Last Updated: May 27, 2022
IMPORTANT – READ CAREFULLY: BY CLICKING THE “YES, I ACCEPT” CHECKBOX DURING SIGN UP FOR THE ESIM FREE TRIAL PROGRAM, YOU AND ANY ENTITY THAT YOU REPRESENT (COLLECTIVELY, “CUSTOMER”) ARE UNCONDITIONALLY CONSENTING (1) TO BE BOUND BY AND ARE BECOMING A PARTY TO THE ESIM TERMS AND CONDITIONS OF USE (“TERMS”) AS OF THE DATE OF SUCH CLICK (THE “EFFECTIVE DATE”); AND (2) TO BE BOUND BY ALL OTHER ESIM PRICING ATTACHMENTS, DOCUMENTS, AND INCORPORATED POLICIES ON THE AERIS WEBSITE (COLLECTIVELY, “POLICIES”), AS UPDATED FROM TIME TO TIME. YOUR USE AND ACCESS TO THE AERIS WEBSITE, PRODUCTS, SERVICES, SOFTWARE, OR ANY LICENSED MATERIALS (COLLECTIVELY, “AERIS SERVICES”) PROVIDED BY AERIS COMMUNICATIONS, INC. AND/OR AERIS COMMUNICATIONS LIMITED (COLLECTIVELY, “AERIS”) SHALL ALSO CONSTITUTE ASSENT TO THESE TERMS AND THE POLICIES. CUSTOMER ALSO UNDERSTANDS THAT COMPLETION AND SUBMISSION OF THE FORM DOES NOT GUARANTEE YOUR PARTICIPATION IN THIS ESIM TRIAL AND THAT AERIS RESERVES THE RIGHT TO REFUSE TO PROVIDE THE ESIM SERVICES FOR ANY REASON AT ANY TIME. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THESE TERMS AND THE POLICIES, THEN YOU MUST STOP THE SIGN-UP PROCESS AND CLOSE YOUR BROWSER. IF YOU ARE ACTING ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU HAVE AUTHORITY TO DO SO.
- “Aeris Data” means usage data, statistics, aggregate data, and de-identified data derived from End Users’ use of the eSIM Services.
- “Customer Application” means any software or firmware program used by Customer which may be used in conjunction with the eSIM Services.
- “Customer Data” means data and information submitted to the eSIM Services by Customer, including data and information submitted to the eSIM Services by End Users.
- “Device” means any radio, telephone, computer, personal device, or other similar hardware or virtual device for which the eSIM Services could be used.
- “Documentation” means all of the information and materials that Aeris provides or makes available about eSIM Services and the Requirements, including developer guides, getting started guides, user guides, quick reference guides, sample code and tools, software libraries, command line tools, API guides and API Instructions, support and troubleshooting guidelines, and other technical and operations manuals and specifications for the operation of the eSIM Services, as may be updated by Aeris from time to time.
- “End User” means you; Customer’s employees, subcontractors, and/or vendors.
- “eSIM Services” means the connectivity services utilizing Aeris’ eSIM product, which automatically selects a network profile during each Session when a Device enters the deployment location.
- “Personal Data” means any information relating to an identified or identifiable natural person, wherein an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
- “Support Services” means the customer support services provided by Aeris as described in Section 4 of these Terms.
- “Support Policies” means the policies describing the customer support available to End Users of eSIM Services, the current version of which are available at www.aeris.com/legal/support.
- eSIM Services. Aeris will use commercially reasonable efforts to make available to Customer the eSIM Services as provided in these Terms and the Policies.
- eSIM Type. Customer will receive a Triple-cut eSIM (the “eSIM”).
- eSIM Quantity per Customer. Customer will receive up to two (2) eSIMs to trial the eSIM Services during the eSIM Trial Term.
- License Grant to Customer from Aeris. Aeris hereby grants Customer a worldwide, non-exclusive, non-sublicensable, non-transferable (except as otherwise provided herein), and limited right to access and use the eSIM Services subject to the terms and conditions of these Terms and the Policies, all solely for Customer’s own internal business operations only in accordance with the Documentation.
- Restrictions. Customer shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble, modify, copy, tamper with, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the eSIM Services; (ii) modify, translate, or create derivative works based on the eSIM Services; (iii) copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the eSIM Services; (iv) use the eSIM Services for timesharing or service bureau purposes or otherwise for the benefit of a third party (except as expressly allowed herein); (v) use or access the eSIM Services to build or support, and/or assist a third party in building or supporting, products or services competitive to Aeris; (vi) remove any proprietary notices or labels from the eSIM Services; (vii) use the eSIM Services in violation of any applicable local, state, national, or foreign laws, treaties, or regulations (including, without limitation, those related to data privacy or personal data, export laws, anti-spam laws, or any laws relating to recording of phone calls or other electronic communications), or (viii) permit anyone else to do any of the foregoing. Any breach of this Section 2.5 by an End User shall be deemed to be a breach by Customer.
