Airthings Products and Services
Last updated: June 27, 2023
1. Acceptance of Terms.
By creating or accessing an Airthings account, registering for, logging into, and/or using or continuing to use the Services or Products, or by acknowledging acceptance of these Terms through another means provided to you, you confirm that you have read and understood these Terms and agree to be bound by them.
These Terms constitute a legally binding agreement between each individual, and if applicable, the company or Partner (as defined below) the individual represents, that uses the Products and/or uses or logs into the Services ("you"), on the one hand, and Airthings ASA or one of its subsidiaries (“Airthings,” “we” or “us”) on the other hand. If you are a representative of a company or a Partner, you are hereby represent and warrant that you are authorized to bind the company or Partner to these Terms.
You represent and warrant that you are at least eighteen (18) years of age. If you are under age eighteen (18) and/or are unable to agree to these Terms, you may not under any circumstances or for any reason create or access an Airthings account, or register for, log into or use the Services or Products.
THESE TERMS CONTAIN (1) AN ARBITRATION PROVISION; (2) A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US; AND (3) A RELEASE BY YOU OF ALL CLAIMS FOR DAMAGE AGAINST US THAT MAY ARISE OUT OF YOUR USE OF THE PRODUCTS OR SERVICES. BY CREATING OR ACCESSING AN AIRTHINGS ACCOUNT, REGISTERING FOR, LOGGING INTO, AND/OR USING OR CONTINUING TO USE THE SERVICES OR PRODUCTS, OR BY ACKNOWLEDGING ACCEPTANCE OF THESE TERMS THROUGH ANOTHER MEANS PROVIDED TO YOU, YOU AFFIRM THAT YOU (AND THE COMPANY OR PARTNER YOU REPRESENT, IF APPLICABLE) AGREE TO THESE PROVISIONS.
In addition, you may have other legal rights determined by the law in your jurisdiction. Certain clauses related to disclaimers, exclusions, mandatory arbitration, limitations of liability, exclusion or limitation of certain damages or rights, indemnification, waiver of jury trial and class action under these Terms may not apply if prohibited by the laws in your jurisdiction.
The Services include the Airthings Apps that can be downloaded to your smartphone or tablet, and any web dashboard, application program interfaces, and other software (not installed on the Products), services, web pages, features, analysis, reports, storage and content we provide to you that is related to the recording, measuring, analyzing and reporting of air quality levels (the “Services”). The Services are designed to enable the users of the Services to view and understand air quality levels measured by the Airthings indoor air quality monitors created and distributed by Airthings (the “Products”) that are installed in buildings, including residences or businesses. The Term “Products” also includes the software installed on such Products, which is licensed to you not sold.
The Products and Services are intended only to be used by Customers and Partners (if authorized by the Customer). A “Customer” is someone that purchases and/or installs (or has installed by a Partner) a Product and uses the Services. A “Partner” is generally a business and/or service professional that has sold a Product to a Customer and/or has been granted access to the Services by one or more Customers, including Airthings’ resellers and distributors. We specifically prohibit the use of our Services and/or Products for any illegal or unauthorized purpose or for uses that violate any laws in your jurisdiction (including but not limited to copyright and privacy laws).
These Terms place obligations on Customers and Partners with respect to their use of the Product(s) and/or the Services. Airthings has no responsibility or liability for the actions or inactions of any Partner(s) to whom the Customer grants access to its information in the Services, including any Partner(s) who may have sold the Product(s) and/or Services to the Customer and assisted the Customer in installing the Products and/or obtaining access to the Services.
We may, in our sole discretion, refuse to offer the Product or Services to any person or entity and change eligibility criteria at any time. You are solely responsible for ensuring that your use of the Product and Services complies with these Terms as well as all laws, rules and regulations applicable to you.
2. Partner Sales and Commitments.
These Terms apply to your use of the Services and Products whether you purchased any Service or Product directly from Airthings or an Airthings affiliate or from any reseller, distributor or other Partner. If a reseller, distributor, or other Partner has made any representations, warranties or other commitments to you regarding the Services or Products, those representations, warranties or other commitments are a matter between you and the Partner, and Airthings and its affiliates are not responsible for any such representations, warranties, or other commitments.
You may not use any data or information provided via the Products or Services to SPAM, harass, embarrass or harm anyone. You may not sell any data or information you obtain via the Products or Services and may only use it as expressly permitted under these Terms. You must use reasonable measures to secure the data and information received and reasonably cooperate with Airthings to help us ensure compliance with applicable privacy laws.
4. Intended Use, Unauthorized Use and Promotional Channels.
You agree not to allow any unauthorized third-party access to the Products or Services. You agree to maintain the confidentiality of the usernames and passwords by which you access the Products and/or Services as well as any of the data or information, including air quality information, you may access via the Products or Services.
