Welcome, and thank you for your interest in Aircade (“Aircade,” “we,” or “us”)
PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY CLICKING “I ACCEPT,” OR BY USING THE PLATFORM OR ANY PART OF THE PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. If you are not eligible, or do not agree to these Terms, then you do not have our permission to use the Platform or any part of the Platform.
You acknowledge and agree that, as provided in greater detail in these Terms: (a) any Client is licensed, not sold to you; (b) you may use the Platform only as set forth in these Terms; (c) the Platform is provided “as is” without warranties of any kind and Aircade’s liability to you is limited; (d) disputes arising under these Terms will be resolved by binding arbitration, and by accepting these Terms, as described in greater detail in Section 27, you and Aircade are each waiving the right to a trial by jury or to participate in a class action.
In addition to these Terms, you may be subject to the following terms and policies --
Aircade is a platform for experiencing, creating, and publishing social virtual reality and related digital experiences. Subject to compliance with these Terms, and dependent on the then-current functionality of the Platform, users of the Platform (“Users”) may be able to use it to create, share, and interact with virtual worlds and avatars.
You must be at least 18 years of age to use the Platform. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the Platform; and (c) your registration and your use of the Platform complies with all applicable laws and regulations. You further acknowledge and agree that by using the Platform you are accepting a benefit that you cannot return or disgorge and that we are relying on your representations regarding your ability to accept and perform these Terms, and you therefore waive any right you may have under applicable law to void, rescind, or otherwise avoid this these Terms. In all other cases, you represent that you are 18 years or older and fully competent to enter into these Terms, and you hereby agree and acknowledge that you have read, understood, and agree to be bound by these Terms without modification.
If you are using the Platform on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
You further represent and warrant that you are not listed on or covered by any sanctioned person lists administered by the United States government or United Nations, including but not limited to the United States Department of Treasury’s List of Specially Designated Nationals and Blocked Persons, the United States Department of Commerce’s List of Denied Persons or Entity List, and the United Nations Security Council Sanctions. You further represent that you are not located in a country subject to comprehensive United States sanctions, including Iran, Syria, Cuba, North Korea, the Crimea region of Ukraine, the Donetsk People’s Republic or the Luhansk People’s Republic. Should you become listed on or otherwise subject to any such list or are in a country subject to comprehensive United States sanctions, then you agree to immediately cease use of the Platform.
To access most features of the Platform, you must register for an account (your “User Account”). When you register, you may be required to provide us with some information about yourself, such as your email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. When you register, you will be asked to provide a password.
You may also access certain features of the Platform using your login credentials for certain third-party platforms (as authorized by Aircade) (each a “Third-Party Account”). The Platform may offer functionality allowing you to merge your User Account with a Third-Party Account.
You are solely responsible for maintaining the confidentiality of the password(s) for your User Account and any Third-Party Accounts (each an “Account”), and you accept responsibility for all activities that occur under your Accounts. If you have reason to believe that your Account is no longer secure, then you must immediately notify us at aircade.online@gmail.com
Subject to your complete and ongoing compliance with the terms and conditions in these Terms, Aircade grants you a limited, non-commercial (except as otherwise specified in these Terms or other written agreement between you and Aircade), non-exclusive, non-transferable, non-sublicensable, revocable license to each copy of any Client downloaded directly from Aircade’s website or from a legitimate marketplace authorized by Aircade to distribute the Client to you, solely in an executable application format, for your personal use for lawful purposes, on compatible devices you own or control, and to access and use the Platform in accordance with these Terms. The terms “Desktop Client,” “Aircade” and Mobile Client as used in these Terms, include any updates or modifications to the applicable Client made available to you by or on behalf of Aircade (unless provided with separate terms, in which case those terms are hereby incorporated into these Terms unless otherwise stated in those separate terms, and will control in the event of a conflict with the terms of these Terms, but only with respect to the applicable Client).
