These Terms are subject to change without notice. Effective Date: May 3, 2018
ATTENTION: READ CAREFULLY BEFORE USE OF THE AIRCLASS SERVICE.
THIS AGREEMENT GOVERNS YOUR SUBSCRIPTION TO AND USE OF AIRCLASS
BY ACCEPTING THE AIRCLASS TERMS OF SERVICE (“TERMS OF SERVICE”), EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS OF SERVICE, YOU AGREE TO THE TERMS OF SERVICE AND THE AGREEMENT AS DEFINED BELOW. IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE AND AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILAITES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” AND “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THESE TERMS OF SERVICE AND MAY NOT USE THE SERVICES.
The Airclass Terms of Service (“Terms of Service”) apply to the Stoneware AirClass service (“AirClass”), which is developed by Stoneware, Inc. (“Stoneware” “we” or “us”), and is to be used as a web-based service by Stoneware customers, subscribers and other authorized users. These Terms of Service, along with the AirClass Privacy Statement, www.airclass.com/privacy-statement, form the entire legal agreement between you and Stoneware, governing your use of AirClass (collectively “Agreement”). Your use of AirClass constitutes your consent to all of the terms of this Agreement.
1. Ownership and License.
As between you and Stoneware, you own:
● Any computer hardware, including, but not limited to, computers, tablets, smartphones, that you use to access and use AirClass.
● User-generated content like photos, music, videos, and third-party applications you may install on your hardware.
As between you and Stoneware, we own:
● Applications, software, and services, such as AirClass, that we have developed and made available for your use.
● Websites you may use to access AirClass and all content published on them.
● The names “Stoneware” and any other logos, names, and other marks used to identify Stoneware AirClass.
AirClass and other Stoneware software applications and services are protected by United States and international laws and treaties protecting patents, trademarks, copyrights, and other intellectual property. Subject to applicable laws and the rights granted to you under this Agreement, AirClass consists of Stoneware’s proprietary information. This Agreement gives you no rights other than those stated in its terms. Your license to use AirClass will terminate if you use AirClass in any manner that violates this Agreement, any applicable law, or any rights of Stoneware. We reserve the right to use any lawful means to prevent unauthorized use of AirClass, such as technological barriers, IP mapping, and contacting your Internet Service Provider or wireless carrier.
Except as described in this Agreement you do not own AirClass, but only have a limited, non-exclusive, revocable license to use AirClass as permitted by this Agreement.
The U.S. Government acknowledges Stoneware’s representation that AirClass and its documentation were developed at private expense and is not in the public domain and that the software components of AirClass are Restricted Computer Software as the term is defined in Clause 52.227-19(FAR) and is Commercial Computer Software as that term is defined in Subpart 227-471 (DFARS).
Where applicable, use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights of Technical Data and Computer Software clause as DFARS 252.227-7013. Contractor/manufacturer is Stoneware, Inc. at 11555 N. Meridian St., Suite 150, Carmel, IN 46032.
2. Changes to Stoneware AirClass.
We may update, modify, enhance, suspend, or cease making available AirClass at any time including, without limitation, automatically delivering new versions or features to your Stoneware products, applications, software and services when they become available and removing them from application stores at our sole discretion. Where AirClass depends on interaction with Stoneware operated online services, we may also disable functionality of such an experience at any time and for any reason.
3. Prohibited Uses.
You may use AirClass provided to you under the terms of this Agreement solely as provided to you and without modification. You may not use, or encourage, promote, facilitate or instruct others to use AirClass for any illegal, harmful, or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive. You may not make network connections to any users, hosts, or networks unless you have permission to communicate with them.
Prohibited uses of AirClass included, but are not limited to:
● Use in any way that violates copyright or any other applicable law.
● For any illegal activities, including advertising, transmitting, or otherwise making available gambling sites or services or disseminating, promoting or facilitating child pornography.
● For harmful or fraudulent activities. Activities that may be harmful to others, our operations or reputation, including offering or disseminating fraudulent goods, services, schemes, or promotions (e.g., make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming), or engaging in other deceptive practices.