You must respect applicable law regarding any data or information received via the Products or Services, and may only use such data and information for the following purposes (each a “Permitted Purpose”): (a) reading air quality information provided via the Products and Services to troubleshoot and identify air quality issues in a building where one or more Products are located, and (b) if you are a Partner, contacting a Customer, provided Customer has consented to such contact, to (i) offer mitigation or remediation services in the event of an identified air quality issue in the building where the Product(s) is installed in order to improve indoor air quality or (ii) to schedule and/or coordinate a service call with a Customer to address an identified air quality issue.
5. Account, Settings and Notifications.
- Please be sure to follow instructions to authenticate your account. This may include submitting your mobile telephone number and/or email and entering the verification code that we send to you. Our ability to provide access to the Products and/or Services to you may depend upon you authenticating your user account and associating your Product with your account.
- You are responsible for all usage and activity on your account and for loss, theft or unauthorized disclosure of your account credentials.
- By using the Products and Services, you opt-in and grant us the right to send you emails, text messages, app notifications and other forms of communications relating to your account, customer service inquiries, payment information, promotional opportunities and third-party notices, unless prohibited in your country or state.
6. Downtime and Suspensions.
The Services require access to WiFi (or for certain Products, a cellular network or ethernet connection), Bluetooth-enabled wireless device such as a mobile phone, and/or other systems that may be specified by Airthings, and are not intended to be used for time-critical or emergency information. Your access to and use of the Products and/or Services may be interrupted for the duration of any scheduled, unscheduled, or unanticipated downtime, suspension or other unavailability, for any reason and in our sole discretion, including but not limited to: (i) as a result of WiFi, cellular or Internet intermittency, power outages, system failures or other interruptions, (ii) for scheduled and unscheduled downtime by Airthings or its suppliers (e.g., Amazon Web Services), including to permit maintenance or modifications to the Products and/or Services, (iii) in the event of a denial of service attack or other attack or event that we determine may create any risk to us, you or any of our users, customers, or licensees, or (iv) in the event that we determine that the Products or any Service is prohibited by applicable law or otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons.
We shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits), loss of reputation or goodwill, or any other consequences that you may incur as a result of any downtime, suspension or other unavailability of the Products and/or Services. We cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, settings or other service interruptions. We do not assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or settings and you agree Airthings will not be liable for any failure of delay of the Services or use of the Products.
It is your responsibility to replace the Products’ batteries as necessary. You understand and agree that the Products will not work if the batteries are discharged or need to be replaced. We recommend replacing batteries (with the correct type of battery) before they are fully discharged.
8. Automatic updates.
When Airthings develops patches, bug fixes, updates, upgrades and other modifications to improve or alter the performance of the Services and/or the Products, they may be automatically installed without providing you with additional notice or receiving your consent. You hereby consent to automatic updates. If you do not want to receive updates, your should consider to stop using the Products and Services.
9. Partners’ offers.
We cannot guarantee the authenticity of offers, data or advertisements that Partners or other third parties may provide about themselves or their partners to our Customers. Airthings is not responsible for its Partners’ or other third parties’ offers or your dealings or interactions with such Partners or third parties.
Certain Services may be provided for a fee agreed with you. In such case, you shall pay all applicable fees in for such Services in accordance with the agreed terms for such Services.
11. Recommendations and promotions.
Airthings does not guarantee any specific indoor air quality benefits or energy savings from the use of the Products and Services, as such benefits and savings will depend on many factors, including factors outside Airthing’s span of control. You understand and agree that any recommendations or promotions provided by Airthings, by Partners, or by other parties related to the Products and Services (including those that are based on the data collected from the Products you have installed) are not guarantees of actual air quality improvements or energy savings.
12. Installation and use.
It is your (or the Partner’s) responsibility to install the Products and Services according to Airthings’ guidelines. If the Products are not installed, placed or operated properly and/or are not in compliance with Airthings’ installation and operating instructions and normal care or use, they may fail and become defective, which is solely your risk and responsibility.
13. Fair use.
Use of the Services may be subject to limitations, including but not limited to, monthly data transaction volumes and the number of database calls you are permitted to make. If your volume of transactions, including calls is deemed excessive, in the sole discretion of Airthings, Airthings will be entitled to suspend or terminate your access to the Services.