Subject to your complete and ongoing compliance with these Terms, Aircade grants you a limited, non-commercial (except as otherwise specified in these Terms or other written agreement between you and Aircade), non-exclusive, non-transferable, non-sublicensable, revocable license to use its trade names, trademarks, service names, and service marks (“Marks”), solely when used in compliance with the then-current Aircade brand guidelines, available here (or any successor URL designated by Aircade) (the “Brand Guidelines”), and solely in connection with permitted uses under these Terms, in each case, provided that you may not use any Marks in a way that would suggest that you are affiliated with Aircade or that Aircade has reviewed or approved of any of the content with which the Marks are used. The Brand Guidelines are incorporated into these Terms by this reference. Any goodwill in the Marks will inure solely to Aircade.
We are under the obligation to provide support for the Platform. In instances where we may offer support, the support will be subject to applicable published policies.
7.1. User Content Generally. Any User may leverage certain features of the Platform to develop content on or submit, upload, publish, broadcast, perform, or otherwise transmit content to or via the Platform (directly, through any automated process, or through a third party acting on their behalf or at their direction) (“Post”), including software code, messages, photos, video, images, folders, data, text, performances, and other types of works (all such content, “User Content”). As between you and Aircade, you retain copyright and any other proprietary rights in the User Content you Post, subject to the licenses granted in these Terms or in any other agreement between you and Aircade.
7.2. Limited License Grant to Aircade. By Posting any User Content, you grant Aircade a worldwide, non-exclusive, irrevocable, royalty-free, perpetual, fully-paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, publicly display, publicly perform (including by means of digital audio transmission), communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute that User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed. All of the rights you grant in these Terms are provided on a through-to-theaudience basis, meaning the owners or operators of external services will not have any separate liability to you or any other third party for User Content that is Posted or otherwise used on external services via the Platform. You agree to pay all monies owing to any person or entity resulting from Posting your User Content and from Aircade’s exercise of the license set forth in this Section 7.2. You agree that the license granted to Aircade under this Section 7.2 applies to any User Content you directly Post, indirectly Post, or previously Posted.
7.3. Limited License Grant to Other Users. By Posting or sharing User Content with other Users of the Platform in a public portion of the Platform, or by setting any of your User Content to public, you grant those Users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Platform.
7.4. User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content. Aircade disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of Posting User Content. By Posting User Content, you affirm, represent, and warrant that:
a. you are the creator and owner of that User Content, or have the necessary licenses, rights, consents, and permissions to authorize Aircade and Users to use and distribute that User Content as necessary to exercise the licenses granted by you in this Section 7.4, in the manner contemplated by Aircade, the Platform, and these Terms;
b. your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) violate or cause Aircade to violate any law or regulation, or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate. Uploading such User Content is also a violation of Section 12.2 of these Terms.
7.5. Specific Rules for Musical Works and for Recording Artists. If you are a composer or author of a musical work and have granted non-exclusive rights to a Performing Rights Organization (“PRO”), then you must notify your PRO of the royalty-free licenses you grant through these Terms to Aircade or to other Users. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher or a PRO, then you must obtain the consent of that music publisher or PRO to grant the royalty-free license(s) set forth in these Terms or have that music publisher or PRO enter into these Terms with Aircade. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant Aircade the licenses in these Terms. If you are a recording artist under contract with a record label, then you are solely responsible for ensuring that your use of the Platform is in compliance with any contractual obligations you have to your record label, including if you create any new recordings through the Platform that may be claimed by your label. Finally, if you wish to perform a cover song and Post it, you are responsible for recuring all rights in and to the underlying musical work before Posting your recording or performance of that musical work.