● To provide content that infringes or misappropriates the intellectual property or proprietary rights of others.
● To provide content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable, including content that constitutes child pornography, relates to bestiality, or depicts non-consensual sex acts.
● To violate the security or integrity of any network, computer, communications system, software application, or network or computing device.
● To create any information or content that contains computer viruses or any other computer code, files or programs designed to destroy, interfere, overload, interrupt or otherwise limit the functionality of any computer software, computer hardware or other equipment.
● In a manner that could damage, disable, overburden, disrupt or impair the service or any Stoneware owned network or system.
● To interfere with anyone else's ability to lawfully access and use AirClass to access any communications, content, or other information to which you do not have rights.
● To modify AirClass (electronically or otherwise) on your computers or mobile devices, or make any copies, adaptations, derivative works, transcriptions, or merge any portion thereof, except as may be installed by their automated installation functions.
● To decompile, disassemble, decrypt, reverse engineer, translate, or otherwise attempt to derive the source code of AirClass or otherwise alter AirClass.
● Without permission, including attempting to probe, scan, or test the vulnerability of AirClass or to breach any security or authentication measures.
● Use of AirClass to provide services to third parties.
● Transfer or resell any of the rights granted to you by these Terms of Service.
If you become aware of any violation of prohibited uses set forth in this Section 3, you will immediately notify Stoneware and provide Stoneware with assistance, as requested, to stop or remedy the violation.
Stoneware reserves the right, but does not assume the obligation, to investigate any violation of the prohibited uses or misuse of AirClass. Stoneware may: 1) investigate violations of the prohibited uses provided herein; or 2) remove, disable access to, or modify any content or resource that violates this Agreement. Stoneware may report any activity that it suspects violates any law or regulation to the appropriate law enforcement authorities. Stoneware’s reporting may include disclosing appropriate customer information to the extent permissible under applicable law. Stoneware may also cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to the alleged violations.
4. Responsibility for Use.
You are responsible for your own use of AirClass and all information that you associate with it. We expressly disclaim all responsibility for and all warranties (express, written or implied) related to the accuracy, completeness, safety, reliability, or lawfulness of AirClass. By using AirClass, you acknowledge that your use of AirClass is at your own risk. You agree to comply
with all applicable laws. If you are entering into this Agreement on behalf of a company or other legal entity, you agree that the company or legal entity you represent shall obtain the express written consent of any individual to whom it provides access to AirClass prior to processing of that individual’s data. Airclass accepts no liability for any failure on your part to comply with applicable laws or the requirements of this section of the Agreement.
5. Privacy, Children & Eligibility: The following requirements apply for and to the extent AirClass customers use AirClass as a resource for children under the age of 18. Please review the entire AirClass Privacy Statement, www.airclass.com/privacy-statement, which describes Stoneware’s collection, use and protection of user information collected via AirClass, as well as the AirClass Emotion Insights embedded feature that incorporates use of Applied Recognition, Inc.’s gesture analytics solution. Where children under the age of 18 are concerned, Stoneware requires that the district, school, institution, instructor and/or teacher agree to these Terms of Service and the AirClass Privacy Statement, www.airclass.com/privacy-statement. Stoneware requires that the district, school, institution, instructor and/or teacher comply with all requirements set forth under applicable law, including, the Children’s Online Privacy Protection Act (COPPA) in the United States, European Data Protection laws and its General Data Protection Regulations. In particular, Stoneware requires that the district, school, institution, instructor and/or teacher acquire parents’ or guardians’ written consent by signing the AirClass Parental Consent Form, available at www.airclass.com/privacy/permission-form prior to allowing children to use AirClass. The district, school, institution, instructor and/or teacher are responsible for keeping all signed AirClass Parental Consent Forms on file and making them available upon request by Stoneware or where applicable, an appropriate governmental authority. Additional information on COPPA is available at: https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions. If a user of AirClass is under the age of 18 and the parents or guardians have not provided written consent, information may not be submitted through AirClass or through any other means to Stoneware. If a child under the age of 18 submits personal information to Stoneware without the written consent of parents or guardians, we will delete the information as soon as we discover it was provided by a child under 18 years of age and do not use it for any purpose. Stoneware encourages parents to take an active role in their children's use of the Internet and mobile applications and to inform them of the potential dangers of providing information about themselves.
