Version Effective Date: July 30, 2014

READ THIS AGREEMENT CAREFULLY.

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.

IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT ACCEPT THIS AGREEMENT AND DO NOT INSTALL OR USE THE SOFTWARE. YOU WILL NOT BE GIVEN ACCESS TO THE SOFTWARE UNLESS YOU ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU HAVE PAID A LICENSE FEE FOR USE OF THE SOFTWARE AND DO NOT AGREE TO THESE TERMS, YOU MAY RETURN THE SOFTWARE FOR A FULL REFUND PROVIDED YOU (A) DO NOT USE THE SOFTWARE AND (B) RETURN THE SOFTWARE WITHIN THIRTY (30) DAYS OF YOUR INITIAL PURCHASE.

THIS AGREEMENT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM AEROFS. READ IT CAREFULLY.

IF YOU ARE USING THE SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSES GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

This Private Cloud Software End User Agreement (the “Agreement”) is entered into by and between Air Computing, Inc. (“AeroFS”) and the entity or person placing an order or accessing the Software (as defined below) (“Customer”). The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Software through any online provisioning, registration, or order process or (b) the effective date of the first Order Form (as defined below) referencing this Agreement. The Agreement consists of the terms and conditions set forth below, any attachments or exhibits identified below and Order Forms which reference this Agreement.

This Agreement permits Customer to purchase software Subscriptions (as defined below) and related services from AeroFS pursuant to AeroFS order forms referencing this Agreement (which may consist of an online registration or order form) (“Order Form(s)”), and sets forth the basic terms and conditions under which those Subscriptions and services will be delivered. This Agreement shall govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer which reference this Agreement.

Purchases Through Resellers: If Customer purchased a Subscription through an authorized reseller of AeroFS (“Reseller”), Customer’s use of the Software shall also be covered by this Agreement, subject to Section 12.16 (Purchase from Reseller) below.

Free Access:If you receive free access to the Software, you are deemed a “Customer” under this Agreement except you are subject to the restrictions and limitations of Section 1.8 (Unpaid Subscriptions) below.

Modifications to this Agreement: From time to time, AeroFS may modify this Agreement. Unless otherwise specified by AeroFS, changes become effective for existing Subscription customers upon renewal of the then-current Subscription Term (for example, if Customer is on a monthly Subscription Term (as defined below), then the modified Agreement applies starting from the beginning of the next month after it is posted). AeroFS will use reasonable efforts to notify Customer of the changes through communications through Customer’s AeroFS account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before using the Software in a renewal Subscription Term, and in any event continued use of the Software during the renewal Subsciption Term will constitute Customer’s acceptance of the version of the Agreement in effect at the time the renewal Subscription Term begins.

Each party expressly agrees that this Agreement is legally binding upon it.

1. AeroFS Software.

The AeroFS Private Cloud software (the “Software”) is designed to allow file sharing and syncing across multiple computers and devices. The Software consists of (i) the AeroFS Appliance Software which is installed on a customer’s computers to manage and authenticate end users and (ii) the AeroFS Client Software which is installed on end user computers or devices to enable file sharing and syncing. The Software is provided on a subscription basis (each, a “Subscription”).

1.1 Orders and Delivery.

1.1.1 Order Forms.

Customer may purchase a Subscription to the Software by executing or otherwise electronically agreeing to an Order Form. No Order Form shall be binding until accepted in writing by AeroFS.

1.1.2 Subscription Term and Renewals.

Unless otherwise specified on the applicable Order Form, the term of any Subscription shall be twelve (12) months commencing on the Subscription start date specified on the applicable Order Form (the “Subscription Term”). If no Subscription start date is specified on the applicable Order Form, the Subscription start date shall be the date the Software is first made available by AeroFS to Customer for download. Unless this Agreement is terminated earlier in accordance with its terms, the Subscription Term will automatically renew upon expiration for additional successive one (1) year terms unless either party gives the other party prior written notice of cancellation at least thirty (30) days prior to the expiration of the then-current term.