We have the right to cancel and/or terminate your access to all or any part of the Products and/or Services for any violation of these Terms. Fraudulent behavior, spamming, flaming, use of profanity or abusive language, on our website or in connection with your receipt of the Services, or while contacting any Airthings personnel, will not be tolerated. If you have a paid Subscription to the Services, unless otherwise agreed in writing between you and Airthings, we may terminate your access to all or any part of the Products and/or Services, with or without cause, either at the end of a Subscription term or with at least 90 days’ notice (in our sole discretion). If we elect to terminate as provided in the preceding sentence, we may inform you by email to the most-recent email address you provided in your User Information, by posting on our website our in our app, or by other means we select. Cancellation or termination as provided herein may (in our sole discretion) result in the destruction of some or all of the data and information associated with your use of the Products and/or Services and cancellation of your access to the Services and such data and information. If you have access to our free Services, we may terminate your access to all or any part of the Products and/or Services at any time, with or without cause, with or without notice, effective immediately, which may (in our sole discretion) result in the destruction of some or all of the data and information associated with your use of the Products and/or Services and cancellation of your access to the Services and such data and information. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, our rights with respect to Data (as defined below), indemnity, and limitations of liability.
15. Proprietary Rights/License.
- Subject to these Terms, if you have paid the purchase price for the Products and Services, Airthings grants to you a non-exclusive, non-transferable, non-assignable license (without the right to sublicense or distribute) to install and use the Products and Services.
- As between the parties, Airthings solely owns and retains all intellectual property rights in and to the Services and Products, including but not limited to design, artwork, technology, software, data, functionality, and documentation, custom developments, modifications, and derivative works by whomever produced. You hereby assign to Airthings all right, title, and interest (including Intellectual Property Rights) that you may have in any custom developments, modifications, or derivative works of the Services and Products created or developed by or for you, including but not limited to design, artwork, technology, software, data, functionality, and documentation. You shall not directly or indirectly: (i) copy, modify, or reverse engineer any part of the Services or Products; (ii) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services, or Products; (iii) modify, translate, or otherwise create derivative works of any part of the Services or Products; (iv) copy, rent, lease, distribute (except that if you are a Partner we may have granted you certain distribution rights pursuant to a separate agreement), or otherwise transfer any of the rights to the Services and Products; (v) export the Services and Products from the territory where you were granted such rights or where the Products were delivered (the “Territory”) or use the Services and Products outside such Territory; or (vi) access or use any Services or Products to build a competitive dashboard, service, product or device. You acknowledge that you obtain no proprietary rights in our trademarks, service marks, trade names, URLs, copyrighted material, patents, and patent applications, and agree not to challenge our proprietary rights. The compilation of all Data included in or made available through the Services and/or Products is the exclusive property of Airthings and protected by U.S. and international copyright laws.
- You own and retain ownership to the following personal information that you provide so that you are able to subscribe to, access, and use the Products and Services: email address, name, username, and address (“User Information”). You grant, with respect to User Information, a non-exclusive, worldwide, royalty-free right for Airthings and its affiliates to use, copy, store, transmit, modify, process, create derivative works of and display the User Information solely for the purposes of providing and improving the Products and Services. You agree to refrain from submitting any sensitive data or any special categories of data (as defined under applicable data protection legislation) to Airthings or the Services. You shall be responsible for any such data submitted, and Airthings will treat such submissions as non-sensitive User Information such that Airthings is not subject to any additional obligations that apply to sensitive personal information. You shall indemnify and defend and hold harmless Airthings and its affiliates from and against any claims, cost, loss, damage, liability and expenses arising out of or in connection with User Information
- We own and shall retain ownership of all rights to all data and information collected via the Services provided to you (excluding User Information) and/or Products purchased by you (collectively, the “Data”). Data is our property, and we are entitled to use, reproduce, create derivatives of, share, license, distribute, and otherwise dispose of such Data it in the course of our business. For a period of 30 days after expiration or termination of these Terms (except in the case of termination for your breach), you may access and copy the Data then held in the Services that was generated or collected by your Products through a means we provide to you and copy and/or retrieve all of your Data
16. Governing Law, Arbitration and Class Action Waiver.
These Terms, and any dispute or claim arising out of or relating in any way to these Terms or previous versions of these Terms, your use (or the use by the company or Partner you are representing) of the Products and/or Services, or any products sold or distributed by Airthings, shall be governed by and construed in accordance with the laws of Norway without giving effect to any choice or conflict of law provision or rule.
NEITHER YOU NOR WE WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE ARBITRATION FOR ANY CLAIMS COVERED BY THESE TERMS TO ARBITRATE. BY AGREEING TO THIS ARBITRATION CLAUSE AND CLASS ACTION WAIVER, YOU AND WE ARE GIVING UP THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM THAT EACH SIDE MAY HAVE AGAINST THE OTHER ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE PRODUCTS AND/OR SERVICES, INCLUDING ANY RIGHT TO CLASS ACTION OR ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.
