Legal
Terms of Service
AIRFOLD TERMS OF SERVICE
Effective Date: May 6, 2025OVERVIEW
These Airfold Terms of Service (the “Terms”), including the Privacy Policy, any Appendices, Statements of Work, and Order Form(s), collectively constitute the “Agreement” and govern your subscription to and use of the Airfold Data Platform services (“Airfold Platform” or the “Services”) provided by Airfold, Inc. (” Airfold”, “we”, “us”, or “our”). This Agreement constitutes the entire agreement between Airfold and you or the entity you represent (“Customer”, “you”, or “your”) concerning the subject matter herein. By accessing or using the Airfold Platform, you acknowledge that you have read, understand, and agree to be bound by these Terms. If you do not agree with any provisions in this Agreement, you should not access or use the Services. If you are accessing or using the Services on behalf of an entity, you represent and warrant that you have the authority to bind such entity to this Agreement. Notwithstanding the foregoing, any written agreement currently in effect between Airfold and you, or an entity on whose behalf you are acting, which addresses your use of the Airfold Platform, shall govern your use of the Airfold Platform in lieu of this Agreement.1. PROVISION AND USE OF THE AIRFOLD PLATFORM
1.1 Provision of the Airfold Platform
During the Term, and subject to the terms and conditions of this Agreement, Airfold will provide to Customer, and Customer is hereby granted the right to access and use, the Airfold Platform.1.1.1 Suspension of Access to the Airfold Platform
Airfold may suspend Customer’s access to the Airfold Platform if: (i) amounts owed to Airfold by Customer or Reseller are more than thirty (30) days past due, provided that such amounts are not subject to a good faith payment dispute as outlined in Section 2.5 below; (ii) Customer’s use of the Airfold Platform materially degrades the performance of the Airfold Platform for other customers or presents a material security risk, or risks causing material harm to Airfold or its other customers; (iii) Customer uses the Airfold Platform in violation of Section 1.2.3; or (iv) where Airfold is required to do so by applicable law. Notwithstanding the foregoing, Airfold will use commercially reasonable efforts to provide Customer with prior notice ( email sufficient) of any suspension and to work diligently with Customer to resolve the underlying issue.1.2 Customer’s Use of the Airfold Platform
1.2.1 Authorized Users
Customer’s Affiliates and contractors (“Authorized Users”) are also permitted to use the Airfold Platform during the Term, provided that such use must be solely for the benefit of Customer, and Customer shall be responsible for all acts and omissions of Authorized Users in connection with their use of the Airfold Platform, including any use of the Airfold Platform by Authorized Users that is contrary to the terms and conditions of this Agreement.1.2.2 Account Security
Customer is responsible for maintaining the confidentiality of any credentials associated with Customer’s account with Airfold (“Account”) and for all activities that occur under Customer’s Account. Customer will promptly notify Airfold of any unauthorized use of Customer’s Account or any other breach of security related to the Airfold Platform of which Customer becomes aware.1.2.3 Restrictions on Use of the Airfold Platform
Customer shall not: (i) modify, make derivative works of, disassemble, decompile, or reverse engineer the Airfold Platform or any component thereof; (ii) access or use, or allow any other party to access or use, the Airfold Platform for purposes of monitoring its availability or functionality for the purpose of designing and/or developing, in part or in whole, any competitive products or services; (iii) except for Authorized Users, make access to the Airfold Platform through its Account available to any third party; (iv) sell, resell, rent, lease, offer any time-sharing arrangement, service bureau, or any service based upon, the Airfold Platform; (v) use the Airfold Platform to process any protected health information (as defined by the Health Insurance Portability and Accountability Act of 1996) without first entering into a BAA with Airfold; (vi) use the Airfold Platform to store or process any classified information (i.e., information given a security classification by a government body and protected against unauthorized disclosure under applicable law) or data subject to the International Traffic in Arms Regulations or similar export control regulations; (vii) use the Airfold Platform for High Risk Activities (as defined in Exhibit A); or (viii) otherwise use the Airfold Platform in violation of the Acceptable Use Policy.2. SUBSCRIPTION PLANS, PAYMENT, TAXES, AND DISPUTES
2.1 Subscription-Based Model
All Airfold customers are required to enter into a contract for the use of the Airfold Platform. Access to and use of the Airfold Platform is subject to the execution of an Order Form detailing the subscription terms, fees, and duration.2.2 Subscription Plans and Usage-Based Components
2.2.1 Subscription Plans
Customer must purchase a Subscription Plan through the execution of one or more Order Forms with Airfold or issuance by Customer of a Qualifying PO, which will be deemed to constitute, for the purposes of this Agreement, the execution by Customer of the Order Form referenced in the applicable Qualifying PO.2.2.2 Usage-Based Pricing Components
In addition to the base Subscription Plan fees, Airfold implements usage-based pricing for the following specific components:- AI Service Tokens: Customer will be billed for the actual usage of AI service tokens in accordance with the rates specified in the applicable Order Form. AI service tokens are consumed when utilizing Airfold’s artificial intelligence features, including but not limited to natural language processing, data analysis, content generation, and other machine learning capabilities. Token usage is measured and billed according to the specific AI models and features utilized by Customer.
