Terms of Service
Updated on: 15 May 2024
Welcome to Airbyrd! At Airbyrd, we offer expert virtual assistants equipped with diverse skills to handle tasks for business, executives or professional individuals.
Airbyrd Pte. Ltd. (“Airbyrd”, “Us” or “We”) provides the airbyrd.com site and various related services, including any content, functionality, your use of virtual assistants, and services offered on or through airbyrd.com (the “Site” and collectively, the “Services”) to you, the user, subject to your compliance with all the terms, conditions, and notices contained or referenced herein (collectively, the “Terms of Service”), as well as any other written agreement between us and you.
This document explains the terms by which you may use our Services. These Terms of Service (these “Terms”), including the Privacy Policy, each dated as of the Effective Date and incorporated into these Terms by reference, as well as any other policy incorporated herein by reference, may be updated periodically. Your continued use of the Services signifies that you have read and understood the changes. You agree that notification upon change of this agreement is not required.
In order to avail yourself of the Services, you must agree to these Terms. By using the Services, the Application, you represent that you have read and understood these Terms, and are reading & understanding any changes that may periodically occur. PLEASE READ THESE TERMS AS THEY AND ALL REFERENCED DOCUMENTS AND POLICIES CONSTITUTE A LEGAL AGREEMENT, BETWEEN YOU AND AIRBYRD AND ITS CONTRACTORS, TO WHICH YOU ARE SUBJECT. Throughout these Terms, the word “including” can mean “including but not limited to.” By accessing or using the Services, you signify that you have read, understood, and agreed to be bound by the provisions of these Terms.
As used in these Terms of Service, references to our “Affiliates” include our owners, subsidiaries, affiliated companies, officers, directors, suppliers, partners, sponsors, and advertisers, and includes (without limitation) all parties involved in creating, producing, and/or delivering this Site and/or its contents, or the Services.
Overview of our Services
1. To ensure the quality of the Airbyrd experience we have set up our Terms of Service for our mutual benefit. If you violate these rules it will mean you’ve broken the Terms of Service and this may result in a termination of your Service and Account.
2. All Airbyrd plans are governed by a monthly hour limit by plan type. If these hours are unused by the next billing cycle, you are able to rollover a maximum of 50% of your monthly hours to the next cycle. Any hours in excess of the allowable roll over hours will not carry over to the next cycle and will expire immediately.
3. At the start of each month, we will expense from your previous month’s rollover hours first, if any, before utilizing your current monthly hours.
4. All Airbyrd plans are recurring subscriptions that can be canceled or paused at any time.
5. Any agreement or attempted agreement between you and a virtual assistant (a “Virtual Assistant”), in connection with a service contract, requiring that payment be made outside of Airbyrd shall constitute a material breach of this agreement and be subject to cancellation without refund.
6. The Services are available only to users who have reached the legal age of majority in their jurisdiction. The Services are not directed to and must not be accessed or otherwise used by individuals under the age of 18. By using the Services, you represent you meet the eligibility requirements contained herein. If you do not meet all requirements, you must not access or use the Services.
Access and Use Rights
7. Subject to the terms and limitations set forth in this Terms of Service, and provided that Airbyrd has received timely payment of all fees owed under this Terms of Service, Airbyrd hereby grants you a limited, non-transferable and non-sublicensable (except in connection with a permitted assignment of this Terms of Service), revocable (in connection with termination of this Terms of Service), worldwide license, during the term set forth in Section 10 (Term, Modifying and Termination of Services) of this Terms of Service, to use the Service, solely for your internal business purposes and solely in accordance with the terms of this Terms of Service.
