Airstack Terms of Service

Airstack Terms of Service

Version [1.2], July 2024

These General Terms and Conditions (the “Agreement”) governs the obligations and rights of the Client and Airstack w3 Inc. (“Airstack”) relating to the Services.

By accessing and/or using the Services or otherwise accepting these terms and conditions upon a sign up procedure, or in any other way, you are agreeing to this Agreement.

For purposes of this Agreement, the “Client” means the user of the Services. If the Services are used on behalf of a company or other entity then the “Client” includes the user and that entity, and the user represent and warrant that (a) its is an authorized representative of the entity with the authority to bind the entity to this Agreement, and (b) it agrees to this Agreement Terms on the entity’s behalf.

SECTION 14 CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. BY AGREEING TO THIS AGREEMENT, THE CLIENT AGREES (A) TO RESOLVE ALL DISPUTES (WITH LIMITED EXCEPTION) RELATED TO THE AIRSTACK’S SERVICES AND/OR PRODUCTS THROUGH BINDING INDIVIDUAL ARBITRATION, WHICH MEANS THAT THE CLIENT (A) WAIVES ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND (B) WAIVES ITS RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS, AS SET FORTH BELOW. THE CLIENT HAS THE RIGHT TO OPT-OUT OF THE ARBITRATION CLAUSE AND THE CLASS ACTION WAIVER AS EXPLAINED IN SECTION 14.

