Effective date October 17, 2022.
These Airbyte Terms of Service (“Agreement”) are entered into by and between Airbyte, Inc. (“Airbyte”) and the entity or person placing an order for or accessing the Airbyte Hosted Services (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below, any terms referenced herein and any Airbyte service orders, online sign-up, or subscription flow that references this Agreement (the “Service Order”). If you are accessing or using the Airbyte Hosted Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.
Please note that Airbyte may modify the terms and conditions of this Agreement in accordance with Section 13 (Modification of this Agreement).
THIS AGREEMENT CONTAINS A BINDING, INDIVIDUAL ARBITRATION AND CLASS-ACTION WAIVER PROVISION. IF YOU ACCEPT THESE TERMS, YOU AND AIRBYTE AGREE TO RESOLVE DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND EACH GIVE UP THE RIGHT TO GO TO COURT INDIVIDUALLY OR AS PART OF A CLASS ACTION (SEE SECTION 19, BELOW).
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE AIRBYTE HOSTED SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE AIRBYTE HOSTED SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
1. Airbyte Hosted Services Overview. The “Airbyte Hosted Services” is a technology platform that allows you to manage, monitor and automate your data integration pipelines through use of one or more Airbyte Connectors or OS Connectors along with related services. The “Airbyte Connectors” are those source connectors and destination connectors listed on our website located at airbyte.io (the “Site”), as well as any custom connectors we may agree to build for you, all of which are and shall be licensed to you pursuant to the MIT License, rather than the terms and conditions of this Agreement. In addition, you may be able to use third party connectors that are available from the open source community (“OS Connectors”), which may be subject to the terms of a third party open source license or other terms and conditions governing their use. You are always free to use the Airbyte Connectors or OS Connectors on your own and without use of the Airbyte Hosted Services. Additional descriptions concerning the functionality of the Airbyte Hosted Services are available at the Site.
2. General Eligibility Requirements.
a. The individual signing on behalf of the Customer represents and warrants that he/she has the authority to bind the Customer to the Agreement. By accepting this Agreement, Customer represents and warrants to us: (i) that the Customer, if an individual, is at least 18 years of age; (ii) that the Customer has not previously been suspended or removed from using any portion of the Airbyte Hosted Services; and (iii) that the Customer’s registration and use of Airbyte Hosted Services is, and will continue to be, in compliance with any and all applicable laws and regulations. Moreover, Customer may not access the Airbyte Hosted Services if Customer is located in a territory where U.S. businesses are prohibited from engaging in business (such as Cuba, Iran, North Korea, Sudan, or Syria) or if the Customer has been designated a Specially Designated National, Denied Person, or Denied Entity by the U.S. government.
3. Permission to Use the Service.
a. Right to Access Airbyte Hosted Services. Subject to your compliance with this Agreement, Airbyte grants to you a limited, non-exclusive, non-transferable, non-sublicensable right during the term of this Agreement to access and use the features and functionalities of the Airbyte Hosted Services as set forth in the applicable Service Order . Certain of our downloadable software made available on or through your use of the Airbyte Hosted Services or via third parties may be provided to you under separate licensing terms, rather than the terms and conditions of this Agreement. The applicable terms and conditions shall be disclosed to you where the downloadable software is made available to you within the Airbyte Hosted Services. As stated above, all Airbyte Connectors are licensed to you under the MIT License, rather than the terms and conditions of this Agreement.
b. Beta Releases and Features. Airbyte may provide you with “alpha”, “beta”, or other early-stage components of the Airbyte Hosted Services, connectors, integrations, or features (“Beta Releases”). Airbyte makes no promises that future versions of Beta Releases will be released or will be made available under the same commercial terms. Airbyte may terminate your right to use any Beta Releases at any time in Airbyte’s sole discretion, without liability and without prior notice. WITH RESPECT TO BETA RELEASES, CUSTOMER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, SECURITY VULNERABILITIES, AND OTHER PROBLEMS FOR WHICH AIRBYTE WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF BETA RELEASES ARE AT CUSTOMER’S SOLE RISK NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN.
c. Use Outside of the United States. Airbyte and the Airbyte Hosted Services are operated from the United States. Airbyte does not make any representations or warranties that the Airbyte Hosted Services will meet all of the legal and/or regulatory requirements of any non-U.S. jurisdiction and Airbyte expressly disclaims all liability in connection with the foregoing.
