These Terms and Conditions are entered into between Aircover Inc., a Delaware corporation ("Aircover") and the entity or person signing an Order Form or accessing the Services ("Customer" or "you"). Collectively, all applicable Order Forms, these Terms and Conditions, and all attachments constitute the "Agreement". The "Effective Date" is the date specified on the Order Form or when you first accessed the Services.
ACCEPTANCE: By signing an Order Form, using the Services (including free trials), or clicking acceptance, you agree to these terms. If you're signing as an employee, contractor, or agent of an entity, you must be authorized to bind that entity and represent you have such authority.
1. Services
1.1 "Services" means the Aircover product or service described in the Order Form, excluding Customer Content and Non-Aircover Services.
1.2 "Order Form" means the ordering document specifying Services to be provided.
1.3 Aircover will use commercially reasonable efforts to provide access and support per usage restrictions in the Order Form. Aircover reserves the right to suspend access for scheduled/emergency maintenance or if Customer breaches this Agreement, including failure to pay amounts due.
1.4 Aircover will use commercially reasonable efforts to provide Professional Services as set forth in an Order Form.
2. Non-Aircover Services
Customer acknowledges the Services operate using APIs and third-party services including Zoom ("Non-Aircover Services"). Aircover is not responsible for Non-Aircover Services' operation or availability affecting Services availability. Customer is solely responsible for procuring necessary rights to access Non-Aircover Services and complying with their terms.
Aircover makes no representations or warranties regarding Non-Aircover Services or third-party providers. Data exchanges between Customer and third parties are governed by those providers' terms. Aircover may suspend Customer's access for breaches of Non-Aircover Services.
3. Restrictions and Responsibilities
3.1 Customer will not, and will not permit third parties to:
- Reverse engineer, decompile, disassemble, or attempt to discover source code, object code, underlying structure, ideas, or algorithms of the Services or related Software
- Modify, translate, or create derivative works based on Services or Software
- Use Services or Software for time-sharing, service bureau purposes, or purposes other than Customer's own use
- Use Services or Software except in accordance with this Agreement and applicable laws
3.2 Customer will cooperate with Aircover by providing personnel, information, and actions reasonably required. Customer will cooperate in establishing passwords or verification procedures for administrative access.
3.3 Customer indemnifies and holds harmless Aircover against damages, losses, liabilities, settlements, and expenses (including attorneys' fees) from claims arising from alleged violations or Customer's Services use. Although Aircover has no obligation to monitor Customer content or use, Aircover may do so and may remove content or prohibit use believed to violate these provisions.
3.4 Customer is responsible for maintaining account, password, and file security, and for all account uses with or without Customer's knowledge or consent.
3.5 Customer acknowledges that timely provision of and access to equipment, assistance, cooperation, complete and accurate information and data from officers, agents, employees, and partners are essential to Services performance. Neither party is liable for delays or failures due to causes beyond reasonable control. Customer's failure to timely perform obligations relieves Aircover of dependent obligations.
4. Customer Content
Customer may submit data, content, materials, and documents through Services or otherwise ("Customer Content"). Customer owns all right, title, and interest in Customer Content. Aircover may use Customer Content to perform Services.
Customer represents and warrants that Customer Content and its Services use will not infringe, misappropriate, or violate intellectual property rights, other rights, or agreements, and that Customer has proper rights and authority to enter this Agreement and grant Aircover stated rights.
If Aircover receives notice that Customer Content or related activities may infringe third-party rights, Aircover may (but is not required to) suspend activity regarding that Customer Content.
5. Confidentiality
5.1 Each party understands the other may disclose information relating to technology or business ("Proprietary Information").
5.2 The Receiving Party agrees to:
- Not divulge Proprietary Information to third persons
- Give access solely to employees with need-to-know
- Take the same security precautions protecting its own proprietary information, but no less than reasonable precautions
Exceptions apply to information that is or becomes generally available, was in prior possession, was rightfully disclosed by a third party, or was independently developed.
Nothing prevents disclosure pursuant to judicial or governmental order, provided reasonable prior notice is given to contest the order.
5.3 Both parties may disclose the Agreement's existence but not terms and conditions, unless written approval is obtained, or disclosure is in a required government filing, or is made confidentially to potential investors or acquirers.
6. Intellectual Property Rights
6.1 Aircover retains all intellectual property rights relating to Services, Software, Professional Services, and feedback. Customer will not copy, distribute, reproduce, or use these except as expressly permitted. This Agreement is not a sale and doesn't convey ownership rights or intellectual property rights.
6.2 Aircover shall hold Customer harmless from third-party liability resulting from Services infringement of United States patents, copyrights, or trade secret misappropriation, subject to conditions including prompt notice, reasonable assistance, and sole defense control.
These indemnification obligations don't apply to portions:
- Not created by Aircover
- Resulting from Customer specifications
- Modified after delivery
- Combined with other products where infringement relates to combination
- Where Customer continues activity after notification
- Where use isn't strictly per Agreement
7. Payment of Fees
7.1 Customer will pay Aircover applicable fees as set forth in the Order Form ("Fees").
7.2 Customer authorizes Aircover to charge the credit card for all Services. Charges shall be made in advance, annually or per different billing frequency stated in the Order Form. If not otherwise specified, payments are due within thirty (30) days of invoice and are nonrefundable.
7.3 Prices don't include taxes, withholdings, duties, tariffs, levies, or similar assessments. Customer agrees to pay all such charges. All amounts shall be grossed-up for withholding taxes.
7.4 Unpaid Fees are subject to one percent (1.0%) per month finance charge, or the maximum permitted by law, plus all collection expenses, including reasonable attorneys' fees.
8. Term and Termination
8.1 Subject to earlier termination, this Agreement is for the Term specified in the Order Form.
8.2 Upon material breach, the non-breaching party may terminate by giving thirty (30) days prior written notice; provided the Agreement won't terminate if the breaching party cures the breach before the thirty-day period expires.
Either party may terminate without notice upon insolvency, bankruptcy, assignment for creditors' benefit, or dissolution or cessation of business.
All notices shall be in writing to:
Aircover: 2261 Market Street STE 5893, San Francisco, CA 94114
Customer: Address in Order Form
8.4 All accrued payment rights and Sections 2, 3, 4, 5, 6, 8.4, 9, 10, 11, 12, and 13 survive Agreement termination or expiration.
9. Warranty Disclaimer
THE SOFTWARE, SERVICES, PROFESSIONAL SERVICES AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. AIRCOVER HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
10. Limitation of Liability
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES. THE TOTAL LIABILITY OF AIRCOVER WILL NOT EXCEED THE FEES PAID IN THE TWELVE (12) MONTH PERIOD ENDING ON THE DATE A CLAIM IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. U.S. Government Matters
Customer may not provide to any person or export or re-export Services or related software in violation of restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
12. Notice
All notices shall be in writing to: Aircover Inc., 2261 Market Street STE 5893, San Francisco, CA 94114. Customer notices to the address in the Order Form.
13. Miscellaneous
This Agreement is governed by California law, without regard to conflict of laws provisions. If any provision is found unenforceable or invalid, it will be limited or eliminated to the minimum extent necessary. This Agreement is not assignable by Customer except with Aircover's prior written consent. Aircover may freely assign. This Agreement is the complete and exclusive statement of mutual understanding and supersedes all previous agreements. All waivers and modifications must be in writing signed by both parties. No agency, partnership, joint venture, or employment is created. In any enforcement action, the prevailing party is entitled to recover costs and attorneys' fees. Aircover is not liable for loss resulting from causes over which it doesn't have direct control.
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