Terms of Service

TERMS AND CONDITIONS

Effective Date: 26 September 2022

Last updated: 13 December 2022

These Terms and Conditions (the “Terms”) govern your use of the website https://airtomic.co/ (the “Website”), owned and operated by AIRTOMIC PTY LTD, (ACN: 664469998, ABN: 76664469998), a company duly incorporated in Australia, having its business address at 81-83 Campbell Street Surry Hills NSW 2010, our offices, subsidiaries, and associated companies (“Airtomic”, “we”, or “us”).

These Terms, together with the Privacy Policy, is a binding contract between you (“Customer” or “you”) and Airtomic.

By visiting or using our Website and Services, you unconditionally and irrevocably agree to be bound by these Terms, Privacy Policy, and all applicable laws and/or regulations, which may be in effect from time to time, and you agree that you are responsible for this compliance.

We reserve the right to unilaterally revise these Terms and all linked content from time to time, at our sole discretion by updating this posting or any linked content. Unless otherwise indicated in a relevant revised version, the revised version shall enter into force immediately when posted. By continuing to access or use the Website and Services, you are indicating that you agree to be bound by the revised version. If you do not agree to continue to use the Website and/or Services on the basis of the revised version, you should cease to use our Website and/or Services.

You may not use or obtain any products or services from us if you are not at least 18 years of age, or any legal age to form a binding legal agreement with Airtomic.

1. DEFINITIONS

1.1 In these Terms the following capitalized terms have the following definitions:

"Intellectual Property Rights" means any and all intellectual property rights, existing worldwide and the subject matter of such rights, including (a) patents, copyright, rights in circuit layouts (or similar rights), registered designs, registered and unregistered trademarks, and any right to have confidential information kept confidential; and (b) any application or right to apply for registration of any of the rights referred to in paragraph (a), whether or not such rights are registered or capable of being registered and whether existing under any laws, at common law or in equity.

"Services" has a definition given in clause 2.1.

"Customer", "you" or "your" means a user of our Services, being an individual or legal entity, or any agent, employee, or person authorized to act on such user’s behalf.

2. DESCRIPTION OF THE SERVICES

2.1 Airtomic provides a SaaS product that allows customers to track their online advertising spend (the “Services”).

2.2 Airtomic provides other related services, including, without limitation, hosting and maintaining this Website.

2.3 Our Services are protected as proprietary rights as described below.

3. WEBSITE AND SERVICES AVAILABILITY

3.1 Airtomic uses commercially reasonable efforts to maintain our Website and Services on a twenty-four (24) hours a day, seven (7) days a week basis. However, our Website and Services may be inaccessible or inoperable due to equipment malfunctions, periodic maintenance, repairs, or replacements that we undertake from time to time.

4. PAYMENTS; SUBSCRIPTIONS

4.1 Some of our Services can be purchased on a monthly subscription basis. 4.2 Our fees for a monthly subscription are displayed on the Website. We reserve the right to modify these fees at any time by updating the fees on our Website. We may also temporarily adjust the fees for our Services during promotional events (e.g., discounts). Such changes will become effective upon posting the promotional event details on the Website. Unless otherwise agreed, customers above $1M USD in monitored spend will be billed at 0.07% USD per $1 USD of monitored spend. For instance, a $1M USD monitored spend results in a $700 monthly fee, while a $1.2M spend leads to an $840 USD monthly fee. The Enterprise Plus percentage rates may slightly fluctuate depending on the chosen billing currency and exchange rate variations. 4.3 Fees for our Services are billed immediately upon purchase. 4.4 To cancel the renewal of your monthly subscription, you must do so before the next billing date. The next billing date corresponds to the first day of the subsequent 30-day billing period. To cancel your renewal, log in to your account and follow the cancellation procedure. Ensure that you receive a confirmation email indicating that your renewal has been cancelled. 4.5 By purchasing our Services, you grant Airtomic authorization to initiate payment using your designated payment method. 4.6 When providing payment method information through the Website, you warrant that: (a) you have the legal authority to supply such information to us; (b) you have the legal authority to execute payments using the payment method(s); and (c) such actions do not breach the terms and conditions governing your use of the payment method(s) or any applicable laws. By authorizing a payment using a payment method via the Website, you warrant that there are sufficient funds or credit available to complete the transaction with the specified payment method. 4.7 You are solely responsible for settling any amounts owed under these Terms that cannot be collected via your payment method(s) through alternative means. 4.8 While we strive to maintain the security of all transactions and personal information, we expressly disclaim any liability for damages that may result from unauthorized release of such information to third parties. You agree to hold us harmless for any damages that may arise from such incidents. 4.9 If a payment fails or is declined, customers will have a seven (7) day grace period to resolve the outstanding balance by either retrying the original payment method or providing new payment details. Should the outstanding balance remain unresolved after the 7-day grace period, the customer will lose access to the dashboard until the balance is settled. Airtomic reserves the right to revoke customer access and delete Airtomic accounts with outstanding payments that have been inactive for 30 or more days.