1.1.3 Delivery.

All Software and Documentation (as defined in Section 1.2 below) shall be delivered by electronic means by download from a URL provided by AeroFS unless otherwise specified on the applicable Order Form.

1.2 Grant of License.

Subject to all of the terms and conditions of this Agreement, AeroFS grants to Customer during the applicable Subscription Term a non-transferable, non-sublicensable, non-exclusive license to use the object code form of the particular Software specified in an Order Form, but only to support the number of End Users specified in the applicable Order Form and otherwise in accordance with (a) the technical specification documentation generally made available by AeroFS to its customers with regard to the Software (“Documentation”), (b) this Agreement and (c) any other restrictions specified in the applicable Order Form. “Software”shall also include any Documentation and any releases of the same Software product provided to Customer under this Agreement.

1.2.1 Administrative Users.

An “Administrative User” is an employee or Contractor (defined in Section 1.5 below) of Customer whom Customer has authorized to install, use and operate the Software. Administrative Users may use any element of the Software. There is no limit on the number of Administrative Users.

1.2.2 End Users.

An “End User” is an individual end user of the Client Software (defined in Section 1.3 below) whom Customer provisions with an account based on a unique e-mail address. End Users may only use Client Software. No more than one individual may use or access the Software through a single End User account. End Users who can create shared file folders are “Registered Users”. End Users who cannot create shared file folders are “Restricted Users”. Each Restricted User must have a unique e-mail address which is not controlled by Customer or provisioned under Customer’s domain.

1.3 Client Software.

The Software includes the AeroFS Client software (the “Client Software”), which must be installed on an End User’s computer, mobile phone or other device in order to enable file sharing and syncing to or from that device. Each End User will need to download and install the Client Software after being authenticated by Customer. Certain versions of the Client Software may be made available by AeroFS to Customer for direct distribution to End Users and other versions for certain devices may only be available for download through third-party app stores. If a End User is not an employee or Contractor of Customer, use of the Client Software by such End User will be subject to the terms of AeroFS’ standard end user license agreement for Client Software. Use of the Client Software by End Users who are Customer’s employees or Contractors shall be subject to Customer’s license grant under this Agreement.

1.4 Installation and Copies.

Except for Client Software or as otherwise specified on the applicable Order Form, Customer may copy and install one copy of the Software on computers under Customer’s control for use only by Customer’s Administrative Users. Customer may also make a reasonable number of copies of the Software for back-up and archival purposes. Client Software may be deployed to as many devices as necessary to support Customer’s total number of permitted End Users.

1.5 Use by Affiliates and Contractors.

Subject to the terms and conditions of this Agreement, Customer’s Affiliates and Contractors may use the licenses granted to Customer, provided that (a) such use is only for Customer’s or such Affiliate’s benefit, (b) Customer agrees to remain responsible for each such Affiliate’s and Contractor’s compliance with the terms and conditions of this Agreement and (c) upon request Customer will identify each such Affiliate and Contractor. Use of the Software by the Affiliates, Contractors and Customer in the aggregate must be within the restrictions in the applicable Order Form. “Affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity. The Affiliate rights granted in this section shall not apply to any “enterprise wide” licenses unless Affiliate usage is designated in the applicable Order Form. “Contractor” means any third party employed by Customer to perform services on behalf of Customer.

1.6 License Management Solution.

The Software utilizes a license management solution which enables use of the Software as purchased by Customer in accordance with the applicable Order Form (including as with respect to Subscription Term and number of End Users). The license management solution may prevent further user login, availability of certain functionality or setup of new devices or users until a valid license is obtained by Customer from AeroFS.

1.7 License Restrictions.

Customer shall not (and shall not allow any third party to):

  1. decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to AeroFS);
  2. distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, service provider or like purposes;
  3. remove any product identification, proprietary, copyright or other notices contained in the Software;
  4. modify any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software, except to the extent expressly authorized in writing by AeroFS; or
  5. publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software.