d. Modification of the Airbyte Hosted Services. We reserve the right to modify or discontinue the Airbyte Hosted Services at any time (including, without limitation, by limiting or discontinuing certain features of the Airbyte Hosted Services) without notice to you. If you have paid access to the Airbyte Hosted Services and such changes materially and adversely impact your use of the Airbyte Hosted Services, you may terminate this Agreement and Airbyte shall provide you with a refund of any prepaid fees applicable to Airbyte Hosted Services not yet received.
e. Additional Terms. Your use of certain features of Airbyte Hosted Services may be subject to additional terms and conditions that Airbyte will disclose to you through the Airbyte Hosted Services or that you otherwise acknowledge as part of your downloading of any applicable software or applications related to the Airbyte Hosted Services (the “Additional Terms”), such terms and conditions for any downloadable software or applications that Airbyte may offer and service level agreements concerning the Airbyte Hosted Services (“SLAs”).
5. Fees and Payment. You agree to pay the fees set forth in the applicable Service Order. Our third-party payment services providers may charge additional fees for the use of their services, including fees in connection with cross-border monetary transactions. Before you are required to pay any fees, you will have an opportunity to review and accept the applicable fees that you will be charged, including the time-period in which those fees will be charged. All fees are in U.S. Dollars and are non-refundable. Airbyte or its third-party payment service providers may change any fees, including by adding fees, on a going-forward basis at any time. Airbyte or its third-party payment service providers will charge the payment method you specify at the time of purchase (the “Payment Method”), which you represent and warrant that you are authorized to use. You authorize Airbyte to charge all sums described in your Service Order to that Payment Method. If you pay any applicable fees with a credit card, Airbyte 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 your account does not have sufficient funds or your credit card declines a charge for the fees due, Airbyte may refuse your use and access of Airbyte Hosted Services.
Fees do not include taxes, levies, duties or similar governmental assessments of any nature (“Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Airbyte has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Airbyte will invoice Customer and Customer will pay that amount unless Customer provides Airbyte with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes will not be deducted from payments to Airbyte, except as required by applicable law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, Airbyte receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon Airbyte’s request, Customer will provide to Airbyte its proof of withholding tax remittance to the respective tax authority. Where applicable, Customer will provide its VAT/GST Registration Number(s) on the Service Order to confirm the business use of the ordered services.
6. Billing Subscription; Automatic Renewal. If you are on a billing subscription plan, your subscription is subject to auto-renewal on the same terms and subscription length set forth in the Service Order unless and until you cancel your subscription or Airbyte terminates it. Your Payment Method will be charged automatically upon the next renewal of your subscription all applicable fees for the next subscription period. You must cancel your subscription before the end of each subscription period in order to avoid billing of the next periodic subscription fees to your Payment Method. Airbyte will bill the periodic subscription fee to the Payment Method you provide to Airbyte during registration (or to a different Payment Method if you change your account information).
7. Free Trials; Discounts. Airbyte may make available trials (for duration indicated from time to time by Airbyte) for access to the Airbyte Hosted Services without charge to you (each a “Free Trial”). Moreover, from time to time, Airbyte may offer you discounts or other credits based on campaigns Airbyte may run from time to time (e.g., customer referral credits, discounts on annual renewals, etc.) (each a “Promotion”). You will be required to create an Account for the Airbyte Hosted Services in order to register for a Free Trial or Promotion. If you wish to continue using the Airbyte Hosted Services at the end of the Free Trial, you will be required to enter a payment method which will be charged in accordance with Sections 5 and 6. If you cancel your Account, any rights to any Promotion shall automatically terminate.
8. Prohibited Conduct. By using the Site or the Airbyte Hosted Services, you agree not to:
a. use the Airbyte Hosted Services for any illegal purpose, or in violation of any local, state, national, or international law;
b. violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
c. copy, modify or distribute the Airbyte Hosted Services (unless otherwise expressly permitted by Airbyte); or remove any copyright, trademark or other proprietary rights notices contained in or on the Airbyte Hosted Services or any content made available on or through the Airbyte Hosted Services;
d. interfere with security-related features of the Airbyte Hosted Services, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Airbyte Hosted Services or any part thereof except to the extent that such activity is expressly permitted by applicable law;
e. interfere with the operation of the Airbyte Hosted Services or any other user's use of the Airbyte Hosted Services, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Airbyte Hosted Services, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Airbyte Hosted Services, or violating the regulations, policies, or procedures of those networks, equipment, or servers;
f. perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Airbyte Hosted Services accounts of others without permission, or falsifying your age or date of birth;
g. sell or otherwise transfer the access granted herein or any Materials (as defined in Section 14 below) or any right or ability to view, access, or use any Materials; or
h. attempt to do any of the foregoing in this Section 8, or assist or permit any persons in engaging in any of the activities described in this Section 8.