- Cluster Scaling: Customer will be billed for any upscaling or downscaling of cluster instances based on the rates and terms specified in the applicable Order Form. Cluster scaling refers to changes in computational resources allocated to Customer’s Airfold Platform deployment, including but not limited to increases or decreases in CPU, memory, storage capacity, or throughput capabilities. Airfold will measure and bill for such changes according to the rates and metrics specified in the Order Form.
2.2.3 Minimum Commitments and Overages
Customer’s Order Form may specify minimum commitments for usage-based components. If actual usage falls below the minimum commitment level, Customer will be billed for the minimum commitment amount. If actual usage exceeds any specified thresholds or limits indicated in the Order Form, such excess usage (“Overages”) will be billed at the rates specified in the Order Form.2.2.4 Changes to Usage-Based Pricing
Airfold reserves the right to modify the pricing for usage-based components upon at least sixty (60) days’ prior written notice to Customer; provided, however, that such modifications will not apply until the renewal of Customer’s then-current Subscription Plan unless Customer consents to such modifications.2.3 Payment
Airfold will invoice Customer for the fees due under each Order Form or otherwise under this Agreement and, subject to Section 2.5 below, Customer will pay such fees within thirty (30) days after receipt of an applicable invoice. All invoices will be paid in U.S. dollars. Payments will be made without right of set-off or chargeback. Except as otherwise expressly provided in this Agreement, any and all payments made by Customer pursuant to this Agreement or any Order Form are non-refundable, and all commitments to make any payments hereunder or under any Order Form are non-cancellable.2.4 Taxes
All fees stated on an Order Form are exclusive of any applicable sales, use, value added, and excise taxes levied upon the delivery or use of the taxable components, if any, of any Services, Credits, or Subscription Plans purchased by Customer under this Agreement (collectively, “Taxes”). Taxes do not include any taxes on the net income of Airfold or any of its Affiliates. Unless Customer provides Airfold a valid state sales/use/excise tax exemption certificate or Direct Pay Permit and provided that Airfold separately states any such taxes in the applicable invoice, Customer will pay and be solely responsible for all Taxes. If Customer is required by any foreign governmental authority to deduct or withhold any portion of the amount invoiced for the delivery or use of the Airfold Platform under this Agreement, Customer shall increase the sum paid to Airfold by an amount necessary for the total payment to Airfold to equal the amount originally invoiced.2.5 Payment Disputes
Customer has thirty (30) days from receipt of an invoice from Airfold to dispute such invoice by providing written notice to Airfold stating the good faith basis for such dispute, and Airfold agrees not to exercise its contractual remedies in connection with Customer’s failure to pay any amount that is disputed by Customer in good faith within such thirty (30) day period. The parties agree to work in good faith to resolve any such payment dispute, provided that if any such dispute is not resolved within thirty (30) days of the receipt by Airfold of a dispute notice, and notwithstanding the foregoing sentence, each party shall be free to pursue any remedies available under this Agreement, in equity or at law.2.6 Purchases Through Resellers
The parties agree that Customer may purchase Credits or Subscription Plans through Airfold-authorized resellers (” Resellers”), the use of which are subject to this Agreement. Orders for Credits or Subscription Plans purchased through a Reseller, including multi-year commitments, are not subject to cancellation by Customer. Where Customer purchases Credits or Subscription Plans through a Reseller, the Reseller will enter into an Order Form with Airfold for the purchase of Credits or Subscription Plans that references this Agreement and shows Customer as the “ship to” party and Reseller as the “bill to” party, and Reseller and Customer will enter into a separate agreement setting forth the fees to be paid by Customer to Reseller for such Credits or Subscription Plans, as well as any other terms or conditions that apply between them. Airfold hereby agrees that, subject to receiving payment from the Reseller, it shall be responsible to Customer, pursuant to the terms and conditions of this Agreement, for providing the Credits or Subscription Plans under any such Order Form. Customer hereby acknowledges that Airfold will not be responsible for the obligations of any Reseller to Customer under such separate agreement, for the acts or omissions of Reseller, or for any third-party products or services furnished to Customer by any Reseller. For the avoidance of doubt, Sections 2.3, 2.4, and 2.5 above will be of no effect where Customer purchases Credits or Subscription Plans through a Reseller, as payment and taxes will be addressed in the agreement between Reseller and Customer.3. SUPPORT SERVICES