5. REFUND POLICY

5.1 All fees and charges cannot be canceled and are non-refundable unless authorized so by Airtomic.

6. FREE TRIAL

6.1 Airtomic may offer a free trial of the Services for fourteen (14) days. We will not require to enter any billing information, provided that the account dashboard will be locked if a billing information has not been added to the account after the free trial ends.

7. PROPRIETARY RIGHTS

7.1 Airtomic is the sole owner and lawful licensee of all rights, title and interests available on the Website as well as the software, materials, videos, images, and other content displayed on the Website and through the Services.

7.2 You acknowledge and agree that our Website and Services contain proprietary and confidential information protected by applicable intellectual property and other worldwide laws. All title, ownership, and Intellectual Property Rights on the Website and its content shall remain with Airtomic, our affiliates, or licensors of the Website content, as the case may be. All rights not otherwise claimed under these Terms or by Airtomic are hereby reserved.

7.3 Any graphics, images, reports, scripts, tips, know-how and information created during the performance of the Services shall remain with Airtomic.

7.4 You further acknowledge and agree that any content contained in advertisements or information presented to you through the Website or by advertisers is protected by copyrights, trademarks (whether registered or being under registration), service marks, patents, or other proprietary rights and laws. Except as expressly permitted by applicable law or as authorized by Airtomic or the applicable licensor (such as an advertiser), you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, publicly perform or create derivative works based on the Services, such content or the Website, in whole or in part.

7.5 We may use services of third parties involved in the provision of the Services. You may not violate proprietary rights and use any trademark, service mark, or logo of such independent third parties without prior written approval from such parties.

8. PERMITTED USE

8.1 During the term of your use of the Website and Services, we grant you a non-exclusive, non-transferable, non-sublicensable license to access the Website and use the Services.

8.2 As a condition of your use of the Website and Services you explicitly agree not to use the Website and Services for any purpose that is unlawful or prohibited by these Terms, or any other purpose not reasonably intended by Airtomic. The following conduct is not an exclusive list but is meant to provide examples of prohibited conduct. You agree not to use the Services in any of the following ways:

a) To abuse, harass, threaten, impersonate or intimidate any person;

b) To post or transmit, or cause to be posted or transmitted, any content (as defined below) that is libelous, defamatory, obscene, pornographic, abusive, offensive, profane, or that infringes on any copyright or other right of any person;

c) For any purpose that is prohibited by the laws of the jurisdiction where you use the Services;

d) To create or transmit unwanted ‘spam’ to any person or any URL address;

e) To post any copyrighted content;

f) To use the Services for more than one free trial;

g) To advertise to, or solicit, any user to buy or sell any products or services, or to use any information obtained from the Services in order to contact, advertise to, solicit, or sell to any user without their prior explicit written consent.

8.3 Further, all Customers agree that they will not engage in any of the following conduct:

a) posting any information and/or data or accessing the Website using automated methods (such as, but not limited to, harvesting bots, robots, spiders, or scrapers) without our written permission;

b) using the Services in a manner contrary to the use we have authorized such as, but not limited to, interfering with the Services;

c) use the Website and Services in any way or take any action that could harm, disable, overburden or otherwise impair performance, availability, or accessibility of the Website and Services;

d) accessing the Website and Services through a method other than the interface and the instructions that we have provided;

e) reproduce, download, send, sell, resell, transmit or otherwise post and/or distribute unauthorized advertising information, spam (including spamdexing), lists of e-mail addresses of other people, pyramid schemes, multilevel marketing (MLM), Internet earning systems, and e-mail businesses, chain letters as well as use the Services for participation in any of the above;

f) conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction, and data harvesting) on or in relation to our Website and Services without our express written consent;

g) any actions that could disable, overburden, or impair the proper working of the Website and Services, such as a denial of service attack;

h) the uploading of viruses and/or other malicious code facilitating, promoting and/or encouraging any violations of our Terms.

9. CUSTOMER CONTENT

9.1 Our Services allow customers to post certain content on the Website (“Customer Content”). Through your use of the Services, you acknowledge and agree that you are entirely responsible for all Customer Content that you post, or otherwise submit to the Website, or share with other Customers. Airtomic does not control the Customer Content. Airtomic does not guarantee the accuracy, integrity or quality of any Customer Content.

10. THIRD PARTY LINKS

10.1 Our Website may display, or contain links to, third party products, services, and websites. Any opinions, advice, statements, services, offers, or other information that constitutes part of the content expressed, authored, or made available by other users or other third parties, or which is accessible through or may be located using the Website or our Services (collectively, “Third Party Content”) are those of the respective authors or producers and not of us or our shareholders, directors, officers, employees, agents, or representatives.

10.2 We do not control Third Party Content and do not guarantee the accuracy, integrity or quality of such Third Party Content. We are not responsible for the performance of, we do not endorse, and we are not responsible or liable for, any Third Party Content or any information or materials advertised on the Website. By using our Website or Services, you may be exposed to content that is offensive, indecent, or objectionable. We are not responsible or liable, directly or indirectly, for any damage or loss caused to you by your use of or reliance on any goods, services, or information available on or through any third party service or Third Party Content. It is your responsibility to evaluate the information, opinion, advice, or other content available on and through our Services.