1.8 Unpaid Subscriptions.

Customer may access and use the Software without charge for up to thirty (30) End Users in accordance with the terms and conditions of this Agreement (an “Unpaid Subscription”). AeroFS has the right to terminate any Unpaid Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AEROFS WILL HAVE NO WARRANTY, INDEMNITY, OR SUPPORT OBLIGATIONS WITH RESPECT TO UNPAID SUBSCRIPTIONS. If Customer wishes to use the Software with additional End Users, then Customer must purchase a paid subscription and all of the terms and conditions in this Agreement will apply to such purchase and to Customer’s use of the Software.

2. Ownership

.Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, AeroFS and its suppliers have and will retain all rights, title and interest in and to the Software (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works thereof. Any and all suggestions, reports, ideas for improvement and other feedback of any type provided by Customer regarding the Software are the sole property of AeroFS and AeroFS may use such information in connection with any of its products or services without any obligation or restriction based on intellectual property rights or otherwise. Customer acknowledges that it is obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise.

3. Payment.

All payments are non-refundable (except as expressly set forth in this Agreement) and shall be made in U.S. dollars within thirty (30) days of the effective date of the applicable Order Form, unless otherwise specified in the applicable Order Form. Customer shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of AeroFS). Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

4. Term of Agreement.

4.1 Term.

This Agreement is effective as of the Effective Date and expires on the day that the Subscription Terms for all Software licensed hereunder have expired. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

4.2 Termination.

Upon any expiration or termination of this Agreement, Customer shall cease any and all use of any Software and destroy all copies thereof and so certify to AeroFS in writing.

4.3 Survival.

Sections 1.7 (License Restrictions), 2 (Ownership), 3 (Payment), 4 (Term of Agreement), 5.3 (Disclaimer), 8 (Limitation of Remedies and Damages), 10 (Confidential Information) and 12 (General) shall survive any termination or expiration of this Agreement.

5. Limited Warranty and Disclaimer.

5.1 Limited Warranty.

AeroFS warrants to Customer for Customer’s benefit only that the Software will operate in substantial conformity with the Documentation during the Subscription Term. AeroFS’ sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in AeroFS’ sole discretion, to correct the reported non-conformity, to replace the non-conforming Software with conforming Software, or if AeroFS determines such remedies to be impracticable within a reasonable period of time, to terminate the Agreement and refund the portion of the Subscription fees pre-paid for the Software for the terminated portion of the applicable Subscription Term.

5.2 Exclusions.

The above warranty shall not apply: (a) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity; (b) if the Software is used with hardware or software not specified in the Documentation; (c) if any modifications are made to the Software by Customer or any third party; (d) to defects in the Software due to accident, abuse or improper use by Customer; or (e) to Unpaid Subscriptions or other services or items provided on a no charge or evaluation basis.

5.3 Disclaimer.

THIS SECTION 5 CONTAINS A LIMITED WARRANTY AND EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5 THE SOFTWARE AND ALL SERVICES ARE PROVIDED “AS IS”. NEITHER AEROFS NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. AEROFS DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER ACKNOWLEDGES THAT ALL SECURITY SOLUTIONS HAVE INHERENT LIMITATIONS AND THAT AEROFS WILL NOT BE LIABLE FOR ANY FAILURE OF SECURITY OR ENCRYPTION MEASURES OR FOR ANY UNAUTHORIZED ACCESS TO ANY FILES OR DATA. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

6. Support & Maintenance.

AeroFS shall provide the support and maintenance services set forth at https://support.aerofs.com/ (“Support and Maintenance”) during the Subscription Term provided Customer has paid the applicable Subscription Fee.

7. Professional Services.

AeroFS shall provide the number of person-days of professional consulting services (“Professional Services”) purchased in the applicable Order Form. The parties acknowledge that the scope of the Professional Services provided hereunder consists solely of either or both of: (a) assistance with Software installation, deployment, and usage; or (b) development or delivery of additional related AeroFS copyrighted software or code. Customer shall have a license right to use anything delivered as part of the Professional Services subject to the terms of its license to use the Software, but AeroFS shall retain all right, title and interest in and to any such work product, code or Software and any derivative, enhancement or modification thereof created by AeroFS (or its agents). Professional Services may be ordered by Customer pursuant to a Statement of Work (“SOW”) describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information. Each SOW must be signed by both parties before AeroFS shall commence work under such SOW. If the parties do not execute a separate Statement of Work, the Services shall be provided as stated on the Order Form. Customer will reimburse AeroFS for reasonable travel and lodging expenses as incurred.