9. Linked Sites and Community-Developed Services. The Airbyte Hosted Services may include links to other websites or services (“Linked Sites”) solely as a convenience to you and other users (e.g., links to websites where you may select OS Connectors, third-party websites where your data is stored, etc.). The Airbyte Hosted Services may provide tools that enable the importation and/or exportation of your information to Linked Sites. By using these tools, you agree that Airbyte may transfer such information to the applicable Linked Sites. Linked Sites are not under our control, Airbyte is not responsible for their use of your imported or exported information. Furthermore, the Airbyte Hosted Services may require you to download and/or install certain third party components in order to access and use certain features within the Airbyte Hosted Services, including OS Connectors and other open source, third-party or community-developed features, components, or services (collectively, “Community-Developed Connectors/Services”). Customer acknowledges that Airbyte does not review and is not responsible for the Community-Developed Connectors/Services, including without limitation the security of the Community-Developed Connectors/Services or the fitness of Community-Developed Connectors/Services for any purpose, and your use of any Community-Developed Connectors/Services or Linked Sites may be subject to additional third party terms and conditions. Airbyte makes no express or implied warranties with regard to the Community-Developed Connectors/Services, or any information, materials, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF COMMUNITY-DEVELOPED CONNECTORS/SERVICES AND LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON COMMUNITY-DEVELOPED CONNECTORS/SERVICES OR LINKED SITES OR AVAILABLE THROUGH COMMUNITY-DEVELOPED CONNECTORS/SERVICES OR LINKED SITES, IS SOLELY AT YOUR OWN RISK.
11. Feedback; OS Contributions. If you provide any comments, suggestions or other feedback to Airbyte regarding the Airbyte Hosted Services (“Feedback”), you acknowledge that the Feedback is not confidential and you authorize Airbyte to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to Airbyte a nonexclusive, royalty-free, fully-paid, perpetual, irrevocable, transferable, and fully sublicensable right to use and otherwise freely exercise and exploit the Feedback in any manner and for any purpose. Any modifications, changes, and enhancements you make to any of the Airbyte Connectors shall be licensed to Airbyte pursuant to the terms of the MIT License.
12. Customer Data.
a. Protections for Customer Data; Personal Data. Excluding Registration Information, Customer owns any data and information it integrates via data pipelines connected through the Airbyte Connectors (“Customer Data”). Customer hereby grants to Airbyte a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable (through multiple tiers), right and license during the term of the Agreement to use the Customer Data strictly to perform Airbyte’s obligations under this Agreement, including to provide the Airbyte Hosted Services and to ensure the Airbyte Hosted Services are working as intended. Airbyte treats any Customer Data as Customer confidential information. Airbyte will implement commercially reasonable efforts at all times to protect Customer Data from unauthorized use, access, or disclosure in the same manner that Airbyte uses to protect its own confidential information of a similar nature. You are solely responsible for obtaining all rights, consents and permissions necessary for Airbyte to process Customer Data in connection with the Airbyte Hosted Services. To the extent that Customer Data includes any information that reasonably relates, directly or indirectly, to an identified or identifiable natural person (“Personal Data”), the parties agree to comply with their respective obligations under the Airbyte Data Processing Addendum , which is hereby incorporated into this Agreement.
b. Special Data. In the event that Customer intends to integrate any Customer Data considered to be sensitive or otherwise subject to specific protections under applicable laws exceeding any requirements that apply to Personal Data generally, such as, for illustrative purposes, information that is regulated by the Health Information Portability and Accountability Act (“HIPAA”), the Payment Card Industry Data Security Standard (“PCI DSS”), the Gramm-Leach-Bliley Act (“GLBA”) and other U.S. federal, state, or foreign laws applying specific security standards (collectively, “Special Data”), Customer shall evaluate whether the technical and organizational measures described in the Data Processing Addendum are sufficient to protect Special Data. Customer shall not integrate any Special Data to the Airbyte Hosted Services if Customer determines that such technical and organizational measures are insufficient to protect Special Data in accordance with applicable laws.
c. Usage Data. Customer agrees that Airbyte has the right to aggregate, collect and analyze data and information relating to the Airbyte Hosted Services (“Usage Data”) and shall be free (during and after the term hereof) to (i) use Usage Data and other information to improve Airbyte’s products and services, and (ii) disclose Usage Data and other information solely in an aggregated and de-identified format that does not identify Customer or any individual.