8. Airbyrd will provide relevant tools such as Basecamp for project management and work communication with your Virtual Assistant for us to provide our Services. You shall (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Airbyrd in writing promptly of any such unauthorized access or use, and (ii) use the Services only for your internal business, and not for service bureau use or time-sharing, nor to provide outsourcing, application service provider or similar services to third parties. You shall not (or permit any other person to) (A) sell, resell, license, rent or lease any of the Services, (B) use the Services to transmit infringing, libelous, or otherwise unlawful or tortious material, or to violate third-party privacy rights,
(C) interfere with or disrupt the integrity or performance of any of the Services, or any third-party data contained therein, (D) charge a fee to any third party for use of the Services; (E) use the Services in a manner inconsistent with nor contemplated by this Terms of Service, or (F) reverse engineer, decompile, translate, adapt, or disassemble the Services, nor shall you attempt to recreate the source code from the object code for the Services. You also agree not to permit any third party acting on your behalf to do any of prohibited activities under this Section (Access and Use Rights).
9. You agree to use the Services in accordance with applicable laws of the jurisdiction where the Services are used, including foreign trade control laws and regulations, copyright laws and other intellectual property laws.
10. You are prohibited from using the Services to create any change, translation, adaptation, arrangement, addition, modification, extension, upgrade, update, improvement, (including patentable improvements), new version, or other derivative work of or to Services.
11. You shall not (i) permit any third party to access any Services except as permitted herein, (ii) create derivative works based on the Services or merge it with any other products or services, (iii) copy, frame or mirror any part or content of the Services, (iv) reverse engineer the Services, or (v) access the Services or the intellectual property contained therein in order to (a) build a competitive product or service or for any benchmarking purposes, (b) copy any features, functions or graphics of the Services, or (c) use the Services other than as set forth in this Section 2 (Access and Use Rights).
Payment Terms
12. All Airbyrd plans are prepaid when you subscribe to our Services. Upon subscription and payment to any of our plans, it will kickstart our consultation and matching process followed by a simple onboarding before actual task assignment or work can be done by your virtual assistant. This process can take anywhere from a few days to a week and will not consume any hours from your monthly plan. Your monthly plan will activate only when your virtual assistant(s) starts working on your tasks and assignment.
13. The date upon which you sign up for an Airbyrd plan will be the first day of your subscription (the “Subscription Start Date”). The day Airbyrd Virtual Assistant(s) starts working on your tasks and assignment is the first day your existing subscription will start (the “Start Date”). Payment for services will then continue to be charged every month thereafter one month after the end of the Start Date (your “Subscription Renewal Date”) and automatically deducted from the chosen Payment Method on file.
Here’s an example of how this works:
You sign up for an Airbyrd plan on 1 May (the “Subscription Start Date”). Consultation, Matching and Onboarding takes one week. Airbyrd Virtual Assistant starts work on 9 May (the “Start Date”). Your existing subscription will start on 9 May due for renewal on 8 June (the “Subscription Renewal Date”).
14. When you work with us, the assumption that is made clear to all parties from the beginning, is that your subscription with Airbyrd will automatically renew every month until you provide us with a Notice to cancel or pause your subscription.
15. If for any reason you are unable to pay your bill on the Subscription Renewal Date, our systems will continue to automatically attempt to charge you for 7 days, during or after which your Customer Success Team will reach out to address the billing issue. If the billing issue is not resolved by then, your services may be interrupted, and your virtual assistant(s) may be reassigned to other clients. You will still be financially liable for any periods during which your virtual assistant(s) were working but your subscription was in an unpaid status.
16. Airbyrd accepts all credit and debit cards (American Express, Visa, MasterCard, Discover), bank transfers and any applicable forms of payments facilitated by our financial technology partner, Stripe, a PCI-Level 1 Compliant payment processor.
17. You agree to pay all amounts owed to us for the Services under any terms, policies or other written or electronic agreement we may have in place. We may require you to maintain valid credit card or other payment account information with us (which is collected and stored by our secured, encrypted, third-party application) in order to receive the Services, and if so, you hereby authorize us to charge your credit card or other payment account for the Services. Your right to purchase products through the Services is conditioned upon our receipt of payment. Refusal of product delivery does not release you from payment liability. If a payment cannot be charged to your credit card or if a charge is canceled for any reason, or if you fail to maintain valid, up-to-date payment information or to keep your payments current, we reserve the right to immediately either suspend or terminate your access and account immediately without notice, thereby terminating these Terms of Service. Any failure to maintain valid, up-to-date payment information with us or to keep your payments current will constitute a material breach of these terms, for which we may suspend or terminate your access to the Services immediately without notice. Interest will be charged on all unpaid delinquent amounts at the rate of 3.5% per month or the highest rate permitted by applicable law, whichever is lesser. You agree to reimburse us for all collection agency fees, attorneys’ fees and other costs we may incur to collect delinquent amounts you owe to us.