7.6. Deleting User Content. Where permitted by functionality within the Platform, you may delete copies or instances of your User Content that you have uploaded through the normal functionality of the Platform. If you delete your User Content through use of that functionality, the licenses granted by you in this Section 8 to your User Content terminate as described in this Section 7.6 with respect to the particular copies or instances of your User Content that you have deleted. The termination of the licenses does not apply to any copies or instances of the same User Content that you have not specifically deleted from the Platform, including those that may be displayed elsewhere or that may be stored by other Users to whom you have transferred or sold copies. The licenses under this Section 7 that you have granted to your User Content that you delete through the Platform will survive termination solely to allow Aircade to: (a) retain server copies of particular instances of your User Content, including copies stored in connection with back-up, debugging, and testing procedures; and (b) enable the exercise of the licenses granted in this Section 7 for any other copies or instances of the same User Content that you have not specifically deleted from the Platform, including those that may be displayed elsewhere or that exist in other Users’ account inventories.
7.7. User Content Disclaimer. We are under no obligation to edit or control User Content that you or other Users may Post and will not be in any way responsible or liable for User Content. Aircade may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Platform, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. Most User Content, including worlds and avatars, available through Aircade is created by other Users or third parties, and Aircade does not control or actively monitor the content or technical features of individual worlds, avatars, or other User Content. You understand that any world you enter is at your own risk. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Aircade with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a User or content owner that User Content allegedly does not conform to these Terms, we may (but are under no obligation to) investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice.
7.8. Groups Generally. The Platform enables Users to create and join “groups” comprised of other Users (“Groups”). The individual or entity who created the Group will be deemed the owner of the Group for all purposes (the “Group Owner"). The Group Owner may designate (in that person’s sole discretion) to make a different person the new Group Owner (in such case the new owner shall be considered the Group Owner). If the Group Owner’s User Account is terminated pursuant to these Terms, Aircade may, in its sole discretion, determine who shall be designated the rightful person to be made the new Group Owner of such Group (and that User shall be considered the Group Owner); provided, however, that nothing will obligate Aircade to designate a new Group Owner if Aircade in its sole discretion determines to terminate a Group.
7.9. Groups and User Content.
a. By participating in a Group, you hereby grant the Group Owner, as such Group Owner may change over time, the sole and exclusive authority to act on your behalf to authorize Aircade to use any User Content created by or uploaded to the Group as set forth in these Terms or pursuant to any other agreement entered into between the Group Owner and Aircade. A Group Owner and the members of a Group may separately agree upon how the Group Owner may exercise the authority granted to such Group Owner in these Terms or how the members of a Group may allocate amongst themselves any payments that may be made to the Group Owner for any activities undertaken or User Content created by or uploaded to the Group. In any event, Aircade will make any payments due for any activities undertaken by the Group or User Content created by or uploaded to the Group solely to the applicable Group Owner.
b. You hereby waive any claims that you may have against Aircade for any payments made to a Group Owner by Aircade, and you agree to seek recovery of any payments due to you solely from the applicable Group Owner. Except as may be provided by law, any duty of accounting between a Group Owner and members of such Group will arise solely pursuant to any written agreements among the Group Owner and the members of such Group, and Aircade will not be bound by any such agreements.
10.1. Payments Generally. Access to the Platform, or to certain features of the Platform, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Unless otherwise stated, all fees or other amounts specified in these Terms or on the Platform are in U.S. dollars and are non-refundable. Purchases made through third-party markets, such as Discord and Gather, may be governed by additional terms provided by such third-party markets. If Aircade changes the fees for any part of the Platform, including by adding additional fees or charges, Aircade will provide you with advance notice of those changes. If you do not accept the changes, Aircade may discontinue providing the Platform or the applicable portion of the Platform to you. Aircade or its third-party payment processors will charge the payment method you specify at the time of purchase. You authorize Aircade and its third-party payment processors to charge all sums as described in these Terms to that payment method. If you pay any fees with a credit card, Aircade or its third-party payment processors may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. If you use the Platform to update or cancel any existing authorized payment, it may take up to 10 business days for the update or cancellation to take effect.