Subject to the timely payment of amounts owed hereunder, Airfold will provide Customer with Support Services for its use of the Airfold Platform in accordance with the Support Services Policy. Airfold may modify the Support Services Policy from time to time, provided that no such modification will result in a material diminution of the overall level of support services during an applicable Order Form Term. Support Services are provided to Customer solely for Customer’s internal use in connection with the use of the Airfold Platform under this Agreement and may not be used to supply any consulting, support, or training services regarding the Airfold Platform to any third party other than Authorized Users.4. INTELLECTUAL PROPERTY RIGHTS
4.1 Airfold Platform
This Agreement grants Customer a limited right to use the Airfold Platform. Nothing in this Agreement shall be understood to transfer from Airfold to Customer any intellectual property rights, and all right, title, and interest in and to the Airfold Platform will remain (as between the parties) solely with Airfold or its third-party suppliers. The Airfold trademarks, service marks, graphics, and logos used in connection with the Airfold Platform are trademarks or registered trademarks of Airfold or Airfold’s third-party suppliers. Other trademarks, service marks, graphics, and logos used in connection with the Airfold Platform may be the trademarks of other third parties. Airfold grants to Customer no right or license to reproduce or otherwise use any Airfold or third-party trademarks under this Agreement.4.2 Usage Data
Airfold collects tracking and operational data related to Customer’s use of the Airfold Platform, including query logs, metadata (object definitions and properties), and feature usage information (“Usage Data”). For the avoidance of doubt, Usage Data does not include any Confidential Information (including Customer Data) of Customer and will not be shared with third parties (excluding Airfold Affiliates and contractors) in a form that identifies Customer. Airfold owns all right, title, and interest in and to Usage Data, which it reproduces, analyzes, modifies, and adapts to provide, maintain, protect, and improve the Airfold Platform.4.3 Customer Data
As between Airfold and Customer, Customer owns all rights, title, and interest in and to the Customer Data, including all intellectual property rights therein and thereto. By submitting Customer Data to Airfold, Customer hereby grants Airfold a sublicensable, worldwide, royalty-free, and non-exclusive right to process the Customer Data solely for the purpose of enabling Airfold to provide Customer with the Airfold Platform and Support Services, to prevent or address service or technical problems, or as otherwise may be required by law. If Customer wishes to delete Customer Data from Customer’s Account, Airfold will use reasonable efforts to remove it, but Customer acknowledges that backups, caching, or references to the Customer Data may not be made immediately unavailable.4.4 Feedback
Customer, Customer’s Affiliates, and their respective agents, may volunteer feedback to Airfold, and/or its Affiliates, about the Airfold Platform (“Feedback”). Airfold and its Affiliates shall be irrevocably entitled to use that Feedback for any purpose and without any duty to account, provided that, in doing so, they may not breach their obligations of confidentiality under Section 6 of this Agreement.5. SECURITY; CUSTOMER DATA AND DATA PROCESSING
5.1 Airfold Security
Airfold will implement reasonable and appropriate security measures for the Airfold Platform, in accordance with the Airfold Security Standards, that are designed to protect Customer Data against unauthorized access, modification, destruction, or disclosure. Airfold may modify the Airfold Security Standards from time to time but will continue to provide at least the same level of security as is described in the Airfold Security Standards as of the Effective Date.5.2 Customer Responsibility for Customer Data and Data Retrieval
Customer is fully responsible for its Customer Data, including for the content, accuracy, and completeness of the Customer Data, and any loss, liabilities, or damages resulting therefrom. Customer is solely responsible for backing up or otherwise making duplicates of its Customer Data. Customer is solely responsible for verifying that its use, and that of its Authorized Users, of the Airfold Platform complies with any requirements under applicable law or regulation governing access to or use of the Customer Data. Customer is solely responsible for deleting or retrieving Customer Data from the Airfold Platform prior to termination or expiration of this Agreement.5.3 Data Processing
The parties agree to comply with the Data Processing Addendum (“DPA”).5.4 Malicious Code
Airfold will make commercially reasonable efforts to use industry-standard measures designed to scan, detect, and delete Malicious Code (as defined in Exhibit A) from the Airfold Platform.6. CONFIDENTIAL INFORMATION
