall be timely paid, and any fees which are determined to be owed by you upon resolution of the dispute shall be paid within 10 days of resolution of the dispute. you will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Airth to collect any amount that is not paid when due. Airth may accept any check or payment in any amount without prejudice to Airth’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to Airth under the Agreement may not be withheld or offset by you for any reason against amounts due or asserted to be due to you from Airth.

4.4.         You are responsible for providing complete and accurate billing and contact information to Airth and notifying Airth of any changes to such information. If any amounts owed by you under the Agreement become thirty (30) or more days past due, Airth may, without limiting its other rights and remedies, suspend your use of and access to the Services until such amounts are paid in full.

4.5.         Airth reserves the right to modify the Subscription fees applicable to the Services, and to introduce new pricing structures, at any time; provided that any such changes will be communicated to you no fewer than 30 days prior to the end of your then-applicable subscription term, and shall not take effect until, at the earliest, the term immediately following the subscription term in which you received notice.

4.6.          From time to time, Airth may make available for purchase credits which can be used to offset specified amounts of service fees and charges for the Marketplace (“Marketplace Credits”). The purchase, redemption, and use of Marketplace Credits are subject to the terms below:

4.6.1. Marketplace Credits may be redeemed for such Services, Apps, and/or other functions as set forth in an Order Form executed by you and accepted by Airth in connection with your Subscription. By purchasing, redeeming, or otherwise accepting Marketplace Credits, you represent and warrant that your receipt and use of Marketplace Credits is not prohibited or inconsistent with any laws, regulations, or binding orders applicable to you. Except as expressly agreed in writing by the parties in a separate agreement, Marketplace Credits may not be used in conjunction with any other promotional or incentive offer from Airth.

4.6.2. Marketplace Credits may only be redeemed once to offset service fees and charges incurred by you, as set forth in an invoice for your Subscription to the Marketplace. Your Account will be billed for all fees and charges for use of any Eligible Services in excess of the amount of available Marketplace Credits associated with your Account as of the billing date. Marketplace Credits will not be applied to your Account until properly redeemed using the processes provided by Airth.

4.6.3. Marketplace Credits may be applied only to your own Account and Subscription, and are void if sold for cash or other consideration. You may not sell, license, rent, or otherwise transfer Marketplace Credits to any third party. Marketplace Credits have no intrinsic value, are not redeemable for cash, and have no cash value.

4.6.4. Marketplace Credits are valid for one (1) year following from the date of purchase, and cannot be redeemed after the foregoing expiration date. Failure to redeem Marketplace Credits before the applicable expiration date will result in its forfeiture. No refunds will be provided for voided, expired, or cancelled Marketplace Credits.

5.             Termination Rights between Airth and You

5.1.         Termination for Cause. Either party may terminate these Marketplace Terms immediately upon written notice to the other party (i) in the event of a material breach of the Agreement by the other party, or (ii) if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency, or similar proceeding, that is not dismissed within 60 days of filing.

5.2.         Termination for Convenience by Airth. Airth may terminate these Marketplace Terms for convenience (i.e., for any reason or no reason) by providing 30 days’ prior written notice to you. If Airth terminates these Marketplace Terms pursuant to this section, you will be entitled to a refund of a pro-rata portion of any prepaid and unused fees pertaining to the remaining term of your Subscription.

5.3.         Termination for Convenience by You. You may terminate these Marketplace Terms and your Account for convenience (i.e., for any reason or no reason) by providing 30 days’ prior written notice to Airth. If you terminate the Agreement for convenience, you will not be entitled to any refund.

APPENDIX II – Terms of Use for Airth Marketplace Applications

These Terms of Use for Airth Marketplace Applications set forth the terms and conditions applicable to subscriptions to any Apps between (1) the party offering the App through the Airth Marketplace (“Provider”), on the one hand, and (3) the party subscribing to the App through the Airth Marketplace (“You” or “you”) (collectively the “Parties” or individually a “party”). Except as otherwise expressly agreed in writing in Supplemental Terms executed by the Parties, Provider’s offer of the App through the Airth Marketplace, and your purchase of a corresponding App Subscription to the App on Airth Marketplace, constitutes each party’s respective acceptance of and their entry into the App Subscription Terms (defined below), and each party’s agreement to be bound by the terms hereof. Capitalized terms used but not defined in this Appendix II shall have the meanings given in the Agreement.

