Terms & ConditionsThese Terms and Conditions (this "Agreement") contain the terms and conditions upon which Helium makes its software, hardware, cloud services and related documentation available to you. This Agreement takes effect as of the date you purchase or lease any one of such elements (the "Effective Date") from Helium (whether directly or indirectly). In this Agreement, "you", "your" or "Customer" means the individual, company or entity that has entered into this Agreement with Helium; "we", "us", "our" or "Helium" means Helium Systems, Inc.; and "party" and "parties" means you and/or us, as the context requires.
1. ProductsThis Agreement shall apply to and be effective upon Customer's purchase of any software, hardware, cloud services and related products Helium may make available from time to time through its online services (including without limitation the Helium web store), or those of its affiliates or its or their authorized distributors ("Products"). For purposes of this Agreement, the term "Products" may include but is not limited to (i) Helium Hotspot, (ii) Helium Modules and devices, (iii) access to Helium Control Center service (the "Service"), and (iv) Helium APIs.
3. ChangesHelium may, from time to time and without prior notice, add, delete or change the features or functionality of the Products, including but not limited to the Service, as we generally make such additions, deletions or changes available to our other customers. We may discontinue furnishing content or data from third parties to the extent such third-party content or data ceases to be incorporated into the Service for any reason.
4. RestrictionsExcept as set forth in a written agreement between Customer and Helium, Customer shall not, directly or indirectly, (a) sell, lend, rent, distribute, resell, lease, assign, license, sublicense or otherwise transfer to any third party any Product, or the rights granted to Customer with respect to any Product (except for permitted Hotspot transfers described in Section 7 or Section 8), (b) translate, port, modify, reproduce, distribute, republish, frame, download, cache, or make or create derivative works based on any Product, (c) access or use the Service in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas, (d) derive or attempt to derive the source code, source files, or any component or structure of all or any portion of any Product by reverse engineering, disassembly, decompilation, or any other means (the foregoing prohibitions include review of data structures or similar materials produced by programs), or access or use any Service in order to build or support or assist a third party in building or supporting, products or services competitive to Helium or its products and services, (e) perform or disclose any benchmark or performance test of any Product or the Service, (f) remove, obscure or alter any proprietary notice on Products, (g) use the Service to collect, process or store financial or personal information, (h) use or permit the access to or use of any Product, including the Service, for any unlawful activity, including exporting in violation of applicable law, or (i) access or use the Product, Service or any other deliverable for any use other than the those authorized in this Agreement. Customer acknowledges and agrees that, other than Helium's support packages and support through the Helium development community, Helium does not provide support for the Products. Without limiting our other remedies, we may (but are not required to) remotely suspend or disable Products that we believe have been transferred or are being used in violation of this Agreement.Customer shall not, directly or indirectly, use Helium Tabs (or any other tracking product offered by Helium from time to time) to track the location of any person (or property owned or used by that person) without that person’s consent.
5. Advertising AgenciesFor clarity, if you are an advertising agency, your own internal use of any Product, including the Service, does not include use of the Product by or for any of your customers or by or for any other third party (including any sister agency).
6. FeesCustomer shall pay all fees owed to Helium (or its affiliates) in the manner specified by Helium on its web store.
7. Permitted Hotspot TransfersAs a limited exception to the prohibitions in Section 4, you may resell or transfer to a third party a Hotspot that you have validly purchased. Following such transfer, such third party will be required to accept this Agreement in order to activate and use the Hotspot. You acknowledge you are not authorized to make any representations, warranties or commitments on Helium or its affiliates' behalf in connection with any such transfer, and you agree to indemnify Helium and its affiliates against any claims or losses in connection with any such representation, warranty or commitment. You further acknowledge that any offer or agreement with respect to such transfer is purely between you and the purchaser or transferee, and that neither Helium nor its affiliates has any control over, or liability, for the terms or performance of any such agreement, including the delivery of the Hotspot or the payment of any purchase price.
8. Patrons and HostsIf you are an authorized Helium Patron (a "Patron"), Helium authorizes you to provide new Helium Hotspots that you have validly purchased and activated ("Patron Hotspots") to other users ("Hosts"), provided you continue to comply with all requirements and terms applicable to the Patron program. You acknowledge you are not authorized to make any representations, warranties or commitments on Helium or its affiliates' behalf, and you agree to indemnify Helium and its affiliates against any claims or losses in connection with any such representation, warranty or commitment. Patrons are solely responsible for identifying Hosts, and as a Patron, you acknowledge that no Hosts may be available in any particular area. Patrons further acknowledge that Helium does not provide any introductions, recommendations or other services to Patrons to assist with identifying Hosts. For clarity, Patrons’ resale of Hotspots is addressed only under this Section 8, and not under the general resale provision in Section 7.If you are a Host, you acknowledge that your Patron may earn some or all of the Helium tokens generated through use of your Patron Hotspot, unless otherwise agreed with Patron.Patrons and Hosts acknowledge that any offers or agreements between them with respect to provision, receipt, or use of Products are purely between the applicable Patron and Host, and that neither Helium nor its affiliates has any control over, or liability, for the terms or performance of any such agreement, including the delivery of any Patron Hotspot or the payment of any fees or Helium tokens to any Host. Neither Helium nor its affiliates has any obligation to resolve any dispute between a Patron and a Host, and the Patron and Host party to any such dispute each agree to indemnify Helium and its affiliates against any claims or losses in connection with any such dispute.