Privacy
18. Our privacy policy explains how we treat your personal information and protect your privacy when you use our Services. By using our Services, you agree that we can collect, use, and share data from you as described in our privacy policy. We are not responsible for any information that you share with others via your use of the Services. You assume all privacy, security, and other risks associated with providing any information, including personally identifiable information, to other users of the Service. If you submit feedback or suggestions about our Services, you agree that we may use your feedback or suggestions without obligation to you.
Ownership and Confidentiality of Work Product
19. If a Virtual Assistant creates anything original for you, such as research projects, reports, templates, spreadsheets, forms, etc. (“Work Product”), Airbyrd grants to you a non-exclusive, royalty-free, perpetual, irrevocable, non-transferable license to use the Work Product for your own personal and commercial purposes.
20. As used in these Terms of Service, your “Confidential Information” means non-public information that you provide to Airbyrd or a Virtual Assistant that you reasonably expect to keep secret, including your personal information (i.e., your name, your identity or social security number, your credit card information, and similar information), but does not include information that (1) becomes generally available to the public other than an unauthorized disclosure by Airbyrd or a Virtual Assistant; (2) was or becomes available to Airbyrd or a Virtual Assistant on a non-confidential basis prior to your disclosure of the information to Airbyrd or a Virtual Assistant; (3) is independently developed by Airbyrd or a Virtual Assistant without using your Confidential Information; or (4) information we are required to disclose by a warrant, subpoena or other request in an investigation or legal proceeding or where disclosure is necessary to protect Airbyrd’s rights or property, or the rights or property of Virtual Assistant(s) or our other clients.
21. As used in these Terms of Service, your intellectual property means patents, trademarks and copyrights owned by you and any insights, knowledge, and ideas provided by you in connection with creation of the Work Product.
22. You acknowledge and agree that you are solely responsible for all Confidential Information and other content you submit to a Virtual Assistant or otherwise provide or upload on or through the Services (collectively, “Content”) and any consequences of submitting, providing or uploading it, and represent you have all rights, consents and permissions in and to the Content necessary to grant the licenses and rights herein, and that such Content, its provision to us and use or access thereof by us in the performance of the Services will not violate the rights of any person or entity, applicable law, or be likely to deceive any person. You hereby grant us a non-exclusive, royalty-free, perpetual, irrevocable, transferable license to use, modify, and create derivative works of the Content to provide the Services.
23. Using our Services does not give you ownership of any intellectual property rights in our Services or the Content you access through them. You may not use Content, except as permitted in these Terms of Service, by its owner, or as otherwise permitted by law. These Terms of Service do not grant you the right to use any branding or logos used in our Services, including the Airbyrd name and logo. Don’t remove, obscure, or alter any legal notices displayed in or along with our Services.
Cancellations
24. Monthly memberships can be canceled at any time, though we are unable to prorate membership cancellations or refunds due to unused time. All cancellation requests will go into effect on your next monthly billing date. A minimum of 48 business hours prior to renewal is required. To cancel, please contact our Customer Success Team success@airbyrd.com and ask us to cancel your subscription.
Term, Modifying and Termination of Services
25. This Terms of Service shall begin when you begin using the Site and/or Services, and shall continue indefinitely unless terminated in accordance with the terms of this Terms of Service.
26. Airbyrd reserves the right to terminate the service of a client at any time — for any reasons including but not limited to the following:
- If the client is constantly requesting tasks outside the scope of their service plan and we’re unable to find a solution by scaling back the requests
- If the client is abusive to his/her assistant or any other Airbyrd team member
27. We are constantly changing and improving our Services. We may add or remove functionalities or features, and we may suspend or stop a Service altogether, at any time, without any notice or liability.