6.1 Confidential Information
Both parties acknowledge that, in the course of performing this Agreement, they may obtain information relating to products (such as goods, services, and software) of the other party, or relating to the parties themselves, which is of a confidential and proprietary nature (“Confidential Information”). Confidential Information includes materials and all communications concerning Airfold’s or Customer’s business and marketing strategies, including but not limited to employee and customer lists, customer profiles, project plans, design documents, product strategies and pricing data, research, advertising plans, leads and sources of supply, development activities, design and coding, interfaces with the Airfold Platform, anything provided by either party to the other in connection with the Airfold Platform and/or Support Services provided under this Agreement, including, without limitation, computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical plans and other information of the parties which by its nature can be reasonably expected to be proprietary and confidential, whether it is presented in oral, printed, written, graphic or photographic or other tangible form ( including information received, stored or transmitted electronically) even though specific designation as Confidential Information has not been made. Confidential Information also includes any notes, summaries, analyses of the foregoing that are prepared by the receiving party. Customer Data will be deemed Confidential Information of Customer without specific designation. The Airfold Platform and Support Services will be deemed Confidential Information of Airfold without specific designation.6.2 Non-use and Non-disclosure
The parties shall at all times, both during the Term and thereafter, keep in trust and confidence all Confidential Information of the other party, using the same degree of care that the receiving party uses to protect its own Confidential Information of a similar nature or value, but in no event less than commercially reasonable care, and shall not use such Confidential Information other than as necessary to carry out its duties under this Agreement, nor shall either party disclose any such Confidential Information to third parties other than to Affiliates or as necessary to carry out its duties under this Agreement without the other party’s prior written consent, provided that each party shall be allowed to disclose Confidential Information of the other party to the extent that such disclosure is approved in writing by such other party, or necessary to enforce its rights under this Agreement.6.3 Non-Applicability
The obligations of confidentiality shall not apply to information which: (i) has entered the public domain or is otherwise publicly available, except where such entry or availability is the result of a party’s breach of this Agreement; (ii) prior to disclosure hereunder was already in the receiving party’s possession without restriction as evidenced by appropriate documentation; (iii) subsequent to disclosure hereunder is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information; or (iv) was developed by the receiving party without any use of any of the Confidential Information as evidenced by appropriate documentation.6.4 Terms of this Agreement
Except as required by law or governmental regulation, neither party shall disclose, advertise, or publish the terms and conditions of this Agreement without the prior written consent of the other party, except that either party may disclose the terms of this Agreement to potential acquirers, referral partners involved in an applicable transaction, accountants, attorneys, and Affiliates pursuant to the terms of a non-disclosure or confidentiality agreement.6.5 Disclosure Required by Law
Notwithstanding anything to the contrary herein, each party may disclose the other party’s Confidential Information in order to comply with applicable law and/or an order from a court or other governmental body of competent jurisdiction, and, in connection with compliance with such an order only, if such party: (i) unless prohibited by law, gives the other party prior written notice to such disclosure if the time between that order and such disclosure reasonably permits or, if time does not permit, gives the other party written notice of such disclosure promptly after complying with that order; and (ii) fully cooperates with the other party, at the other party’s cost and expense, in seeking a protective order, or confidential treatment, or taking other measures to oppose or limit such disclosure. Each party must not release more of the other party’s Confidential Information than is, in the opinion of its counsel, reasonably necessary to comply with an applicable order.7. REPRESENTATIONS, WARRANTIES, AND DISCLAIMER OF WARRANTIES
7.1 Mutual Representations and Warranties