13. Modification of this Agreement. Airbyte may update the terms and conditions of this Agreement (which may include changes pricing and plans) from time to time with prior notice to Customer in accordance with notice provisions in Section 19. The updated version of this Agreement will be available at https://airbyte.com/terms. Following such notice, your continued use of the Airbyte Hosted Services on or after the date the updated version of this Agreement is effective and binding, as indicated at the top of this Agreement, constitutes your acceptance of the updated version of this Agreement. If you do not agree to the updated version of this Agreement, you must stop using the Airbyte Hosted Services immediately, and if you are using a paid version of the Airbyte Hosted Services, you may elect to receive a pro-rata refund of any prepaid fees applicable to Airbyte Hosted Services not yet received. The updated version of this Agreement supersedes all prior versions. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by an authorized representative of the waiving party.
14. Ownership; Proprietary Rights. The Airbyte Hosted Service is owned and operated by Airbyte. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Airbyte Hosted Services (the “Materials”) provided by Airbyte (through use and access of the Airbyte Hosted Services or otherwise) are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in Airbyte Hosted Services are the property of Airbyte or the corresponding third-party licensors (for clarification, all Airbyte Connectors are owned by Airbyte and licensed in accordance with the MIT License). Airbyte reserves all rights to the Materials (other than the OS Connectors or other Materials licensed to you pursuant to separate third party terms and conditions) not granted expressly in this Agreement.
a. Indemnity by Airbyte. Airbyte agrees to defend, indemnify, and hold harmless you and your officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against all third party claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with infringement by the Airbyte Hosted Services of any U.S. patent, copyright, trademark or trade secret. In response to any claim or potential claim of infringement, if required by settlement or injunction, or if Airbyte determines these actions are reasonably necessary to avoid material liability, Airbyte may at its option: (i) procure a license for the affected portion of the Airbyte Hosted Services; (ii) modify the Airbyte Hosted Services so as to avoid infringement but be materially equivalent; or (iii) terminate the Service Order for the affected Airbyte Hosted Services and refund any fees you have pre-paid for Airbyte Hosted Services not yet received. Notwithstanding the above, Airbyte’s obligations under this Section do not apply to the extent infringement results from: (a) modification of the Airbyte Hosted Service by someone other than Airbyte or its subcontractors; (b) combination of the Airbyte Hosted Service with other third party services where the Airbyte Hosted Service would not by itself be infringing (c) use of any version of the Airbyte Hosted Service other than the current release; or (d) any OS Connectors. In addition, Airbyte’s obligations under this Section shall not apply to the extent you are using a Free Trial or Beta Releases. THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY OF AND THE ENTIRE LIABILITY OF AIRBYTE, OR ANY OF ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, CONTRACTORS OR REPRESENTATIVES, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
b. Indemnity by You. You agree that you will be responsible for your use of the Airbyte Hosted Services, and you agree to defend, indemnify, and hold harmless Airbyte and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Airbyte Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Airbyte Hosted Services; (ii) your violation of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party.
c. Indemnification Procedures. Each party’s defense and indemnification obligations are subject to the indemnifying party receiving: (i) prompt written notice of a claim; (ii) the exclusive right to control and direct the investigation, defense and settlement of the claim; and (iii) all reasonable necessary cooperation of the indemnified party at the indemnifying party’s expense (as to reasonable out-of- pocket costs). The indemnifying party must not settle any claim without the indemnified party’s prior written consent if the settlement would require the indemnified party to admit fault, pay amounts that the indemnifying party must pay under this Section, or take or refrain from taking any action. The indemnified party may participate in a claim through counsel of its own choosing at its own expense.
