Terms of Service
Effective: September 26th, 2025
Welcome to Helium! Please review these Terms of Service (these “Terms”) carefully, as they constitute a legal agreement between you or the organization you represent and Cloud Captain Inc. (d/b/a Helium), a Delaware corporation (“Helium,” “we,” or “us”), and govern your access to and use of the Services.
You agree to these Terms when you: (1) click “I Agree” (or a similar button or checkbox) when you register for the Services; (2) create a Helium account; or (3) access or use the Services.
These Terms do not apply to you if you entered into a separate Master Services Agreement for the Services (“MSA”) with Helium. In that case, the MSA and not these Terms govern your access to and use of the Services.
ARBITRATION NOTICE: Except for certain kinds of disputes described in Section 11 (Dispute Resolution), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND HELIUM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Certain capitalized terms used in these Terms have the meanings set forth in Section 13 (Definitions).
Services.
Access to the Services. To access the Services, you must register for an account with Helium. The registration information you provide must be accurate, current and complete. You cannot share your account credentials with anyone. However, you may grant access under your account to your employees, agents, and authorized contractors (each, a “User”) by assigning them unique credentials. Each User must comply with your obligations under these Terms. You are responsible for all activities that occur under your account, including any use or misuse of the Services by your Users. To be eligible for the Services, you must be a business entity. The person entering these Terms represents and warrants that they are duly authorized to bind their organization to these Terms.
Ownership of the Services. Helium owns the Services. Except for the limited license expressly granted in Section 1.3, neither these Terms nor your use of the Services grants you any right, title or interest in or to the Services or any Documentation.
Right to Use the Services. Helium grants you a limited, revocable, non-sublicensable, non-exclusive, nontransferable (except as expressly permitted in Section 12.12) right to access and use the Services during the Term.
Use Restrictions. You will not directly or indirectly: (a) use the Services in a manner that violates applicable law or any Documentation; (b) use the Services to submit, process, store or transmit Customer Data in violation of any applicable laws, regulations, privacy policies, or agreements you may have with your end users; (c) transmit or provide to the Services any Customer Data that includes any of the following Personal Data: Protected Health Information; biometric or genetic data; social security numbers (or foreign equivalent); driver’s license numbers; birth dates; financial account information, including debit or credit card information, personal bank account numbers, and card verification values; passport, government-issued ID or visa numbers; or other similar sensitive Personal Data; (d) use the Services in a manner that infringes, misappropriates or violates our intellectual property rights or the intellectual property rights of any third party; (e) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services; (f) modify, translate, or create derivative works based on the Services; (g) use the Services to develop competing products or services; (h) offer, sell, resell, rent, lend, lease, license, pledge, transfer, distribute, or provide access to, or otherwise make available, the Services to any unauthorized third party; (i) use the Services for service bureau or outsourcing purposes; (j) remove any proprietary notices or labels from the Services; or (k) attempt to probe, scan or test the vulnerability of the Services, breach the security or authentication measures of the Services without proper authorization, or willfully render any part of the Services unusable.
Third-Party Services. The Services may allow you to access or use third-party services, products, websites, or applications (collectively, “Third-Party Services”). Helium does not control and is not responsible for any Third-Party Services, including their accuracy, availability, functionality, or legality. Your use of any Third-Party Service is subject to the terms and policies of that third party, and you are solely responsible for ensuring your compliance with those terms. Helium makes no representations or warranties regarding, and will have no liability arising from or related to, any Third-Party Services, including your use of them or any exchange of data between you and such Third-Party Services. The inclusion of a link to or integration with a Third-Party Service does not imply endorsement by Helium.
Service Availability. The Services may be unavailable from time to time, including for planned maintenance, unplanned outages, or circumstances beyond our control. Helium does not guarantee that the Services will be uninterrupted or error-free.
1.7 Third-Party App Store Compliance. You are solely responsible for ensuring all use of the Services, including any paywalls or experiments, complies with applicable third-party application distribution platforms (“Third-Party App Stores”) and platform policies. Helium does not control your app store submissions or approvals and makes no warranty that any paywall or test will be approved by any Third-Party App Store. Customer will not configure paywalls to promote payment methods or terms that violate platform rules. Helium may suspend any paywall or product functionality facilitated by the Services that, in its good-faith judgment, risks platform noncompliance.
1.8 Subscription Disclosures. You remain solely responsible for all subscription-related legal disclosures, consents, and cancellation rights required by applicable law and regulations. You shall provide, approve, and maintain the accuracy and legality of all pricing, offer terms, auto-renewal disclosures, notices, and cancellation mechanisms used in paywalls or functionality provided via the Services (notwithstanding any assistance we might provide in suggesting text modifications). Helium's role in the Services is limited to rendering and measuring content and configurations you provide and/or approve.