Each party represents and warrants to the other that: (i) it is a duly organized, validly existing, and in good standing as may be required under the laws of the jurisdiction of its organization; (ii) it has the full right, power, and authority to enter into, and perform its obligations under, this Agreement; (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement and/or on an Order Form (as applicable) has been duly authorized by all necessary corporate or organizational action of such party; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.7.2 Support Services Warranty
Airfold warrants that it will perform the Support Services in a professional, workmanlike manner, consistent with generally accepted industry practice, and in accordance with the Support Services Policy. In the event of a breach of the foregoing warranty, Airfold’s sole obligation, and Customer’s exclusive remedy, shall be for Airfold to re-perform the applicable Support Services.7.3 Airfold Platform Performance Warranty
Airfold warrants that during the Term, the Airfold Platform will perform in all material respects in accordance with the Documentation. In the event of a breach of the foregoing warranty, Airfold’s sole obligation, and Customer’s exclusive remedy shall be for Airfold to: (i) correct any failure(s) of the Airfold Platform to perform in all material respects in accordance with the Documentation; or (ii) if Airfold is unable to provide such a correction within thirty (30) days of receipt of notice of the applicable non-conformity, Customer may elect to terminate the applicable Order Form and Airfold will promptly refund to Customer any pre-paid, unused fees paid by Customer to Airfold under such Order Form.7.4 Warranty Exclusions
The warranty set forth in the foregoing Section 7.3 does not apply: (i) to any trial use of the Airfold Platform; (ii) to any non-production features of the Airfold Platform (as may be designated by Airfold from time to time); (iii) if the Airfold Platform or any portion thereof has not been configured in accordance with the Documentation or has not been used in accordance with this Agreement; and/or (iv) any bug, defect, or error caused by or attributable to software or hardware not supplied by Airfold. Additionally, the warranties set forth herein only apply when notice of a warranty claim is provided to Airfold during the applicable Order Form Term.7.5 Disclaimer of Warranties
EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 7.2 AND 7.3, THE AIRFOLD PLATFORM AND THE SUPPORT SERVICES ARE PROVIDED WITHOUT FURTHER WARRANTY OF ANY KIND, AND AIRFOLD HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO THE AIRFOLD PLATFORM, AND/OR THE SUPPORT SERVICES OR ANY MATERIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. FOR THE AVOIDANCE OF DOUBT AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AIRFOLD SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE AIRFOLD PLATFORM AND THE SUPPORT SERVICES AND ANY MATERIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT THE AIRFOLD PLATFORM AND THE SUPPORT SERVICES ARE NOT DESIGNED OR INTENDED FOR USE IN HIGH RISK ACTIVITIES.8. INDEMNIFICATION
8.1 Airfold Obligations
Airfold will, at its expense, defend or settle any Infringement Claim (as defined in Exhibit A) and will indemnify Customer against and pay: (i) any settlement of such Infringement Claim consented to by Airfold; or (ii) any damages finally awarded by a court of competent jurisdiction to such third party as relief or remedy in such Infringement Claim. Airfold shall not enter into any settlement agreement with respect to an Infringement Claim if such settlement agreement requires any admission of liability or wrongdoing on the part of Customer or imposes on Customer any obligation other than the obligation to cease using the Airfold Platform or Support Services that are subject to the Infringement Claim, unless Customer has first consented in writing to the applicable terms of such settlement agreement that are in conflict with the foregoing limitations.8.2 Exclusions
Airfold will have no obligation to Customer to the extent any Infringement Claim or resulting award is based upon or results from: (i) use of the Airfold Platform other than in accordance with the terms and conditions of this Agreement; or (ii) the combination, operation, or use of the Airfold Platform with any other applications, portions of applications, products, or services not provided by Airfold, where there would be no Infringement Claim but for such combination.8.3 Certain Remedies
If the Airfold Platform is, or in Airfold’s reasonable opinion is likely to become, the subject of an Infringement Claim and/or an injunction as the result of an Infringement Claim, Airfold may, at its expense and option: (i) obtain the right for Customer to continue to use the Airfold Platform; (ii) modify the Airfold Platform to make it non-infringing, but substantially functionally equivalent; or (iii) in the event that neither (i) or (ii) are, in Airfold’s reasonable judgment, commercially reasonable options, terminate Customer’s right to use the Airfold Platform, in which case Airfold will promptly refund to Customer any pre-paid unused fees.8.4 Obligations of Customer
