Welcome to Aidium. These Terms of Service (“Terms”) govern all access to and use of the Aidium website located at https://thinkaidium.com or any successor URL (“Site”), the Aidium mobile application (“App”) and any other products and services (collectively “Services”) provided by Aidium, Inc., a Delaware corporation and its Affiliates (collectively, “Aidium,” “Company”, “we,” “our,” or “us”).
Our Services are intended for businesses and professional users only, not for private or household purposes. You must not access or use our Services unless (a) you are acting in a business or professional capacity, (b) you accept the Terms on behalf of yourself and as applicable, your entity or organization (collectively, “Customer”, “you” or “your’), and (c) if you are acting on behalf of your entity or organization, you are duly authorized to do so. If you access or use any Services, these Terms form a legally binding contract between Aidium and you, and as applicable, your entity or organization.
The Terms will take precedence over any conflicting or inconsistent terms and conditions, and information included in other materials (e.g., promotional materials and mailers) on the Services. In the event of an inconsistency between these Terms and any terms in an Order, the terms of the Order will control only to the extent of such conflict.
Aidium may modify these Terms at any time in our sole discretion, by posting the modified Terms on the Services. Modifications become effective immediately upon your first access to or use of the Services after the “Last Updated” date at the top of these Terms. Your continued access to or use of the Services after the modifications have become effective will be deemed your conclusive acceptance of the modified Terms. Please regularly check the Site and/or App to view the current Terms. If you do not agree with the modifications, do not access or use the Services.
Capitalized terms will have the meanings set forth in this Section 1, or where they are first used.
1.1 “Affiliate” means an entity directly or indirectly Controlled by, Controlling or under common Control with a Party, now or in the future. An entity will “Control” another entity when it owns more than 50% of the equity or other voting interests, or otherwise has primary management or operational responsibility.
1.2 “Change of Control” means one or more transactions whereby (a) control of a Party is transferred, (b) all or substantially all of the Party’s assets or securities are acquired or (c) the Party is merged or consolidated with another entity; provided, that such Party’s equity owners immediately before the transaction(s) will, immediately afterward, hold less than 50% voting power of the successor entity.
1.3 “Confidential Information” means all proprietary, nonpublic or trade secret information disclosed in written, oral or visual form, that the disclosing Party, its Affiliates or agents (each, “Disclosing Party“) provides to the receiving Party, its Affiliates or agents (each, “Receiving Party“) and that the Disclosing Party designates as being confidential or that should reasonably have been understood under the circumstances as being confidential. The Services will be considered Aidium’s Confidential Information, notwithstanding any failure to mark or identify it as such. Customer Data will be considered Customer’s Confidential Information, notwithstanding any failure to mark or identify it as such. The relationship of the Parties created by these Terms is not Confidential Information. Confidential Information does not include information that: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public (including any information made available on the Services that is not protected by confidentiality obligations); or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.
1.4 “Content” means data, text, graphics, audio, video, software, application, files, links, and other information or materials.
1.5 “Customer Data” means all login credentials (usernames and passwords), Content, and other materials submitted or uploaded to the Services by Customer or Users, or otherwise provided to Aidium under the Terms. Customer Data excludes Usage Data.
1.6 “Documentation” means the documentation provided or made available by Aidium to Customer describing the use and operation of the Service.
1.7 “Feedback” means any and all Customer or User suggestions regarding new features, functionality, or performance for the Services, including but not limited to, suggestions submitted through the Site or App.
1.8 “Intellectual Property Rights” means all patents, copyrights, trade secrets, trademarks and service marks, trade names, trade dress, goodwill and marketing rights related thereto, works of authorship, inventions, discoveries, improvements, enhancements, methods, processes, formulas, designs, techniques, derivative works, know how, all other intellectual property or proprietary rights (registered or not) and equivalents or similar forms of protection existing worldwide, and all applications for and registrations in such rights.
1.9 “Order” means a specification of Services to be provided or made available by Aidium and the associated fees or charges, as agreed by Aidium and Customer. Each Order is governed by the Terms and is fully incorporated into the Terms by this reference. Each Order is entered into by Aidium and Customer either (a) as a written document or (b) electronically via Aidium’s online registration and ordering process.
1.10 “Security Incident” means a breach of security of the Services leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data or other Content in the possession or control of Aidium.
1.11 “Taxes” means any applicable taxes, tax-like charges, tax-related charges and other charges or surcharges, including all excise, use, sales, value-added and other fees, surcharges and levies.
1.12 “Third Party Content” means any Content made available by a third party via the Services, including any application functionality provided by an Aidium-contracted third party.
1.13 “Usage Data” means any and all de-identified or anonymized, aggregated data collected or generated by Aidium in connection with use of the Services.
1.14 “User” means any Customer employee, agent, contractor, or other individual or entity that accesses, or is authorized by Customer to access, the Services. A User is “authorized” when added to the Services even if the User is not activated for, or active in, any features of the Services. Any access or use of the Services by any User is considered use or access by Customer.