- Geographic Restrictions. Customer may only use the eSIM Services in the following geographic regions: (1) North America; (2) Europe; and (3) Africa.
- Data and SMS Limitations. Each eSIM may transmit and receive Data and SMS. During the eSIM Trial Term, each eSIM includes a total of 50 MB of Data and 5 Mobile Originated SMS after which point the eSIM will no longer transmit or receive Data and SMS.
- Cellular Technologies. Customer may trial the following cellular technologies using the eSIM Services: (1) LTE; (2) LTE-M; (3) 2G, in regions where it is available; and (4) 3G, in regions where it is available.
- Refusal of eSIM Services. Aeris reserves the right to refuse to provide the eSIM Services for any reason at any time and no legal or equitable recourse against Aeris is permitted for its refusal to provide eSIM Services.
- Customer Obligations
- In addition to these terms and conditions, Customer agrees to (i) actively use and evaluate the eSIM Services; (ii) familiarize yourself with the Documentation and any other information and instructions provided to you by Aeris in connection with your use of the eSIM Services; (iii) respond to Aeris’ questions and submit meaningful feedback to Aeris’ questions regarding the eSIM Services; (iv) notify Aeris of any functional flaws, errors, anomalies, and problems directly or indirectly associated with use of the eSIM Services in the manner and form requested by Aeris; (v) not share access or use of the eSIM Services with any unauthorized third party, unless expressly agreed to in writing by the parties; and (vi) not share the Documentation with any unauthorized third party, unless expressly agreed to in writing by the parties.
- Included Support. You understand that Aeris does not make any promises or guarantees regarding the eSIM Services, including but not limited to uptime, downtime, operability, or support. Notwithstanding the foregoing, Customer will, at no additional charge, be entitled to Aeris Support Services for use of the eSIM Services at the most basic level provided to all purchasers of eSIM Services as described in the Support Policies.
- Reservation of Rights. Except for the rights granted in Section 2 (Services), Aeris owns and reserves all right, title, and interest in and to the eSIM Services and in any and all intellectual property rights there, including but not limited to any and all copyrights, patents, patent applications, trade secrets, trademarks, and other intangible rights therein. The eSIM Services are licensed and not sold, and nothing herein shall be deemed to create any perpetual license or other right to use the eSIM Services in perpetuity. Customer agrees not to use Aeris’ trademarks or other business names for any purpose.
- License Grant to Aeris from Customer. Except for the rights granted in this Section 5.2, as between the parties, Customer owns and reserves all right, title, and interest in and to the Customer Data. Customer grants Aeris and its contractors a worldwide, non-exclusive, right to use, copy, distribute, create derivative works based on, display, and perform Customer Data as reasonably necessary for Aeris to provide the eSIM Services to Customer.
- Documentation. Customer further agrees, upon request of Aeris, to delete and destroy any Documentation at the end of the eSIM Trial Term. Customer agrees to promptly disclose and hereby assign to Aeris any suggestions for change and/or improvement to the eSIM Services and any related rights thereto and to assist Aeris, as reasonably requested by Aeris and at Aeris’ expense, in obtaining intellectual property protection relating to such suggestions as Aeris may reasonably direct.
- Confidentiality and Data Processing
- Definition of Confidential Information. “Confidential Information” means any business or technical information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) under these Terms and the Policies that is marked as confidential or would normally be considered confidential to a reasonable person under the circumstances. These Terms, Policies, Aeris Data, and the ESIM Services will be Confidential Information of Aeris. Customer Data will be Confidential Information of Customer. Confidential Information will not include any information that (a) is or becomes public through no fault of the Receiving Party, (b) was known to the Receiving Party prior to receipt, (c) is obtained by the Receiving Party from a third party not under an obligation of confidentiality, and (d) is independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.
- Obligations. The Receiving Party will use reasonable care to (a) not use the Disclosing Party’s Confidential Information for any purpose outside of the scope of these Terms and the Policies and (b) except as authorized or directed by the Receiving Party to provide Confidential Information to a third-party, limit access to the Disclosing Party’s Confidential Information to its and its employees, contractors, and advisors who need access to the Confidential Information for any purpose not outside of the scope of these Terms and who have agreed to confidentiality provisions with the Receiving Party containing similar protections to the protections for Confidential Information in these Terms.
- Compelled Disclosure. Each party may disclose the other party’s Confidential Information when required by law or regulation so long as the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted, and reasonable assistance at the Disclosing Party’s cost to contest or limit the disclosure. If the Receiving Party is compelled to disclose the Confidential Information, the Receiving Party will disclose the minimum extent of Confidential Information necessary.
- eSIM Trial Term and Termination
- Term. These Terms are effective upon the Effective Date and will remain in full force and effect for thirty (30) days from the date that the eSIM is Activated (the “eSIM Trial Term”).