Except with respect to a matter addressed under Section 8.1 of this Agreement, Customer will, at its expense: (i) defend, or at its option settle, but subject to Airfold’s prior written consent, not to be unreasonably withheld, a claim brought against Airfold, its contractors, suppliers, licensors, and/or respective directors, officers, employees, and agents, arising out of or related to Customer’s use of the Airfold Platform in violation of applicable law or which results in the alleged infringement of the intellectual property rights of any third party; and (ii) indemnify Airfold against and pay (1) any settlement of such claim or (2) any damages finally awarded to such third party by a court of competent jurisdiction as the result of such claim.8.5 Conditions
The obligations of the parties in this Section 8 are conditioned upon the indemnified party (“Indemnitee”): (i) notifying the indemnifying party (“Indemnitor”) promptly in writing of any threatened or pending claim for which indemnification is being sought (“Claim”), provided that failure to provide such notice will only relieve Indemnitor of its obligations under this Section 8 to the extent its ability to defend or settle an applicable Claim is materially prejudiced by such failure to provide notice; (ii) giving Indemnitor, at Indemnitor’s expense, reasonable assistance and information requested by Indemnitor in connection with the defense and/or settlement of the Claim; and (iii) tendering to Indemnitor sole control over the defense and settlement of the Claim. Indemnitee’s counsel will have the right to participate in the defense of the Claim, at Indemnitee’s own expense. Indemnitee will not, without the prior written consent of Indemnitor, make any admission or prejudicial statement, settle, compromise, or consent to the entry of any judgment with respect to any pending or threatened Claim.8.6 Exclusive Remedy
THE FOREGOING PROVISIONS OF THIS SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF AIRFOLD, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, OR TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT, OR MISAPPROPRIATION OF ANY TRADE SECRET, BY THE AIRFOLD PLATFORM AND/OR THE SUPPORT SERVICES.9. LIMITATION OF LIABILITY
9.1 Excluded Damages
IN NO EVENT SHALL CUSTOMER OR AIRFOLD, OR THEIR RESPECTIVE AFFILIATES, BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.9.2 Damages Caps
EXCEPT WITH RESPECT TO: (I) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER (EXCLUDING A BREACH GIVING RISE TO A SECURITY INCIDENT); (II) THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREUNDER; (III) BREACHES ARISING OUT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (IV) VIOLATIONS OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (V) FEES OWED BY CUSTOMER TO AIRFOLD UNDER THIS AGREEMENT; (VI) CUSTOMER’S VIOLATIONS OF ITS OBLIGATIONS UNDER SECTION 1.2.3; AND (VII) SECURITY INCIDENTS, IN NO EVENT SHALL EITHER PARTY’S TOTAL, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO AIRFOLD UNDER AN APPLICABLE ORDER FORM FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST EVENT GIVING RISE TO LIABILITY. NOTWITHSTANDING THE FOREGOING SENTENCE, THE TOTAL LIABILITY OF AIRFOLD TO CUSTOMER RELATED TO OR ARISING OUT OF ANY TRIAL OR OTHER NON-PAID USE OF THE AIRFOLD PLATFORM, OR THE USE OF ANY NON-PRODUCTION FEATURES OF THE AIRFOLD PLATFORM, SHALL NOT EXCEED $10,000.9.3 Enhanced Damages
NOTWITHSTANDING SECTION 9.2 ABOVE, AIRFOLD’S TOTAL, CUMULATIVE LIABILITY UNDER THIS AGREEMENT RELATED TO OR ARISING FROM A SECURITY INCIDENT SHALL NOT EXCEED THE GREATER OF $100,000 OR TWO TIMES THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO AIRFOLD UNDER AN APPLICABLE ORDER FORM FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST EVENT GIVING RISE TO THE SECURITY INCIDENT.10. TERM AND TERMINATION
10.1 Order Form Term
Any Order Form entered into by the parties will commence upon the start date set forth therein and will expire on the end date set forth therein (“Order Form Term”).10.2 Agreement Term
This Agreement will commence upon the Effective Date and continue for so long as you are using the Airfold Platform (” Term”).10.3 Termination
Either party may terminate this Agreement (and any active Order Form) upon giving notice in writing to the other party if the non-terminating party commits a material breach of this Agreement and has failed to cure such breach within thirty (30) days following a request in writing from the notifying party to do so. Termination of this Agreement in accordance with the foregoing sentence will automatically terminate any existing Order Forms. In addition, either party may terminate this Agreement upon written notice to the other party if no Order Form is or will be active under the Agreement on the effective date of such termination.10.4 Survival
Upon the termination of this Agreement: (i) Customer shall have no further rights hereunder to use the Airfold Platform; and (ii) the provisions of Sections 2, 4, 6, 7, 8, 9, 10.4, and 11 of this Agreement will survive such expiration or termination.11. GENERAL
11.1 Anti-Corruption
