October 18th, 2018
Aerialink LLC ("Aerialink") operates a mobile technology platform that enables its customers to create and manage content and then initiate the transmission of such content over wireless networks for ultimate delivery to mobile devices (the "Service"). This Aerialink Terms of Service (the "Agreement") sets forth the terms and conditions of your use of the Service.
THIS IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY) ("YOU") AND AERIALINK REGARDING THE USE OF THE SERVICE. IF YOU ARE A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN USE OF THE SERVICE IS EXPRESSLY CONDITIONED UPON ACCEPTANCE OF THIS AGREEMENT BY A PERSON WHO IS AUTHORIZED TO SIGN FOR AND BIND THE ENTITY; IF YOU ARE NOT AUTHORIZED TO SIGN FOR AND BIND THE ENTITY, THEN CLICK ON THE BUTTON MARKED "I DECLINE" AND DO NOT USE THE SERVICE.
PLEASE READ THIS AGREEMENT IN FULL BEFORE USING THE SERVICE. YOUR USE OF THE SERVICE SHALL CONSTITUTE YOUR BINDING ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE "I DECLINE" BUTTON BELOW AND DO NOT USE THE SERVICE.
1. REGISTRATION OBLIGATIONS
In consideration of use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form ("Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Aerialink has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Aerialink has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). You also understand and agree that the service may include certain communications from Aerialink, such as service announcements, administrative messages and the Aerialink Newsletter, and that these communications are considered part of Aerialink membership and you will not be able to opt out of receiving them.
All payments for Aerialink services must be made by credit card, which Aerialink will maintain on file for use of processing all reoccurring fees or outstanding balances. Please note that the charges outlined in this section do not apply within your trial period. Trial accounts do not accrue charges as long as the usage is within the trial limits imposed.
2.1 CHARGES TO YOUR ACCOUNT
You will be charged fees for the Service in the amounts set forth in the order confirmation that you receive when you sign up for the Service. The fees include set-up fees, monthly fees, and data transfer fees as more fully described below and in the order confirmation form. All monthly fees and set-up fees will be due in advance of the month incurred. All payments will be made in United States dollars.
2.1.1 SET-UP FEE
When you register for the Service, you will be charged a one-time non-refundable set up fee.
2.1.2. MONTHLY FEE
In addition to the set-up fee, you will be charged a monthly fee for the Service.
2.1.3 DATA TRANSFER FEE
You will be charged a fee for data usage as set forth in your order confirmation.
2.1.4 TRANSACTION FEE
Individual transactions will be billed according to your Aerialink Pricing Confirmation Agreement. Note that transactions of long (concatenated) messages in excess of the length of a single message must be split into multiple message segments for delivery and receipt. As such, concatenated messages are not billed per-request, but per-segment. Each segment is billed as one message transaction.
2.2 UPGRADES AND DOWNGRADES
You will have the ability to upgrade or downgrade the Service at any time during the monthly term. Such upgrade or downgrade will take effect immediately. For any upgrade in package level, you will be refunded a pro-rata amount for the lower level of Service and charged a pro-rata amount for the higher level Service. The refund and charge will both be based on the number of days remaining in the monthly term. For any downgrade, you will be refunded a pro-rata amount for the days remaining in the monthly term.
You have the right to cancel the service at any time. If you cancel the Service before the end of the monthly term, your cancellation will take effect immediately, but you will have access and will be billed for the Service for the remainder of the month in which you cancel.
5. ACCOUNT SECURITY
You are responsible for maintaining the security of your account, including maintaining the confidentiality of your customer number/login, password, credit card number, and other account access information. You agree that you are fully responsible for all activities that occur under your account. You agree to immediately notify Aerialink of any unauthorized uses of your account or any other breaches of security. Aerialink cannot and will not be liable for any loss or damage from your failure to comply with these security obligations.
6. YOUR USE OF THE SERVICE
You agree to use the Service only for lawful purposes. You agree and warrant that the transmission of any data or content through the Service will not violate any federal, state, local or foreign laws, rules or regulations.
