Terms of Service

These Terms of Service (the "Agreement" or "Terms") are a legally binding agreement between AvairAI, Inc. ("AvairAI," "Company," "we," "us," "our") and you ("Customer," "you," "your") governing your access to and use of the AvairAI platform, including all related services, features, content, and applications (collectively, the "Services").

BY ACCESSING OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT.

If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind that entity.

ARBITRATION NOTICE & CLASS ACTION WAIVER: This Agreement contains an arbitration agreement and class action waiver in Section 12.

1. Definitions

• "AI Call Agent" means the artificial intelligence-powered voice communication feature that generates and conducts voice calls on Customer's behalf using synthetic voice technology.
• "AvairAI Database" means AvairAI's database of professional contacts made available within the Services, sourced from licensed third parties (e.g., Surmountify) and other lawful sources.
• "AvairAI Data" means professional contact data and related attributes made available from the AvairAI Database within the Services (which may be displayed in masked, limited, or workflow-only form).
• "Campaign" means a coordinated outreach initiative created through the Services, including associated messaging, content, target accounts, contact lists, and AI Call Agent configurations.
• "Contact Data" means information about individuals, including names, business email addresses, phone numbers, job titles, company affiliations, location/country, and related professional information, whether sourced from the AvairAI Database or uploaded by Customer.
• "Customer Content" means all data, content, scripts, prompts, talk tracks, offers, claims, disclosures, configurations, and instructions created, uploaded, edited, selected, or transmitted by Customer or its Users through the Services, including call scripts and script edits.
• "Customer Data" means Customer Content and other data uploaded, provided, or synced by Customer into the Services (including contacts uploaded by Customer and CRM data).
• "PEWC" or "Prior Express Written Consent" has the meaning set forth in the Telephone Consumer Protection Act and implementing regulations and generally requires a written agreement bearing the signature of the person called that clearly authorizes telemarketing calls using an artificial or prerecorded voice.
• "User" means an individual authorized by Customer to access the Services under Customer's account.

2. Services Description

2.1 Platform Overview

AvairAI provides an AI-powered sales engagement platform that enables Customers to create and execute B2B outreach campaigns. The Services may include campaign generation, contact sourcing from the AvairAI Database, AI-generated content creation, automated email sending, AI Call Agent voice communications, compliance checking tools, analytics, and CRM integrations.

2.2 AI Call Agent Feature (Important TCPA Notice)

Customer acknowledges and agrees that:

• AI-generated voice calls constitute "artificial or prerecorded voice" under the TCPA and applicable state laws.
• Customer is solely responsible for ensuring appropriate consent, including PEWC where required, has been obtained before initiating AI voice calls.
• AvairAI may enforce technical gates (including requiring Customer to mark records as PEWC before enabling AI calling for those records).
• AvairAI provides compliance tools as informational aids; Customer remains solely responsible for lawful use.

3. Account Registration and Security

3.1 Account Creation

To access the Services, you must create an account and provide accurate and complete registration information. You agree to keep your account information current.

3.2 Account Security

You are responsible for maintaining the confidentiality of account credentials and for all activity that occurs under your account. You must promptly notify AvairAI of any unauthorized use.

4. AvairAI Database & Data Use Restrictions (No Export / No List Building)

4.1 Limited License

Subject to this Agreement, AvairAI grants Customer a limited, non-exclusive, non-transferable right to access and use AvairAI Data solely within the Services for legitimate B2B prospecting and sales outreach conducted through the Services.

4.2 No Export / No Scraping / No Reconstruction

Customer must not, and must not permit any User or third party to:

• Export, download, scrape, harvest, copy, or extract AvairAI Data in bulk or systematically;
• Attempt to circumvent masking, rate limits, or access controls;
• Use AvairAI Data to build, train, enrich, validate, or augment any external database, list, directory, or model outside the Services;
• Resell, redistribute, license, sublicense, or otherwise commercially exploit AvairAI Data.

4.3 No Permission Conferred

Access to the AvairAI Database does not confer permission or a legal right to contact any individual. Customer is solely responsible for determining lawful basis/consent for outreach.

5. Acceptable Use and Prohibited Conduct

5.1 Permitted Use

The Services are provided solely for legitimate business-to-business (B2B) sales and marketing purposes and may be used only in compliance with this Agreement and applicable laws.