Each party acknowledges that it is aware of, understands, and has complied and will comply with, all applicable U.S. and foreign anti-corruption laws, including without limitation, the U.S. Foreign Corrupt Practices Act of 1977 and the U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws (“Anti-Corruption Laws”). Each party agrees that no one acting on its behalf will give, offer, agree or promise to give, or authorize the giving directly or indirectly, of any money or other thing of value, including travel, entertainment, or gifts, to anyone as an unlawful inducement or reward for favorable action or forbearance from action or the exercise of unlawful influence.11.2 Assignment
Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, provided that no such consent will be required to assign this Agreement in its entirety to: (i) an Affiliate that is able to satisfy the obligations of the assigning party under this Agreement; or (ii) a successor in interest in connection with a merger, acquisition, or sale of all or substantially all of the assigning party’s assets. Any assignment in violation of this Section shall be void, ab initio, and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by, the parties and their respective permitted successors and assigns.11.3 Attorneys’ Fees
If any action or proceeding, whether regulatory, administrative, at law, or in equity is commenced or instituted to enforce or interpret any of the terms or provisions of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover its reasonable attorneys’ fees, expert witness fees, costs of suit, and expenses, in addition to any other relief to which such prevailing party may be entitled.11.4 Customer Identification
Customer agrees that Airfold may identify Customer as a user of the Airfold Platform on its website, through a press release issued by Airfold, and in other promotional materials and may use Customer’s name, logo, trademarks, and service marks in connection with such activities, subject to Customer’s reasonable brand guidelines as provided to Airfold.11.5 Export Control and Sanctions Compliance
Customer acknowledges that the Airfold Platform and the Support Services and technologies related thereto are subject to the Export Administration Regulations (“EAR”) and the economic sanctions regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control. Customer is now and will remain in the future compliant with all such export control laws and regulations, and will not export, re-export, otherwise transfer any Airfold goods, software, or technology or disclose any Airfold software or technology to any person contrary to such laws or regulations.11.6 Force Majeure
Except with respect to payment obligations, neither party will be liable for, or be considered to be in breach of, or in default under, this Agreement, as a result of any cause or condition beyond such party’s reasonable control.11.7 Future Features and Functions
Customer understands and agrees that any features or functions of the Airfold Platform referenced on any Airfold website, or in any presentations, press releases, or public statements, which are not currently available or not currently available as a generally available release, may not be delivered on time or at all. The development, release, and timing of any features or functionality described for the Airfold Platform remains at Airfold’s sole discretion. Accordingly, Customer agrees that it is purchasing the Airfold Platform based solely upon features and functions that are currently available as of the Effective Date, and not in expectation of any future feature or function.11.8 Governing Law, Jurisdiction, and Venue
This Agreement will be governed by the laws of the State of Delaware, without regard to its conflict of laws principles, and all suits hereunder will be brought solely in Federal Court for the District of Massachusetts, or if that court lacks subject matter jurisdiction, in any Massachusetts State Court located in Middlesex County, Massachusetts. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable courts set forth above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense. A breach or threatened breach, by either party of Section 6 may cause irreparable harm for which damages at law may not provide adequate relief, and therefore the non-breaching party shall be entitled to seek injunctive relief without being required to post a bond.11.9 Non-waiver
Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such party’s right to assert or rely upon such provision, right, or remedy in that or any other instance.11.10 Notices
Any notice or other communication under this Agreement shall be in writing unless required or permitted otherwise elsewhere in this Agreement. Notices for Airfold will be sent to legal@airfold.co. Notices to Customer will be sent to the email address provided by Customer when registering for an Account. Such notices will be deemed delivered if acknowledged received by return email or, if an Order Form exists, if followed within one day by a mailed copy of such notice to the physical address specified as the bill-to on an applicable Order Form.11.11 Relationship of the Parties