2.1 Limited License.
2.1.1 Aidium will provide the Services to Customer as specified in a mutually accepted Order, subject to the terms and conditions herein. At the request of Customer, Aidium may agree to provide professional services that relate to the Services but are not otherwise covered by this Agreement. Such additional services will be charged at Fuel50’s standard rates or as agreed with the Client in writing and otherwise will be subject to the terms and conditions of this Agreement.
2.1.2 Subject to the Terms, Aidium to grants Customer, during the Term, a limited, revocable, non-exclusive, non-sublicensable, and non-transferable right to: (a) access and use the Services to the extent identified in an Order; and (b) to use and reproduce the Documentation solely in connection with Customer’s use of the Services. Customer acknowledges and agrees that: (i) it does not acquire any rights, express or implied in or to the Services, except as specifically set forth in these Terms; and (ii) any configuration or deployment of the Services will not affect or diminish Aidium’s rights, title, and interest in and to the Services. As between Aidium and Customer, Aidium owns all right, title and interest in and to the Services, Documentation, Usage Data and Campaign Templates (defined below), including any and all Intellectual Property Rights, database rights, and other proprietary rights therein. Aidium owns all Feedback and Customer hereby assigns to Aidium all rights and interest in the Feedback. Aidium may use all Feedback for any purpose, including without limitation the development or improvement of features or functionality for the Service. All brand, product, and service names and marks used in the Services which identify Aidium are proprietary names and marks of Aidium. All brand, product, and service names and marks used in the Services which identify third parties or their products or services are proprietary names and marks of such third parties. Nothing in the Services will be deemed to confer on any person any license or right with respect to any such name or mark.
2.2 Account Registration. To access or use certain features and functionalities of the Services, Customer must register for an account (“Account”). In creating an Account, Customer agrees to: (i) provide true, accurate, current and complete information (“Account Data”); and (ii) maintain and promptly update the Account Data to keep it true, accurate, current and complete.
2.3 Marketing Campaigns. As part of the Services, Aidium provides to Customer marketing campaign templates including but not limited to drip campaigns (“Campaign Templates”). Aidium grants Customer a limited, revocable, non-exclusive, non-sublicensable, royalty-free license to use the Campaign Templates solely for Customer’s business purposes. All Campaign Templates are provided on an “AS-IS” basis, without indemnification or support; and Aidium disclaims all warranties and conditions of any kind, whether express, implied, statutory, or otherwise. Aidium retains all right and title to Campaign Templates. Customers may modify and upload Content into Campaign Templates to create customizable campaigns (“Customer Campaigns”). Customer agrees to and grants Aidium the right to use and analyze any such Content uploaded by Customer to Campaign Templates. Customer agrees and acknowledges that Aidium may track, analyze, and use data, including but not limited to, metrics relating to the performance of any Customer Campaign.
2.4 Messaging Credits. Customer will be allocated a certain number of monthly credits for SMS (text), voice dialer, ringless voicemail and media messages, as set forth in the applicable Order, in order to market Customer’s products and services to third parties (“Messaging Credits”). The number of Messaging Credits will reset on the first day of each month. If Customer does not exhaust its allocated Messaging Credits within a given month, the remaining Messaging Credits will not carry over to the next month. However, if Customer does exhaust its allocated Messaging Credits within a given month, Customer will automatically be allocated additional credits (“Refresh Credits”) and will be automatically charged a Message Credit Fee (defined below), as set forth in an applicable Order. If Customer does not exhaust all Refresh Credits within the month they are allocated, the remaining Refresh Credits will roll over to the subsequent month. At the start of each new month, Messaging Credits will be used before any rolled-over Refresh Credits are used. Unused Refresh Credits will continue to roll over to subsequent months, until all Refresh Credits are exhausted or until the Agreement expires or is terminated.
2.5 Usage Data. Customer acknowledges that the provision of the Services involves, and Customer hereby authorizes Aidium to: (a) collect Usage Data in connection with providing the Services; (b) use Usage Data in connection with providing, analyzing, and improving Aidium products and services, and for other purposes in compliance with these Terms; and (c) generate and use de-identified, aggregated, or anonymized data that does not include any identifying information of, nor reasonably permit the identification of, Customer or any User or other individual. As between the Parties, Aidium owns the Usage Data.
2.6 Professional Services. Any professional or advisory Services, such as implementation and onboarding services (“Professional Services”) ordered by Customer pursuant to an Order will be provided: (a) for the Fees and on the terms described in the applicable Order; and (b) in a professional manner and in accordance with industry standard practices. Customer will make available in a timely manner at no charge to Aidium all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources of Customer as reasonably required by Aidium for the performance of the Professional Services.
