Legal

Airship AXP Trial Terms

This Airship AXP Trial Terms (“Trial Terms”) is made effective as of the date Customer submits the Trial Sign Up Form available here (“Sign Up Form”)  (“Effective Date”) by and between Airship Group, Inc. (“Airship”), with headquarters at 1224 West Burnside, Suite 401, Portland, Oregon 97209, United States and the Customer identified on the Sign Up Form, (each, a “Party”, and collectively, the “Parties”).  These Trial Terms are separate from and independent of any Airship Service Agreement/ Terms of Subscription Service/Master Subscription Agreement or other such similar agreement between the Parties, (the “Original Agreement”),  and these Trial Terms do not pertain to any of Airship’s generally available products or services offered under such other agreements.  These Trial Terms describe the terms and conditions under which Airship offers access to certain features, technologies and services (“Trial Services”) for evaluation purposes only (“Trial”).

  1. ACCESS TO AND/OR PARTICIPATION IN THE SPECIAL ACCESS PROGRAM.  
    1. Trial Service Description. The Trial Services are: (a) Contact Management; (b) Airship Scenes; (c) Airship Surveys;  (d) Preference Center; and (e) other features or functionalities as agreed to between Airship and Customer.   
    2. Trial Program.  For each Trial Service provisioned by Airship for Customer following Customer’s request pursuant to these Trial Terms of Use, Airship grants Customer a limited, nonexclusive, non-transferable, royalty-free, revocable license to do the following during the term of the applicable Trial Program: (a) access and use the Trial Service solely for internal testing, evaluation purposes and to provide Feedback to Airship; and (b) install, copy, and use any related Trial Materials solely as necessary to access and use the Trial Services in the manner permitted by these Trial Terms of Use.  The following capitalized terms shall have the meanings as defined herein: “Trial” means an Airship program designed for one or more of the following purposes: (i) to provide access to and use of certain Trial Service and related Trial Materials for Customer’s evaluation during a limited term, and (ii) to receive Feedback from Customer. “Trial Materials” means any software, libraries, specifications or other technical documentation related to a specific Trial Service that may be provided to Customer by Airship under these Trial Terms of Use.
    3. Term. The Trial shall commence as of the Effective Date and shall end 30 calendar days from the Effective Date, unless otherwise agreed by the parties, or earlier terminated in accordance with Section 6 of these Trial Terms of Use, (“Term”). Customer’s access to and use of the Trial is strictly limited to the Term. 
    4. Limitations.   Following the Term, should Customer elect to continue access to and use of the features, technologies and services included in the Trial Services, Customer will need to purchase a separate subscription subject to the Original Agreement and any other separate terms and conditions applicable to the services at that time. Airship may change the Trial Service and Trial Materials during and after the Term based (in part) on Feedback provided by Customer and other Trial participants. Consequently, the functionality, features, and documentation for the Trial Service and/or the Trial Materials may change. Any Trial Service may be unavailable and its performance may be negatively affected by scheduled maintenance. The Trial Services and Trial Material are Airship Confidential Information as defined under the terms of the Original Agreement. 
    5. Costs.  During the Term, there is no charge for Customer’s use of the Trial Service. However, Customer will continue to be charged for any other Airship products or services Customer has purchased under an Airship Order Form and uses in addition to the Pre-Release Program.
    6. Access and Use Restrictions.  Customer will not:  (a) allow access to the Trial Services and Trial Materials by any user other than Customer’s employees, authorized contractors and authorized agencies (acting solely on behalf of Customer) who have a need to use or access the Trial Services and Trial Materials for internal testing and evaluation activities; or (b) access or use any Trial Services or Trial Materials in violation of these Trial Terms of Use, the Airship Acceptable Use Policy, any additional usage limits that Airship may communicate to Customer, or any applicable laws, including applicable export laws and privacy laws.  Customer agrees not to copy, reproduce, alter, modify or create derivative works of or from a Trial Service or any products, services or materials that are part of such Trial, in whole or in part.  Customer agrees not to decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of any Trial Service or any products, services or materials that are part of the Trial.
  1. FEEDBACK. In consideration of the rights granted to Customer in these Trial Terms of Use, Customer may be asked to provide Feedback.  “Feedback” means all information relating to Customer’s use, testing or evaluation of a Trial Service, including all observations or information regarding the performance, features and functionality of such Trial Service. “Feedback” also includes all feedback, suggestions, and ideas that Customer provides to Airship or its Affiliates concerning modifications, additions, changes, features, functionalities, ideas, improvements, enhancements or derivations to any of Airship’s products or services.  Once the Feedback is provided, then the Customer and each feedback provider hereby grants Airship worldwide, non-exclusive, perpetual, irrevocable, royalty free and fully paid up rights: (i) to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of the Feedback as part of any Airship product, services and/or materials; (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any Airship product, services and/or materials; and (iii) solely with respect to copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties. Feedback shall not be deemed Confidential Information of Customer.  “Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity.  “Control” for purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. 
  1. INTELLECTUAL PROPERTY. The parties acknowledge that these Trial Terms do not transfer any right, title or interest in any intellectual property right to the other. Airship maintains all rights, title and interest in and to all its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The limited rights granted to Customer to access and use the Trial under these Trial Terms of Use do not convey any additional rights in the Trial Service or the Trial Materials, or in or to any Intellectual Property Rights associated therewith. Subject only to the limited rights to access and use the Trial as expressly provided herein, all rights, title and interest in and to the Trial, including all related Intellectual Property Rights, will remain with and belong exclusively to Airship.