9. Content and Dataa. Customer ContentAll content or data received by a Product, or which Customer delivers into the Service or otherwise provided by Customer to Helium (whether directly or indirectly, through an affiliate or authorized distributor) ("Customer Content") is and will remain Customer's exclusive property. Customer hereby grants Helium, during the Term, a worldwide, non-exclusive, revocable (as set forth in Section 11(c)), nontransferable, nonassignable (other than as set forth in Section 15), royalty-free license (without the right to sublicense) to access, use, host, reproduce, distribute, display, modify and prepare derivative works of all Customer Content solely for purposes of providing the Products to Customer, and to improve the Products (including the Service), which license extends to any third party assisting Helium in providing the Service.b. Helium ContentAll content, software functionality or data made available to you through access or use of the Service or otherwise provided by Helium ("Helium Content"), is and will remain the exclusive property of Helium and its licensors. You may only use the Helium Content for your own internal use in connection with a Product.
10. Intellectual Propertya. Helium Intellectual PropertyAs between the parties, Helium owns and retains all right, title and interest in and to all of the Products, all improvements, modifications and derivative works of the foregoing, and all intellectual property rights in any of the foregoing. To the extent that Customer acquires any right, title or interest in or to any Product (including without limitation the Service), any deliverable, or any intellectual property rights therein, Customer hereby assigns to Helium all such right, title and interest. Except for the licenses Helium expressly grants to Customer hereunder, Customer is not provided with any license or right to the Products or the intellectual property rights therein, whether by implication, estoppel or otherwise. Customer is not granted any right to use any Helium trademark, service mark, logo or trade name.b. FeedbackCustomer, its authorized users and its other employees and agents may (but are not required to) provide Helium with suggestions, comments or other feedback regarding the Products ("Feedback"). If Customer, its authorized users or its other employees and agents do provide Helium with Feedback, then Helium may, and you hereby grant Helium a license to, freely use, disclose, reproduce, license, distribute and otherwise commercially exploit such Feedback in connection with any product, technology, service, specification or other documentation.
12. Representations and Warrantiesa. Mutual Representations and WarrantiesEach party represents and warrants to the other that (i) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and this Agreement has been duly authorized by all necessary corporate (or other entity) action, and (ii) this Agreement is the legal, valid and binding obligation of it, enforceable against it in accordance with the Agreement's terms.b. Customer Representations and WarrantiesYou represent, warrant and covenant that you have all rights and licenses necessary to provide the Customer Content to us and grant us the licenses set forth herein and that the Customer Content and the use of it as contemplated by this Agreement does not and will not infringe, misappropriate or violate any intellectual property rights of any third party, violate any right of privacy or publicity or breach any contract to which Customer is a party or bound.c. Limited Warranty for Certain Helium ProductsHelium provides a limited warranty covering certain Helium Products to the original purchaser of warranted Products from Helium, our affiliates, or Patrons. For clarity, purchase of a resold Hotspot under Section 4 VOIDS THIS WARRANTY, even if the Hotspot is sold on a “new” rather than “used” basis. You may review the warranty at shododesigns.com/warranty (the "Hotspot Limited Warranty").
13. Warranty Disclaimers and Limitation of Liability(a) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 12 ABOVE, AND THE HOTSPOT LIMITED WARRANTY, (A) THE PRODUCTS, THE HELIUM CLOUD SERVICE, ANY OTHER DELIVERABLES AND HELIUM CONTENT ARE PROVIDED "AS IS" AND WITHOUT ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING ACCURACY, OPERABILITY, USE, TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND (B) HELIUM HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS AFFILIATES, ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND REGARDING THE PRODUCTS, SERVICES, DELIVERABLES AND HELIUM CONTENT, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND ANY WARRANTY THAT THEIR USE WILL PRODUCE ANY RESULTS, FINANCIAL OR OTHERWISE. NEITHER HELIUM NOR ITS AFFILIATES SHALL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY (A) FOR SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF HELIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) FOR DAMAGES ARISING OUT OR IN CONNECTION WITH THIS AGREEMENT IN THE AGGREGATE IN EXCESS OF THE FEES PAID OR PAYABLE BY CUSTOMER PURSUANT TO THIS AGREEMENT.(b) In certain circumstances, Helium makes early and pre-production (alpha) software code ("Pre-production Code") available to users of the Service. Pre-production Code is not finished code and may contain errors. The use of Pre-production Code may cause loss of data and other technical malfunctions. Pre-production Code is provided as-is, without warranty of any kind. Helium will use commercially reasonable efforts to mark any such code as being "Pre-Production", "Test", "Alpha", or similar designation. By using Pre-production Code, Customer acknowledges and agrees that in addition to the disclaimers and limitations of warranty set forth in (a) above, Helium shall have no liability for, and Customer shall indemnify Helium with respect to, any and all claims that Customer's use of such Pre-production Code resulted in damage to Customer or any third party. Customer further agrees that it shall use any such Pre-production Code only for its own internal testing and development efforts, and that Customer shall not make any Pre-production Code or portion thereof available to any third party.