2.7 Third Party Content. Any Third Party Content made available through the Services is provided on an “AS-IS” basis, without indemnification or support; and Aidium disclaims all warranties and conditions of any kind, whether express, implied, statutory, or otherwise. Customer is solely responsible for reviewing, accepting, and complying with any third-party terms applicable to such Third Party Content.
2.8 Open Source Software. Certain aspects of the Services may include software that is subject to “open source” or “free software” licenses (“Open Source Software”) and may be owned by third parties. The Open Source Software is not governed by these Terms, but instead is provided to Customer under the applicable Open Source Software license. Nothing in these Terms limits Customer’s rights under, or grants to Customer any rights that supersede, the applicable Open Source Software license. If required by any particular Open Source Software license, Aidium will make available such Open Source Software, and Aidium’s modifications to it, if any, by written request at the notice address specified herein.
2.9 Trial Services. From time to time, Aidium may offer certain Services or products on a limited basis without Fee or charge, including for example, free accounts, trial use, and access to pre-release and beta services or products (collectively, “Trial Services”). Your use of Trial Services is subject to any additional terms that we may specify. Aidium may terminate your access or use of Trial Services at any time in our sole discretion, without liability.
2.10 Customer Data.
2.10.1. Customer Data. Subject to the Terms, Customer grants to Aidium a non-exclusive, royalty free and fully paid, worldwide right and license to (and to authorize Aidium’s employees, subcontractors and service providers to) access, use, edit, modify, aggregate, reproduce, distribute, display and perform the Customer Data, and to grant sublicenses of the foregoing rights, in connection with the operation of the Services, the performance of Aidium’s obligations and exercise of Aidium’s rights under the Terms, the promotion, advertising or marketing of the Services, and the operation of Aidium’s business. As between the Parties, Customer owns the Customer Data, subject only to the limited rights granted herein.
2.10.2 Transaction Data. As a feature of the Services, Users may upload Content, including but not limited to Content relating to their loan and/or real estate transactions, which may also include information about third parties (“Transaction Data”). Transaction Data will be considered Customer Data in accordance with the Terms. Customer is solely liable for all Customer Data. Customer represents and warrants that: (a) it owns or has obtained all necessary rights, consents and approvals for Aidium to exercise the rights described herein with respect to Customer Data; and (b) it will not upload to the Services any social security numbers, credit scores, credit card information, or sensitive personal data of third parties.
2.10.3 Other Terms. Customer represents and warrants that it has all rights necessary for Customer’s and Aidium’s use of the Customer Data as contemplated herein. Customer hereby irrevocably waives (and agrees to cause to be waived) any claims and assertions of moral rights or attribution with respect to the Customer Data. Customer may remove Customer Data from the Services at any time by deleting such Customer Data or deleting Customer’s Account.
3.1 Acceptable Use Policy. Customer agrees not to do any of the following, whether directly or indirectly:
We are not obligated to monitor access to or use of the Services or to monitor, review, censor or edit any Content. However, we have the right to do so for the purposes of operating the Services, ensuring compliance with this Agreement, protecting the rights and safety of our personnel and third parties, and complying with legal requirements. We reserve the right to investigate violations or other conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate applicable law. In the event of any violation, or any threat to the security or technical integrity of the Services, Aidium may, in its sole discretion: (1) suspend Customer’s access to the Services; (2) charge Customer for excess use; and/or (3) terminate Customer’s Account.
3.2 Telephone Consumer Protection Act. Customer represents and warrants that, at all times, it will strictly comply with the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”) and Customer understands that compliance is solely Customer’s responsibility. Customer further represents and warrants that, before using Messaging Credits to market its products and services to any third party, such third party had the option, and opted-in, to receive such marketing messages from Customer. Customer also understands that it is solely Customer’s responsibility to monitor the National Do Not Call Registry. Customer represents and warrants that, if any third party is on such registry, Customer will not use the Services (including available messaging functionality) to contact the third party in violation of the TCPA, National Do Not Call Registry or any other applicable law or regulation.
3.3 Fair Credit Reporting Act. Aidium does not collect, maintain, or verify the accuracy of credit scores of any individual, nor will Aidium disclose the credit score of any individual to any Customer or User. However, Aidium may receive from Users, via Transaction Data or otherwise, information about whether or not a third party qualifies for certain Customer products and services (such as a loan) based on their credit score (“Credit Information”). Customer represents and warrants that if it uploads or submits Credit Information to the Services, Customer has given the applicable third party the option, and such third party has opted-in, to the disclosure of its Credit Information in compliance with the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.
3.4 California Privacy. Customer represents and warrants that, at all times, it will comply with the California Consumer Privacy Act (“CCPA”) and California Privacy Rights Act (“CPRA”), Cal. Civ. Code § 1798.100 et seq., as applicable, including but not limited to sending all required notices and having policies and procedures in place for California residents or consumers to access their personal information, and if applicable, opt-out of the sale of their personal information.