11. DISCLAIMER OF WARRANTIES

11.1 Your use of the Website, Services, its content or items obtained through them is at your own risk. The Website, Services, their content and any services or items obtained through the Website or Services are provided on an "as is" and "as available" basis, without any warranties of any kind, either express or implied. Neither Airtomic nor any person associated with Airtomic makes any warranty or representation with respect to the completeness, security, reliability, quality, accuracy or availability of the Website and Services. Without limiting the foregoing, neither Airtomic nor anyone associated with Airtomic represents or warrants that the Service, its content or any services or items obtained through the Service will be accurate, reliable, error-free or uninterrupted, that defects will be corrected, that our Website or the server that makes it available are free of viruses or other harmful components or that the ervice or any services or items obtained through the service will otherwise meet your needs or expectations.

11.2 Airtomic hereby disclaims all warranties of any kind, whether express or implied, statutory or otherwise, including but not limited to any warranties of merchantability, non-infringement, and fitness for a particular purpose.

11.3 The foregoing does not affect any warranties which cannot be excluded or limited under applicable law.

12. RELEASE AND INDEMNITY

12.1 Through your use of the Website, you expressly and irrevocably release and forever discharge Airtomic and our directors, officers, employees, agents, representatives, contractors, licensees, successors, and assigns from any and all actions, causes of action, suits, proceedings, liability, debts, judgments, claims and demands whatsoever in law or equity which you have ever had, now have, or hereafter may have, for or arising directly or indirectly out of your use of the Website and Services.

12.2 You hereby agree to indemnify and hold harmless Airtomic and our directors, officers, employees, agents, representatives, contractors, licensees, successors and assigns from and against all claims, losses, expenses, damages, and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorneys' fees, resulting from or arising out of (i) a breach of these Terms, (ii) any content posted on the Website, (iii) the use of the Services, or (iv) any violation of any rights of a third party.

13. LIMITATION OF LIABILITY

13.1 In no event shall Airtomic be liable under contract, tort, strict liability, negligence, or any other legal theory with respect to the Website, the Services, or any content (i) for any lost profits or special, indirect, incidental, punitive, or consequential damages of any kind whatsoever, (ii) to provide substitute goods or services.

13.2 TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF AIRTOMIC FOR ANY CLAIMS UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE TOTAL AMOUNT YOU PAID US TO USE THE SERVICES WHICH GAVE RISE TO THE RELEVANT CLAIM.

13.3 IN ALL CASES, AIRTOMIC WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.

14. DURATION AND TERMINATION

14.1 These Terms will remain in full force and effect while you use the Website or Services.

14.2 We reserve the right to restrict your access, temporarily or indefinitely suspend Services if:

a) you breach these Terms or other policies;

b) we believe that your actions may cause any loss or liability to our Customers or to us;

c) we believe, in our sole discretion, that your actions may cause legal liability for you, our Customers, us, or our affiliates; may be contrary to the interests of the Website or the user community; or may involve illicit activity.

14.3 Any terms and conditions of these Terms that may survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.

15. NOTIFICATIONS

15.1 By registering for an account, you consent to electronically receive and access, via email or the Website, all records and notices for the services provided to you under these Terms that we would otherwise be required to provide to you in paper form. However, we reserve the right, in our sole discretion, to communicate with you via mail services using the address under which your Account is registered.

16. GOVERNING LAW AND DISPUTE RESOLUTION

16.1 These Terms shall be governed by and construed in accordance with the law in the State of New South Wales, Australia, and you hereby expressly agree to present any claim in relation to these Terms, Website or Services only through binding arbitration to occur in the State of New South Wales, Australia. You further agree to and do hereby waive any right to class arbitration and agree, instead, to conduct an arbitration related solely to any individual claims you and/or any entity related to you asserts against Airtomic. To the fullest extent permissible by law, you further agree that you shall be responsible for all costs associated with initiating the arbitration and for the administration of the arbitration.

16.2 Notwithstanding the specified agreement on jurisdiction, the Customer and Airtomic shall, if any dispute arises, attempt to settle it by mutual negotiations.

17. MISCELLANEOUS

17.1 Nothing in these Terms shall be interpreted as agency, partnership, joint venture, mutual activities, employment, franchiser-franchisee, or any other relations not directly stated in these Terms.

17.2 If any provision of these Terms is held to be invalid, non-binding, or unenforceable, the remaining provisions shall remain valid and be enforced. In such event, such invalid provision shall nonetheless be enforced to the fullest extent permitted by applicable law, and you will at least agree to accept a similar effect as the invalid, unenforceable, or non-binding provision, given the contents and purpose of these Terms.

17.3 These Terms constitute the entire and exclusive understanding and agreement between you and Airtomic regarding the Website and Services.

17.4 You may not assign or transfer these Terms, by operation of law or otherwise, without prior written consent of Airtomic. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Airtomic may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.

17.5 The failure of Airtomic to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.

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