10.2. Subscription Service. Certain premium features on the Platform may be made available through purchase of a subscription (“Subscription Service”). Subscription Services involve automatically recurring payments for periodic charges and may be purchased through a third-party market. If you activate a Subscription Service, you authorize Aircade (or the applicable third-party market) to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your Account, all accrued sums for your subscription to the Subscription Service on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you first purchase a subscription to a Subscription Service. The Subscription Service will begin on the Subscription Billing Date and continue for the subscription period that you select on your Account (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”). Your Account will be charged automatically on the Subscription Billing Date for all applicable fees and taxes for the next Subscription Period.
Your subscription to the Subscription Service will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription to a Subscription Service before it renews in order to avoid billing of the next periodic subscription fee to your Account. We (or the applicable third-party market) will bill the periodic subscription fee to the payment method you provide during purchase (or to a different payment method if you change your payment information).
We may suspend or terminate access to a Subscription Service for any Account for which any amount is due but unpaid. In addition to the amount due for any Subscription Service, a delinquent Account may be charged with fees or charges that are incidental to any chargeback or collection of any unpaid amount, including collection fees. If your payment method is no longer valid at the time a renewal subscription fee is due, then Aircade reserves the right to suspend your Account and your access to the Platform without any liability to you. If your Account is terminated or suspended for violation of these Terms, any ongoing Subscription Service associated with the Account may be canceled and no refund will be provided for any remaining portion of your then-current Subscription Period(s).
10.3 Payments for Subscription Services are non-refundable. If you have activated a Subscription Service through a thirdparty market, you may cancel your subscription to that Subscription Service through the third-party market’s account settings or other procedures established by that third-party market. If you have questions, please reach out to Aircade User Support at aircade.online@gmail.com
We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended).
You may not reproduce, distribute, publicly display, publicly perform, or create derivative works of any part of the Platform unless you are expressly permitted to do so in a separate written agreement between you and Aircade. You may not use any part of the Platform for any commercial uses or other uses outside the scope of what is expressly permitted in these Terms without entering into a separate written agreement with Aircade that expressly allows that expanded use (such an agreement, a “Commercial Use Agreement”). Unless, and solely to the extent that, such a restriction is impermissible under applicable law or applicable third-party license, you may not, and may not permit any third party to: (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for any portion of the Platform, or make or attempt to make any modification to any portion of the Platform (other than modifications of the type described in the applicable User documentation made available to you by Aircade) or (b) interfere with or circumvent any feature of the Platform, including any security, or access control mechanism. You may not use any portion of the Platform for any purpose other than a purpose for which the applicable part of the Platform is expressly designed. If you are prohibited under applicable law from using any part(s) of the Platform, you may not use them. You represent and covenant that you have complied and will continue to comply with the rights and obligations set forth in these Terms with regards to your use of any part(s) of the Platform previously downloaded or accessed. We make no representation that the Platform is appropriate or available for use outside of the United States. Access to the Platform from countries or territories or by individuals where such access is illegal is prohibited. Nothing in this Section 12 or in these Terms is intended to restrict Users from streaming their use of the Platform through a third-party streaming platform, including Twitch and Kick, provided that such use is in compliance with all other terms of these Terms, including the Brand Guidelines and in compliance with all applicable third-party terms relating to those third-party systems (such streaming, “Permitted Streaming”). These Terms do not prohibit you from monetizing such streaming through third-party streaming platforms’ authorized monetization systems. Your use of any third-party streaming platform is subject to that platform’s terms.