3.5 Real Estate Settlement Procedures Act. Customer represents and warrants that, during the Term, it will comply with the federal Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. and its regulations where applicable.
3.6.1 Each Party will implement reasonable physical, technical and organizational safeguards designed to secure any Content and Customer Data from unauthorized access, disclosure, loss, modification, or destruction. If a Party discovers a Security Incident has occurred, it will notify the other Party within 72 hours, unless otherwise prohibited by law or otherwise instructed by a law enforcement or supervisory authority; and it will promptly take reasonable steps to investigate and mitigate the effects of the Security Incident.
3.6.2 Customer is solely responsible for maintaining the confidentiality and security of all usernames and passwords. Customer agrees that: (a) it will not (and will prohibit any User to) share usernames or passwords; and (b) it will not allow a third party to use its Account, usernames, or passwords at any time, except as expressly permitted under the Terms. Aidium reserves the right to terminate any Account or username that Aidium reasonably determines may have been used by an unauthorized third party or an individual or entity other than the User to whom such username and password was originally assigned.
3.7 Users; Sub-Accounts. Customer is responsible for all acts or omissions of its Users, and for all activities that occur under its Account, including all sub-accounts created by or for Customer. Customer may establish an unlimited number of sub-accounts, but for purposes of determining Fees, the Committed Quantity (the total number of Users across any one Customer business entity, including all Affiliates of such Customer business entities) will be summed across all such sub-accounts.
3.8 Availability. Customer is responsible for obtaining all services and technologies necessary to access to the Services and Customer understands that such access may involve third party fees and costs (such as Internet service provider or messaging/data charges). Customer is responsible for all such fees, charges and costs.
4.1 Fees; Payments. Customers will pay Aidium all fees set forth in the applicable Order and as described in this Section 4 (the “Fees”). All Fees will be paid in U.S. Dollars and are non-refundable except as expressly agreed in writing by the Parties. Aidium’s acceptance of partial payment or any payment of less than the full amount payable at any given time will not constitute a waiver or release of our right to unpaid amounts. We may ask you to provide relevant payment information, including but not limited to credit card number, expiration date, email, billing and notification addresses, and identify verification information (collectively, “Payment Information”). At all times, Customer must provide to Aidium accurate, current and complete Payment Information; failure to do so is a material breach of these Terms. By providing Payment Information, you represent and warrant that you have the legal right to use the payment method you have specified; and you expressly authorize Aidium to charge you all applicable Fees, including any past due Fees, plus late charges, if any, due to Aidium under these Terms as of the date the invoice is generated, or to provide your Payment Information to our third-party payment processor as required to charge you, and to complete the payment transaction.
4.2 Add-ons. Aidium may offer additional features or functionality relating to the Services that are not included in the subscription purchased by Customer pursuant to an Order (“Add-Ons”), for additional Fees as further described on the Site or App. Customer acknowledges that Aidium may, upon prior notice to Customer, charge Customer the full list prices for Customer’s use (after such notice) of any such Add-Ons beyond those included in the applicable Order.
4.3 Committed Period. If the Order shows that Customer will pay for a committed period, such as a set number of months or years, all Fees will be invoiced in advance at the billing frequency specified in the Order based on the number of Users specified in the Order (the “Committed Quantity” of Users). If the number of Users for Customer exceeds the Committed Quantity in any month, Aidium may invoice, and Customer will pay, Fees reflecting the difference between the Committed Quantity and the actual number of Users who used the Services, based on the price per User set forth in the applicable Order, for such month (the “Monthly True-Up” of Fees).
4.4 Automatic Renewal; Message Credit Fee. Customer acknowledges and agrees that it will be automatically charged for continued use of the Services for each Renewal Order Term (defined below). Customer also agrees to be automatically charged a Fee, as per Section 2.3.3 above and as set forth in an applicable Order, if Customer exceeds its use of allocated Messaging Credits for any given month (“Message Credit Fee”). Aidium will provide Customer notice before any such automatic charge.
4.5 Adjustments; Disputes; Taxes.
4.5.1 Failure to make timely payments is a material breach of these Terms. If an invoice is unpaid when due (i.e., becomes delinquent), Aidium may, in its sole discretion and effective upon notice to Customer: (a) suspend Services; (b) apply a late charge on the unpaid amount equal to the lesser of 1.5% interest per month or the maximum rate allowed by law; (c) require Customer to provide a cash deposit or other security to guarantee payment; and/or (d) pursue any other remedy available under this Agreement, at law or in equity. Customer agrees and acknowledges that Aidium may send Customer payment reminders via email or phone.