Client Obligations
1. Services – Right to use
  1. Subject to the terms and conditions of this Agreement, Airstack hereby grants to the Client a non-transferable, non-exclusive, non-sublicensable limited term world-wide right and license for the Client to access and use the Services. The “Services” means the at all times current version of the web services, associated software, and other services related thereto provided to the Client by Airstack in accordance with this Agreement. The Services consist of a suite of developer tools, software development kits, hosted databases, and servers for web developers and blockchain developers available on Airstack.xyz. The Client may not transfer, sub-licence or in any other way provide, permit or utilize the Services for use by a third party, e.g. through time-sharing, as a service or otherwise.
  2. Airstack reserves the right to implement new versions and upgrades of the Services including, but not limited to, changes that effect modifications to the design, operational method, technical specifications, systems, and other functions, etc. of the Services, at any time without prior notice.
  3. Airstack undertakes, in its sole discretion, to adopt reasonable measures so that the Services are available over the Internet around the clock, twenty four (24) hours and seven (7) days a week. Airstack shall be entitled to take measures that affect the aforementioned accessibility where Airstack deems such to be necessary for technical, maintenance, operational, or security reasons. The Client does not have the right to compensation in the event of lack of access as a result of any such measures taken. Nor is Airstack liable for lack of access as a result of interruptions or communication problems on the Internet or other private and public networks, for other accessibility deficiencies outside of Airstack control, or problems with the Client’s own equipment which is used to obtain access to the Services.
  4. Airstack has the right to amend these General Terms and Conditions. The Client shall be informed of any such amendments through a notification via e-mail or via Airstack’ web site. The Client shall be regarded as having received the notification at the latest one (1) week from the date on which the notification was sent by e-mail or announced on the web site. If the change has an appreciable adverse effect on the Client, the Client has the right to terminate the Agreement within thirty (30) days of the date on which the notification was regarded as having been received in accordance with the above. If the Client does not terminate the Agreement within the period stipulated above, the Client shall be regarded as having accepted the new General Terms and Conditions.
  5. Airstack shall be entitled to retain subcontractors, including third party software suppliers, for the performance of obligations in accordance with this Agreement. Airstack shall be liable for the subcontractors’ work and services in the same manner as for its own work and services.
  6. Some of the Services, including Farcaster Frames that we make available through the Services, may relate to the Moxie protocol, which is an orchestration of several EVM-based smart contracts that enable market economies on Farcaster including Fan Tokens, Rewards, Auctions, and Bonding Curves, along with the ERC-20 Token Contract for the MOXIE token on the Base Blockchain (the “Protocol”). While the Services may display data and provide certain tools and functionality to facilitate a user’s access to the Protocol, the Protocol is not a part of the Services.
2. The Client shall always comply with any security and administrative regulations as notified in conjunction with registration, by e-mail, as made available on Airstack’ web site, or in any other manner.
3. The Client shall ensure that all details provided regarding the Client’s contact information, billing information and credit card information, where applicable, are correct and undertakes to update such information as soon as possible when changes to such information occurs.
4. The Client shall be responsible for the activities conducted by the Client and shall use the Services in compliance with national laws in conjunction therewith. All applications and other results and the use of such applications and result created by the Client using the Services shall be the sole responsibility of the Client.
5. The Client shall be responsible for monitoring applications and other results created or using the Service and shall be liable vis-à-vis Airstack for ensuring that any content and data transferred to, stored in or handled within the Services which is processed by the Client does not infringe any third party rights nor in any other manner violates any applicable governing legislation. It is the sole responsibility of Client to ensure that any plug-ins or other third party services used and installed in its applications and results created using the Service does not create a breach of this Agreement nor violate any applicable laws and regulations. Any use of a plug-in or any other third party services is at Client’s own risk and responsibility. Client’s use of such third party services is solely governed by Client’s and the third party’s agreement. Airstack has no liability for Client’s use of plug-ins or other third party services.
6. The Client undertakes not to use the Services in any manner which may result in the infringement of any third party’s copyright, or which constitutes a dissemination of business secret, or may incite a third party to commit or participate in a crime, or may be understood as constituting a threat, or to use the Services in any other manner incompatible with the purpose intended.
7. The Client shall remain liable for all of its users use of the Services, created applications or other results under this Agreement and any third party services, including but not limited to plug-ins. The Client shall indemnify Airstack, its contractors, its licensors and their respective directors, officers, employees and agents for any claim, suit or proceeding brought against Airstack that is related to the performance by the Client, its users, plug-in developers or any third party developers.
8. The Client is obligated to notify Airstack regarding any suspected breach of these provisions.
Fees and Payment Terms
1. Airstack may provide the service free of charge from time to time or during trial periods. All terms of this Agreement remain in effect during such free usage periods. The Client shall pay compensation for the Services in accordance with the fees set out upon sign up procedure or otherwise agreed.
2. All Services provided by Airstack shall be debited to the Client as used. This excludes certain charges such as overage charges, which will be billed based on actual usage.
3. When starting to use the Services, you agree that you lose your right to a refund and waive any cooling off period.
4. If you choose a paid Plan, Airstack will require you to pay with credit or debit cards. Card payments are processed via a third-party service provider, Stripe Inc. (“Stripe”). Stripe is licensed to provide these payment services and complies with the relevant laws and regulations. All payments for the Services are subject to the Stripe terms and conditions, which may be amended by Stripe from time to time.
5. All card data is stored by Stripe. Airstack does not store any card data. The User may delete a stored card in the User’s profile on the Site. Airstack shares with Stripe User Information other than card data, as Stripe does not store any other User information.