8. Limitation of Remedies and Damages.

8.1 NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

8.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AEROFS’ AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT ACTUALLY RECEIVED BY AEROFS FOR SOFTWARE AND RELATED SERVICES PROVIDED PURSUANT TO THIS AGREEMENT.

8.3 THIS SECTION 8 SHALL NOT APPLY TO CUSTOMER WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED “GRANT OF LICENSE,” “LICENSE RESTRICTIONS” OR “CONFIDENTIAL INFORMATION”.

8.4 The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

9. Indemnification.

AeroFS shall defend Customer from and against any claim by a third party alleging that the Software when used as authorized under this Agreement infringes a U.S. patent, U.S. copyright, or U.S. trademark and shall indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by AeroFS (including reasonable attorneys’ fees) resulting from such claim, provided that AeroFS shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for AeroFS to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. Customer shall not settle or make any admissions with respect to a claim without AeroFS’ prior written consent. If Customer’s use of the Software is (or in AeroFS’ opinion is likely to be) enjoined, if required by settlement or if AeroFS determines such actions are reasonably necessary to avoid material liability, AeroFS may, in its sole discretion: (a) substitute for the Software substantially functionally similar programs and documentation; (b) procure for Customer the right to continue using the Software; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to Customer a pro rata portion of the Subscription fees pre-paid by Customer for the terminated period. The foregoing obligations of AeroFS shall not apply: (1) if the Software is modified by any party other than AeroFS, but solely to the extent the alleged infringement is caused by such modification; (2) if the Software is combined with products or processes not provided or authorized by AeroFS, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Software; (4) to the extent the alleged infringement is not caused by the particular technology or implementation of the Software, but instead by features common to any similar software; (5) to any unsupported release of the Software; or (6) to any Open Source Software (defined in Section 12.14 below) contained within, combined with or provided with the Software. THIS SECTION 9 SETS FORTH AEROFS’ AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

10. Confidential Information.

Each party (“Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by AeroFS (or its agents), performance information relating to the Software, and the terms of this Agreement shall be deemed Confidential Information of AeroFS without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by employees of the Receiving Party who had no access to such information. Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

11. Co-Marketing.

Unless otherwise agreed in writing by Customer and AeroFS, AeroFS may refer to Company by trade name and trademark, use Company’s trademarks, and may briefly describe Company’s business, in its marketing materials, customer references, promotions, and web sites, in each case without the prior written consent of Customer.

12. General.

12.1 Assignment.

This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party shall assign this Agreement (or any part thereof) without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.1 will be null and void.

12.2 Severability.

If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

12.3 Governing Law; Jurisdiction and Venue.

This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). Customer agrees to submit to the personal jurisdiction of the state and federal courts located in Santa Clara County, California for any actions for which a party seeks to retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction as set forth in Section 12.4 below, including any provisional relief required to prevent irreparable harm. The parties agree that Santa Clara County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.

12.4 Arbitration.

READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH CUSTOMER CAN SEEK RELIEF FROM AEROFS. In the unlikely event that AeroFS has not been able to resolve a dispute it has with Customer after sixty (60) days, the parties each agree to resolve any claim, dispute, or controversy (excluding any AeroFS claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the JAMS, Inc. (“JAMS”) under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. Nothing in this Section 12.4 shall be deemed as preventing either party from seeking injunctive or other equitable relief from the courts as necessary to protect any of its proprietary interests.