1.9 Technical Implementation Requirements. You must implement and maintain all technical measures reasonably required by Helium to deliver the Services and accurately track metrics, including: (a) installing and maintaining current versions of applicable SDKs and supported versions; (b) configuring and maintaining required integrations, such as webhooks, app/package IDs, bundle identifiers, store/product identifiers, analytics/monetization providers, and authentication keys; (c) ensuring continuous availability of endpoints and accurate event instrumentation for impressions, purchases, refunds, trials, and cancellations; and (d) implementing recommended caching/fallbacks and reasonable timeouts. You must promptly remedy any misconfiguration, outage, or data-quality issue in your systems after receiving notice from Helium. Helium may throttle, disable experiments, or suspend metering for invalid or noisy signals until you correct the issue. Helium is not responsible for any failure, inaccuracy, or under/over-counting caused by your configurations, third-party accounts under your control, or failure to meet these requirements.
Customer Data.
Ownership of Customer Data; Authority; Responsibility. As between you and Helium, you own all Customer Data. You represent that you have the necessary authority, including all rights, licenses, and permissions, to submit Customer Data to the Services and to Helium. You are solely responsible for the content of Customer Data and for how it was obtained. We do not control, verify or endorse Customer Data.
Right to Use Customer Data. You grant Helium, its Affiliates, and their service providers the right to access, process, transmit, use and disclose Customer Data (a) as reasonably necessary for us to provide the Services, (b) as otherwise permitted by these Terms, (c) as authorized or instructed by you, (d) as required by law, regulation or order, (e) for legal, safety and security purposes, and/or (f) as required to comply with requests from Third-Party App Stores.
Right to Use Anonymized and Aggregated Data; Machine Learning. You grant Helium, its Affiliates, and their service providers the perpetual and irrevocable right and license to use and disclose any Customer Data or Output Data that has been anonymized and aggregated so that it cannot reasonably be used to identify you or any of your end users (“Anonymized Data”) for any lawful business purpose, including operating, maintaining, and improving the Services. Without limiting the foregoing, Helium may use Anonymized Data to develop, train, and improve the artificial intelligence and machine learning models used in the Services, including third-party components. Nothing in this Section 2.3 limits Helium’s obligations with respect to Personal Data under applicable data protection laws. Helium will not attempt to re-identify Anonymized Data.
Right to Send Customer Data to Third-Party Services. If you choose to enable, access, or use Third-Party Services, you authorize Helium to transmit Customer Data (including Personal Data) to such Third-Party Services as reasonably necessary for your use of them. Helium does not control and is not responsible for any Third-Party Service’s use or disclosure of Customer Data once shared. You are solely responsible for reviewing the privacy policies and practices of any Third-Party Service and ensuring that your use of them complies with applicable laws and agreements. Helium disclaims all liability arising from any access, use, modification, disclosure, or deletion of Customer Data by any Third-Party Service.
Usage Data. Telemetry data, product usage data, diagnostic data, and other similar data collected or generated by the Services in connection with your or your end users’ use of the Services (“Usage Data”) are owned exclusively by Helium. Helium may use Usage Data for any lawful business purpose.
Feedback. We welcome any suggestions, recommendations, comments, or other feedback you provide about the Services or Helium (“Feedback”). If you provide Feedback, you grant Helium the right to use and exploit the Feedback for any purpose, without compensation or obligation to you. You are not required to provide Feedback, and we are not required to use Feedback.
Output Data. The Services use artificial intelligence to generate content and other results from your inputs (“Output Data”). As between you and Helium, you own all Output Data. However, your Output Data may not be unique, and similar or identical outputs may be generated for other Helium customers. You acknowledge that you have no rights in or to any output data generated for other customers. Helium does not claim ownership of your Output Data and will not use it except as necessary to provide and support the Services. Helium makes no representations or warranties regarding the accuracy, reliability, or legality of Output Data, and you are solely responsible for any use of Output Data.
Security and Privacy.
Helium maintains appropriate administrative, physical, and technical safeguards designed to protect Customer Data from accidental or unlawful loss, access, use, alteration, or disclosure. You agree to use reasonable efforts to prevent unauthorized access to or use of the Services through your or your Users’ account credentials. You must promptly notify Helium if you believe (a) your or any User’s account credentials have been lost, stolen, or compromised, or (b) an unauthorized party has accessed the Services.
Free Services.
To the extent provided in an Order Form, we may make the Services available to you for free until you achieve a certain number of end user conversions using the Services (such free Services, for so long as they are provided for free, the “Trial Services”), as further described in the applicable Order Form. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THESE TERMS, TRIAL SERVICES ARE OFFERED “AS-IS”, AND EXCEPT TO THE EXTENT PROHIBITED BY LAW, HELIUM DISCLAIMS ALL WARRANTIES FOR TRIAL SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
Payment.