1.             App Subscription

1.1.         Subject to the App Subscription Terms (defined below), Provider will provide to you, and you will receive, use of and access to the App (“App Subscription”) designated in the purchase order that you submit to Provider (“Purchase Order”). The App Subscription is subject to and governed by the terms of this Appendix II, the Purchase Order, and any amendments to any of the foregoing as may be agreed upon by the parties, each of which are incorporated herein. In the event of any conflict between the terms and conditions of the various components of the App Subscription, the following order of precedence will apply: (1) any amendment and/or Supplemental Terms agreed upon by the parties; (2) the Purchase Order; (3) this Appendix II; and (4) terms that are presented to you by Provider as a prerequisite to your test drive, download, and/or installation process of the App (collectively, “App Subscription Terms”) The parties further acknowledge that each party’s use of and access to the App and the Marketplace is subject to the Agreement, and such terms shall prevail to the extent that they conflict with any of the foregoing components of the App Subscription.

1.2.         By accessing or using the App made available following your submission of a Purchase Order to Provider, you agree that you will be subject to and will comply with all App Subscription Terms, as applicable, and that you are directing Provider to access, route and transmit to you the designated App.

2.             Payment

2.1.         You will pay Provider the fees applicable to your App Subscription, including (without limitation) pay all charges incurred by you or on your behalf through the Airth Marketplace in connection with such App Subscription at the prices in effect when such charges are incurred. In addition, you are responsible for any taxes applicable to your App Subscription.

2.2.         You represent and warrant that you have the right to use any credit card for which you provide any credit card information in connection with a payment transaction for the App Subscription, and you grant to Provider the right to provide such information to third parties for purposes of facilitating the payment transactions that you have authorized.

2.3.         ou must pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid; provided that you may withhold payment of any invoiced fees that are the subject of a good faith dispute of which you has provided Provider written notice prior to the payment due date. All owed fees which are not in dispute shall be timely paid, and any fees which are determined to be owed by you upon resolution of the dispute shall be paid within 10 days of resolution of the dispute.

2.4.         You are responsible for providing complete and accurate billing and contact information to Provider and notifying Provider of any changes to such information. Provider reserves the right to modify the App Subscription fees at any time.

3.             Proprietary Rights

3.1.         Reservation of Rights (Marketplace and App).  You acknowledge and agree that Provider will retain all right, title and interest it may have in and to the App, including all intellectual property and proprietary rights throughout the world, whether now known or hereinafter discovered or invented, including, without limitation, all: (a) patents and patent applications; (b) copyrights and mask work rights; (c) trade secrets; (d) trademarks; (e) rights in data and databases; and (f) analogous rights throughout the world (collectively, “Proprietary Rights”). Nothing in these App Subscription Terms will be construed or interpreted as granting to you any rights of ownership or, except as expressly provided herein, any other Proprietary Rights in or to the App.

3.2.         Feedback. If you provide any suggestions, ideas, enhancement requests, recommendations, or feedback regarding the App (“App Feedback”), Provider may use, incorporate, and otherwise practice App Feedback in Provider’s products and services. You will have no obligation to provide App Feedback, and all App Feedback is provided by you “as is” and without warranty of any kind.

3.3.         Your Proprietary Rights. To the extent that any Derivative Work(s) arise under your App Subscription, you represent and warrant to Provider that you own all right, title and interest in and to the Derivative Work(s), including all Proprietary Rights therein. Nothing in these App Subscription Terms will be construed or interpreted as granting to Provider any right, title or interest or except as expressly provided herein, any other Proprietary Rights in or to the Derivative Work. Except as otherwise provided in the Agreement and the App Subscription Terms, Provider acknowledges and agrees that it does not obtain any right, title or interest from you (or your licensors) in or to any Derivative Works that you create, submit, post, transmit or display on, or through, the Services and/or App. Unless you have expressly agreed otherwise in writing with Provider or Airth, you agree that you are solely responsible for protecting and enforcing those rights and that Provider and Airth have no obligation to do so on your behalf.