6. The User authorizes Stripe to process card payments for the Services on the User’s behalf. The payment amount will be equal to the total pricing of the User’s order.
7. In the case the debit or credit card is rejected, the User may update the payment information. Payment must go through for the order to be submitted and processed.
8. In the event of early termination of the Services or the Agreement, due to the Client’s breach the Client shall not be entitled to a refund of any prepaid fees.
9. All prices and fees are excluding VAT and exclude other additional applicable taxes and charges.
Ownership
1. Airstack shall hold title to any and all intellectual property rights and technical solutions to the Services or, in the alternative, shall possess a sole right to use the same. Such intellectual property rights and technical solutions may only be used by the Client in the manner stated in this Agreement. Under no circumstances shall the Client or a third party acquire any intellectual property rights to the Services or to the software or technical solutions used in Services, or to any trademark or any other business mark belonging to or used by Airstack. Access to the Services are licensed, not sold.
2. All content and data uploaded to, transferred through, posted, processed or entered into the Services by the Client and/or its users shall remain the sole property of the Client or its respective legal owner. Airstack shall have no liability for such content and data.
3. The Client may not in any way modify, decompile, disassemble or reverse engineer the Services except as permitted by law.
Client Support
1. Airstack provides the Client with support by Slack, Telegram and e-mail ([email protected]) regarding Client’s enquiries in connection with use of the Services. Such support is provided 7 days per week, 24 hours per day at Airstack’s best efforts. Clients can optionally enter into an SLA agreement with Airstack.
Personal Data, Privacy, Disclosure
1. In order for the Client to be able to use the Services, the Client must provide certain data to Airstack regarding the Client’s representatives, including but not limited to full name, e-mail address, contact details and type of organisation. Following receipt of such data, Airstack will process the same using automatic data processing in order to enable Airstack to administer and otherwise perform its obligations within the scope of the Services and to ensure that unauthorised persons do not gain access to the Services. Airstack information gathering and dissemination practices are set forth in the Airstack’ Privacy Policy applicable from time to time, which is available on Airstack’ web site.
2. In addition, in order for the Client to be able to use the Services, the Client must also allow Airstack to store and retrieve session information on the Client’s representatives’ end terminal equipment, through the use of “cookies”. The purpose of such storage and retrieval of information is to enable the necessary login/logout procedures used in the Services and to ensure that unauthorised persons do not gain access to the Services and to improve the use of the Services. The Client further approves that Airstack is entitled to produce aggregated statistics on and analyzing data related to the Client’s application and the Client’s users use of the same application.
3. Client shall when considered to be the data controller, in its use of the Services, process personal data in accordance with the requirements of applicable data protection laws and regulations. Client shall in such event has the sole responsibility for the accuracy, quality, and legality of personal data and the means by which Client acquired personal data.
4. If Airstack is considered to be a data processor to Client, Airstack shall fulfil its obligations as a processor in accordance with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, (General Data Protection Regulation, “GDPR”), and will furthermore accept such assignment based on the instructions, terms and conditions in the data processing agreement (https://Airstack.xyz/dpa) which hereby forms an integrated part of this Agreement.
Passwords
1. The Client shall ensure that usernames, passwords, and equivalent obtained by the Client in conjunction with registration are stored and used in a secure manner and cannot be accessed and thereby used by third parties. The Client shall be liable for any unauthorised use of the Services. Airstack shall have no liability for any loss or damage arising from the Client’s failure to comply with these requirements.
Disclaimer
1. The Client’s access to and use of the Services are at its own risk. The Client agrees that the Services are provided on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, the Company, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the “Airstack Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES RELATING TO TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, USAGE, QUALITY, PERFORMANCE, SUITABILITY OR FITNESS OF THE SERVICES FOR ANY PARTICULAR PURPOSE, OR AS TO THE ACCURACY, QUALITY, SEQUENCE, RELIABILITY, WORKMANSHIP OR TECHNICAL CODING THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN WHETHER LATENT OR PATENT.
2. The Airstack Entities make no warranty or representation and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the Services; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services; (iii) the operation or compatibility with any other application or any particular system or device, including any wallets; (iv) whether the Services will meet the Client’s requirements or be available on an uninterrupted, secure or error-free basis; or (v) whether the Services will protect the Client’s assets from theft, hacking, cyber attack, or other form of loss caused by third party conduct.
3. Nothing contained in the Services constitutes, or is meant to constitute, financial, legal or other professional advice of any kind. No advice or information, whether oral or written, obtained from the Airstack Entities or through the Services, will create any warranty or representation not expressly made herein.
4. Without limiting the foregoing, the Airstack Entities make no representation or warranty regarding the Protocol or any transactions that may be made through the Protocol. Client acknowledges and agrees that while the Services are one way to access the Protocol, the Protocol is not controlled by the Airstack Entities and the Protocol is subject to change at any time. The Airstack Entities make no warranty, whether express, implied or statutory, including without limitation any warranties relating to title, merchantability, fitness for a particular purpose, non-infringement, usage, quality, performance, suitability or fitness of the Protocol for any particular purpose, or as to the accuracy, quality, sequence, reliability, workmanship or technical coding thereof, or the absence of any defects therein whether latent or patent.
Limitation of Liability
1. In the event of major defects that seriously impede the Client’s use of the Services and that are attributable to Airstack, Airstack undertakes to act to rectify such defect without unreasonable delay. In the absence of intent or gross negligence by Airstack, Airstack assumes no responsibility for defects or deficiencies in the Services. Error notification must be given by the Client in accordance with the instructions announced by Airstack and within a reasonable time of the discovery of the defect.
2. The Client shall not be entitled to a reduction in payment, or to damages or other sanctions in the event of operational disruption or errors that impede data traffic that are not due to negligence by Airstack.