16. Warranty Disclaimers.
a. TO THE EXTENT PERMITTED BY LAW, THE AIRBYTE HOSTED SERVICES, ANY OTHER MATERIAL, AND ALL CONTENT RELATED THERETO ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND AIRBYTE MAKES NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. SPECIFICALLY AND WITHOUT LIMITING THE FOREGOING IN ANY WAY, AIRBYTE SPECIFICALLY DISCLAIMS ANY WARRANTY OR CONDITION: (i) THAT ANY SERVICE OR PRODUCT OFFERED BY AIRBYTE WILL MEET ANY PARTICULAR REQUIREMENTS, INCLUDING THAT SUCH SERVICES AND PRODUCTS SHALL BE FREE OF SECURITY VULNERABILITIES; (ii) THAT SERVICES OR PRODUCTS OFFERED BY AIRBYTE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR THAT ANY DEFECTS IN ANY PRODUCT WILL BE CORRECTED; OR (iii) RELATING TO THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH YOUR USE OF THE AIRBYTE HOSTED SERVICES, ANY MATERIALS OR ANY COMMUNICATIONS, DATA, INFORMATION, OR CONTENT DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF ANY OF THE FOREGOING. THE PARTIES AGREE, AND IT IS THEIR INTENTION, THAT IN NO EVENT SHALL ANY WARRANTY PROVIDED BY LAW APPLY UNLESS REQUIRED TO APPLY BY APPLICABLE STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. TO THE EXTENT THAT AIRBYTE CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
b. SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT AIRBYTE CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
17. Limitation of Liability
a. IN NO EVENT WILL AIRBYTE BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE AIRBYTE HOSTED SERVICES OR ANY MATERIALS OR CONTENT WITHIN THE AIRBYTE HOSTED SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE AIRBYTE ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
b. YOU AGREE THAT THE AGGREGATE LIABILITY OF THE AIRBYTE ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE AIRBYTE HOSTED SERVICES (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (I) THE AMOUNTS YOU HAVE PAID TO AIRBYTE FOR ACCESS TO AND USE OF THE AIRBYTE HOSTED SERVICES IN THE 6 MONTHS PRIOR TO THE CLAIM OR (II) $50.
c. 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 THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. 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 THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
18. Governing Law; Forum. This Agreement shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder (and not deemed subject to arbitration pursuant to Section 19), you and Airbyte agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco, California for the purpose of litigating all disputes.
19. Dispute Resolution US and Canadian Residents. If there is a dispute, our user support team is happy to try to resolve the issue. If that does not work and your principal place of business is in the United States or Canada, your options in the case of a dispute arising out of or related to this Agreement are to (a) go to small claims court (if applicable) or (b) bring a claim in binding arbitration as described in this Section 19; you may not bring that claim in another court or participate in a non-individual class action claim against Airbyte. This Dispute Resolution section applies only if Customer that have a principal place of business in the United States or Canada or, if the Customer is an individual, if you live in the United States or Canada. For all other Customers, Section 18 hereof shall apply in lieu of this Section 19.
a. Small Claims. Either of the parties can bring a claim in small claims court in (a) San Francisco, California, (b) the county where you live, or (c) another place the parties both agree on, as long as it qualifies to be brought in that court.
b. Arbitration. If any dispute cannot be resolved amicably and informally and a small claims action is not initiated, Airbyte and you agree to resolve any claims related to these Terms (or our other legal terms) through final and binding arbitration, regardless of the type of claim or legal theory. If one of the parties brings a claim in court that should be arbitrated and the other party refuses to arbitrate it, the other party can ask a court to force both parties to go to arbitration (compel arbitration). Either party can also ask a court to halt a court proceeding while an arbitration proceeding is ongoing. With respect to any arbitration proceeding the following process shall be followed:
i. Any disputes involving a claim or claims of ten thousand dollars ($10,000) or less, in the aggregate must be resolved through binding, non-appearance-based arbitration (i.e., arbitration conducted online, through written filings, and/or via teleconference) (each a “Sub 10K Arbitration”).
ii. Any Sub 10K Arbitration shall be conducted through the American Arbitration Association (the “AAA”) in accordance with its Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer-Related Disputes. The AAA rules are available at www.adr.org or by calling 1-800-778-7879.
iii. The following rules will apply to any Sub 10K Arbitration: (a) the arbitration will be conducted by telephone, online, or based solely on written submissions (at the choice of the party seeking relief); (b) the arbitration must not involve any personal appearance by the parties or witnesses (unless Airbyte and you agree otherwise); and (c) any judgment on the arbitrator’s rendered award may be entered in any court with competent jurisdiction.
iv. Disputes that involve a claim (or claims) of more than ten thousand dollars ($10,000) in the aggregate must be resolved per the AAA’s rules about whether the arbitration hearing has to be in-person. To the extent permitted by the AAA’s applicable rules, upon your request Airbyte will agree to conduct the arbitration by telephone or online.
v. Any judgment rendered by the arbitrator in any arbitration proceeding may be entered in any court having jurisdiction and the arbitrator's decision shall be final and legally binding.
c. No Class Actions. Airbyte and you each agree that each party can only bring claims against the other on an individual basis. This means: (a) neither party can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action; (b) an arbitrator cannot combine multiple people’s claims into a single case (or preside over any consolidated, class, or representative action); and (c) an arbitrator’s decision or award in one person’s case can only impact that user, not other users, and can’t be used to decide other users’ disputes. If a court decides that this “No class actions” clause isn’t enforceable or valid, then this entire Dispute Resolution for US and Canadian Residents section will be null and void, but the rest of the Terms will still apply and the Dispute Resolution for non-US and non-Canadian Residents of these Terms shall apply instead to you with respect to dispute resolution as if you were not a resident of the United States or Canada.