You further agree that the subscribers of the phone numbers to which you initiate messages through the Service have consented or otherwise opted-in to the receipt of your messages as required by any applicable law or regulation. You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including, without limitation, the content of the messages that you create and initiate through the Service.
7. CONTENT AND CONDUCT RULES AND OBLIGATIONS
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Aerialink, are entirely responsible for all Content that you upload, post, initiate, transmit or otherwise make available via the Service, including the timing and recipients of your Content. You represent that you have all necessary permission to upload and store all content to Aerialink, including information associate with your customers (Aerialink “non-customer” data or information).
Although Aerialink’s further transmission of your Content is purely reactive in nature, Aerialink will not knowingly allow you to continue using the Service in violation of applicable law, this Agreement or any usage prohibitions incorporated by reference. You agree that you will not:
(a) upload, post, initiate, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, adult-oriented, or racially, ethnically or otherwise objectionable;
(b) harm minors in any way;
(c) engage in smishing or otherwise impersonate any person or entity, including, but not limited to, an Aerialink official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service, or otherwise engage in spoofing;
(e) upload, post, initiate or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) upload, post, initiate or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party;
(g) upload, post, initiate or otherwise transmit unsolicited commercial email, SMS or MMS Messages, or "spam." This includes unethical marketing, advertising, or any other practice that is in any way connected with "spam," such as (a) sending mass emails or SMS or MMS Messages to recipients who haven't requested them from you or with a fake return address, (b) promoting a site with inappropriate links, titles, descriptions, or (c) promoting your site by posting multiple submissions in public forums that are identical.
(h) upload, post, initiate or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(j) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
(k) "stalk" or otherwise harass another;
(l) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, but is not limited to, providing instructions on how to assemble bombs, grenades and other weapons, and creating "Crush" sites.
(m) offer for sale or sell any item, good or service that (a) violates any applicable federal, state, or local law or regulation, (b) you do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorizations, or (c) Aerialink determines, in its sole discretion, contains inappropriate content to be transmitted through the Service provided by Aerialink.
(n) use the Service in violation of Aerialink’s Acceptable Use Policy, which is incorporated into this Agreement by reference.
8. GDPR COMPLIANCE
9. TERMINATION; RESERVATION OF RIGHTS
You agree that Aerialink, in its sole discretion but without any obligation, expressly reserves the right to suspend your use of the Service or use of any other Aerialink products or facilities and remove and discard any Content within the Service for any reasonable reason which may include, without limitation, the belief by Aerialink, in its sole good faith discretion, that (a) you have violated this Agreement or Aerialink’s Acceptable Use Policy (b) you have failed to pay any charges when due; (c) the traffic connected to your account is fraudulent or negatively impacting Aerialink’s network; or (d) your use of the Service results in, or is the subject of legal action or threatened legal action against Aerialink or any of its affiliates or partners. If Aerialink will make a reasonable attempt to notify you in the event of account suspension but is under no obligation to do so before suspending your Service.
For any telephone number you are porting or otherwise bringing to Aerialink, you represent and warrant that you have all power and authority and have procured all rights and licenses necessary to use and text enable such telephone number for Services without the consent of any third party. In the case of any shared use telephone numbers, you represent that you are the phone number owner with authority to bring any such number to Aerialink.
You further acknowledge and agree that the use of the Service or any of telephone numbers or short codes that Aerialink provisions to you in connection with use of the Service do not grant you any ownership or other rights in such telephone numbers or short codes other than the limited, revocable use rights expressly set forth in this Agreement. You do not have the right to use those telephone numbers or short codes indefinitely. You acknowledge and agree that telephone numbers and short codes we provision may be reclaimed by us or the applicable supplier from time to time and may be re-assigned to other customers. You may not transfer or assign the telephone numbers or short codes we provide to you unless otherwise mutually agreed in writing. Except as otherwise provided in this Agreement with respect to suspension or termination of the Service, we will endeavor to provide you with reasonable notice in the event of any such reclamation.
10. AERIALINK PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by Aerialink, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part. Aerialink grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Aerialink for use in accessing the Service.
11. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. AERIALINK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) AERIALINK WILL MAKE REASONABLE EFFORTS TO MAINTAIN THE SERVICE, HOWEVER, AERIALINK IS NOT RESPONSIBLE FOR ANY DAMAGE, LOSS OF DATA, CUSTOMER INFORMATION OR VENDOR DATA, REVENUE, OR OTHER HARM TO BUSINESS ARISING OUT OF DELAYS, MISDELIVERY OR NONDELIVERY OF INFORMATION, RESTRICTION OR LOSS OF ACCESS, BUGS OR OTHER ERRORS, UNAUTHORIZED USE DUE TO YOUR SHARING OF ACCESS TO THE SERVICE, OR OTHER INTERACTION WITH THE SERVICE. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING-UP YOUR DATA AND INFORMATION THAT MAY RESIDE ON THE SERVICE. AERIALINK DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. INFORMATION OR ADVICE WE MAY PROVIDE TO YOU OR PROVIDED ON THE AERIALINK WEBSITE IS FOR INFORMATIONAL PURPOSES ONLY, IS NOT EXHAUSTIVE, AND SHALL NOT BE CONSIDERED LEGAL ADVICE. WE ADVISE YOU TO CONSULT WITH YOUR OWN INDEPENDENT LEGAL COUNSEL FOR ANY LEGAL OR REGULATORY ADVICE, AND WE DISCLAIM ANY RESPONSIBILITY FOR YOUR RELIANCE ON ANY ADVICE OR INFORMATION PROVIDED TO YOU.
12. LIMITATION OF LIABILITY
You disclaim all liability of Aerialink and its service providers, whether direct, indirect, incidental, consequential, punitive or otherwise, arising out of or related to the use of the Services provided under this Agreement. You hereby release Aerialink and its service providers from and against all claims, liability and damages arising out of or related to your use of the Services provided under this Agreement. You will be solely responsible for any third party claims, damages and liability arising out of, resulting from or caused by your use of the Services provided under this Agreement including, without limitation, any claims, damages and liability arising out of, resulting from or caused by any message or content that you generate.
13. RELATIONSHIP OF THE PARTIES
You and Aerialink are each independent contractors in the performance of each and every part of these Terms. No agency, partnership, joint venture, franchise, or employer-employee relationship is created as a result of these Terms. You are solely responsible for all of your employees, agents, and your labor costs and expenses arising in connection them; Aerialink is solely responsible for all of its employees, agents, and labor costs and expenses arising in connection with them. Likewise, you are solely responsible for any and all claims, liabilities, damages, or debts of any type that arise on account of your activities or those of your employees or agents in the performance of these Terms; Aerialink is be solely responsible for any and all claims, liabilities, damages, or debts of any type that may arise on account of our own activities or those of our employees or agents in the performance of these Terms.
You do not have any authority of any kind to bind Aerialink in any respect whatsoever, and you shall not attempt to do so or imply that you have the right to do so.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of law principles.
To the fullest extent permitted by law, any dispute involving any interpretation or application of this Agreement, any controversy or claim arising out of or relating in any way to this Agreement, including but not limited to the relationship of the Parties, or the breach hereof (including as to the validity, scope and enforceability of this agreement to arbitrate), which has not been resolved within thirty (30) days after either party has notified the other in writing of the controversy, shall be submitted for binding arbitration in Washington, D.C. in accordance with the Arbitration Rules of the American Arbitration Association (the “Rules”) then in effect. The decision of the arbitrator shall be consistent with then applicable law and shall include written findings of fact and conclusions of law. THE PARTIES WAIVE THE RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY CONTROVERSY OR CLAIM THAT MIGHT ARISE UNDER OR INVOLVE AN INTERPRETATION OF THIS AGREEMENT. Judgment on the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. Each party shall bear their own attorney’s fees and costs.