- Termination. Aeris may terminate Customer’s access to the eSIM Trial at any time during the eSIM Trial Term with written notice. Customer may terminate its participation in this eSIM Trial at any time during the eSIM Trial Term with written notice to Aeris.
- Effect of Termination. Upon termination for any reason, (a) all rights of either party to use Confidential Information of the other party under these Terms or the Policies will cease and each party will return or destroy all Confidential Information of the other party; and (b) the obligations of the parties with respect to the protection of Confidential Information will continue as provided in these Terms or the Policies. Aeris will terminate all End User license keys, and may delete or destroy any data remaining in its systems twenty (20) business days after the effective date of termination. Any other provision of these Terms or the Policies which contemplates performance or observance subsequent to any termination will survive any termination and continue in full force and effect.
- Warranties; Disclaimers
- Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into these Terms.
- Warranties. Aeris does not warrant non-conformities, errors, or problems caused by acts within the control of Customer or any of its End Users, or arising from Customer’s or End User’s negligence or improper use of the eSIM Services, from unauthorized modifications made to the eSIM Services, from use of the eSIM Services in an unsupported operating environment or manner, or from interoperability issues arising from devices or equipment or browsers used by Customer or End User to access the eSIM Services, or that arises from Customer’s, End User’s, or any third party’s software or systems.
- Disclaimer. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 8, TO THE FULLEST EXTENT PERMITTED BY LAW, AERIS AND ITS AFFILIATES (A) MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE REGARDING THE ESIM SERVICES OR ANY OUTPUT FROM THE ESIM SERVICES, AND (B) DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR (II) THAT THE ESIM SERVICES, OR OUTPUT OF THE ESIM SERVICES ARE ACCURATE, COMPLETE, OR RELIABLE. THE ESIM SERVICES AND ANY OUTPUT FROM THE ESIM SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”
- Customer will defend Aeris and its Affiliates from and against all third-party claims, lawsuits, and demands arising out of an allegation that the Customer Data infringe or misappropriate any patent, copyright, trade secret, or right of privacy of such third party, and will indemnify and hold harmless Aeris and its Affiliates for all reasonable attorney’s fees incurred and damages and other costs awarded in a final judgment or amounts paid in a settlement.
- Limitation of Liability
- Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR DAMAGES ARISING FROM BREACHES OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, CUSTOMER’S BREACH OF THE LICENSE RESTICTIONS UNDER SECTION 2.4, OR FROM DATA BREACHES, AERIS AND ITS AFFILIATES WILL NOT BE LIABLE TO CUSTOMER UNDER THESE TERMS FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR (B) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, OR SERVICE INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES, REGARDLESS OF THE LEGAL THEORY, EVEN IF A LIMITED REMEDY SET FORTH IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- Liability Cap. TO THE FULLEST EXTENT PERMITTED BY LAW, AERIS’ AND ITS AFFILIATES’ AGGREGATE LIABILITY UNDER THESE TERMS WILL NOT EXCEED THE AMOUNT CUSTOMER HAS PAID OR IS PAYABLE FOR CUSTOMER’S USE OF THE ESIM SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
- NOTHING IN THIS SECTION 10 APPLIES TO DAMAGES ARISING OUT OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT, CUSTOMER’S BREACH OF SECTION 2.5, OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS IN SECTION 9.
- General Provisions
- Publicity. Customer agrees that during the eSIM Trial Term, Aeris may identify Customer as a client of Aeris and use Customer’s name and logo in any of its print or web-based marketing materials and case studies.
- Notices. Notices must be sent to Aeris by first class mail or overnight courier and are deemed given when received. Aeris may send notices to Customer via the email address Customer provides to Aeris. A copy of any notices to Aeris must also be sent via email to firstname.lastname@example.org.
- Assignment. Neither party may assign any of its rights or obligations under these Terms, whether by operation of law or otherwise, without the other party’s prior written consent, not to be unreasonably withheld; except, however, either party may assign in its entirety, without the other party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the restrictions in this section, these Terms will be binding upon and inure to the benefit of the parties and their respective successors and assigns. Any other attempt to transfer or assign is void. If a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of a direct competitor of the other party, then the other party may terminate upon written notice.
- Relationship of the Parties. The parties are independent contractors. These Terms do not create a partnership, joint venture, or agency relationship between the parties and there are no third-party beneficiaries.
- Order of Precedence. In the event of a conflict between these Terms and the Policies, these Terms will govern. No purchase order, invoice, or other document submitted by Customer or Aeris will in any way modify or add to these Terms or the Policies.
- Governing Law. These Terms and the Policies will be governed in all respects by the laws of California and any dispute shall be litigated in the courts in San Jose, California. The UN Convention on Contracts for the International Sale of Goods will not apply.