Effective Date:March 26, 2020
Last Updated Date:March 26, 2020
SECTION 16 OF THESE TERMS CONTAINS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 11 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
PLEASE BE AWARE THAT SECTION 1.6 OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.
1. USE OF THE SERVICES AND AERIAL APPLICATIONS PROPERTIES.
The Application, the Software, the Website, the Services, and the information and content available on the Website and in the Application and the Services (as these terms are defined herein) (each, a “Aerial Applications Property” and collectively, the “Aerial Applications Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, Aerial Applications grants you a limited license to reproduce portions of Aerial Applications Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Aerial Applications in a separate license, your right to use any and all Aerial Applications Properties is subject to the Agreement.
1.1 Application License. Subject to your compliance with the Agreement, Aerial Applications grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application access through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
1.2 Aerial Applications Software. Use of any software and associated documentation, other than the Application, that is made available via the Website or the Services (“Software”) is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the Website page(s) accompanying the Software. These license terms may be posted with the Software downloads or at the Website page where the Software can be accessed. You shall not use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement. At no time will Aerial Applications provide you with any tangible copy of our Software. Aerial Applications shall deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between the Agreement and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by the Agreement. Subject to your compliance with the Agreement, Aerial Applications grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Agreement. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.
1.3 Updates. You understand that Aerial Applications Properties are evolving. As a result, Aerial Applications may require you to accept updates to Aerial Applications Properties that you have installed on your computer or mobile device. You acknowledge and agree that Aerial Applications may update Aerial Applications Properties with or without notifying you. You may need to update third-party software from time to time in order to use Aerial Applications Properties.
1.4 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Aerial Applications Properties or any portion of Aerial Applications Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Aerial Applications Properties (including images, text, page layout or form) of Aerial Applications; (c) you shall not use any metatags or other “hidden text” using Aerial Applications’ name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Aerial Applications Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Aerial Applications Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Aerial Applications Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Aerial Applications Properties. Any future release, update or other addition to Aerial Applications Properties shall be subject to the Agreement. Aerial Applications, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Aerial Applications Property terminates the licenses granted by Aerial Applications pursuant to the Agreement.
1.5 Third-Party Materials. As a part of Aerial Applications Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Aerial Applications to monitor such materials and that you access these materials at your own risk.
1.6 Aerial Applications Communications. By entering into this Agreement or using the Aerial Applications Properties, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Aerial Applications Properties, updates concerning new and existing features on the Aerial Applications Properties, communications concerning promotions run by us or out third-party partners, and news concerning the Aerial Applications and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY TEXT “END” TO [____] FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE AERIAL APPLICATIONS PROPERTIES OR RELATED SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM US (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), YOU CAN TEXT THE WORD “STOPALL” TO [___] FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE AERIAL APPLICATIONS PROPERTIES OR RELATED SERVICES.
2.1 Registering Your Account. In order to access certain features of Aerial Applications Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a User who has registered an account on the Website (“Account”), has a valid account on the social networking service (“SNS”) through which the User has connected to the Website (each such account, a “Third-Party Account “), or has an account with the provider of the Application for the User’s mobile device.
2.2 Access Through a SNS. If you access the Aerial Applications Properties through a SNS as part of the functionality of the Website, the Application and/or the Services, you may link your Account with Third-Party Accounts, by allowing Aerial Applications to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Aerial Applications and/or grant Aerial Applications access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Aerial Applications to pay any fees or making Aerial Applications subject to any usage limitations imposed by such third-party service providers. By granting Aerial Applications access to any Third-Party Accounts, you understand that Aerial Applications may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Aerial Applications Properties (collectively, “Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through Aerial Applications Properties via your Account. Unless otherwise specified in the Agreement, all SNS Content shall be considered to be Your Content (as defined in Section 3.1) for all purposes of the Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on Aerial Applications Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Aerial Applications’ access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through Aerial Applications Properties. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND AERIAL APPLICATIONS DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Aerial Applications makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Aerial Applications is not responsible for any SNS Content.
2.3 Registration Data. In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (l) at least thirteen (13) years old; (m) of legal age to form a binding contract; and (n) not a person barred from using Aerial Applications Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Aerial Applications Properties by minors. You may not share your Account or password with anyone, and you agree to (y) notify Aerial Applications immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Aerial Applications has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Aerial Applications has the right to suspend or terminate your Account and refuse any and all current or future use of Aerial Applications Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Aerial Applications reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Aerial Applications Properties if you have been previously removed by Aerial Applications, or if you have been previously banned from any of Aerial Applications Properties.