4.5.2 If Customer desires to dispute in good faith an invoiced amount, Customer will, within 30 days of the invoice date: (a) pay the invoiced amount; and (b) provide notice of the details of the dispute, together with all supporting documentation. The Parties will work diligently to promptly resolve the dispute and upon resolution: (i) Aidium will promptly credit to Customer any amount found to be owed to Customer; or (ii) Customer will promptly pay to Aidium all amounts found to be owed to Aidium. If Customer does not timely submit a documented dispute notice per this Section, Customer waives all rights to dispute such amounts, including any claim of set-off or reimbursement.
4.5.3 For each credit/debit card chargeback or reversal decided in Aidium’s favor, 2Aidium may invoice Customer, and Customer will pay: (a) the amount of such chargeback or reversal; (b) a $25.00 charge to recover costs; and (c) pending disputed fees between Aidium and Customer’s financial institution; and Aidium may pursue any other available remedies. Customer will promptly reimburse Aidium for all costs (including reasonable attorneys’ fees and collection agency fees) associated with collecting delinquent or dishonored payments, or payments not otherwise under good faith dispute by Customer. In addition, Customer acknowledges and agrees that, if Aidium reasonably deems itself insecure with respect to Customer’s ability to pay (e.g., due to chargebacks, reversals or Customer’s withdrawal of credit card authorization), Aidium may, in its sole discretion and effective upon notice to Customer: (i) modify Customer’s payment terms; and/or (ii) require Customer to provide a cash deposit or other security to guarantee payment, with any remainder of the deposit to be remitted to Customer upon expiration or termination of the Terms and all Orders entered into thereunder.
4.5.4 All charges are exclusive of Taxes, which Customer must pay. If Customer provides Aidium with a valid, duly executed tax exemption certificate, Aidium will exempt Customer from Taxes in accordance with the law, effective on the date Aidium receives the exemption certificate. If Customer disputes the application of any Taxes, Customer must give Aidium written notice of the dispute within six months of the date of the invoice. Otherwise, such application of Taxes, as between Aidium and Customer, will be deemed correct and binding on Customer. If Customer is required by law to make any deduction or withholding from any payment due hereunder to Aidium, then notwithstanding anything to the contrary in this Agreement, the gross amount payable by Customer to Aidium will be increased so that, after any such deduction or withholding for taxes, the net amount received by Aidium will not be less than Aidium would have received had no such deduction or withholding been required.
4.6 Price Changes. Prices for using the Services are subject to change upon thirty (30) days’ notice from Aidium. Such notice may be provided at any time by posting the changes to the Site or App.
5.1 Term. Unless otherwise expressly set forth in an applicable Order, the term will commence on the date you accept the Terms and will continue until the earlier of (a) the date the Terms are terminated as set forth herein, and (b) all Orders entered into under the Terms expire or are terminated as set forth therein (collectively, “Term”).
5.2 Order Renewal. Following the initial term under an Order (the “Initial Order Term”), the Order will automatically renew for additional periods equal to the duration of the Initial Order Term (each, a “Renewal Order Term” and together with the Initial Order Term, the “Order Term”), unless a Customer provides written notice to Aidium of its intent to not renew such Order at least thirty (30) days before the end of the then-current Order Term. Unless otherwise expressly set forth in an applicable Order, at least 15 days but no more than 45 days before the Order Term is scheduled to expire, Aidium will provide to Customer a courtesy reminder notice of the upcoming automatic renewal and indicating the Fees and charges due for such Renewal Order Term. The Committed Quantity and Fees for each Renewal Order Term will be equal to the then-current Order Term, unless Customer and Aidium agree to create a new Order setting forth a new Committed Quantity and Fees.
5.3 Termination. Except as otherwise provided for herein, a Party may terminate these Terms for cause, upon notice, prior to the expiration of an Order Term, upon the material breach of the other Party, if such breach remains uncured for fourteen (14) days following the breaching Party’s receipt of written notice of the breach. In addition, Aidium may terminate these Terms for cause, upon notice, prior to the expiration of an Order Term; (a) if a receiver or administrator is appointed for Customer or its property; (b) if Customer makes a general assignment for the benefit of its creditors; (c) if Customer commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within 60 days; (d) if Customer is liquidated or dissolved; (e) if Customer undergoes a Change of Control; or (f) if Customer ceases to do business or otherwise terminates its business operation. Aidium also may terminate, interrupt or suspend Services without prior notice if necessary to: (i) prevent or protect against fraud; (ii) protect Aidium’s customers, personnel, facilities, equipment, network or services; or (iii) prevent potential material liability.
5.4 Suspension or Termination for Non-Payment. If Customer fails to make timely payment of any applicable Fees, charges or costs due under these Terms and does not cure the same within fourteen (14) days of notice, Aidium may suspend or terminate Customer’s access to or use of the Services.
5.5 Effect of Termination.
5.5.1 Upon any termination or expiration of these Terms: (a) Customer will promptly pay Aidium all amounts owed under these Terms without regard to whether any invoices had or had not been issued; (b) all outstanding Orders will be immediately terminated; (c) access to and use of the Services will be terminated; and (d) Customer Data will be deleted by Aidium. Customers will not have any rights in or to the Services after any termination or expiration of these Terms.