Fees. You agree to pay the fees specified in the applicable Order Form (which are subject to change pursuant to Section 5.4) (“Fees”), which may be based on the number of end user conversions you achieve using the Services, as further described in the Order Form. Except as otherwise expressly provided in these Terms, payment obligations are non-cancellable and paid Fees are non-refundable.
Conversion Measurement. End user conversions will be measured and determined solely by Helium’s tracking systems, which shall be used for all billing purposes. Helium’s measurements will be final and binding, absent manifest error.
Invoicing and Payment. Helium will issue an invoice for outstanding Fees at the conclusion of each billing cycle specified in the Order Form, or if no billing cycle is specified in the Order Form, at the conclusion of each month. Payment must be received within thirty (30) days of the invoice date. Failure to remit payment by the due date may result in service suspension or account termination at Helium’s discretion. You are responsible for ensuring all billing and contact information remains current and accurate throughout the Term.
Pricing Changes. Helium may change the Fees from time to time. Any price change will take effect no earlier than fourteen (14) days after the earlier of (a) the date we notify you of the change or (b) the date the revised Fees are posted to our pricing page, and will apply to your next billing cycle unless otherwise agreed in writing. For the avoidance of doubt, any changes to Fees will apply only prospectively and will not affect Fees already paid or payable for billing cycles that have begun prior to the effective date of the change.
Taxes. All Fees are exclusive of taxes, levies, duties, or similar governmental assessments (collectively, “Taxes”). You are responsible for all Taxes associated with your purchases under these Terms, except for Taxes based on Helium’s net income, property, or payroll. If you are required by applicable law to withhold Taxes from any payment, you must increase your payment amount so that Helium receives the full invoiced amount after withholding.
Late Payments. When undisputed fees cannot be charged to your payment method on the due date, Helium reserves the right to: (a) immediately suspend service access, and (b) assess a monthly finance charge of 1.5% on the outstanding balance until payment is complete. These remedies are in addition to any other rights available under these Terms or applicable law.
Disputed Fees. If you wish to dispute any Fees, you must (a) notify us in writing within thirty (30) days of when such Fees became due and payable and (b) continue paying all undisputed amounts during the dispute process.
Confidentiality.
Obligations. Either party (the “Disclosing Party”) may disclose to the other party (the “Receiving Party”) business, technical or financial information that the Disclosing Party identifies at the time of disclosure as being confidential or that should reasonably be understood by the Receiving Party as being confidential under the circumstances (such information, “Confidential Information”). Your Confidential Information includes Customer Data (other than Anonymized Data). The Receiving Party agrees not to use or disclose the Disclosing Party’s Confidential Information except (a) as reasonably necessary to provide the Services to you or (b) as permitted by these Terms. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information to its service providers (its “Representatives”) who have a need to know such information in connection with the Services and who are bound by confidentiality obligations at least as restrictive as those set forth in this Section 6. The Receiving Party is responsible for any violation of its obligations under this Section 6 committed by one or more of its Representatives.
Exceptions. The Disclosing Party’s Confidential Information does not include information that (a) is or becomes generally available to the public, (b) was known to or in the possession of the Receiving Party prior to its disclosure by the Disclosing Party, (c) was rightfully disclosed to the Receiving Party by a third party, or (d) was independently developed by the Receiving Party or its Representatives without reference to the Disclosing Party’s Confidential Information. The Receiving Party may disclose the Disclosing Party’s Confidential Information if required to do so by law, provided that it promptly notifies the Disclosing Party of such disclosure to the extent it is legally permitted to do so.
Term and Termination.
Term. These Terms will remain in effect for the Term.
Termination. We may suspend or terminate your access to the Services at any time, with or without cause, by providing you with notice (which may be by email or through the Services). You may terminate these Terms at any time by canceling your account and ceasing all use of the Services.
Effects of Termination. Termination of these Terms will not affect any rights or obligations that have accrued under these Terms up to and including the date of such termination, including your obligation to pay any Fees that are owed. Upon termination of these Terms for any reason, you must immediately stop using the Services. We will make all Customer Data available to you for electronic retrieval for a period of thirty (30) days after the Term ends, after which we may delete such stored Customer Data.
Survival. The following provisions will survive termination or expiration of these Terms: Section 1.2 (Ownership of the Services); Section 2 (Customer Data); Section 4 (Free Services); Section 5 (Payment); Section 6 (Confidentiality); Section 7.3 (Effects of Termination); Section 7.4 (Survival); Section 8 (Warranty and Disclaimer); Section 9 (Indemnification); Section 10 (Limitation of Liability); Section 11 (Dispute Resolution); and Section 12 (Miscellaneous).