d. Changes to this Section. Notwithstanding the terms of Section 13 of this Agreement, if Airbyte changes this Dispute Resolution for US and Canadian Residents section after the date you entered into this Agreement or accepted an updated version of this Agreement pursuant to Section 13 (whichever is later), you may reject any such change by providing Airbyte written notice of such rejection by mail or hand delivery to: Airbyte, Inc. Attn: Legal, 2261 Market Street #4381, San Francisco, CA 94114, or by email from the email address associated with your account to: firstname.lastname@example.org, within 30 days of the date such change became effective in accordance with Section 13. To be effective, the notice must include your full name (or the full name of the entity on whose behalf you are submitted the notice) and clearly indicate your intent to reject changes to this Dispute Resolution for US and Canadian Residents section. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Airbyte in accordance with the provisions of this Dispute Resolution for US and Canadian Residents section as of the date entered into this Agreement or or accepted an updated version of this Dispute Resolution for US and Canadian Residents section pursuant to Section 13 and this Section 19 (whichever is later).
a. Assignment. Neither party may assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without the other party’s prior written consent; provided that each party may assign this Agreement in connection with a merger, acquisition, or sale of all or substantially all of its business or assets related to this Agreement.
b. Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
c. Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) in the case of notices to You that are sent via electronic mail to the contact person indicated in your Service Order, twenty-four (24) hours after sending. All such notices will be sent to the addresses set forth above or to such other addresses as may be specified by either party to the other party in accordance with this Section.
d. Waiver. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
f. Section Headings. Use of section headers in this Agreement is for convenience only and shall not have any impact on the interpretation of particular provisions
g. Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.
This Data Processing Addendum (“DPA”) amends and forms part of the written agreement between Customer and Airbyte, Inc. (“Airbyte”) (collectively, “the parties”) for the provision of services to Customer (the “Agreement”). This DPA prevails over any conflicting term of the Agreement but does not otherwise modify the Agreement.
1.1. In this DPA:
a. “Data Protection Law” means all laws that apply to the Processing of Personal Data under the Agreement, including European Data Protection Law and the laws and regulations of the United States and its states, as amended from time to time, to the extent such laws and regulations apply to the relevant party.
b. “European Data Protection Law” means the General Data Protection Regulation (EU) 2016/679 ("GDPR") and all other privacy and data protection laws of the European Economic Area (“EEA”), and their respective Member States, Switzerland and the United Kingdom (“UK”) and all laws implementing or supplementing the foregoing.
c. “Personal Data” means any information that reasonably relates, directly or indirectly, to an identified or identifiable natural person that Airbyte may Process on Customer’s behalf in performing the services under the Agreement.
d. “Processing” (including its cognate "Process”) means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
e. “Security Incident” means a breach of security leading to the unauthorized or unlawful access by a third party, or confirmed accidental or unlawful destruction, loss or alteration, of Personal Data.
f. “Standard Contractual Clauses” means (i) Module 2 of the Standard Contractual Clauses for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and the Council approved by European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, as currently set out at https://eurlex.europa.eu/eli/dec_impl/2021/914/oj (the “EU SCCs”), and (ii) where the UK GDPR applies, the EU SCCs as supplemented by the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the Commissioner under S119A(1) Data Protection Act 2018 (the “UK SCCs”).
1.2 Capitalized terms used but not defined herein have the meaning given to them in the Agreement.
2. Scope and Roles
2.1 The subject matter, nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects are set out in Annex I.
2.2 Airbyte agrees that it will Process Personal Data only in accordance with the Agreement and this DPA. To the extent applicable, Airbyte will Process Personal Data as a “processor” or “service provider” as such terms are defined under applicable Data Protection Law.
3. Data Protection
3.1 When Airbyte Processes Personal Data, it will:
a. Process the Personal Data in accordance with Customer's documented instructions as described in the Agreement or this DPA. Airbyte will notify Customer if it considers that an instruction from Customer is in breach of Data Protection Law, unless it is prohibited from doing so by law on important grounds of public interest;
b. assist Customer, taking into account the nature of the Processing and the information available to Airbyte, in complying with Customer's obligations to respond to requests concerning Personal Data from individuals under applicable Data Protection Law;
c. implement and maintain appropriate physical, technical and organizational measures to ensure a level of security appropriate to the risk, which include the technical and organizational measures required by applicable Data Protection Law;
d. only entrust the Processing of Personal Data to personnel who have undertaken to comply with confidentiality requirements; and
e. upon termination of the Agreement, as instructed by Customer, to the extent that Airbyte retains Personal Data, permit Customer to delete or obtain copies of such Personal Data consistent with the functionality of the Services and applicable law.