5.5.2 If Customer terminates these Terms and/or an Order early without cause or if Aidium terminates these Terms or an Order for cause, Customer will be invoiced and pay to Aidium an early termination fee in an amount equal to Customer’s recurring charges, if any, multiplied by the number of months remaining in the Term, or as otherwise set forth in the applicable Order. This early termination fee is agreed by the Parties to be liquidated damages and not a penalty.
5.6 Survival. Sections 1 (Definitions), 2.5 (Usage Data), 4 (Fees; Payments), 4.1 (Limitations), 5.5 (Effect of Termination), 5.6 (Survival), and 6 through 11 will survive any termination or expiration of the Terms.
6.1.2 You agree to comply with all applicable privacy and data protection laws; and you are responsible for ensuring that you have obtained all individual consents required for us to provide the Services in respect of any personal information provided.
Aidium respects the Intellectual Property Rights of others and we ask our Customers and Users to do the same. In appropriate circumstances, we may warn or suspend users who infringe others’ copyrights, and in more serious cases such as repeated infringement, we may terminate access.
Submitting a Notice of Copyright Infringement
Per the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”), if your work is accessible on our Services in a way that you believe infringes your copyright rights, or that contains links or other references to a different online location containing material that you believe infringes your copyright rights, you may notify Aidium by providing the following information in a written notice to our designated agent for copyright notices (“Designated Agent”).
Designated Agent for Copyright Notices
2060 Broadway #200
Boulder, CO 80302
Specific requirements for proper, valid notice are set forth in the DMCA, 17 U.S.C. § 512(c)(3). A valid notice must include all of the following:
Our response to a valid notice may include removing or restricting access to the allegedly infringing material. If we remove or restrict access to Content in response to a valid notice, we will make a good faith effort to contact the affected Account holder or User with information concerning the removal or restriction of access, including a copy of the takedown notice, along with instructions for filing a counter-notice.
Please do not send any other notices or communications to the Designated Agent, who is appointed only for the purpose of receiving notices of claims alleging copyright infringement under the DMCA.
Submitting a Counter-Notice
If you receive a copyright notice, it means that the Content described in the notice has been removed from the Services, or access to the Content has been disabled or restricted. Please take the time to read through the notice sent to you, which includes information on the notice that Aidium received as well as instructions on how to file a counter-notice.
If you believe that the material reported in the notice was misidentified or removed in error, you may submit a counter-notice. Specific requirements for proper, valid counter-notice are set forth in the DMCA, 17 U.S.C. § 512(g)(3). A valid counter-notice must include all of the following:
To submit a counter-notice, please respond to our original email notification of the removal or disabling of access to the disputed Content, and include all of the required information in the body of your email reply.
When we receive a valid counter-notice, Aidium will promptly forward a copy to the person who filed the original notice of alleged infringement. The original complaining party will then have 10 business days to notify Aidium that it has filed a lawsuit relating to the allegedly infringing material. If we do not receive such a notice within the 10-business day period, we may restore access to the Content that was removed or disabled.
Please consider carefully before sending Aidium a copyright claim, especially if you are not sure whether you are the actual rights holder or authorized to act on the rights holder’s behalf. Please also consider whether the allegedly infringing Content might be authorized by law, such as under the fair use doctrine. 17 U.S.C. § 107. There are substantial penalties for false claims made under the DMCA. See 17 U.S.C. § 512(f), which provides that you may be liable for any damages, including costs and attorneys’ fees incurred by Aidium or our Users, if you knowingly materially misrepresent that Content or activity is infringing. If you are unsure whether the Content that you are reporting is actually infringing, you may wish to consult with legal counsel before submitting a notice.
Repeat Infringer Policy
As noted above, per the DMCA it is Aidium’s policy to terminate the Account of repeat copyright infringers in appropriate circumstances.
Do you have any questions about our Copyright Policy? Please contact us at:
2060 Broadway #200
Boulder, CO 80302
7.1 Confidentiality. Receiving Party will not use, copy or disclose Confidential Information except as permitted herein. All copies of Confidential Information remain the Disclosing Party’s sole property. Receiving Party will protect the Disclosing Party’s Confidential Information using at least the same procedures as it uses to protect its own Confidential Information, but no less than reasonable procedures. Receiving Party may disclose Confidential Information to its employees, consultants and contractors who have a need to know in connection herewith and who have executed a similarly stringent confidentiality agreement or are subject to a professional duty of confidentiality. Receiving Party also may disclose Confidential Information pursuant to applicable law, regulation, subpoena or other order of a court of competent jurisdiction (collectively, “Legal Requirement”) or to establish rights or obligations under this Agreement in any proceeding; provided, that (a) reasonable prior notice, unless legally prohibited, is provided to Disclosing Party sufficient to permit Disclosing Party an opportunity to contest such disclosure, (b) Receiving Party cooperates with Disclosing Party in complying with any applicable protective order or equivalent and (c) Receiving Party discloses only to the extent necessary to comply with the Legal Requirement or to establish such rights or obligations. Receiving Party will notify the Disclosing Party upon discovery of any unauthorized use or disclosure of Confidential Information and will cooperate to help the Disclosing Party prevent further unauthorized use or disclosure. Receiving Party acknowledges that the Disclosing Party’s Confidential Information is valuable and unique and that unauthorized use or disclosure may result in irreparable injury to the Disclosing Party for which monetary damages are inadequate. If Receiving Party violates or threatens to violate this Section 7.2, Disclosing Party will be entitled to seek injunctive relief without the need to post bond, in addition to any other available legal or equitable remedies.