If for any reason, the arbitration process described above and/or the Norwegian Act on Arbitration of 2004 is deemed invalid or inapplicable, then you agree that any arbitration between you and Airthings will take place under the Consumer Arbitration Rules of the American Arbitration Association ("AAA") then in force (the "AAA Rules"), as modified by this agreement. You and Airthings agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879. Any arbitration hearings will be conducted by phone or videoconference to the extent possible, but if the arbitrator determines that a hearing should be conducted in person, the locale for such hearing shall be determined by the arbitrator in accordance with the AAA Rules.
You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Products and/or Services or with these Terms must be filed within one (1) year after such claim of action arose or be forever banned. This arbitration agreement will survive the termination of your relationship with us.
You understand that, in return for agreement to this provision, we are able to offer the Products and Services on the terms designated, at the agreed fees (if any), and that your assent to this provision is an indispensable consideration to these Terms.
17. Warranty Disclaimer, Indemnification, Limitation of Liability
- We make no representations concerning any Data contained in or accessed through any Product and/or Service, and you agree we will not be responsible or liable for the accuracy, copyright compliance, or legality of Data contained in or accessed through the Product and/or Services.
- YOUR PRODUCTS MAY HAVE COME WITH A WRITTEN, LIMITED WARRANTY FROM AIRTHINGS AT THE POINT OF PURCHASE, AND/OR A MINIMUM STATUTORY WARRANTY BINDING ON AIRTHINGS AS GOVERNED BY THE LAWS IN THE JURISDICTION WHERE YOU PURCHASED THE PRODUCT MAY APPLY. SUCH WARRANTY IS SUBJECT TO THE WARRANTY EXCLUSIONS SPECIFIED IN SECTION 19 BELOW.
EXCEPT IF AIRTHINGS IS OBLIGATED FOR ANY SUCH LIMITED WARRANTIES, TO THE EXTENT POSSIBLE UNDER GOVERNING LAW, THE PRODUCTS AND SERVICES ARE PROVIDED "AS IS", "AS AVAILABLE" AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, WE, AND OUR AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS, PROVIDERS, AND LICENSORS DO NOT WARRANT THAT: (I) THE PRODUCTS AND SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE PRODUCTS AND SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE PRODUCTS AND SERVICES IS SOLELY AT YOUR OWN RISK. IF AIRTHINGS DISCONTINUES TO OFFER THE PRODUCTS AND/OR SERVICES OR TERMINATES, NON-RENEWS, OR CANCELS THESE TERMS OR YOUR ACCESS TO THE PRODUCTS AND/OR SERVICES AS PERMITTED HEREIN, YOU WILL NOT BE ENTITLED TO CLAIM ANY COMPENSATION, REIMBURSEMENT, DIRECT OR INDIRECT LOSSES, EXPENSES OR DAMAGES FROM AIRTHINGS. IF YOU HAVE PURCHASED THE PRODUCT FROM A PARTNER OR OTHER THIRD PARTY (FOR EXAMPLE, A RESELLER OR DISTRIBUTOR), YOU ACKNOWLEDGE AND AGREE THAT ANY CLAIMS, INCLUDING WARRANTY CLAIMS, YOU HAVE SHALL BE BETWEEN YOU AND SUCH THIRD PARTY AND ANY CLAIMS YOU MAKE SHALL BE TO SUCH THIRD PARTY.
- Limitation of Liability. WE AND OUR AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PROVIDERS, AND LICENSORS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY LOSSES, EXPENSES OR DAMAGES, OR FOR DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WE OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM YOUR USE OF THE PRODUCTS AND SERVICES. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF US, OUR AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PROVIDERS, AND LICENSORS OF ALL KINDS ARISING OUT OF OR RELATED TO YOUR USE OF THE PRODUCTS AND SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED $100. BECAUSE SOME PLACES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT, OR MAY NOT IN ITS ENTIRETY, APPLY TO YOU.
- Indemnification. You agree to defend, indemnify, and hold harmless us, our affiliates and each of our and their respective directors, employees, agents, suppliers, providers, and licensors from all liabilities, claims, damages, judgments, awards, losses, costs and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to the Products and/or Services, or your violation of these Terms. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
- Severability. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.
- Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
- Feedback. You agree that we may use and otherwise exploit your feedback, suggestions, or ideas in any way, including in future modifications of the Products, Services, other products or services, advertising or marketing materials. You grant us a perpetual, worldwide, fully transferable, sublicensable, irrevocable, fully paid-up, royalty free license to use and otherwise exploit the feedback you provide to us in any way.
- Modification. We reserve the right, in our sole discretion, to modify or replace any of these Terms, or change, suspend, or discontinue the Products and/or Services at any time by posting updated terms and/or changes to the Products and/or Services or by sending you notice through the Products and/or Services, via email or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Products and/or Services without notice or liability. You shall be responsible for reviewing and becoming familiar with any such modifications, including by checking these Terms periodically for changes. Your continued use of the Products and/or Services following any changes to these Terms constitutes acceptance of those changes. Except as provided above, these Terms may be modified only by mutual written agreement between the parties.