3.2 Airbyte certifies that it will not (a) “sell” (as defined in Data Protection Law) the Personal Data; (b) retain, use, or disclose the Personal Data for any purpose other than as permitted under this DPA and in accordance with the Agreement; or (c) retain, use, or disclose the Personal Data other than in the context of the direct relationship with Customer in accordance with the Agreement.
4. Customer Responsibilities
4.1 Customer is responsible for the lawfulness of Personal Data processing under or in connection with the services. Customer will (i) provide all required notices and obtain all required consents, permissions and rights necessary under applicable Data Protection Law for Airbyte to lawfully Process Personal Data for the purposes contemplated by the Agreement; (ii) make appropriate use of the services to ensure a level of security appropriate to the particular content of the Personal Data; (iii) comply with all Data Protection Law applicable to the collection of Personal Data and the transfer of such Personal Data to Airbyte; and (iv) ensure its processing instructions comply with applicable laws (including applicable Data Protection Law).
5.1 Customer agrees that Airbyte may use the third-party suppliers listed on its website at https://airbyte.com/subprocessors to Process Personal Data on its behalf for the provision of the services under the Agreement (each a “Subprocessor”).
5.2 Airbyte will maintain a list of Subprocessors and, prior to authorizing any new Subprocessor to access Personal Data, Airbyte will update the list of Subprocessors. Customer can receive notification of any changes to the list of Subprocessors by subscribing at the link above. If Customer objects to the appointment of such Subprocessor within ten (10) days, it may terminate the portion of the services that cannot be provided without such Subprocessor on written notice to Airbyte that includes Customer’s legitimate and documented grounds for non-approval.
5.3 Airbyte will ensure that any Subprocessors to which it transfers Personal Data enter into written agreements with Airbyte requiring that the Subprocessor abide by terms substantially similar to those contained in this DPA.
5.4 Airbyte will remain liable for any breaches of this DPA caused by its Subprocessors.
6. Restricted Data Transfers
6.1 In the event that Customer is subject to European Data Protection Law and the transfer of Personal Data to Airbyte would be restricted in the absence of the Standard Contractual Clauses, the Parties agree that the Standard Contractual Clauses shall be incorporated into this DPA with Customer as the “data exporter” and Airbyte as the “data importer.”
6.2 The Standard Contractual Clauses are further completed as follows: the optional docking clause in Clause 7 is implemented; Clause 9(a) option 2 is implemented and the time period therein is specified as thirty (30) days; the optional redress clause in Clause 11(a) is struck; the governing law in Clause 17 is the law of the Republic of Ireland; the court in Clause 18(b) are the Courts of the Republic of Ireland; and Annex 1, 2 and 3 to the Standard Contractual Clauses are Paragraph 3, 4, and 5 of this DPA respectively. To the extent required by Data Protection Law in the UK, Part 1, tables 1, 2 and 3 of the UK SCCs will be deemed to be completed like its equivalent provisions in the EU SCCs. For the purpose of Part 1, Table 4, the party that may end the UK SCCs in accordance with Section 19 of the UK Addendum is the importer.
7. Assistance and Notifications
7.1 Upon Customer’s request, Airbyte will provide Customer with reasonable cooperation and assistance to the extent required to fulfill Customer’s obligation under European Data Protection Law to:
a. reply to investigations and inquiries from data protection regulators; and
b. carry out a data protection impact assessment related to the services, where Client does not otherwise have access to the relevant information necessary to perform such assessment.
7.2 Unless prohibited by Data Protection Law, Airbyte must inform Customer without undue delay if Airbyte:
a. receives a request, complaint or other inquiry regarding the Processing of Personal Data;
b. receives a binding or non-binding request to disclose Personal Data from law enforcement, courts or any government body;
c. is subject to a legal obligation that requires Airbyte to Process Personal Data in contravention of Customer’s instructions; or
d. is otherwise unable to comply with Data Protection Law or this DPA.
7.3 Upon becoming aware of a Security Incident, Airbyte will inform Customer without undue delay and will provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer to allow Customer to fulfill its data breach reporting obligations under applicable Data Protection Law.
8.1 Airbyte will make available to Customer at Customer’s request information which is necessary to demonstrate compliance with this DPA and allow for any audits, including inspections, conducted by Customer or another auditor, as requested by Customer.