2.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Aerial Applications.
2.5 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Aerial Applications Properties, including but not limited to, a mobile device that is suitable to connect with and use Aerial Applications Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Aerial Applications Properties.
3. RESPONSIBILITY FOR CONTENT.
3.1 Types of Content. You acknowledge that all Content, including Aerial Applications Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Aerial Applications, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Aerial Applications Properties (“Your Content”), and that you and other Users of Aerial Applications Properties, and not Aerial Applications, are similarly responsible for all Content that you and they Make Available through Aerial Applications Properties (“User Content”).
3.2 No Obligation to Pre-Screen Content. You acknowledge that Aerial Applications has no obligation to pre-screen Content (including, but not limited to, User Content), although Aerial Applications reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Aerial Applications pre-screens, refuses or removes any Content, you acknowledge that Aerial Applications will do so for Aerial Applications’ benefit, not yours. Without limiting the foregoing, Aerial Applications shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
3.3 Storage. Unless expressly agreed to by Aerial Applications in writing elsewhere, Aerial Applications has no obligation to store any of Your Content that you Make Available on Aerial Applications Properties. Aerial Applications has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Aerial Applications Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Aerial Applications retains the right to create reasonable limits on Aerial Applications’ use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Aerial Applications in its sole discretion.
4.1 Aerial Applications Properties. Except with respect to Your Content and User Content, you agree that Aerial Applications and its suppliers own all rights, title and interest in Aerial Applications Properties (including but not limited to, any titles, computer code, themes, objects, concepts, artwork, animations, sounds, audiovisual effects, methods of operation, moral rights, documentation, and Aerial Applications game clients and server software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Aerial Applications Properties.
4.2 Trademarks. [Aerial Applications’ stylized name] and all related graphics, logos, service marks and trade names used on or in connection with any Aerial Applications Properties or in connection with the Services are the trademarks of Aerial Applications and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Aerial Applications Properties are the property of their respective owners.
4.3 Other Content. Except with respect to Your Content, you agree that you have no right, title, or interest in or to any Content that appears on or in Aerial Applications Properties.
4.4 Your Content. Aerial Applications does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in Aerial Applications Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.5 License to Your Content. Subject to any applicable account settings that you select, you grant Aerial Applications a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing Aerial Applications Properties to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Aerial Applications Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Aerial Applications, are responsible for all of Your Content that you Make Available on or in Aerial Applications Properties.
4.6 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on Aerial Applications Properties, you hereby expressly permit Aerial Applications to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
4.7 Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by Aerial Applications in its sole discretion. You may not post or submit for print services a photograph of another person without that person’s permission.
4.8 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Aerial Applications through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Aerial Applications has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Aerial Applications a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Aerial Applications Properties and/or Aerial Applications’ business.
5. USER CONDUCT.
As a condition of your use of the Aerial Applications Properties, you agree not to use Aerial Applications Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through Aerial Applications Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Aerial Applications’ prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Aerial Applications; (vi) interferes with or attempt to interfere with the proper functioning of Aerial Applications Properties or uses Aerial Applications Properties in any way not expressly permitted by the Terms; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Aerial Applications Properties, including but not limited to violating or attempting to violate any security features of Aerial Applications Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Aerial Applications Properties, introducing viruses, worms, or similar harmful code into Aerial Applications Properties, or interfering or attempting to interfere with use of Aerial Applications Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Aerial Applications Properties.
Aerial Applications may, but is not obligated to, monitor or review Aerial Applications Properties and Content at any time. Without limiting the foregoing, Aerial Applications shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Aerial Applications does not generally monitor user activity occurring in connection with Aerial Applications Properties or Content, if Aerial Applications becomes aware of any possible violations by you of any provision of the Agreement, Aerial Applications reserves the right to investigate such violations, and Aerial Applications may, at its sole discretion, immediately terminate your license to use Aerial Applications Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
7. INTERACTIONS WITH OTHER USERS.
7.1 User Responsibility. You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that Aerial Applications reserves the right, but has no obligation, to intercede in such disputes. You agree that Aerial Applications will not be responsible for any liability incurred as the result of such interactions.