- Assignment. These Terms are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. If a Customer sells or transfers a Product to a new owner, the Customer’s right to use the Services with respect to that Product automatically terminates, and the new owner shall not use the Product or Services under the Customer’s account but shall register a new and separate account and accept these Terms. We may assign, transfer or delegate any of our rights and obligations hereunder without your consent.
- Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect.
- No Waiver. Our failure to enforce any part of these Terms or to exercise any rights hereunder shall not constitute a waiver of our right to later enforce that or any other part of these Terms or exercise those rights. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with, or rights under, these Terms to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
- Headings. The section and paragraph headings in these Terms are for convenience only and shall not affect their interpretation.
- Notices. Unless otherwise specified in these Terms, all notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to [email protected] with subject “Attention Airthings Legal Department.” If you have purchased Products or Services from a Partner please contact the Partner directly.
- Contact. If you have general questions or comments about the Products or Services our would like to contact Airthings by mail, you can address your letter to Airthings, Wergelandsveien 7, 0167 Oslo, Attn: Customer Support.
- Copyright and trademark information. Copyright © 2022, Airthings ASA All rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the Products and Services are the property of Airthings or of their respective holders. You may not use any of the Marks without the written consent of Airthings or such respective holders.
- Preprinted terms. In no event shall any preprinted terms or conditions included on Customer’s or Partner’s purchase orders, invoices, or other preprinted forms be considered an amendment or modification of these Terms. Any such preprinted terms or conditions are hereby objected to and shall be null, void, and of no effect. Any sale of Products or Services to you is expressly conditioned on your acceptance of these terms.
- Confidential Information. “Confidential Information” means non-public information that Airthings or its affiliates (“Disclosing Party”) discloses to the other Party (“Receiving Party”) which is designated as being ‘proprietary’ or ‘confidential’ or which by its nature or the circumstances of its disclosure reasonably ought to be treated as confidential. Confidential Information includes Disclosing Party’s software, technology and prototypes and information relating to Disclosing Party’s business affairs, including business methods, marketing strategies, pricing, competitor information, product development strategies, software, technology, and financial results. Confidential Information does not include information which (a) is known by the Receiving Party, at the time of disclosure, free of any obligation to keep it confidential; (b) is at the time of disclosure, or thereafter becomes, publicly available through no wrongful act of the Receiving Party; (c) is independently developed by the Receiving Party, without relying on or referring to the Confidential Information of Disclosing Party; or (d) is approved for release by prior written authorization of Disclosing Party. Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any third party or use Confidential Information for any purpose other than for the proper fulfilment of its rights or obligations under these Terms or agreement. Receiving Party undertakes to safeguard the Confidential Information of the Disclosing Party with the same degree of care as it would apply to its own Confidential Information and, in any case, with no less than reasonable care. Such obligations will survive the expiration of this agreement for a period of five (5) years, except that if any Confidential Information constitutes trade secrets under any applicable law, the confidentiality and non-use obligations with respect to such information will remain in effect until such time as such information no longer constitutes trade secrets under the applicable law. If Receiving Party is requested or required, pursuant to a legal or administrative process, to disclose any Confidential Information supplied by the Disclosing Party, the Receiving Party will, to the extent permitted by law, use reasonable efforts to promptly notify the Disclosing Party so that the Disclosing Party may seek an appropriate protective order and/or other available remedies to prevent or limit disclosure. If in the absence of a protective order or receipt of a waiver hereunder, and in the judgment of its counsel, the Receiving Party is compelled to disclose Disclosing Party’s Confidential Information, the Receiving Party shall use reasonable efforts, to the extent allowed by law, to inform the Disclosing Party as far as practicable in advance of such disclosure.
- Unless otherwise explicitly agreed, you shall pay for Products and Services in advance. If Products are Services are not paid in advance, you agree to pay Airthings’ invoices via wire transfer within thirty (30) days of issuance to the bank account specified on the invoice. If required, pursuant to relevant applicable law (including any double taxation convention between the Parties’ governments), you shall deduct withholding tax from the fees payable to Airthings. If withholding tax is deducted, you shall: (i) pay the fees net of the required withholding tax; (ii) supply Airthings with evidence to its reasonable satisfaction that you have accounted to the relevant tax authority for the sum deducted; and (iii) provide all such additional assistance as may be reasonably requested by Airthings in recovering the amount withheld. Other than any withholding tax deducted pursuant to the foregoing, all fees are exclusive of customs, sales taxes, duties, VAT, or excises in any form (other than taxes on a Party’s income), all of which shall be borne by you. Airthings shall be entitled to charge a late fee equal to one point five per cent (1.5%) per month or, if less, the maximum amount allowed by applicable law on the overdue balance for any payments that are more than thirty (30) days overdue. If your account is thirty (30) days or more overdue, Airthings reserves the right to suspend your access to the applicable Services until such amounts are paid in full.