BY USING AIRCLASS, YOU REPRESENT THAT YOU ARE OF LEGAL AGE IN YOUR COUNTRY OF RESIDENCE OR THAT YOU HAVE YOUR PARENT'S OR LEGAL GUARDIAN'S WRITTEN CONSENT TO USE STONEWARE AIRCLASS, AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR PROHIBITED FROM USING AIRCLASS. YOUR LICENSE TO USE AIRCLASS TERMINATES AUTOMATICALLY AND RETROACTIVELY IF YOU ARE UNDER THE LEGAL AGE FOR YOUR COUNTRY OF RESIDENCE AND DO NOT HAVE THE WRITTEN CONSENT OF YOUR PARENT OR LEGAL GUARDIAN TO USE AIRCLASS, OR IF YOUR USE OF AIRCLASS HAS BEEN PREVIOUSLY SUSPENDED OR PROHIBITED.
6. Free Trial Period
If you are using AirClass as part of a no-cost trial (“Free Trial”), the length of your Free Trial is not guaranteed for any period of time. In the event that you are using AirClass as a Free Trial, your Free Trial ends at the earlier of a) the time specified by Stoneware in association with the Free Trial, b) the time your paid subscription begins, as initiated by your submitting a purchase order for the product, or c) at any time in Stoneware’s sole discretion, subject to applicable law.
7. Disclaimer of Warranties and Limitations on Liability.
Stoneware is not responsible for (i) delays in delivery or use of AirClass or in providing support services, no matter who caused the delay; (ii) damages from, or performance prevented by, any cause not within our reasonable control, or for losses resulting from negligence, intentional wrongdoing or other actions or omissions of you or your employees or agents; or (iii) damages from our access, use, transmission or sublicensing, whether directly or indirectly, of your data, the loss of data, or the re-input of lost data for any reason, including failure of AirClass or support services. It is your responsibility to back-up your data on a daily basis and to provide off-site back-up storage.
TO THE EXTENT PERMITTED BY LAW AND EXCEPT AS PROVIDED TO THE CONTRARY IN THIS AGREEMENT OR A SEPARATE WARRANTY AGREEMENT, WE PROVIDE AIRCLASS“AS-IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. WE ALSO DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, WRITTEN OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE; UNINTERUPTED OPERATION WITHOUT ERROR; FREE OF HARMFUL COMPONENTS; ANY CONTENT, INCLUDING YOUR CONTENT OR THIRD PARTY CONTENT WILL BE SECURE AND NOT OTHERWISE LOST OR DAMAGED; AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY STONEWARE AND ITS AFFILIATES, ITS EMPLOYEES, DISTRIBUTORS, DEALERS OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE MINIMUM PERMITTED BY YOUR JURISDICTION. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION.
YOUR USE OF AIRCLASS DOES NOT, IN ANY WAY WHATSOEVER, EXTEND ANY OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES THAT APPLY TO STONEWARE PRODUCTS.
By using AirClass, you agree that, to the extent permitted by law, we will have no liability for any special, indirect, or consequential damages that you may sustain from your use of AirClass, whether due to loss of data or profits, negligence, breach of contract, or otherwise. The total aggregate liability of Stoneware, its affiliates and suppliers shall be limited to the amounts paid or payable by you to Stoneware for use of AirClass under this Agreement in the six (6) month period prior to the date when the cause of action arose. This limitation applies under contract, tort, strict liability, or any other legal theory.
To the extent permitted by law, you assume all risks concerning the suitability and accuracy of the information that you send or receive using AirClass. AirClass may contain technical inaccuracies or typographical errors. We assume no responsibility for any such inaccuracies, errors, or omissions associated with AirClass.