7.2 Content Provided by Other Users. Aerial Applications Properties may contain User Content provided by other Users. Aerial Applications is not responsible for and does not control User Content. Aerial Applications has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
8. THIRD-PARTY SERVICES.
8.1 Third-Party Websites, Applications and Ads. Aerial Applications Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left Aerial Applications Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third Party Applications and Third-Party Ads are not under the control of Aerial Applications. Aerial Applications is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Aerial Applications provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Aerial Applications and not with the App Store. Aerial Applications, not the App Store, is solely responsible for Aerial Applications Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Aerial Applications Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Aerial Applications Property, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
9. FEES AND PURCHASE TERMS.
9.1 General Purpose of Agreement: Sale of Service, not Software. The purpose of the Agreement is for you to secure access to the Services. All fees set forth within and paid by you under the Agreement shall be considered solely in furtherance of this purpose. In no way are these fees paid considered payment for the sale, license, or use of Aerial Applications’ Software, and, furthermore, any use of Aerial Applications’ Software by you in furtherance of the Agreement will be considered merely in support of the purpose of the Agreement.
9.2 Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. All information that you provide to us or our third party payment processor must be accurate, current and complete. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Agreement to determine your rights and liabilities. By providing Aerial Applications or Aerial Applications’ third party payment processor with your credit card number or PayPal account and associated payment information, you agree that Aerial Applications is authorized to immediately invoice your Account for all fees and charges due and payable to Aerial Applications hereunder and that no additional notice or consent is required. You agree to immediately notify Aerial Applications of any change in your billing address or the credit card or PayPal account used for payment hereunder. Aerial Applications reserves the right at any time to change its prices and billing methods, either immediately upon posting on Aerial Applications Properties or by e-mail delivery to you.
9.3 Taxes. The payments required under Section 9.2 of this Agreement do not include any Sales Tax that may be due in connection with the Services provided under this Agreement. If Aerial Applications determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Aerial Applications shall collect such Sales Tax in addition to the payments required under Section 9.2 of this Agreement. If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Aerial Applications, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Aerial Applications for any liability or expense Aerial Applications may incur in connection with such Sales Taxes. Upon Aerial Applications’ request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
9.4 Withholding Taxes. You agree to make all payments of fees to Aerial Applications free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Aerial Applications will be your sole responsibility, and you will provide Aerial Applications with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
9.5 Free Trials and Other Promotions. Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable fee. If you are inadvertently charged for a fee, please contact Aerial Applications to have the charges reversed.
9.6 Advertising Revenue. Aerial Applications reserves the right to display Third-Party Ads before, after, or in conjunction with User Content posted on the Services, and you acknowledge and agree that Aerial Applications has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by Aerial Applications as a result of such advertising).
9.7 Disputes. Unless otherwise provided by the applicable payment processor or payment platform used in connection with your payment for Services, you must notify us in writing within seven (7) days after receiving your credit card statement if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: Aerial Applications ATTN: Accounts Receivable 712 H Street NE, Suite 890 Washington DC 20002.
You agree to indemnify and hold Aerial Applications, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Aerial Applications Party” and collectively, the “Aerial Applications Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Aerial Applications Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Aerial Applications reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Aerial Applications in asserting any available defenses. This provision does not require you to indemnify any of the Aerial Applications Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Aerial Applications Properties.
11. DISCLAIMER OF WARRANTIES AND CONDITIONS.
11.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF AERIAL APPLICATIONS PROPERTIES IS AT YOUR SOLE RISK, AND AERIAL APPLICATIONS PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. AERIAL APPLICATIONS PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
(a) AERIAL APPLICATIONS PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) AERIAL APPLICATIONS PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF AERIAL APPLICATIONS PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF AERIAL APPLICATIONS PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH AERIAL APPLICATIONS PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS AERIAL APPLICATIONS PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. AERIAL APPLICATIONS MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AERIAL APPLICATIONS OR THROUGH AERIAL APPLICATIONS PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) FROM TIME TO TIME, AERIAL APPLICATIONS MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT AERIAL APPLICATIONS’ SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
11.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT AERIAL APPLICATIONS PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD AERIAL APPLICATIONS PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
11.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF AERIAL APPLICATIONS PROPERTIES. YOU UNDERSTAND THAT AERIAL APPLICATIONS DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF AERIAL APPLICATIONS PROPERTIES.