Non-Solicitation
28. You acknowledge that Airbyrd has made substantial investments in recruiting, training and matching skilled Virtual Assistant(s) with each of its clients. You also acknowledge that Airbyrd has separate agreements with the Virtual Assistant(s) that protect this interest by requiring that Virtual Assistants obtain Airbyrd’s prior written consent before accepting any direct engagement (whether as an employee, consultant, contractor or otherwise) with the Airbyrd client to whom they were assigned. Accordingly, to the fullest extent permitted under applicable law, you agree that during your Terms of Service with Airbyrd and for a period of twelve (12) months immediately following the termination of your relationship with Airbyrd for any reason, whether voluntary or involuntary, with or without cause, you shall not directly or indirectly solicit any Virtual Assistant(s) who is assigned to you at that time or who was assigned to you within the six (6) months preceding termination of your relationship with Airbyrd to leave his or her employment with Airbyrd to work for you in any engagement directly or indirectly. Should any solicitation by you become a substantial factor resulting in the Virtual Assistant(s) leaving Airbyrd and accepting an engagement with your directly or indirectly without Airbyrd’s consent, you agree to pay Airbyrd as liquidated damages reasonably calculated to compensate Airbyrd for its lost investments and not as a penalty of any kind, a one-time fee equivalent to one year of your monthly Airbyrd subscription in effect at the most recent date that the Virtual Assistant(s) had been assigned to you by Airbyrd.
Warranties and Disclaimers
29. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE SERVICES AND ANY WORK PRODUCT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND WITH RESPECT TO THE SERVICES AND WORK PRODUCT, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. WE DISCLAIM ANY WARRANTY THAT THE SERVICES OR ANY WORK PRODUCT OR OTHER INFORMATION, WILL MEET YOUR REQUIREMENTS OR THE REQUIREMENTS OF ANYONE WHO MAY BE INFORMED OF THE SERVICES OR WORK PRODUCT, OR THAT THE SERVICES OR ANY WORK PRODUCT WILL BE UNINTERRUPTED, TIMELY, CURRENT, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVERS THAT MAKES THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR DESTRUCTIVE CODE. THE SERVICES AND WORK PRODUCT MAY BE OUT OF DATE AT ANY GIVEN TIME, AND WE ARE UNDER NO OBLIGATION TO UPDATE THE SERVICES OR ANY WORK PRODUCT. WE MAKE NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE OUTSIDE OF THE UNITED STATES. YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY YOUR PARTICULAR REQUIREMENTS, INCLUDING WITHOUT LIMITATION REQUIREMENTS FOR ANTI-VIRUS PROTECTION AND ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO OUR SERVICES FOR ANY RECONSTRUCTION OF YOUR LOST WORK PRODUCT, CONTENT OR OTHER DATA. YOU AGREE THAT FROM TIME TO TIME WE MAY REMOVE THE SERVICES FOR INDEFINITE PERIODS OF TIME WITHOUT NOTICE TO YOU. YOUR ACCESS AND USE OF THE SERVICES MAY BE INTERRUPTED FROM TIME TO TIME FOR ANY OF SEVERAL REASONS, INCLUDING, WITHOUT LIMITATION, THE MALFUNCTION OF EQUIPMENT, THE FAILURE OF THIRD-PARTY SERVICE PROVIDERS, PERIODIC UPDATING, MAINTENANCE OR REPAIR OF THE SERVICES OR OTHER ACTIONS THAT WE, IN OUR SOLE DISCRETION, MAY ELECT TO TAKE, AS WELL AS THE MALICIOUS ACTIONS OF HACKERS AND OTHER THIRD PARTIES. TO THE FULLEST EXTENT PROVIDED BY LAW, NEITHER WE NOR ANY PERSON ASSOCIATED WITH US WILL BE LIABLE FOR ANY WORK PRODUCT USE THEREOF, OR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, EMAIL COMPROMISE, PHISHING OR OTHER ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, OR OTHER DEVICES, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR ITEMS OR DATA OBTAINED ON OR THROUGH THE SERVICES, OR ANY WEBSITE OR APPLICATION LINKED TO OR THROUGH THE SERVICES.
30. OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS, NEITHER AIRBYRD NOR ITS LICENSORS, SUPPLIERS, ADVERTISERS, OR DISTRIBUTORS MAKE ANY SPECIFIC PROMISES ABOUT THE SERVICES. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTIONS OF THE SERVICES, OR THE RELIABILITY OR AVAILABILITY OF THE SERVICES, OR THE ABILITY OF THE SERVICES TO MEET YOUR NEEDS.
31. YOU AND YOUR HEIRS, SUCCESSORS, AND ASSIGNS HEREBY FOREVER IRREVOCABLY RELEASE, DISCHARGE, AND HOLD HARMLESS US, OUR AFFILIATES, AND OUR AND THEIR SUCCESSORS AND ASSIGNS, AND OUR AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY, “RELEASED PARTIES”) FROM, AND AGREE NOT TO SUE ANY RELEASED PARTY FOR, ANY LIABILITIES, CLAIMS, OBLIGATIONS, SUITS, ACTIONS, DEMANDS, EXPENSES, AND DAMAGES WHATSOEVER (COLLECTIVELY, “LIABILITIES”) THAT YOU MAY HAVE AGAINST ANY RELEASED PARTY WHETHER EXISTING NOW OR IN THE FUTURE, WHETHER KNOWN OR UNKNOWN, ARISING OUT OF OR IN CONNECTION WITH YOUR OR A THIRD PARTY’S CONDUCT RELATED TO USE OF THE SERVICES. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE FOREGOING SENTENCE RELEASES AND DISCHARGES ALL LIABILITIES, WHETHER OR NOT THEY ARE CURRENTLY KNOWN TO YOU, AND YOU WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542. YOU UNDERSTAND THE MEANING OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH 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.” BY AGREEING TO THESE TERMS OF SERVICE AND THIS WAIVER, YOU ASSUME ALL RISK ARISING FROM YET UNKNOWN CLAIMS.
32. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THE TERMS OF SERVICE, WORK PRODUCT, OR, THE SERVICES, OR THE USE THEREOF MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
33. There is no warranty on any of the information, tasks, or projects your Virtual Assistant(s) completes for you. What we will promise is that we’ll do our best to provide the most accurate, most effective information available and we know Virtual Assistant(s) do this better than anyone else. However, if we give you information or results that are wrong, you cannot hold us liable for it (or the results) legally or morally.
34. You represent and warrant that (i) the credit card information you supply to us or otherwise on or through the Services is true, correct and complete, (ii) you are duly authorized to use such credit card for the subscription or other purchase, (iii) charges incurred by you will be honored by the credit card company.
Third Party Sites and Content
35. Our Services display some Content that is not our own. For example, some Content belongs to our advertisers, other third parties, or other users (collectively, “Third Party Content”). The Services may include or permit you to link to other websites, apps, or resources on the Internet, and other websites, apps, or resources may contain links to the Services. We are not responsible for, and you waive all of our liability with respect to, Third Party Content. Third Party Content is the sole responsibility of the individual or entity that makes it available via the Services. These other websites are not under our control, and you acknowledge that we are not responsible or liable for any Third Party Content, products or services, including but not limited to the accuracy, integrity, quality, usefulness, legality, appropriateness, safety or intellectual property rights of or relating to such third party content, products or services or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by us or any association with its operators. We may review Third Party Content to determine whether it is illegal or violates our policies, and we may remove or refuse to display Third Party Content that we believe violates our policies or the law. But we do not generally review content beforehand, and we are not obligated to do so. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Third Party Content, goods or services available on or through the Services or any such website or resource. Access and use of third-party sites, including the information, material, products and services on third party sites or available through third party sites, is solely at your own risk.