19. Warranty exclusions.
If your Product came with a warranty as referenced in Section 17(b), the warranty does not apply to: any Product that has been lost or stolen; batteries and charger cables/adapters; accidental loss of or damage to the Products, including dropping the Products; any Product having a defect or damage due to misuse including, but not limited to, installation, placement, or operation contrary to Airthings’ installation or operation instructions or normal care and use and improper or inadequate handling and storage; improper or inadequate wiring in connection with the Products; any Product having a defect or damage due to negligence including, but not limited to extreme temperatures, humidity or water exposure; any Product which has been damaged as a result of unauthorized repairs or alteration(s) made by a party other than Airthings; normal wear and tear; connection issues due to circumstances outside Airthings’ control; Products used outside the Territory or in regions where the Products are not certified/authorized for use; Products otherwise used in violation of Airthings’ standard terms of service; unforeseen circumstances or causes beyond Airthings' control, including but not limited to catastrophe, fault, or negligence of the purchaser or any third party, acts of God, war, terrorism, riot, acts of civil or military authorities, fire, floods, or accidents.
20. Additional terms that apply to Partners and Customers that have ordered Subscription(s) for Services.
- “Subscription” means a subscription for a fee to access specific Services pursuant to a separate agreement, order, quote or other agreement with Airthings.
- The agreed fees for the Subscriptions will be invoiced to Partner or Customer (or prepaid by Partner or Customer) in advance of commencing the Services for a minimum of twelve months and shall automatically renew (and be invoiced or prepaid) for consecutive twelve-month periods unless written notice of non-renewal is given to Airthings no later than ninety days
prior to their expiration. Services are deemed to be commenced when the Products are added to the Airthings platform or cloud. Additional Subscriptions for each Customer purchased part way through the initial Subscription term for the Customer or subsequent Subscription terms will be pro-rated from the date of activation for the remainder of the relevant Subscription term and co-terminate with the existing Customer Subscriptions. For the avoidance of doubt, a Partner shall pay the applicable Subscription Fees to Airthings regardless of whether Partner charges Customers for the Services.
- Airthings shall be entitled to suspend or stop providing Services in the event of late or non-payment of the agreed Subscription or breach of these Terms. Any payments that are more than thirty (30) days overdue will be subject to a late charge equal to one point five per cent (1.5%) per month or, if less, the maximum amount allowed by applicable law on the overdue balance.
21. Additional terms that apply to Partners without a separate written agreement with Airthings
- Subject to the Terms and any terms included on an Airthing’s quote (which together make up the agreement between Partner and Airthings), Airthings may appoint the Partner as an independent, non-exclusive, authorized reseller of the Products and Subscriptions to Services in the Territory. Such appointment can be revoked by Airthings at any time upon written notice to Partner. A Partner that has accepted such appointment to purchase Products and Subscriptions to Services from Airthings or an Airthings affiliate, agrees to actively promote, market, and resell the Products and Services solely to Customers in the Territory, including by promoting and advertising the Products and Services on the Partner’s website. The Products and Services shall only be offered, sold, and provided together. The rights granted to the Partner are non-transferrable. For clarity, any software included in the Products or Services is licensed, not sold.
- An appointed Partner shall comply with all applicable laws, rules, regulations, and policies applicable to its business and/or related to the marketing and provision of the Products and Services.
- All rights not specifically granted by Airthings to Partner are reserved by Airthings. Except as specified in writing, no license is granted to or under any Intellectual Property Rights of Airthings or its affiliates (by implication, estoppel, or otherwise), and nothing in this agreement shall be construed to prevent Airthings or any of its Affiliates to advertise, market, promote, sell, provide, distribute or resell Products and/or Services or Subscriptions to customers, distributors or other resellers in the Territory or elsewhere.
- Unless otherwise agreed in writing, an appointment is limited to re-sales and distributions directly to Customers in the Territory only. The Partner shall not advertise, market, promote, sell, provide, distribute, or resell the Products or Services or Subscriptions to other resellers or authorize or appoint any dealers, sub-resellers, agents, representatives, subcontractors, or other third parties to advertise, market, promote, sell, provide, distribute, or resell the Products or the Services or Subscriptions.
- When a Partner resells or distributes Products or Services, and prior to providing any Customer with access to any Product or Service, Partner shall ensure that each Customer enters into a binding agreement under which the Customer agrees to and accepts Sections 1-19 of these Terms for the Products and Services. Agreements between the Partner and its Customers, including any terms of those agreements that deviate from or are inconsistent with the Terms, shall be entered into at the Partner’s own risk and responsibility. Partner shall not authorize or permit any Customer to further resell or distribute any Products or Services.