12.4.1 JAMS.

Except as set forth in Section 12.4.2 below, the following applies: The arbitration will be conducted in Santa Clara County, California, unless Customer and AeroFS agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

12.4.2 Exception for Individuals.

If Customer is an individual, then the following provision applies in lieu of Section 12.4.1: JAMS may be contacted at www.jamsadr.com and may require Customer to pay a fee for the initiation of its case unless Customer applies for and successfully obtain a fee waiver from JAMS. The arbitration will be conducted in Santa Clara County, California (or the nearest JAMS office), unless Customer requests an in-person hearing in Customer’s hometown or Customer and AeroFS agree otherwise. The award rendered by the arbitrator may include Customer’s costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Customer may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve Customer of the commitment to engage in the informal dispute resolution process.

12.4.3 General.

WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED A SUBSCRIPTION FOR PERSONAL, COMMERCIAL, OR NON-COMMERCIAL PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS AEROFS AGREES OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. CUSTOMER AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND AEROFS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

12.5 Attorneys’ Fees and Costs.

The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

12.6 Notices and Reports.

Any notice or report hereunder shall be in writing to the notice address set forth above and shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (c) one day after it is sent if by next day delivery by a major commercial delivery service.

12.7 Amendments; Waivers.

Except as otherwise expressly provided herein, no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

12.8 Entire Agreement.

This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.

12.9 Audit Rights.

Upon AeroFS’ written request, Customer shall certify in a signed writing that Customer’s use of the Software is in full compliance with the terms of this Agreement (including any copy and user limitations). With prior reasonable notice of at least ten (10) days, AeroFS may audit the copies of the Software in use by Customer provided such audit is during regular business hours; Customer is responsible for such audit costs only in the event the audit reveals that Customer’s use is not in accordance with the licensed scope of use.

12.10 Independent Contractors.

The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

12.11 Force Majeure.

Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.

12.12 Government End-Users.

The Software is commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited.

12.13 Export Compliance.

Customer acknowledges that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Software is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.

12.14 Third-Party Code.

The Software may contain or be provided with components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). A list of the Open Source Software included in the Software is available at: https://www.aerofs.com/terms/#freesoftware. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.

12.15 Transmission of Information by Software for Diagnostic Purposes.

Customer understands and acknowledges that the Software contains a feature that sends technical information regarding the installation success rate of the Software on Customer’s computer systems to AeroFS during initial setup of the Software. Any such installation information will be used by AeroFS solely to improve the installation process of the Software. No user data or personal information is transmitted to AeroFS. Customer may opt out of providing this installation information at its sole discretion.

12.16 Purchase from Reseller.

If Customer purchased a Subscription from a Reseller:

  1. The terms of this Agreement constitute the only terms applicable to the use of the Software and no terms between Customer and Reseller shall apply to the license of the Software hereunder. Customer may place orders for the Software by executing an order form with Reseller (“Reseller Order Form”), but the terms of the Reseller Order Form shall have no effect as between Customer and AeroFS except as to the identification of the Software being licensed, the Subscription Term, and the number of Registered Users.
  2. Reseller has no authority to make any statements, representations, warranties or commitments on AeroFS’ behalf and any such statements, representations, warranties or commitments shall be null and void.
  3. Reseller shall handle all initial support inquiry intake, with escalation to AeroFS in accordance with the agreement between AeroFS and Reseller for any issues with the Software which Reseller is not able to resolve. AeroFS has no direct Support and Maintenance obligations to Customer under this Agreement, notwithstanding Section 6 (Support and Maintenance).
  4. Notwithstanding Section 3 (Payment), fees shall be payable directly to Reseller as set forth in the Reseller Order Form. Notwithstanding anything to the contrary in this Agreement, in the event Customer is entitled to a refund under this Agreement, unless otherwise elected by AeroFS in its sole discretion, AeroFS shall refund any applicable fee to Reseller and Reseller shall be solely responsible for refunding appropriate fees to Customer.
  5. If Reseller fails to pay AeroFS applicable fees for Customer’s use of the Software, AeroFS reserves the right to terminate this Agreement.

Check out Amium, our new collaboration product that turns any file into a real-time activity feed and conversation.

Go