14. ConfidentialityIf the exchange of confidential information between Customer and Helium is already governed by a Mutual Non-Disclosure Agreement between the parties (the "NDA"), the terms of such NDA will govern all Confidential Information exchanged between you and us pursuant to this Agreement. If no such NDA is in place, then each recipient of Confidential Information under this Agreement shall (a) use and copy the Confidential Information only for purposes of performing its obligations under this Agreement, (b) hold the Confidential Information in strict confidence, and (c) protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as the recipient protects and safeguards its own confidential information (but not using less than a reasonable degree of care). The recipient may disclose that portion of the Confidential Information which, in the judgment of its counsel, the recipient is required to disclose by law, by regulation, or pursuant to the order or requirement of a court, administrative agency or other governmental body with proper jurisdiction; provided that the recipient notifies the disclosing party a reasonable time prior to making such disclosure and cooperates with the disclosing party's efforts to seek a protective order or otherwise prevent or restrict such disclosure. "Confidential Information" means all information disclosed by one party to the other that is designated, at the time of disclosure, as confidential or that is of a nature that would reasonably be considered confidential, and does not include information that the recipient can show (i) is known publicly through no breach of this Agreement, (ii) was in its possession free of any obligation of confidence at the time of disclosure, (iii) was received from a third party free to disclose such information without restriction, or (iv) was independently developed without using or referring to the information of the disclosing party or breaching this Agreement. Helium's Confidential Information includes without limitation the Helium Content and all information relating to Helium's Products and Services, and Customer's Confidential Information includes the Customer Content.
15. AssignmentThis Agreement may not be assigned by either party without the prior written consent of the non-assigning party; except that Helium shall have the right to assign this Agreement to any of its affiliates or in connection with a merger or other business combination in which Helium is not the surviving entity or in connection with any sale of all or substantially all of the capital stock of Helium or the assets of Helium or its affiliates related to this Agreement. Any attempted assignment in violation of this provision is null and void.
16. Force MajeureIf Helium is unable to perform any of its obligations under this Agreement because of severe weather, natural disasters, acts of God, riots, wars, theft, governmental action, acts of our suppliers, or other events beyond our reasonable control, then we are relieved from our performance of such obligations to the extent, and for the duration, that such performance is prevented by such events.
17. ModificationsWe may revise this Agreement from time to time to better reflect: (a) changes to the law, (b) new regulatory requirements, (c) improvements or enhancements made to our Services. If an update affects your use of the Services or your legal rights as a user of our Services, we'll notify you prior to the update's effective date by sending an email to the email address associated with your account or via an in-product notification. This updated Agreement will be effective no less than 30 days from when we notify you. If you don't agree to the updates we make, please cancel your account before they become effective. Where applicable, we'll offer you a prorated refund based on the amounts you have prepaid for Services and your account cancellation date. By continuing to use or access the Services after the updates come into effect, you agree to be bound by the revised Agreement.
18. MiscellaneousThis Agreement is governed by the laws of the State of California, without regard to conflict of law rules. The UN Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The parties shall bring any disputes arising out of or related to this Agreement exclusively in a court located in San Francisco County, California and each party hereby submits to the personal jurisdiction of such courts. Each party is an independent contractor and neither party's personnel are employees or agents of the other party for any purpose whatsoever. Nothing hereunder will constitute, create, give effect to or otherwise recognize a joint venture, partnership or business entity of any kind, nor will anything hereunder constitute either party as the agent or representative of the other. Headings are for convenience. No presumption is to operate in either party's favor as a result of who drafted this Agreement. For purposes of this Agreement, the words "include," "includes" and "including" are deemed to be followed by the words "without limitation," and the word "or" is not exclusive. This Agreement supersedes all prior discussions and writings regarding (and constitutes the entire agreement between the parties with respect to) the subject matter of this Agreement, except with respect to any NDA described in Section 14. The parties may only amend this Agreement in writing. If any provision of this Agreement is for any reason held to be invalid, illegal, or unenforceable under applicable law in any respect, then such invalidity, illegality, or unenforceability will not affect the other provisions of this Agreement, this Agreement will be construed as if such invalid, illegal, or unenforceable provision were excluded from this Agreement, and the court in its discretion may substitute for the excluded provision an enforceable provision which in economic substance reasonably approximates the excluded provision.