5.2 Prohibited Uses

Customer must not use the Services to:

• Contact individuals without proper consent/lawful basis as required by law;
• Contact any individual who opted out or requested to be placed on a do-not-call list;
• Contact numbers on the National Do Not Call Registry except where a valid exemption applies and Customer can substantiate it;
• Initiate calls outside permitted hours under applicable law;
• Use AI calling features without PEWC where required;
• Use deceptive, false, or misleading identity, content, or claims in any communication;
• Target minors (under 18) or engage in harassment, stalking, threats, intimidation;
• Engage in consumer debt collection activities;
• Circumvent or interfere with security or access controls;
• Access or use the Services from any jurisdiction where such use is prohibited by law.

6. Customer Responsibilities and Compliance

6.1 General Compliance Warranty

Customer represents and warrants that its use of the Services will comply with all applicable federal, state, local, and international laws, including TCPA, TSR, CAN-SPAM, state mini-TCPA/telemarketing laws, GDPR/UK GDPR/ePrivacy/PECR (where applicable), and applicable privacy laws.

6.2 TCPA / Calling Compliance Requirements

Customer represents and warrants that:

• Customer has obtained all required consent before initiating calls through the Services, including PEWC where required for AI/prerecorded voice calls.
• Customer will maintain records of consent and lawful basis for an appropriate retention period consistent with legal risk (recommended minimum: 5 years for TCPA defense).
• Customer will honor internal DNC requests and National DNC restrictions as required by law.
• Customer will comply with permitted calling-hour restrictions and other telemarketing rules.

6.3 PEWC Attestation (Customer Binding Representation; No Verification)

When Customer designates contacts as having PEWC within the Services, Customer is making a binding representation and warranty that valid, documented PEWC exists for each such contact. AvairAI does not verify, validate, or audit Customer's PEWC documentation.

Customer agrees to maintain PEWC documentation and to provide it to AvairAI upon request (e.g., complaint investigation, carrier inquiry, regulator inquiry). Any liability arising from lack of valid PEWC for contacts designated by Customer is borne solely by Customer.

6.4 CAN-SPAM Compliance Requirements (Email)

Customer represents and warrants that:

• Emails sent through the Services will have accurate header information and non-deceptive subject lines;
• Each email will include required disclosures, a valid physical postal address where required, and a clear opt-out mechanism;
• Opt-out requests will be honored within legally required timeframes;
• Customer will not use harvested addresses or unlawful lists.

6.5 Contact List Ownership and Permission

Customer represents and warrants that:

• Customer has the legal right and all necessary permissions to contact each individual in any contact list uploaded to the Services.
• For contacts sourced from the AvairAI Database, Customer acknowledges database access does not confer permission to contact and Customer is solely responsible for determining lawful basis.

6.6 Recording Consent

If Customer uses any call recording features, Customer represents and warrants it will comply with applicable recording consent laws, including obtaining consent where required in two-party/all-party jurisdictions.

6.7 Internal DNC List Maintenance

Customer agrees to maintain an accurate internal do-not-call list and to suppress opted-out contacts within required time periods. Customer will use the Services' suppression/DNC features (if available) to help maintain compliance.

6.8 EU/UK/EEA Targeting (GDPR/UK GDPR/ePrivacy/PECR)

If Customer targets or communicates with individuals located in the EU/UK/EEA, Customer represents and warrants that:

• Customer has identified and documented a valid legal basis for processing, and will honor objections/opt-outs without undue delay;
• Customer acts as an independent controller for outreach activities, and AvairAI acts as a processor for campaign execution on Customer's behalf where applicable;
• Customer will enter into AvairAI's Data Processing Agreement (DPA) if required.

6.9 Compliance Tools Disclaimer

Any compliance tooling (including phone classification, DNC checking, litigator screening, contact verification, and related outputs) is provided as informational aids only, does not constitute legal advice, and does not guarantee compliance. Customer remains solely responsible.