7.2. Publicity. Customer grants Aidium permission to use Customer’s name and logo on the Site, App, and in Aidium’s sales, marketing and promotional materials, and to identify Customer as a customer of the Services in response to requests for information and responses to proposals. All other uses of Customer’s name, logo, trademarks and/or service marks, trade names, trade dress or other proprietary identifying symbols will be subject to Customer’s consent, which consent will not be unreasonably withheld.
8.1. Indemnification. You agree to defend, indemnify and hold harmless Aidium, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns (each, an “Aidium Indemnitee”) through final judgment or settlement, from and against any third-party claim, action, suit, proceeding, judgments, settlements, losses, damages, fines, penalties, expenses (including reasonable legal fees, expert witness fees, litigation expenses, and other expenses) and costs (including allocable costs of in-house counsel) (“Claim“) brought against or involving an Aidium Indemnitee arising out of or based upon: (a) unauthorized access to or use of the Services and any information obtained therefrom; (b) Customer Data; (c) violation of this Agreement; and (d) use of other than the then-current, unaltered release of any software used in the Services.
8.2. Process. The Aidium Indemnitee will (a) promptly provide notice to you of any Claim for which indemnity is claimed (provided that, any delay in providing notice will not relieve you of your indemnification obligations, except to the extent that you are materially prejudiced by the delay), (b) permit you to control the defense of any such Claim and (c) provide reasonable assistance at your reasonable cost. Subject to the foregoing, you may select legal counsel to represent the Aidium Indemnitee (such counsel to be reasonably satisfactory to the Aidium Indemnitee) and to otherwise control the defense. If you elect to control the defense, the Aidium Indemnitee may fully participate in the defense at its own cost. If you, within a reasonable time after receipt of notice of Claim, fail to defend the Aidium Indemnitee, the Aidium Indemnitee may defend and compromise or settle the Claim at your cost; but you may not consent to entry of any judgment or enter into any settlement that imposes liability or obligations on the Aidium Indemnitee or that diminishes its rights, without obtaining the Aidium Indemnitee’s express prior consent, such consent not to be unreasonably withheld, delayed or conditioned.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND AIDIUM, ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, AIDIUM DOES NOT WARRANT OR REPRESENT THAT THE SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS, BE AVAILABLE ON AN UNINTERRUPTED, SECURE, ERROR-FREE, OR DEFECT-FREE BASIS, BE FREE OF ANY MALICIOUS CODE, OR BE ACCURATE, COMPLETE OR RELIABLE. AIDIUM, ITS AFFILIATES AND LICENSORS ARE NOT RESPONSIBLE FOR ANY USER CONDUCT, NOR WILL THEY BE A PARTY TO OR IN ANY WAY RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND OTHER USER. IF YOU ARE DISSATISFIED WITH OUR SERVICES OR HARMED BY US OR BY ANYTHING RELATED TO OUR SERVICES, YOU MAY TERMINATE THE TERMS IN ACCORDANCE WITH SECTION 5, AS APPLICABLE. SUCH TERMINATION WILL BE YOUR SOLE AND EXCLUSIVE REMEDY (AND OUR SOLE AND EXCLUSIVE LIABILITY) FOR ANY BREACH OF CONTRACT.
10.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL AIDIUM BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUES, BUSINESS OPPORTUNITIES, DATA OR GOODWILL, INTERRUPTED SERVICES OR COMMUNICATIONS, COMPUTER DAMAGES OR SYSTEM FAILURES, OR REPLACEMENT SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER OR NOT AIDIUM WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER OR NOT THE REMEDIES PROVIDED FOR HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT AIDIUM WILL NOT BE LIABLE FOR ANY USER CONTENT OR CONDUCT AND THAT THE RISK OF HARM OR DAMAGE FROM ANY OF THE FOREGOING RESTS SOLELY WITH YOU.