By using the Platform, you agree not to:
a. use the Platform for any illegal purpose or in violation of any local, state, national, or international law;
b. violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
c. share, publicly Post, copy, or distribute another User’s User Content without their permission (except for Permitted Streaming);
d. Post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
e. interfere with security-related features of the Platform, including by: (i) disabling or circumventing features that prevent or limit use, printing, or copying of any content or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Platform, including any SDK, except to the extent that the activity is expressly permitted by applicable law;
f. upload to the Platform any software code, routine, or instructions that interfere with, or otherwise attempt to impair, the operation of the Platform, any User’s enjoyment of the Platform, or any User’s underlying code or hardware, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another User; (iii) attempting to collect personal information about another User or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Platform, or violating any regulation, policy, or procedure of any such network, equipment, or server;
g. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Platform account without permission, or falsifying your age or date of birth;
h. bypass any security or other features of the Platform designed to control how the Platform is used, harvest, or mine User Content from the Platform, or otherwise access or use the Platform in a manner inconsistent with individual human usage;
i. use any engine, software tool, agent, device, or mechanism (including any robot, spambot, spider, crawler, scraper, or other automated means or interface) not provided by us to access, search, or otherwise use any portion of the Platform or to extract data;
j. decipher, reverse engineer, decompile, or disassemble the Platform or any Client, or the software used to provide the Platform or a Client, in whole or in part, or authorize, direct, or cause a third party to do so;
k. use, display, mirror, frame, or utilize framing techniques to enclose the Platform or any content available through the Platform (“Content”), or any portion or component of the Platform, unless and solely to the extent Aircade provides the means for embedding any part of the Platform or the Content;
l. access, tamper with, or use non-public areas of the Platform, Aircade’s (or its infrastructure providers’) computer systems and infrastructure, or the technical delivery systems of Aircade’s providers;
m. use the Platform in any manner to harass, abuse, stalk, threaten, defame, or otherwise infringe or violate the rights of any other party;
n. sell or otherwise transfer the access granted under these Terms or any Materials (as defined below) or any right or ability to view, access, or use any Materials;
o. use or access the Platform in any manner that materially impacts the Platform’s performance or other Users’ ability access the Platform;
p. use the Platform in manner that violated the legal rights (including privacy rights) of any person or third party; or
q. attempt to do any of the acts described in this Section 13 or assist or permit any person in engaging in any of the acts described in this Section 11.
11.4. Monitoring to these Terms. Aircade reserves the right to monitor your use of the Platform (whether or not you are in a private world, location or setting within the Platform), including by making audio or video recordings of your activities on the Platform: (a) in an automated manner to maintain the security and integrity of the Platform; (b) if we reasonably believe such monitoring is necessary to investigate a violation of the Terms or applicable law; or (c) if we are otherwise required to do so by applicable law. If at any time Aircade chooses to monitor any User Content or your activities on the Platform, then Aircade still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of User Content or your activities on the Platform. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy. Aircade may block, filter, mute, remove or disable access to any User Content uploaded to or transmitted through the Platform without any liability to the User who Posted such User Content or to any other Users of the Platform. For clarity, Aircade does not permit copyright-infringing User Content or activities on the Platform.
These Terms are effective beginning when you accept these Terms or first access or use the Platform, and ending when terminated as described below.
You may terminate your User Account at any time by contacting customer service at or through account deletion functionality that may be provided to you via the Platform. If you log into the Platform using a Third-Party Account, you may only terminate your Account through emailing aircade.online@gmail.com. If you terminate your Account, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Platform.
If you violate any provision of these Terms, your permission from us to use the Platform will terminate automatically. In addition, Aircade may in its sole discretion terminate your User Account on the Platform or suspend or terminate your access to the Platform at any time for any reason or no reason, with or without notice. Pre-paid fees, if any, will not be refunded if your User Account or access to the Platform is suspended or terminated due to violation of these Terms.
We also reserve the right to terminate these Terms or modify or discontinue all or any portion of the Platform at any time (including by limiting or discontinuing certain features of the Platform), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Platform, including any paid-for functionalities of the Platform, or any suspension or termination of your access to or use of the Platform. You should retain copies of any User Content you Post so that you have permanent copies if the Platform is modified in such a way that you lose access to User Content you Posted.
Upon termination of these Terms, (a) your license rights will terminate and you must immediately cease all use of the Platform; (b) you will no longer be authorized to access your User Account or the Platform; (c) you must pay Aircade any unpaid amount that was due prior to termination, and (d) all payment obligations accrued prior to termination and Sections 2, 3, 8, 9, 10, 11, 12, 13, 14, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30, and any terms that survive within the Ancillary Agreements (defined below), will survive. You are solely responsible for retaining copies of any User Content you Post since upon termination of your User Account, you may lose access rights to any User Content you Posted. If your User Account has been terminated for a breach of these Terms, you are prohibited from creating a new account on the Platform using a different name, email address or other forms of account verification.