3.4.         Grant of License To You. Provider hereby grants to you (and, where applicable, to your authorized end-users), nonexclusive, worldwide, nontransferable license to receive, retain, use, and modify the App and to create data, work product or other items, information or materials derived from use of the App (including data analytics, reports, research, analysis, tools, notes, presentations, discussions and/or models, calculations, algorithms or statistical methods, but excluding the App, as modified from time to time) (collectively, “Derivative Work(s)”), in each case subject to and in accordance with the terms hereof and the Purchase Order. Provider retains all rights not expressly granted to you under these App Subscription Terms. Any additional or different rights or licenses that apply to the App will be included in the Purchase Order or otherwise within the Supplemental Terms communicated to you in accordance with these App Subscription Terms, You will (a) be responsible for your and your authorized users’ use of the App, User Content, Applications, and all activities occurring using your account(s), in compliance with these App Subscription Terms (to the extent applicable, e.g., open source license terms), the Agreement, and applicable laws and government regulations; and (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Apps and User Content, and to notify Airth and Provider promptly of any such unauthorized access or use. With respect to any Users that you authorize to use the App: (a) you remain responsible for all obligations hereunder arising in connection with any such user’s processing of the App; and (b) you agree to be directly liable for any and all acts and omissions by such user to the same degree as if the act or omission were performed by you.

3.5.         Grant of Licenses from You. By purchasing any App Subscription or submitting, posting or displaying the User Content on or through the App, or by creating or using any Derivative Work(s) in connection with your App Subscription, you hereby grant to Provider and Airth a worldwide, royalty-free, sublicensable, transferable, and non-exclusive license to use, reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute, host, and make available such User Content as necessary to enable Provider and Airth to provide you and your authorized users with use of or access to the Services and/or the App on the terms set forth in the Agreement and the App Subscription Terms.

4.             Usage Restrictions. Except as expressly agreed by the parties or as set forth in the App Subscription Terms (where applicable), you will not (a) make the App available to anyone other than you and your users, or use the App for the benefit of any other party, (b) (in whole or in part) sell, resell, license, sublicense, distribute, make available, rent or lease the App, or otherwise include the App in a service bureau or outsourcing Services, (c) use the App to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the App to store or transmit harmful code, (e) interfere with or disrupt the integrity or performance of the App, User Content or data contained therein, (f) attempt to gain unauthorized access to the App or its related systems or networks, (g) permit direct or indirect access to or use of the App in a way that circumvents a contractual usage limit, or use the App to access or use any of Airth or Provider’s intellectual property except as permitted under these App Subscription Terms, the Documentation, (h) modify, copy, or create derivative works based on the App or any part, feature, function or user interface thereof, (i) modify, copy or create derivative works based on User Content except as permitted herein or in the Documentation, (j) frame or mirror any part of App or User Content, and (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile any App or User Content, or access it to build a competitive product or service.

5.             Warranties

5.1.         Mutual Representations and Warranties. Each party represents and warrants that: (a) it has full power and authority to enter in and perform these App Subscription Terms and that the execution and delivery of these App Subscription Terms has been duly authorized; and (b) these App Subscription Terms and such party’s performance hereunder will not breach any other agreement to which the party is a party or is bound or violate any obligation owed by such party to any third party.