10.2 AIDIUM’S AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTIONS, CLAIMS AND DAMAGES IN CONNECTION WITH THESE TERMS IS LIMITED TO THE LESSER OF (a) DIRECT DAMAGES PROVEN BY YOU, (b) THE AMOUNT OF FEES PAID BY CUSTOMER TO AIDIUM DURING THE TWELVE (12) MONTH PERIOD BEFORE THE DATE ON WHICH ANY CLAIM AROSE, OR (c) FIFTY U.S. DOLLARS ($50.00) IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATION TO AIDIUM. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN AIDIUM AND YOU.
11.1 Governing Law and Forum. The Terms are governed by and construed in accordance with the laws of the State of Colorado, without giving effect to any rule or law that would apply the law of another jurisdiction. Each Party agrees that any action, suit or other proceeding involving Aidium arising out of or relating to these Terms (each, a “Dispute”) will be brought and maintained only in a state or federal court of competent jurisdiction located in Denver County, Colorado.
11.2 Attorneys’ Fees. In the event that Aidium is the prevailing party in any Dispute, Aidium will be entitled to recover from Customer Aidium’s reasonable attorneys’ fees, costs and expenses.
11.3 Class Action Waiver. NO PARTY WILL COMMENCE OR SEEK TO PROSECUTE OR DEFEND ANY DISPUTE, OR THE BREACH THEREOF, OTHER THAN ON AN INDIVIDUAL, NON-CLASS, NON-COLLECTIVE ACTION BASIS. NO PARTY WILL SEEK TO PROSECUTE OR DEFEND ANY DISPUTE, OR THE BREACH THEREOF, IN A REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL CAPACITY. THE TRIER OF FACT WILL NOT HAVE THE POWER TO CONSOLIDATE ANY DISPUTE WITH ANY OTHER ACTION, SUIT, OR OTHER PROCEEDING, ABSENT AGREEMENT OF ALL PARTIES INVOLVED, OR OTHERWISE TO DEAL WITH ANY MATTER ON A NON-INDIVIDUAL, CLASS, COLLECTIVE, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL BASIS.
11.4 Compliance with Laws. Each Party will comply with all applicable laws, rules and regulations while performing under these Terms.
11.5 Severability. If any provision of the Terms is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
11.6 Waiver. Aidium’s failure or delay to enforce any right or provision of these Terms will not be considered a waiver of that right or provision. Any waiver will be effective only if in writing and signed by a duly authorized representative of Aidium.
11.7 Force Majeure. Company will not be liable, nor will Customer have the right to terminate, for any delay or failure to perform hereunder resulting from causes outside its reasonable control, including but not limited to acts of God, war, insurrection, terrorism, riots, embargos, acts of civil or military authorities, government restrictions (including the denial or cancellation of any export or other necessary license), fire, floods, pandemic, epidemic, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
11.8 Construction. Headings used in the Terms are for convenience or reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Neither Party will be afforded or denied preference in the construction of these Terms, whether by virtue of being the drafter or otherwise. For purposes of these Terms, the words and phrases “include”, “includes”, “including”, and “such as” are deemed to be followed by the words “without limitation”.
11.9 Assignment. These Terms may not be assigned or transferred to any third party without Aidium’s written consent. Any attempted assignment or transfer without such consent will be null and void. Aidium may freely assign or transfer the Terms, in whole or in part, without restriction. The Terms will inure to the benefit of the Parties, their successors and permitted assigns.
11.10 Relationship of Parties. The relationship between Customer and Aidium is that of independent contractors. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. Neither Party will have the power to obligate or bind the other Party.
11.11 Customer Communication. Customer understands that the Services require periodic email, SMS, and ringless voicemail communications, including but not limited to password resets and notifications; and without such communications, Customer would not be able to receive customer support, maintenance notifications, upgrade announcements, and other critical information to operate the Services. As a result, by accessing or using the Services, Customer is consenting to Aidium’s email, SMS, and ringless voicemail communications with (and notices sent to) administrative contacts supplied by Customer; and Customer represents and warrants that it has the authority to give such consent for all phone numbers of its Users, employees, and agents.
11.12 Notices. Any notices to Aidium required or permitted hereunder must be in writing, and must be sent to Aidium at the address below, or at such other address as Aidium will specify in writing. Any notices to Customer required or permitted hereunder will be sent to the email address provided by Customer in the Order, or at such other address as Customer will specify in writing. If to Customer, a notice will be deemed received two business days after being sent to the email address provided in the Order. If to Aidium, such notice will be deemed received: (a) two business days after being sent to the email address provided below; (b) immediately upon personal delivery; (c) if sent by telephone facsimile, upon confirmation of receipt; or (d) if sent by certified or registered mail, postage prepaid, five (5) days after the date of mailing.
2060 Broadway #200
Boulder, CO 80302
11.13 Entire Agreement. These Terms, including all applicable Orders, constitute the entire understanding and agreement of Aidium and Customer regarding the Services, and supersedes and replaces all prior oral or written agreements or understandings between the Parties regarding the Services.