Aircade may provide tools through the Platform that enable you to export information, including User Content, to third-party services, including through features that allow you to sign into a third-party service using your Account credentials, link your account on Aircade with an account on the third-party service, such as Twitch or Kick, or through our implementation of third-party buttons (such as “like” or “share” buttons). By using one of these tools, you hereby authorize Aircade to transfer that information to the applicable third-party service subject to our Privacy Policy. Third-party services are not under our control, and, to the fullest extent permitted by law, we are not responsible for any third-party service’s use of your exported information. The Platform may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content. Please be sure to review the terms of service and privacy policy of any third-party services before you share any User Content or information with such third-party services. Once sharing occurs, Aircade will have no control over the information that has been shared.
You agree that Aircade may collect, use, and share information, including Unique Device Identifier (“UDID”) and other information about you, your device, system, any Client, and peripherals, as disclosed in the Aircade Privacy Policy, available at www.aircade.onine/privacy (or any successor URL designated by Aircade) (the “Privacy Policy”). Please read the Privacy Policy carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
The Platform, including any Clients and SDKs, is, as between you and Aircade, owned and operated by Aircade. The Clients, SDKs, Content, visual interfaces, interactive features, information, graphics, design, compilation, computer code (including source code or object code), products, services, and all other elements of the Platform (the “Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between you and Aircade, all Materials, including all associated intellectual property rights, are the sole and exclusive property of Aircade, its subsidiaries or affiliated companies, or its third-party licensors. You may not sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or use the Materials except as expressly authorized under these Terms. Aircade reserves all rights not expressly granted in these Terms. You do not acquire any right, title, or interest to the Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in these Terms.
We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing Users, material revisions will be effective as stated below. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Platform. these Terms will be identified by the most recent date of revision and will be effective immediately upon being made available through www.aircade.online or otherwise through the Platform, except: (a) if any such modification materially alters your rights under these Terms, we will attempt to notify you directly through a message sent to the email address you have provided to Aircade, if any, or through a pop-up window or other notification when you access or use the Platform; (b) such materially modified Terms will be effective upon the earlier of your use of the Platform with actual knowledge of the changes or thirty days after the changes are made available to you; and (c) no modifications to these Terms will apply to any dispute between you and Aircade that arose prior to the date of such modification. Your use of the Platform after modifications to these Terms become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the terms of these Terms or any modifications to these Terms, then you agree that your sole and exclusive remedy is to discontinue any use of the Platform.
If you provide Aircade with any comments, bug reports, feedback, or modifications proposed or suggested by you for the Platform (“Feedback”), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary you may include in any accompanying communication), and Aircade will have the right to use such Feedback at its discretion, including the incorporation of such suggested changes into the Platform. You hereby grant Aircade a perpetual, unrestricted, irrevocable, nonexclusive, fully-paid up, royalty-free license under all rights necessary to exploit and use your Feedback for any purpose, including to improve the Platform and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
To the fullest extent permitted by law, you are responsible for your use of the Platform, and you will defend and indemnify Aircade and its officers, directors, managers, members, employees, consultants, affiliates, subsidiaries, and agents and any licensors or suppliers that provide Materials (together, the “Aircade Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Platform; (b) your use of the Aircade Creator Economy; (c) your purchase or exchange of Credits; (s) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (e) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (f) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