5.2.         Provider’s Representations and Warranties. In addition to its other representations set forth in these App Subscription Terms, Provider represents and warrants that (a) to the extent that the App processes data that (i) identifies or can be used by you or any third party (other than you or its licensors) to identify a natural person or (ii) otherwise may be deemed to be Personal Data or personal information under applicable law, the parties will use commercially reasonable efforts to negotiate and effect into a data processing agreement or equivalent, as required under applicable law; (b) Provider will use industry standard practices designed to detect and protect the App against any viruses, “Trojan horses”, “worms”, spyware, adware, or other harmful code designed or used for unauthorized access to or use, disclosure, modification, or destruction of, information within the App, or interference with or harm to the operation of the App or any systems, networks, or data, including, as applicable, using anti-malware software and keeping the anti-malware software up to date prior to making the App (including any updated, revised or additional App made available by Provider) available to you, and (c) the App, and your use thereof as permitted under these App Subscription Terms, will not be subject to any terms that require that any data, software, documentation or other materials integrated, networked, or used by you with the App, in whole or in part, be disclosed or distributed in source code form, be provided to others for the purpose of, or with authorization for making, derivative works, or be redistributable at no charge.

5.3.         Remedies. If any App fails to conform to the foregoing warranties, Provider will promptly, at its option and expense, correct the App as necessary to conform to the warranties. If Provider does not correct the App to conform to the warranties within a reasonable time, not to exceed ninety (90) calendar days, as your sole remedy and Provider’s exclusive liability, Provider will have no liability or obligation with respect to any warranty to the extent any nonconformity is attributable to any: (a) use of the App by you in violation of these App Subscription Terms or applicable law; or (b) modifications to the App made by you; where in each of (a) and (b) such nonconformity would not have occurred absent such use or modification by you.

5.4.         Warranty Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN THESE APP SUBSCRIPTION TERMS, NEITHER PARTY MAKES ANY WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, REGARDING THE APP, AND EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. PROVIDER DOES NOT WARRANT: (A) THAT THE APP WILL MEET YOUR REQUIREMENTS; OR (B) THAT THE APP OR ITS CONTENTS WILL BE ACCURATE, COMPLETE, OR UP-TO-DATE.

6.             Confidentiality

6.1.         Provider Confidential Information. During the term of the App Subscription, Provider may disclose its confidential and proprietary information to you (“Provider Confidential Information”). Subject to the exceptions listed below, “Provider Confidential Information” shall be defined as information disclosed by Provider to you that is either: (a) clearly marked or otherwise clearly designated as confidential or proprietary; or (b) should be reasonably understood by you to be the confidential or proprietary information of the Provider. Provider Confidential Information includes the App, as well as Provider’s business and marketing plans, technology and technical information, product plans and designs, and business processes (where applicable). Provider Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Provider, (ii) was known to the you prior to its disclosure by the Provider without breach of any obligation owed to the Provider, (iii) is received from a third party without breach of any obligation owed to the Provider, or (iv) was independently developed by you.

6.2.         Confidential Treatment. You agree not to use or disclose the Provider Confidential Information other than as expressly authorized by these App Subscription Terms. You agree to safeguard the Provider Confidential Information against unauthorized use or disclosure with means at least as stringent as those it uses to safeguard its own confidential information, and in no event with less than reasonable means. You will promptly notify Provider if you become aware of any unauthorized use or disclosure of the Provider Confidential Information, and reasonably cooperate with Provider in attempts to limit disclosure. If and to the extent required by law, you may disclose or produce Provider Confidential Information but will give reasonable prior notice (and where prior notice is not permitted by applicable law, notice will be given as soon as you are legally permitted) to Provider to permit Provider to intervene and to request protective orders or confidential treatment therefor or other appropriate remedy regarding such disclosure.

6.3.         Injunctive Relief. Notwithstanding any other provision of the App Subscription Terms, both parties acknowledge that any disclosure or use of Provider’s Provider Confidential Information in a manner inconsistent with the provisions of the App Subscription Terms may cause Provider irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both parties agree that, in addition to any other remedy to which Provider may be entitled hereunder, at law or in equity, Provider shall be entitled to seek an injunction to restrain such use in addition to other appropriate remedies available under applicable law.