  1. AIRSHIP RESPONSIBILITIES. During the Term: (a) Airship shall honor Customer’s Support Tier in place under the Original Agreement; (b) Customer’s existing Airship Account Manager and Technical Account Manager (as applicable) will serve as the main point of contact for the Trial;  and (c) if applicable to Customer and Customer Data where Airship and Customer have entered into a Data Processing Agreement, then the terms of the Data Processing Addendum are hereby incorporated by reference. 
  1. CUSTOMER RESPONSIBILITIES. Customer is responsible for access to and use of the Trial by Customer and Account Users, and shall (a) promptly notify Airship of any breach of security or unauthorized access or use of Customer’s account on the Trial or any loss or unauthorized disclosure of any Account User’s login and/or password to the Trial, (b) have sole responsibility for the accuracy of Customer Data, and have appropriate permissions for legally processing and using the Customer Data (including, without limitation, any Customer Data sent to, provided by or accessed by a Third Party Application that Customer links to the Service), (c) maintain legally adequate privacy policy and notices  for each Customer Digital Asset that connects to the Trial Services, and (d) provide notice, respond to individual rights requests, and obtain all legally required rights, releases and consents to allow Customer Data to be collected, processed, stored, used, transmitted and disclosed in the manner contemplated by these Trial Terms of Use. If applicable to Customer and Customer Data where Airship and Customer have entered into a Data Processing Agreement, the terms of the Data Processing Addendum are hereby incorporated by reference, and Customer  shall comply with its  obligations under the Data Processing Addendum as a Data Controller. “Account User” means an individual who is authorized by Customer to use the Trial Services and to whom Customer (or Airship at Customer’s request) has supplied a login ID and password to access and use the Trial Services.  Account Users may include Customer’s employees, consultants, contractors and agents, but may not include any competitors of Airship. “Customer Data” means electronic data and content submitted by or for Customer, or processed by, the Pre-Release Program. 
  1. TERMINATION.
    1. The Term will automatically terminate upon the earliest of (a) the expiration of the Term, or (b) upon 15 days’ written notice to the other party. 
    2. Upon termination of the Term: (a) all rights and licenses granted to Customer in these Trial Terms will immediately terminate, (b) Customer will use commercially reasonable efforts to immediately destroy all Trial Material provided to Customer, and (c) each party will, upon written request from the other party, use commercially reasonable efforts to destroy all Confidential Information of the other party; provided, however, that copies of Confidential Information that are stored on backup and/or disaster recovery systems may be retained until the ordinary course deletion thereof.  The following sections will survive any termination of these Trial Terms:  Section 2, Section 3, Sections 7 through 11. Upon termination of the Trial, Customer will notify its Account Users that their access to the Trial has terminated. Following termination of the Trial, where Customer does not upgrade to a paid subscription of the Trial Services, Airship shall not store, maintain or provide a copy of any content, Customer Data or other information that Customer or its Account Users made available or provided when using the Trial. 
  1. DISCLAIMER OF WARRANTIES.  EACH TRIAL SERVICE, TRIAL MATERIAL, AND ANY OTHER PRODUCTS, SERVICES AND MATERIALS THAT ARE PART OF THE TRIAL ARE PROVIDED FOR EVALUATION PURPOSES ONLY.  ACCORDINGLY, AIRSHIP IS PROVIDING THE TRIAL SERVICES AND TRIAL MATERIALS TO CUSTOMER “AS IS”.  AIRSHIP MAKES NO WARRANTIES OR ANY KIND WITH RESPECT TO ANY TRIAL SERVICES AND TRIAL MATERIALS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.  AIRSHIP DOES NOT WARRANT THAT ANY TRIAL SERVICES AND TRIAL MATERIALS THAT ARE PART OF SUCH PROGRAM WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVELS OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.
  1. LIMITATION OF LIABILITY. NEITHER PARTY, NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THESE TRIAL TERMS, ANY TRIAL SERVICES AND/OR TRIAL MATERIALS, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES AND LICENSORS ARISING FROM OR RELATED TO THESE TRIAL TERMS, ANY TRIAL SERVICES AND/OR TRIAL MATERIALS THAT ARE PART OF SUCH PROGRAM, WILL NOT EXCEED $10,000.
  1. NOTICES. Any notices required under these Trial Terms must be in writing and may be delivered by hand or by courier, or sent by mail (return receipt requested) to the address of the applicable Party shown on these Trial Terms or any alternative address of which the applicable Party notifies the other in writing, with a copy to the General Counsel at such party at the address specified at the top of these Trial Terms.  
  2. GENERAL. The parties are independent contractors with respect to each other, and nothing in these Trial Terms shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties. These Trial Terms further control the actions of all party representatives, officers, agents, employees and associated individuals. These Trial Terms shall be binding on the parties, and all successors to the foregoing who take their rights hereunder. Neither party will assign, transfer or delegate its rights or obligations under these Trial Terms (in whole or in part) without the other party’s prior written consent except that Airship may assign and delegate these Trial Terms pursuant to a transfer of all or substantially all of Airship’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to and waivers of any terms of these Trial Terms must be in a writing that is signed by the parties hereto and expressly reference these Trial Terms. These Trial Terms shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of law provisions of any state or jurisdiction. All disputes arising out of these Trial Terms shall be subject to the exclusive jurisdiction of the federal and state courts in San Francisco, California, and the parties agree and submit to the personal, exclusive jurisdiction and venue of these courts. In the event that any provision of these Trial Terms conflict with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of these Trial Terms shall remain in full force and effect. No waiver of any breach of any provision of these Trial Terms shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. No term of these Trial Terms is intended to confer a benefit on, or be enforced by any person who is not a party to the Trial Terms. This Agreement may be executed in any number of counterparts and all counterparts shall together be construed as one agreement. These Trial Terms and all expressly referenced documents constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including any reseller or similar agreements previously executed by the parties.