- The Partner shall require Customers to maintain proper password security and the confidentiality of the Partner’s and Customers’ accounts, including to the dashboard, and shall be responsible for the actions of its Customers and any third parties accessing the Services through the credentials of the Partner or a Customer.
- The Partner is solely responsible for the accuracy, content and legality of all Partner information and User Information. The Partner represents and warrants to Airthings that the Partner has (and the Partner will ensure that the Customer has) all necessary rights, consents and permissions to collect, share, and use all Partner information and User Information as contemplated in this agreement and that no Partner information or User Information will violate or infringe (i) any third-party Intellectual Property Rights or publicity, privacy, or other rights or (ii) any applicable laws.
- The Partner shall grant with respect to Partner information (and shall ensure Customers grant with respect to Customer Information), a non-exclusive, worldwide, royalty-free right for Airthings to use, copy, store, transmit, modify, process, create derivative works of and display the Partner information and Customer Information solely to the extent necessary to provide the Products and Services to the Partner and Customer. The Partner shall not submit, and shall prohibit Customers from submitting, any sensitive data or any special categories of data (as defined under applicable data protection legislation) to Airthings, the dashboard, or the Services. The Partner and Customer shall be responsible for any data it submits, and Airthings will treat such submissions as Partner information or Customer Information such that Airthings is not subject to any additional obligations that apply to sensitive personal information. The Partner shall indemnify and defend and hold harmless Airthings and its affiliates from and against any claims, cost, loss, damage, liability and expenses arising out of or in connection with Partner information or Customer Information.
- Airthings and its affiliates shall be entitled to use the Partner’s name, logo and other public details on Airthings’ webpages, presentations, marketing, and promotional materials, and press releases, and communicate that the Partner is an authorized Partner of Airthings.
- Within ten (10) working days after the end of each quarter, Partner shall provide a written report to Airthings with the following information: (i) a sell-through report with the names of Customers, their address or location, Products’ serial numbers (if possible), SKU numbers, models, quantities, and value of Products sold in the month; and (ii) an inventory report with SKUs and quantity of all Products in stock at the end of the month.
- Orders for Products shall be made by e-mail to [email protected], copying the Airthings’ contact person. The Order shall at a minimum contain the following information:
- Model number and number of units in the order;
- Ship-from and ship-to addresses;
- Partner’s tax/VAT number, if applicable;
- Airthings’ and the Partner’s contact person;
- the Partner’s shipping agent and account number
- Airthings aims to reply to all orders within 5 business days, and accepted orders will be confirmed by an order confirmation from Airthings within a reasonable time after receiving the order.
- An agreement for the sale and purchase of Products and Services is concluded and binding when Airthings confirms and provides an unconditional acceptance of the Partner’s order or when the Partner accepts an Airthings’ quotation/offer.
- Except for shipments within the United States, the European Union and Norway which shall be governed by the next sentence, the Products shall be shipped FCA (for shipments by air) and FOB (for shipments by sea) Incoterms® 2020 at the place designated by Airthings. For shipments within the United States, the European Union and/or Norway, Airthings or its affiliate will ship the Products to the Partner's address at the Partner’s cost, and the risk to the Products transfers and passes to the Partner at the time the Products are delivered. For the avoidance of doubt, the Partner is responsible for all transportation, shipping, and handling costs, import and customs clearance, and any applicable local taxes or import duties.
- Airthings shall use commercially reasonable efforts to meet the delivery dates specified in the order confirmation; provided that the volumes ordered are within the six-month forecast provided to Airthings by the Partner and the Partner has provided all the necessary order and delivery information sufficiently before such delivery date. Airthings shall not be in breach of its obligations for deliveries made within a reasonable time of the communicated delivery date or for late deliveries due to circumstances outside of Airthings’ control. Airthings reserves the right to perform partial deliveries if they would not unreasonably affect the Partner.
- The Partner shall pay Airthings’ invoices via wire transfer within thirty (30) days of issuance to the bank account specified on the invoice. If required, pursuant to relevant applicable law (including any double taxation convention entered into by the Parties’ governments), the Partner shall deduct withholding tax from the fees payable to Airthings. If withholding tax is deducted, the Partner shall: (i) pay the fees net of the required withholding tax; (ii) supply Airthings with evidence to its reasonable satisfaction that the Partner has accounted to the relevant tax authority for the sum deducted; and (iii) provide all such additional assistance as may be reasonably requested by Airthings in recovering the amount withheld. Other than any withholding tax deducted pursuant to the foregoing, all fees under this agreement are exclusive of customs, sales taxes, duties, VAT, or excises in any form (other than taxes on a Party’s income), all of which shall be borne by the Partner. Airthings shall be entitled to charge a late fee equal to one point five per cent (1.5%) per month or, if less, the maximum amount allowed by applicable law on the overdue balance for any payments that are more than thirty (30) days overdue. If the Partner’s account is thirty (30) days or more overdue, Airthings reserves the right to suspend the Partner’s and the Customer's access to the applicable Services until such amounts are paid in full.