7.             Indemnification. You shall defend Provider against any claim, demand, suit or proceeding made or brought against Provider by any third party arising from or in any way related to (i) your breach of these App Subscription Terms, (ii) your violation of applicable laws, rules or regulations in connection with the App, or (iii) your User Content (“Claim Against Provider“), and shall indemnify Provider for any damages, attorney fees and costs finally awarded against Provider as a result of, and for amounts paid by Provider under a court-approved settlement of, a Claim Against Provider; provided that Provider (a) promptly gives you written notice of the Claim Against Provider, (b) gives you sole control of the defense and settlement of the Claim Against Provider (provided that you may not settle or defend any Claim Against Provider unless it unconditionally releases Provider of all liability), and (c) provides to you all reasonable assistance, at your expense.

8.            Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING, NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY HEREUNDER FOR ANY INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY A PARTY HEREUNDER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATED TO THESE APP SUBSCRIPTION TERMS EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER FOR THE APPLICABLE APP GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. IF AIRTH IS NOT THE PROVIDER OF THE APPLICABLE APP HEREUNDER, AIRTH SHALL NOT HAVE ANY LIABILITY TO YOU OR ANY USER FOR ANY DAMAGES ARISING OUT OF OR RELATED TO YOUR PURCHASE OR USE OF THE APP OR MARKETPLACE PURSUANT TO THESE APP SUBSCRIPTION TERMS, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY.

9.             Term, Termination

9.1.         Subscription Term. These App Subscription Terms commence and are in effect with respect to the applicable App upon and from the first day you access, provision or use such App, and will continue in full force and effect until conclusion of the App Subscription, unless terminated earlier by either party as provided by these App Subscription Terms. These App Subscription Terms will terminate upon the earlier of (a) expiration or termination of your subscription to the Services, (b) expiration or termination by you of your subscription to the App, (c) termination by Provider for your breach of these App Subscription Terms, including, without limitation, for nonpayment of fees for the App, or as otherwise permitted in these App Subscription Terms. You acknowledge and agree that if Airth terminates your access to the Services in accordance with the terms of the Agreement, you also will lose access to the App. You agree that Provider will not be liable to you or any third party for such loss of access.

9.2.         Termination. Either party may terminate the App Subscription with or without cause; provided that if a party terminates for material breach of these App Subscription Terms by the other party (where such breach is not cured within thirty (30) calendar days following its receipt of written notice of the breach from the non-breaching party) any applicable refund will be provided according to the refund policy set forth in the respective Purchase Order. Notwithstanding the foregoing, Provider may suspend or terminate your App Subscription without refund of fees (other than as expressly set forth in the Purchase Order): (i) if required to comply with any applicable law or requests of governmental entities; (ii) if you do not cooperate with any reasonable investigation by you of a suspected breach of these App Subscription Terms; or (iii) if Provider determines that suspension is necessary to prevent or mitigate damage to Provider’s systems or networks caused by a denial of service attack or other any act or omission of a third party, such as hacking or the introduction of viruses or other malware.

9.3.         Effects of Termination. Upon termination or expiration of the App Subscription, your authorization to use the App under such App Subscription will terminate, and, within ninety (90) calendar days following such termination or expiration, you will, where instructed by Provider, destroy all other copies of the App in your possession or control. Termination or expiration of any App Subscription purchased by you from Provider will not terminate or modify any other App Subscription purchased by you from Provider. All provisions of these App Subscription Terms that may reasonably be interpreted or construed as surviving expiration or termination of these App Subscription Terms, will survive the expiration or termination of these App Subscription Terms for any reason.

10.          Miscellaneous

10.1.      Third-Party Beneficiary. These App Subscription Terms are between you and Provider. Airth is not a party to these App Subscription Terms, however, Airth is a third-party beneficiary to these App Subscription Terms and has the right (and is deemed to have accepted the right) to enforce these App Subscription Terms against you as a third-party beneficiary thereof.

10.2.      Notices. By providing Provider or Airth your email address, you consent to use of the email address associated with your Account and/or Purchase Order to send you any notices required by law in lieu of communication by postal mail. Notices to Provider may be addressed: (a) by email to the email address designated as Provider’s notice address for the Purchase Order; (b) by personal delivery; (c) by registered or certified mail to the address designated in the Purchase Order, return receipt requested; or (d) by nationally recognized courier service. Notice will be deemed given upon written verification of receipt.