3. Airstack shall defend and indemnify Client from and against any damage, cost and expense (including reasonable attorneys’ fees) finally awarded or agreed in a settlement by Airstack as a result of any claim, suit or proceeding brought against Client based on a claim that the authorized use of the Services furnished by Airstack under this Agreement constitutes an infringement of any third party intellectual property right; provided that Airstack has been notified promptly in writing of such claim, and given authority, information, and assistance to handle the claim or the defence of any suit, proceeding or settlement and that Client has not compromised or settled the claim, suit or proceeding without Airstack prior written consent, and provided further that Airstack shall have no obligations under this section to the extent any claim is based on the combination or use of the Services with other software, hardware or services not furnished by Airstack or use of the Services in a manner prohibited under this Agreement, in a manner for which it was not designed where the Services would not otherwise itself be infringing.
4. In the event that the Services in such suit or proceeding are held to constitute an infringement, or if in Airstack reasonable opinion the Services may constitute such infringement, and/or its further use is enjoined, Airstack shall, at its own expense and at its option, either
  1. procure for Client the right to continue the use of the Services, or
  2. replace the Services with non-infringing services of materially equivalent function and performance, or
  3. modify the Services so that it becomes non-infringing without materially detracting from function or performance.
  4. Should none of these measures be technically, commercially or economically reasonable to Airstack, then either party may terminate this Agreement. Upon such termination, Airstack shall refund the amount of fees paid in advance in respect of not yet used Services.
5. TO THE EXTENT NOT PROHIBITED BY LAW, THE CLIENT AGREES THAT IN NO EVENT WILL THE AIRSTACK ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING INDIRECT SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE CLIENT’S USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THIS AGREEMENT OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE AIRSTACK ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. THE COMPANY ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100.00), OR THE AMOUNT THE CLIENT PAID AIRSTACK, IF ANY, IN THE PAST SIX (6) MONTHS FOR THE SERVICES (OR OFFERINGS PURCHASED ON THE SERVICES) GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
6. Force Majeure
  1. A party is exempt from sanctions for failure to fulfil certain obligations under the Agreement if the failure is due to any circumstance which is outside the party’s control and which the party could not reasonably have foreseen or avoided, such as war, actions by the authorities, new or amended legislation, industrial action, restrictions on trade or currencies, blockade, fire, flood or similar circumstance, as well as defects or delays in deliveries from subcontractors.
  2. It is incumbent upon the party who wishes to cite grounds for exemption under this section to inform the other Party without delay that such a circumstance has arisen, and when it ceases.
  3. Irrespective of the provisions on exemption from sanctions in this section, a party has the right, without sanction, to terminate this Agreement with immediate effect in writing to the other party if the fulfilment of a significant obligation under this Agreement is delayed by more than three (3) months.
Confidentiality.
1. Airstack undertakes not to disclose to any third party, or otherwise make available, information received by Airstack from the Client within the scope of the Agreement. Furthermore, any other information received by a party that in any way relates to the other party, including but not limited to any business, financial, scientific, intellectual property, customer or potential customer related, technical or operational information shall be considered confidential and shall not be disclosed to any third party. The above confidentiality obligations shall not apply to such information as a party can demonstrate became known to that party other than pursuant to this Agreement or which is in the public domain. Nor shall the duty of confidentiality apply where a party is obligated to provide information pursuant to legal provisions, public authority regulations or court orders
Term of Agreement and Termination
1. The Agreement comes into force on the earliest of (i) when the Client logs-on to the Services for the first time, (ii) when the Client pays the fee for the Services. The Agreement runs thereafter until further notice and is terminated in accordance with 13.2.
2. Each Party has the right to give written notice of termination of the Agreement. Such notice of termination must be given no later than seven (7) days before the party wants the Agreement to expiry.
3. Either party has the right to terminate the Agreement with immediate effect if:
  1. the other party is guilty of material breach of the Agreement and the breach of the Agreement is not fully rectified within thirty (30) days from the date on which the party in breach receives written notice from the other party with a request that corrective action is taken;
  2. the other party suspends payments, resolves on voluntary or involuntary liquidation, applies for a company reorganisation or bankruptcy or if the party can otherwise be regarded as insolvent.
4. EU customers accept that if they use the service by either signing into their account or in any other way accessing purchased material they lose their right to the default EU regulated cool-off period for digital services
5. On the termination of the Agreement, all parts of the Client’s right to utilise the Services terminates.
6. Upon termination of this Agreement for any reason, Airstack shall be entitled to permanently delete and destroy all of the Client’s data and content related thereto.
7. Sections 8, 13 and 14 shall survive any termination of this Agreement.
Access Restrictions and Early Termination
1. Airstack shall be entitled, with immediate effect, to disable the Client’s access to the Services or to terminate the Agreement at any time in writing where:
  1. the Client or its users uses the Services in a manner that entails the perpetration of a crime;
  2. the Client uses the Services in a manner that occasions losses or the risk of loss for Airstack or any third party;
  3. the Client uses the Services in a manner that violates Airstack security or administrative regulations;
  4. it may be reasonably assumed that Client’s use of the Services violates governing law;
  5. the Client otherwise fails to comply with the Agreement and such breach of contract is material.
Assignment
1. You may not assign or transfer this Agreement, by operation of law or otherwise, without Airstack’s prior written consent. Any attempt by you to assign or transfer this Agreement, without such consent, will have no legal effect. Airstack may freely assign or transfer this Agreement without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
Governing Law and Venue
1. Except as otherwise provided in the Dispute Resolution provision below, this Agreement will be governed by the laws of the State of California, without regard to its conflict of laws provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Company each hereby agree that each submit to the personal and exclusive jurisdiction of the state and federal courts located within the Northern District of California