- Airthings or the Partner may terminate the Terms and the agreement between them without cause at any time by providing thirty (30) days’ written notice.
- Upon termination or expiration of the Terms or the agreement between the parties:
- The Partner shall immediately cease the marketing, resale, and distribution of the Products and Services and all rights for reselling granted under this agreement shall end automatically.
- The Partner and Customers will continue to have access to the Services for the term of the relevant paid-for Subscription(s). The Partner and Customers shall not be entitled to purchase new Subscriptions pursuant to this agreement, but the Partner shall inform Customers that they may contact Airthings to purchase new Subscriptions;
- Partner shall return to Airthings or destroy (if authorized in writing by Airthings) any Confidential Information in its possession or control, and cause an officer to certify in writing to Airthings that it has done so;
- The Partner shall forthwith cease all use of any trademarks; and
- The Partner’s payment obligations survive the termination or expiration of the agreement, even if payment date(s) are after the termination or expiration date.
- Airthings is committed to conducting its business in a manner that respects human rights and is free from unlawful, unethical, or fraudulent activity. Airthings has a zero-tolerance approach to human rights violations, bribery and corruption and expects its partners to do the same. Each Party agrees to conduct its business and carry out its obligations under the agreement in a reasonable and ethical manner and not to engage in any deceptive, misleading, or unethical practices or advertising at any time.
- The Partner shall be responsible for compliance with all applicable laws relating to export controls and shall obtain any required export license for the Products. The Partner shall not export or re-export any Products or Services subject to export and re-export laws to a government sanctioned country or any person listed on a government denied party list. The Partner will ensure that it and all financial services providers used for the transfer of payments, including wire transfers, under this agreement are not listed as specifically designated nationals and blocked persons under any applicable sanctions. Furthermore, the Partner will provide to Airthings any information it deems necessary about its financial services providers for it to ensure compliance with applicable sanctions.
- The Product Prices are for Airthings’ standard Products and packaging. Any customizations or changes to the Products or packaging including stickering, re-sleeving or re-boxing will be invoiced at Airthings’ standard rates. Airthings only accepts orders of a minimum of 50 Products. Any orders of less than 50 Products may be rejected by Airthings but if accepted will be subject to a minimum handling fee of 100 USD. All orders are subject to Airthings’ standard shipping and handling rate.
- Airthings shall be entitled to increase prices of the Products and Services upon 30 days written notice. Price increases for Subscriptions will only apply to subsequent billing periods and new Subscriptions.
- Partner shall follow Airthings’ Product Quality Guidelines:
Product quality guidelines
- Comply with all instructions provided by Airthings regarding the storage, handling, shipping, disposal, or other aspect of the Products, including instructions provided on Product labels.
- Exercise due care in storing and handling the Products. Products shall be stored in a cool, dry place, away from direct sunlight, extreme temperatures, and dampness (below 80% humidity levels), and in an environment where the Products and the Products’ packaging are not susceptible to soiling, punctures, dents, misshaping or other physical damage.
- Sell Products in their original packaging. Relabelling, repackaging (including the separation of bundled Products or the bundling of Products), and other alterations to Products or their packaging are not permitted without the express written consent of Airthings.
- Not remove, translate, or modify the contents of any label or literature on or accompanying the Products or Services or tamper with, deface, or otherwise alter any serial number, UPC code, or other identifying information on Products or their packaging.
- Not supply any Product that has been returned opened or repackaged without the prior consent of Airthings.
- Promptly upon receipt of the Products, inspect the Products and their packaging for damage, defect, evidence of tampering, or other nonconformance (a “Defect”). If any Defect is identified, do not supply the Product for resale and promptly report the Defect to Airthings at [email protected].
- Be familiar with the special features of all Products and Services marketed for sale and obtain sufficient Product and Service knowledge to advise customers on the selection, installation, and safe use of the Products and Services, as well as any applicable warranty or return policy. Be available to respond to Customer questions and concerns both before and after sale of the Products and Services and respond to Customer inquiries promptly.
- Cooperate with Airthings with respect to any Product tracking systems that may be implemented from time to time.
- Cooperate with Airthings with respect to any Product recall or other consumer safety information dissemination efforts.
- Report to Airthings any Customer complaint or adverse claim regarding the Products and Services and assist Airthings in investigating any such complaints or adverse claims.
- Cooperate with Airthings in the investigation and resolution of any quality or customer service issues related to the provision of the Products and Services, including disclosing information regarding Product sources, shipment, and handling.