8.2 To the extent Airbyte makes available to Customer confidential summary reports ("Audit Report") prepared by third-party security professionals, Customer agrees to accept such Audit Report, subject to confidentiality requirements, in satisfaction of its audit right; however, if Customer can demonstrate that it requires additional information, beyond the Audit Report, then Customer may request, at Customer's cost, Airbyte to provide for an audit subject to reasonable confidentiality procedures, which will: (i) not include access to any information that could compromise confidential information relating to other Airbyte customers or suppliers, Airbyte's technical and organizational measures, or any trade secrets; and (ii) be performed upon not less than thirty (30) days’ notice, during regular business hours and in such a manner as not to unreasonably interfere with Airbyte’s normal business activities.
9.1 If there is any conflict between this DPA and the Agreement, this DPA will prevail to the extent of that conflict in connection with the Processing of Personal Data.
9.2 If any provision of this DPA is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, then the invalidity or unenforceability of such provision does not affect any other provision of this DPA and all provisions not affected by such invalidity or unenforceability will remain in full force and effect.
9.3 Notwithstanding anything to the contrary in the Agreement or this DPA, the liability of each party under this DPA is subject to the limitations of liability set out in the Agreement.
9.4 This DPA will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement.
A. LIST OF PARTIES
Customer is the controller and the data exporter and Airbyte is the processor and the data importer.
B. DESCRIPTION OF TRANSFER
C. COMPETENT SUPERVISORY AUTHORITY
The competent supervisory authority is the Irish Data Protection Commission.
Airbyte shall implement and maintain the controls listed in this Annex II in accordance with industry standards generally accepted by information security professionals as necessary to reasonably protect Personal Data during storage, processing and transmission.
Physical access control
Technical and organizational measures to prevent unauthorized persons from gaining access to the data Processing systems available in premises and facilities (including databases, application servers and related hardware), where Personal Data are Processed, include: (a) establishing security areas, restriction of access paths; (b) establishing access authorizations for employees and third parties; (c) access control system (ID reader, magnetic card, chip card); (d) key management, card-keys procedures; (e) door locking (electric door openers etc.); (f) security staff, janitors; (g) surveillance facilities, video/CCTV monitor, alarm system; and (h) Securing decentralized data Processing equipment and personal computers.
Virtual access control
Technical and organizational measures to prevent data Processing systems from being used by unauthorized persons include: (a) user identification and authentication procedures; (b) ID/password security procedures (special characters, minimum length, change of password); (c) automatic blocking (e.g. password or timeout); (d) monitoring of break-in-attempts and automatic turn-off of the user ID upon several erroneous passwords attempts; (e) creation of one master record per user, user-master data procedures per data Processing environment; and (f) encryption of archived data media.
Data access control
Technical and organizational measures to ensure that persons entitled to use a data Processing system gain access only to such Personal Data in accordance with their access rights, and that Personal Data cannot be read, copied, modified or deleted without authorization, include: (a) internal policies and procedures; (b) control authorization schemes; (c) differentiated access rights (profiles, roles, transactions and objects); (d) monitoring and logging of accesses; (e) disciplinary action against employees who access Personal Data without authorization; (f) reports of access; (g) access procedure; (h) change procedure; (i) deletion procedure; and (j) encryption.
Technical and organizational measures to ensure that Personal Data cannot be read, copied, modified or deleted without authorization during electronic transmission, transport or storage on storage media (manual or electronic), and that it can be verified to which companies or other legal entities Personal Data are disclosed, include: (a) encryption/tunneling; (b) logging; and (c) transport security.
Technical and organizational measures to monitor whether Personal Data have been entered, changed or removed (deleted), and by whom, from data Processing systems, include: (a) logging and reporting systems; and (b) audit trails and documentation.
Control of instructions
Technical and organizational measures to ensure that Personal Data are Processed solely in accordance with the instructions of the Controller include: (a) unambiguous wording of the contract; (b) formal commissioning (request form); and (c) criteria for selecting the Processor.
Technical and organizational measures to ensure that Personal Data are protected against accidental destruction or loss (physical/logical) include: (a) backup procedures; (b) mirroring of hard disks (e.g. RAID technology); (c) uninterruptible power supply (UPS); (d) remote storage; (e) antivirus/firewall systems; and (f) disaster recovery plan.
Technical and organizational measures to ensure that Personal Data collected for different purposes can be Processed separately include: (a) separation of databases; (b) “internal Customer” concept / limitation of use; (c) segregation of functions (production/testing); and (d) procedures for storage, amendment, deletion, transmission of data for different purposes.