The relationship of the parties hereunder shall be that of independent contractors, and nothing herein shall be deemed or construed to create any employment, agency, or fiduciary relationship between the parties. Each party shall be solely responsible for the supervision, direction, control, and payment of its personnel, including, without limitation, for taxes, deductions and withholdings, compensation and benefits, and nothing herein will be deemed to result in either party having an employer-employee relationship with the personnel of the other party.11.12 Severability
If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to give effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.11.13 Entire Agreement; Amendment
This Agreement, the Support Services Policy, and the DPA where applicable, each of which is hereby incorporated herein by this reference, constitutes the entire agreement between the parties concerning the subject matter hereof, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the same agreement. By entering into this Agreement, whether prior to or following receipt of any Customer purchase order or similar document, the parties are hereby expressly showing their intention not to be contractually bound by the contents of any such purchase order or similar document, which are hereby deemed rejected and extraneous to this Agreement, and Airfold’s performance of this Agreement shall not amount to: (i) an acceptance by conduct of any terms set out or referred to in the purchase order or similar document; (ii) an amendment of this Agreement; nor (iii) an agreement to amend this Agreement. This Agreement shall not be modified except by a subsequently dated, written amendment that expressly amends this Agreement and which is signed on behalf of Airfold and Customer by their duly authorized representatives.EXHIBIT A - DEFINITIONS
Capitalized terms used herein have the meaning ascribed below, or where such terms are first used, as applicable.- “Acceptable Use Policy” means Airfold’s acceptable use policy.
- “Affiliate” means, with respect to a party, any entity that controls, is controlled by, or which is under common control with, such party, where “control” means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity, or the contractual right to establish policy for, and manage the operations of, the entity.
- “Airfold Security Standards” means the security standards set forth in the Airfold Security Addendum.
- “Customer Data” means any and all information, content, and data ingested into the Airfold Platform by Customer and/or its Authorized Users.
- “Documentation” means the end user documentation for the Airfold Platform published at docs.airfold.co.
- “DPA” means the Airfold Customer Data Processing Addendum.
- “Effective Date” means the date on which this Agreement is fully executed.
- “High Risk Activities” means activities where the use or failure of the Airfold Platform would reasonably be expected to lead to death, personal injury, or environmental or property damage (such as the creation or operation of nuclear facilities, air traffic control, life support systems, or weaponry).
- “Infringement Claim” means a claim brought against Customer by an unaffiliated third party alleging that Customer’s use of the Airfold Platform in accordance with this Agreement, during the applicable Term, infringed such party’s patent, copyright, or trademark, or made unlawful use of such party’s trade secret.
- “Malicious Code” means any code that is designed to harm, or otherwise disrupt in any unauthorized manner, the operation of computer programs or computer systems or destroy or damage data. For clarity, Malicious Code does not include any software bugs or errors handled through Support Services, or any standard features or functions that are intended to enforce the temporal and/or other limitations on the scope of the use of the Airfold Platform.
- “Order Form” means an ordering document provided by Airfold pursuant to which Customer, or a Reseller acting on Customer’s behalf, purchases a Subscription Plan under this Agreement.
- “Qualifying PO” means a purchase order issued by customer for the purpose of purchasing a Subscription Plan, which: (i) references the number of an applicable Order Form provided to Customer by Airfold; and (ii) clearly states the purchase order is subject to the terms and conditions of this Agreement.
- “Reseller” means a third party authorized by Airfold to promote and resell the Airfold Platform.
- “Security Incident” means Airfold’s breach of Section 5.1 (Airfold Security), Section 5.3 (Data Processing), or a breach of Section 6.2 (Non-use and Non-disclosure), which breach results in the unauthorized disclosure of Customer Data.
- “Support Services” means maintenance and support services for the Airfold Platform, as more fully described in the Support Services Policy.
- “Support Services Policy” means Airfold’s support services policy for the Airfold Platform.
- “Subscription Plan” means the specific Airfold Platform subscription package purchased by Customer through an Order Form, which details the features, capacity, and pricing applicable to Customer’s use of the Airfold Platform.