16. CLASS ACTION WAIVER / NO JOINDER OF PLAINTIFFS
To the fullest extent permitted by law, you and Aerialink agree that any claims or controversies between the parties must be brought against each other only on an individual basis. Neither you nor Aerialink may bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person or entity’s claims into a single case and cannot preside over any class, consolidated, or representative proceeding (unless the parties explicitly agree otherwise). Moreover, the arbitrator’s decision or award in one person or entity’s case can only impact the person or entity that brought the claim, not other Aerialink customers; it cannot be used to decide other disputes with other customers.
You agree to indemnify and hold harmless Aerialink and its affiliates or parent companies and each of their respective officers, directors, shareholders, employees, agents, contractors, representatives, content providers and service providers, from and against any and all losses, claims, obligations, liabilities, damages, settlements, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, disbursements and attorneys’ fees, including attorneys’ fees incurred from counsel selected by Aerialink in its sole discretion) arising from or relating to any actual or threatened claim, suit, action, proceeding, governmental investigation or enforcement action based upon or arising out of: (i) your alleged breach of this Agreement; or (ii) any use by you, or an account or computer owned by you, of the Aerialink Service. You agree to cooperate as fully as reasonably required in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action, but Aerialink reserves the right, at your expense, to assume the exclusive defense and control of any matter in which you are a named party and that is otherwise subject to indemnification by you if you have not responded. You will also be liable to Aerialink for any costs and attorneys' fees Aerialink incurs to successfully establish or enforce its right to indemnification under this Section.
18. RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell as a finished service to third party, or otherwise exploit any portion of the Service, use of the Service, or access to the Service without the express permission by Aerialink.
All of Aerialink’s rights and obligations under this Agreement are freely assignable by Aerialink to any of our affiliates or in connection with a merger, acquisition, restructuring, or sale of assets, by operation of law or otherwise, and Aerialink may transfer your information to any of our affiliates, successor entities, asset purchasers or new owner. You will not transfer any of your rights or obligations under this Agreement to anyone else without Aerialink’s prior written consent.
20. ADDITIONAL SOFTWARE
With respect to any additional software that may be made available by Aerialink in connection with the Service, if you elect to download or access such additional software, you understand that you may have to agree to additional terms and conditions before you use such software.
21. SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all applicable international and local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside. You will comply with all applicable U.S. and non-U.S. export control and trade sanctions laws (“Export Laws”). You will not, directly or indirectly, export, re-export, provide, or otherwise transfer our Services: (a) to any individual, entity, or country prohibited by Export Laws; (b) to anyone on U.S. or non-U.S. government restricted parties lists; or (c) for any purpose prohibited by Export Laws, including nuclear, chemical, or biological weapons, or missile technology applications without the required government authorizations. You will not use or download our Services if you are located in a restricted country, if you are currently listed on any U.S. or non-U.S. restricted parties list, or for any purpose prohibited by Export Laws, and you will not disguise your location through IP proxying or other methods.
22. CONTENT SUBMITTED TO AERIALINK
By submitting Content to Aerialink, you grant Aerialink the world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying and transmitting such Content through the Service. This license exists only for as long as you continue to be an Aerialink customer. You acknowledge that Aerialink does not pre-screen Content, but that Aerialink and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, Aerialink and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to this Agreement or other matters by displaying notices or links to notices to you generally on the Service.
24. INTEGRATION AND SEVERABILITY
This Agreement constitutes the entire agreement between you and Aerialink and governs your use of the Service, super ceding any prior agreements between you and Aerialink (including, but not limited to, any prior versions of this Agreement). If any provisions of this Agreement are found by a court of competent jurisdiction to be invalid, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
25. UPDATED VERSIONS OF THIS AGREEMENT
Changes in the industry, carrier and other partner requirements, applicable law and regulations may require Aerialink to make changes to this Agreement and the Service from time to time. Aerialink therefore reserves the right to update and change the terms of this Agreement. We will endeavor to timely provide notice of such material modifications, however, it is your responsibility to check this Agreement periodically for changes. You can review the most current version of this Agreement at any time at https://www.aerialink.com/legal/terms-of-service/. You acknowledge your responsibility to review the terms of this Agreement from time to time and to be aware of any such changes. You acknowledge that your continued use of the Service following notification of any changes to this Agreement constitutes acceptance of those changes.