12. LIMITATION OF LIABILITY.
12.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL AERIAL APPLICATIONS PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT AERIAL APPLICATIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF AERIAL APPLICATIONS PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE AERIAL APPLICATIONS PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH AERIAL APPLICATIONS PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON AERIAL APPLICATIONS PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO AERIAL APPLICATIONS PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN AERIAL APPLICATIONS PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY AN AERIAL APPLICATIONS PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY AN AERIAL APPLICATIONS PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL AERIAL APPLICATIONS PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO AERIAL APPLICATIONS BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN AERIAL APPLICATIONS PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY AN AERIAL APPLICATIONS PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY AN AERIAL APPLICATIONS PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN AERIAL APPLICATIONS AND YOU.
13. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.
It is Aerial Applications’ policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Aerial Applications by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Aerial Applications Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on Aerial Applications Properties of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Aerial Applications’ Copyright Agent for notice of claims of copyright infringement is as follows: Roxanne Cromwell, 712 H Street NE, Suite 890 Washington DC 20002.
At its sole discretion, Aerial Applications may modify or discontinue the Website, or may modify, suspend or terminate your access to the Website, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Website, Aerial Applications reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. All terms which by their nature should survive the termination of this Agreement shall survive.
15. INTERNATIONAL USERS.
Aerial Applications Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Aerial Applications intends to announce such Services or Content in your country. Aerial Applications Properties are controlled and offered by Aerial Applications from its facilities in the United States of America. Aerial Applications makes no representations that Aerial Applications Properties are appropriate or available for use in other locations. Those who access or use Aerial Applications Properties from other countries do so at their own volition and are responsible for compliance with local law.
16. DISPUTE RESOLUTION.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Aerial Applications and limits the manner in which you can seek relief from us.
16.1 Applicability of Arbitration Agreement. You agree that any dispute, claim or request for relief relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Aerial Applications, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify; and (2) you or Aerial Applications may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
16.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent [include name and address of registered agent here]. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or requests for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/ all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Aerial Applications will pay them for you. In addition, Aerial Applications will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
16.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Aerial Applications. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
16.4 Waiver of Jury Trial. YOU AND AERIAL APPLICATIONS HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Aerial Applications are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of Delaware. All other disputes, claims, or requests for relief shall be arbitrated.
16.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: firstname.lastname@example.org, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Aerial Applications username (if any), the email address you used to set up your Aerial Applications account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
16.7 Severability. Except as provided in subsection 16.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
16.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Aerial Applications.
16.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Aerial Applications makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Aerial Applications at the following address: Aerial Applications ATTN: Legal 712 H Street NE, Suite 890 Washington DC 20002.
17. GENERAL PROVISIONS.
17.1 Electronic Communications. The communications between you and Aerial Applications may take place via electronic means, whether you visit Aerial Applications Properties or send Aerial Applications e-mails, or whether Aerial Applications posts notices on Aerial Applications Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Aerial Applications in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Aerial Applications provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
17.2 Release. You hereby release Aerial Applications Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Aerial Applications Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Aerial Applications Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by an Aerial Applications Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website.
17.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Aerial Applications’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.4 Force Majeure. Aerial Applications shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Aerial Applications Properties, please contact us at: email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17.6 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Aerial Applications agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Delaware.
17.7 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
17.8 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English. C’est la volonté expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
17.9 Notice. Where Aerial Applications requires that you provide an e-mail address, you are responsible for providing Aerial Applications with your most current e-mail address. In the event that the last e-mail address you provided to Aerial Applications is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Aerial Applications’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Aerial Applications at the following address: firstname.lastname@example.org. Such notice shall be deemed given when received by Aerial Applications by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
17.10 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.11 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
17.12 Export Control. You may not use, export, import, or transfer Aerial Applications Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Aerial Applications Properties, and any other applicable laws. In particular, but without limitation, Aerial Applications Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Aerial Applications Properties, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Aerial Applications Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Aerial Applications are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Aerial Applications products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
17.13 Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Agreement is concluded between you and Aerial Applications only, and not Apple, and (ii) Aerial Applications, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Aerial Applications and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Aerial Applications.
(d) You and Aerial Applications acknowledge that, as between Aerial Applications and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Aerial Applications acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Aerial Applications and Apple, Aerial Applications, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(f) You and Aerial Applications acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
17.14 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
17.5 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
18. INTERNATIONAL PROVISIONS.
18.1 United Kingdom. A third party who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
18.2 Germany. Notwithstanding anything to the contrary in Section 12, Aerial Applications is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).