10.3.      Applicable Law. These App Subscription Terms will be governed and interpreted under the laws of the State of Delaware, excluding the principles of conflict of laws thereof and of any other jurisdiction. The parties agree that the exclusive forum for any action or proceeding will be, and the parties consent to the jurisdiction of the state and federal courts, located in Delaware.

10.4.      Assignment. Neither party may assign or transfer these App Subscription Terms or any rights or delegate any duties herein without the prior written consent of the other party, which will not be unreasonably withheld, delayed, or conditioned. Notwithstanding the foregoing, and without gaining the other party’s written consent, either party may assign these App Subscription Terms, in whole or part, and delegate its obligations to any entity acquiring all or substantially all of its assets or the assigning party’s entire business, whether by sale of assets, sale of stock, merger, or otherwise. Any attempted assignment, transfer, or delegation in contravention of this section will be null and void. These App Subscription Terms will inure to the benefit of the parties hereto and their permitted successors and assigns.

10.5.      Export Laws. Each party will comply with all applicable customs and export control laws and regulations of the United States and/or such other country, with respect to its activities under these App Subscription Terms, including in the case of you, where you or your authorized Users access or use the App, and in the case of Provider, where Provider provides the App. Neither party will export, reexport, ship, or otherwise transfer the App, to any country subject to an embargo or other sanction by the United States.

10.6.      Waiver.  Any failure or delay by either party to exercise or partially exercise any right, power, or privilege under these App Subscription Terms will not be deemed a waiver of any such right, power, or privilege under these App Subscription Terms. No waiver by either party of a breach of any term, provision, or condition of these App Subscription Terms by the other party will constitute a waiver of any succeeding breach of the same or any other provision hereof. No such waiver will be valid unless executed in writing by the party making the waiver.

10.7.      Relationship of Parties. The relationship of the parties will be that of independent contractors, and nothing contained in these App Subscription Terms will create or imply an agency relationship between you and Provider, nor will these App Subscription Terms be deemed to constitute a joint venture or partnership or the relationship of employer and employee between you and Provider. Each party assumes sole and full responsibility for its acts and the acts of its Personnel. Neither party will have the authority to make commitments or enter into contracts on behalf of, bind, or otherwise oblige the other party.

10.8.      Severability. If any term or condition of these App Subscription Terms is to any extent held invalid or unenforceable by a court of competent jurisdiction, the remainder of these App Subscription Terms will not be affected thereby, and each term and condition will be valid and enforceable to the fullest extent permitted by law.

10.9.      Entire Agreement. These App Subscription Terms constitute the entire agreement between you and Provider regarding your use of the App, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of these App Subscription Terms. There are no other representations, understandings or agreements between the Parties relating to the subject matter hereof. Provider io from time to time may modify the App and these App Subscription Terms. You acknowledge and agree that these App Subscription Terms and the form and nature of the App may change from time to time without prior notice to you. Your continued use of the App constitutes your acceptance of such modifications. These App Subscription Terms are solely between you and Provider. Airth is not a party to these App Subscription Terms and will have no liability or obligations hereunder. The terms and conditions of these App Subscription Terms will not be changed, amended, modified, or waived unless such change, amendment, modification, or waiver is in writing and signed by authorized representatives of the Parties. NEITHER PARTY WILL BE BOUND BY, AND EACH SPECIFICALLY OBJECTS TO, ANY PROVISION THAT IS DIFFERENT FROM OR IN ADDITION TO THIS AGREEMENT (WHETHER PROFFERED ORALLY OR IN ANY QUOTATION, PURCHASE ORDER, INVOICE, SHIPPING DOCUMENT, ONLINE TERMS AND CONDITIONS, ACCEPTANCE, CONFIRMATION, CORRESPONDENCE, OR OTHERWISE), UNLESS SUCH PROVISION IS SPECIFICALLY AGREED TO IN A WRITING SIGNED BY BOTH PARTIES.