ALL PARTS OF THE PLATFORM AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PLATFORM (INCLUDING ANY USER CONTENT AND SELLER CONTENT) ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Aircade ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PLATFORM AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PLATFORM (INCLUDING ANY USER CONTENT AND SELLER CONTENT), INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE Aircade ENTITIES DO NOT WARRANT THAT THE PLATFORM OR ANY PORTION OF THE PLATFORM, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE PLATFORM (INCLUDING ANY USER CONTENT AND SELLER CONTENT), WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. Aircade EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY OR FUNCTIONALITY OF LOCATION-BASED SERVICES, AND WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE PLATFORM, OR THE QUALITY OR CONSISTENCY OF THE PLATFORM. Aircade FURTHER DISCLAIMS ANY WARRANTY OR LIABILITY RELATED TO YOUR CARRIER’S NETWORK OR SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE PLATFORM OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE PLATFORM WILL CREATE ANY WARRANTY REGARDING ANY OF THE Aircade ENTITIES OR THE PLATFORM THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE PLATFORM, YOUR DEALING WITH ANY OTHER USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE PLATFORM. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE PLATFORM, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE PLATFORM AND ANY ASSOCIATED SITES OR PLATFORMS, AT YOUR OWN DISCRETION AND RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE PLATFORM), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE PLATFORM OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 22 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Aircade DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT Aircade IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE Aircade ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE PLATFORM OR ANY MATERIALS OR CONTENT ON THE PLATFORM, THE AIRCADE CREATOR ECONOMY, YOUR PURCHASE OR EXCHANGE OF AIRCADE CREDITS, OR OTHERWISE ARISING OUT OF THESE TERMS (INCLUDING ANY ANCILLARY AGREEMENT), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY Aircade ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 27.5.c, THE AGGREGATE LIABILITY OF THE AIRCADE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE PLATFORM OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO Aircade FOR ACCESS TO AND USE OF THE PLATFORM IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIM OR (b) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 23 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
AIRCADE IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR ADVERTISER, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, ADVERTISER, OR OTHER THIRD PARTY, INCLUDING ANY OTHER USER OF ANY PLATFORM, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE Aircade (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
These Terms are governed by the laws of the State of New York without regard to conflict of law principles that would result in the application of the laws of another jurisdiction. If a lawsuit or court proceeding is permitted under these Terms, then you and Aircade agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Brooklyn, New York for the purpose of litigating any dispute. We operate the Platform from the United States, and we make no representation that Materials included in the Platform are appropriate or available for use in other locations.
23.1. Your use of the Platform is subject to all additional terms, policies, rules, or guidelines applicable to the Platform or certain features of the Platform that we may post on or link to from any part of the Platform (the “Additional Terms”), such as additional license agreements for any downloadable Materials, an SDK, or rules that apply to particular features or content on the Platform, subject to Section 19 (Modification of these Terms). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
23.2. These Terms (which includes the Copyright Policy, the Privacy Policy, and, if applicable, the SDK License, Community Guidelines, Brand Guidelines, CE Rules, any Additional Terms, any Additional Terms, and any Commercial Use Agreement between you and Aircade (collectively, the “Ancillary Agreements”)) is the entire and exclusive understanding and agreement between you and Aircade regarding your use of the Platform.
23.3. Except as expressly permitted in these Terms, these Terms may be amended only by a written agreement signed by authorized representatives of all parties to these Terms.
23.4. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms, including with respect to your User Content, at any time without notice or consent.
23.5. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself.
23.6. For purposes of these Terms, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the words “such as”, “for example” “e.g.” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; (c) the word “or” is used in the inclusive sense of “and/or” and the terms “or,” “any,” and “either” are not exclusive; (d) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (e) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (f) whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa. The headings set forth in these Terms are for convenience of reference purposes only and shall not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. Unless otherwise specified, references to “$” and “dollars” are to the currency of the United States of America. Any law defined or referred to herein means such law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor laws.
23.7. If any part of these Terms are held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
24.1. Generally. In the interest of resolving disputes between you and Aircade in the most expedient and cost-effective manner, you and Aircade agree that every dispute arising in connection with these Terms, the Platform, and communications from us will be resolved by binding confidential arbitration in English. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, the Platform, and communications from us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Aircade ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
25.1. Consent to Electronic Communications. By using the Platform, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
25.2. Emails. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
You may contact us by sending correspondence to aircade.online@gmail.com.
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Platform or to receive further information regarding use of the Platform.