About Software in our Services
36. You may be required to download software (such as a mobile or desktop app) to use the Services or certain features of the Services, and the Services may enable you to access software running on our (or our vendors’) servers (collectively, “Software”). You agree that we retain the ownership of all rights, title, and interest in and to the Software. Certain Software may update automatically on your device once a new version or feature is available, and you consent to such automatic updating.
37. Airbyrd gives you a personal, worldwide, royalty-free, non-assignable, and non-exclusive license to use the Software to access the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by us, in the manner permitted by these Terms of Service. You may not copy, modify, distribute, sell, or lease any part of our Services or Software, nor may you reverse engineer or attempt to extract the source code of the Services or Software, unless laws prohibit those restrictions or you have our written permission.
38. There may be software programs contained within certain Software that have been licensed to us by third parties. The term “Software” as used herein shall refer to this third-party software except where the term “Software” is used in the context of our ownership. The same terms and conditions, including all limitations and restrictions, set forth in these Terms of Service apply to each third-party software program contained in the Software. You acknowledge and agree that any third-party components are owned by their applicable licensors. We do not make any representations or warranties about the operation or availability of such third-party software. Neither we, nor our licensors, shall be liable for any unavailability or removal of such third-party software. We are not
responsible for any communications to or from such licensors, or for the collection or use of information by such licensors. You consent to the communications enabled and/or performed by such third-party software, including automatic updating of the third-party software without further notice. You agree that such third-party software licensors are intended third-party beneficiaries under these Terms of Service.
Limitation of Liability
39. YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT, SHALL WE, OUR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES OR THE COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THE TERMS OF SERVICE OR YOUR USE OF OR YOUR INABILITY TO USE THE SERVICES OR WORK PRODUCT, OR FOR ANY DIRECT DAMAGES ARISING FROM OR RELATED TO THE TERMS OF SERVICE, THE WORK PRODUCT, THE SERVICES, OR ANY SUBSCRIPTION EXCEEDING THE LESSER OF: (A) $100; AND (B) THE TOTAL AMOUNTS YOU PAID TO US IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF LOSS OR DAMAGE. TO THE EXTENT ANY PROVINCE, STATE OR JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY AS PROVIDED IN THIS PARAGRAPH, OUR LIABILITY IN SUCH PROVINCE, STATE OR JURISDICTION SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
40. WITHOUT LIMITING THE FORGOING, THE FOREGOING LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO ANY DAMAGES INCURRED BY REASON OF ANY WORK PRODUCT, CONTENT OR SERVICES PROVIDED BY ANY USERS AND ANY THIRD PARTIES OTHER THAN US AND RECEIVED BY YOU THROUGH THE SERVICES. YOU ALSO AGREE THAT WE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY INTERACTIONS OR DEALINGS WITH ADVERTISERS, THE PRESENCE OF SUCH ADVERTISERS ON OR THROUGH THE SERVICES, OR ANY CONTENT OR SERVICES RECEIVED BY YOU ON ANY THIRD-PARTY SITES. We have the right to cooperate fully with law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any content or other materials on or through the services, or otherwise. YOU WAIVE AND HOLD HARMLESS US AND OUR AFFILIATES FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
41. IN ALL CASES RELATING TO PROVIDING YOU THE SERVICES, AIRBYRD (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND ITS LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE OR THAT IS DUE TO EVENTS OUTSIDE OF OUR REASONABLE CONTROL, SUCH AS WARS, CRIMINAL ACTIVITIES, STORMS, DELAYS (INCLUDING, BUT NOT LIMITED TO, DELAYS SHIPPING THE PRODUCTS, OR FAILURES OR DELAYS OF COMMON CARRIERS), PUBLIC HEALTH EMERGENCY, NATURAL DISASTERS, ACTS OF GOVERNMENT, SUPPLY INTERRUPTIONS, OR TELECOMMUNICATION OR INTERNET FAILURES.