AirClass does not guarantee or monitor your health, safety, or security. We make no claim that AirClass will work effectively in case of an emergency. AirClass is not a replacement for any current emergency, automated emergency or other emergency system, hardware or software and are not intended to diagnose or treat any specific medical condition. AirClass is not fault-tolerant and is not designed, manufactured or intended for use in hazardous environments requiring fail-safe performance where a failure of AirClass could lead directly or indirectly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). You agree that we will not be responsible for any injury, environmental damage, or property damage arising out of your use of AirClass in High Risk Activities.
Stoneware will not be responsible for the actions of any individual or any accident that results while using or attempting to use AirClass. FAILURE OF AIRCLASS DOES NOT CONSTITUTE AN OPPORTUNITY TO HOLD STONEWARE OR ITS AFFILIATES LIABLE FOR ANY DAMAGES. TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, YOU AND YOU ALONE ARE RESPONSIBLE FOR THE CONSEQUENCES OF USING AIRCLASS.
8. Indemnity. You agree to indemnify, defend, and hold harmless Stoneware and its affiliates, officers, agents, co-branders, partners, and employees from any third party claim or demand (including but not limited to damages, litigation costs, and reasonable attorney's fees) that relates to your use of AirClass or your violation of this Agreement. We reserve the right to assume the exclusive defense and control of any dispute in which you must indemnify us, and you agree to cooperate with our defense and settlement of these claims. We will use reasonable efforts to notify you of any such disputes once we become aware of them.
9. Term and Termination. You may use AirClass so long as you do not violate these Terms of Service or any applicable law. We reserve the right to: (1) limit or terminate your use of AirClass at any time if we determine in good faith concern that such use a) violates an applicable law or these Terms of Service; or b) may subject Stoneware and its affiliates to liability; and (2) inform law enforcement of any illegal activity or material relating to use of AirClass and where applicable law allows provide law enforcement officials with all requested information we may have, including but not limited to the name, phone number, and email addresses of any user account suspected of illegal activity.
10. Trademarks. STONEWARE is a registered trademark of Stoneware, Inc. All other product or service names are the property of their respective owners. You may not alter, obscure, or render unclear any trademark, logo, or other notice that indicates the rights of Stoneware or our licensors and suppliers, whether built into AirClass, printed on packaging or promotional material, published online, or otherwise.
11. Notices. We may be required by applicable law to notify you of certain events. In addition, we may need to notify you from time to time regarding changes to this Agreement or AirClass. Such notices will be effective upon our posting them to our website, your installation or use of any updates to AirClass, or our delivery of a notice to you by email, postal mail, or other means as required by law. If you do not provide us with accurate information to contact you, we will not be held liable if we fail to notify you.
You consent to receiving any notices regarding the Agreement or any notice required by law, including notice of a breach of security involving your personally identifiable information, through an email message or other electronic communication.
Any notices that we send to you by email will be sent to the email address you provided when you registered for an account or any email address in your profile.
12. Overpayments. In the event of overpayment on your account, Stoneware will apply the overpayment in the following manner. Overpayment will first be applied to any unpaid balances currently existing on the account. Should there be remaining overpayment following such application, that amount will then be applied to any future balances due within the twelve (12) month period following the date of the overpayment. Remaining overpayment amounts greater than ten dollars ($10.00) but less than one hundred dollars ($100.00) will then be refunded following the aforementioned subsequent twelve-month period. In the event that a remaining overpayment is ten dollars ($10.00) or less, Stoneware, in its sole discretion, may elect to not issue a refund of such amount and you hereby agree to relinquish the right to any such funds.
13. General information. This Agreement supersedes any prior agreements between you and Stoneware relating to your use of AirClass.
By using AirClass, you agree that the statutes and laws of the State of Indiana, without regard to any principles of conflicts of law, will apply to all matters relating to your use of AirClass. You also agree that any litigation will be subject to the exclusive jurisdiction of the state courts of Indiana. You consent to the personal jurisdiction of those courts. Our failure to exercise or enforce any right or provision of this Agreement does not waive our right to exercise or enforce our rights in the future. If any court finds a provision of these terms and conditions or the AirClass Privacy Statement to be invalid, then you agree that the court should endeavor to give effect to the intentions as reflected in the provision, and that the other provisions of this Agreement will remain in full force and effect.