7. Customer Indemnification (Unlimited / Uncapped)

7.1 Indemnification Obligation

Customer agrees to defend, indemnify, and hold harmless AvairAI and its affiliates, officers, directors, employees, agents, licensors, and suppliers from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, penalties, fines, and expenses (including attorneys' fees) arising from or related to:

• Customer's use of the Services or activity conducted through Customer's account;
• Customer Content (including call scripts and edits);
• Customer's outreach activities (calls/emails) initiated through the Services;
• Customer's breach of this Agreement or violation of law, including TCPA/TSR, CAN-SPAM, state telemarketing laws, GDPR/UK GDPR/ePrivacy/PECR, CCPA/CPRA, and other privacy laws;
• Customer's failure to obtain/maintain required consents or lawful basis, including PEWC where required;
• Any regulatory fines, penalties, or enforcement actions arising from Customer's use of the Services.

This indemnification is unlimited and not subject to any cap or limitation in this Agreement.

7.2 Indemnification Trigger

This indemnification obligation is triggered by allegations and does not require a final determination of liability.

7.3 Defense and Settlement

Customer will control the defense and settlement of indemnified claims, subject to AvairAI's right to participate with counsel and to approve any settlement that imposes obligations or admissions on AvairAI.

7.4 TCPA-Specific Indemnification

Without limiting the foregoing, Customer specifically agrees to indemnify AvairAI for TCPA-related claims, including statutory damages of $500–$1,500 per call and class action claims, arising from communications initiated through Customer's use of the Services.

8. Disclaimers

8.1 Services Disclaimer

THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND. AVAIRAI DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

8.2 Contact Database Disclaimer

AvairAI does not warrant the accuracy, completeness, currency, reliability, or quality of any contact data in the AvairAI Database. Verification/classification outputs are informational only.

8.3 AI-Generated Content Disclaimer

AI-generated content may contain errors or inaccuracies. Customer is solely responsible for reviewing and approving AI-generated content before use.

8.4 No Guarantee of Results

AvairAI does not guarantee any particular results, including leads, meetings, conversions, deliverability, or response/connect rates.

8.5 Third-Party Services Disclaimer

AvairAI may integrate with third-party services (including AI, telephony, verification, analytics, and CRM platforms). AvairAI makes no warranties regarding third-party availability, accuracy, or performance.

9. Limitation of Liability

9.1 Exclusion of Certain Damages

To the fullest extent permitted by law, AvairAI will not be liable for indirect, incidental, special, consequential, punitive, or exemplary damages, including loss of profits, goodwill, use, or data.

9.2 Liability Cap

Except for Customer's indemnification obligations and Customer's payment obligations, AvairAI's total cumulative liability for all claims arising out of or related to this Agreement will not exceed the greater of:

• Fees paid by Customer to AvairAI in the twelve (12) months immediately preceding the event giving rise to the claim, or
• $100.

9.3 Basis of the Bargain

Customer acknowledges these limitations reflect a reasonable allocation of risk and are a fundamental element of the bargain.

10. Term and Termination

10.1 Term

This Agreement commences upon acceptance and continues until terminated.

10.2 Termination by Customer

Customer may terminate by canceling its subscription in account settings, effective at the end of the billing period.

10.3 Termination by AvairAI

AvairAI may terminate immediately for material breach (including compliance breaches) and may suspend or terminate for platform-risk reasons.

10.4 Effect of Termination

Upon termination, access ceases. Sections intended to survive (including compliance, indemnity, disclaimers, limitation of liability, dispute resolution) survive termination.

11. Miscellaneous

• Governing Law: Delaware, without regard to conflict of laws principles.
• Changes: AvairAI may update these Terms by posting revised terms; continued use constitutes acceptance.
• Assignment: Customer may not assign without consent; AvairAI may assign without restriction.
• Contact: support@avair.ai

12. Arbitration; Class Action Waiver; Jury Waiver

12.1 Binding Arbitration

Any dispute arising out of or relating to this Agreement will be resolved by binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules. The arbitration will be conducted in Wilmington, Delaware in English by one arbitrator.

12.2 Small Claims; Injunctive Relief

Either party may bring an individual action in small claims court if eligible. Either party may seek injunctive or equitable relief to prevent unauthorized access, security abuse, or infringement of intellectual property or confidentiality.

12.3 Class Action Waiver

To the maximum extent permitted by law, disputes must be brought only on an individual basis. No class, collective, representative, or private attorney general actions are permitted.

12.4 Jury Trial Waiver

Each party waives any right to a jury trial.

12.5 Time Limit

Any claim must be brought within one (1) year after the claim arises, unless prohibited by law.