Indemnification
42. You agree to indemnify, defend, and hold harmless Airbyrd, its Affiliates, and its and their respective directors, officers, employees, agents, representatives, partners, and contractors from and against any and all loss, expense, damage, cost, or liability (including, but not limited to, reasonable attorneys’ fees) resulting from or relating in any way to any claim, demand, action or proceeding or that that otherwise arises out of or relates to the Terms of Service, the Services, or any Content you provide through the Services, including but not limited to in relation to: your use, non-use or misuse of, or connection to the Services, and any Content or Work Product; (b) your breach or alleged breach of the Terms of Service; (c) your violation of any rights, including without limitation contractual or intellectual property rights, of us, a user or other third party; (d) your violation or alleged violation of any laws; or (e) your use or exploitation of the Services or any Work Product or other information obtained from or through the Services (including, without limitation, any use or transfer of e-mail addresses or telephone or other device numbers or identifiers, or other personal information in violation of TCPA, CPRA, GDPR, CAN-SPAM or other anti-spam or privacy laws and regulations). However, you will not be responsible for claims, damages, and costs which are found by a court of competent jurisdiction to have arisen solely from our violation of applicable law. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior written consent of us. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
Business/Employer Uses of our Services
43. If you are using our Services on behalf of a business or employer, you are accepting these Terms of Service on their behalf, and that business or employer agrees to be bound by these Terms of Service.
Waiver
44. Waiver of Class Actions and Collective Relief. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS OR USERS, OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
Miscellaneous
45. Notices. By providing us with your email address, you agree to receive all required notices electronically, to that e-mail address. It is your responsibility to update or change your e-mail address, as appropriate.
46. Governing Law. The laws of Singapore, will apply to any disputes arising out of or relating to these Terms of Service or the Services.
47. Assignment. You may not assign or delegate your rights or obligations relating to these Terms of Service or your account for the Services without our prior written consent. We may assign these Terms of Service or assign or delegate any of our rights or obligations at any time.
48. Conflicts. If there is a conflict between these Terms of Service and any additional terms for a Service, the additional terms will control for that conflict.
49. No Third-Party Beneficiaries. These Terms of Service control the relationship between Airbyrd and you. They do not create any third-party beneficiary rights. If you do not comply with these Terms of Service, and we don’t take action right away, this doesn’t mean that we are giving up any rights that we may have (such as taking action in the future). If it turns out that a particular term is not enforceable, this will not affect any other terms.
50. Severability. If any portion of the Terms of Service that is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, the Terms of Service as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of the Terms of Service that is unlawful, void or unenforceable shall be stricken from the Terms of Service. You agree that the Terms of Service is specifically enforceable by injunctive relief and other equitable remedies without proof of monetary damages or the necessity of posting bond.
51. No Waiver. You agree that if we do not exercise or enforce any legal right or remedy which is contained in the Terms of Service (or which we have the benefit of under any applicable law), this will not be taken to be a formal waiver of our rights and that those rights or remedies will still be available to us. Any waiver of our rights or remedies, or of any breach of the Terms of Service, must be in writing and signed by us.
52. Entire Agreement. The Terms of Service, as amended, and the documents incorporated herein, constitute the sole and entire agreement between you and us regarding the Terms of Service and the Services, and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the same.
53. Relationship of the Parties. The parties are independent contractors. This Terms of Service does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
54. Force Majeure. Neither party shall be liable to the other for any loss or damage attributable to, and neither party shall be deemed to be in default hereunder as a result of, any failure or delay in performance caused by Force Majeure (as defined below). Both parties shall use all reasonable efforts to minimize the consequences of Force Majeure. As used in this Section, the term “Force Majeure” means strike, lockout, earthquake, hurricane, flood, fire, or other acts of God or nature, war, rebellion, civil disorders, laws, regulations, acts of civil or military authorities (including the denial or cancellation of any necessary license), epidemics, pandemics, and other public health emergencies, criminal or malicious acts of third parties, unavailability of materials, carriers or communications facilities, Internet and network disruptions, and any other causes beyond the reasonable control of the party whose performance is affected. “Force Majeure” shall not include economic hardship, changes in market conditions, and/or insufficiency of funds.