Warranty and Disclaimer.
Helium warrants that (a) the Services other than Trial Services (the “Paid Services”) will be provided in a professional and workmanlike manner by personnel with appropriate skills, and (b) to its knowledge, the Paid Services do not infringe the intellectual property rights of any third party. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 8, THE SERVICES AND PAID SERVICES ARE PROVIDED “AS IS” AND HELIUM DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE SERVICES PROVIDE EXPERIMENTATION, PERSONALIZATION, AND AI-DRIVEN RECOMMENDATIONS FOR PAYWALLS. HOWEVER, OUTCOMES DEPEND ON FACTORS BEYOND HELIUM'S CONTROL, INCLUDING YOUR APP, AUDIENCE, PRICING, CREATIVE, PLATFORM RULES, DATA QUALITY, AND CONFIGURATION. HELIUM DOES NOT GUARANTEE ANY INCREASE IN CONVERSION, REVENUE, ARPU, APP STORE APPROVAL, OR OTHER BUSINESS OUTCOMES. ALL EXAMPLES, BENCHMARKS, AND CASE STUDIES ARE FOR ILLUSTRATION PURPOSES ONLY. YOU MAY NOT MAKE PUBLIC STATEMENTS ABOUT RESULTS THAT IDENTIFY HELIUM WITHOUT OUR PRIOR WRITTEN CONSENT, EXCEPT AS EXPRESSLY PERMITTED IN A MUTUALLY SIGNED CASE STUDY.
Indemnification.
Helium Indemnity. Subject to Section 9.3, Helium will defend you from any and all claims, demands, suits or proceedings (“Claims”) brought against you by a third party alleging that any Paid Services, as provided by us to you in accordance with these Terms, infringes any United States patent or copyright, or misappropriates any trade secret of any third party (each, an “Infringement Claim”). We will indemnify you for all damages and costs (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by us, in connection with an Infringement Claim. In the event of an Infringement Claim, we may, in our discretion: (a) obtain the right to permit you to continue using the Paid Services, (b) modify or replace the relevant portion(s) of the Paid Services with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (c) terminate your access to the Paid Services. Notwithstanding the foregoing, Helium will not be liable for, and will not be obligated to defend you from, any Infringement Claim of any kind to the extent that it arises or results from: (i) unauthorized use of the Services or breach of these Terms by you or any of your Users, (ii) modifications to the Services made by a party other than us, (iii) the combination of the Services with other products, processes or technologies not provided by us, (iv) Customer Data, or (v) Trial Services. The indemnification obligations set forth in this Section 9.1 are Helium’s sole and exclusive obligations, and your sole and exclusive remedy, with respect to an Infringement Claim.
Your Indemnity. Subject to Section 9.3, you will defend us from any and all Claims brought against us by a third party alleging a violation of a third party’s rights arising from or relating to: (a) the use of the Services by you in violation of these Terms (including violation of any Documentation); (b) applications, products or services developed or offered solely by you (as between you and us); (c) Customer Data, including your provision of, or your or our use of, Customer Data, provided that we have complied with these Terms with respect to the applicable Customer Data; or (d) our transmission of any data, including Customer Data, to a third party if such transmission was authorized by you. You will indemnify us for all damages and costs (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by you, in connection with any such Claim.
Indemnification Procedure. The party seeking indemnity under this Section 9 (“Indemnitee”) must give the other party (“Indemnitor”) the following: (a) prompt written notice of any Claim for which the Indemnitee intends to seek indemnity under this Section 9, (b) if requested by the Indemnitor, reasonable cooperation and assistance in the defense of the Claim, at the Indemnitor’s sole expense, and (c) if requested by the Indemnitor, sole control over the defense and settlement of the Claim at the Indemnitor’s expense, provided that the Indemnitee may also participate in the defense of the Claim at its own expense on a monitoring and non-controlling basis. A party’s failure to perform any obligations under this Section 9.3 will not relieve the Indemnitor of its obligations under Section 9.1 or 9.2 (as applicable) except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced because of such failure. The Indemnitor shall not settle a Claim for which Indemnitee is seeking indemnification under this Section 9 without the Indemnitee’s written consent if such settlement would require action, payment, or admission by the Indemnitee.
Limitation of Liability.
LIMITATIONS. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 10: (A) IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR CONTRACTORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS OPPORTUNITY, OR LOSS, CORRUPTION, OR UNRECOVERABILITY OF DATA, ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) IN NO EVENT SHALL HELIUM OR ITS AFFILIATES BE LIABLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING FROM (i) YOUR INABILITY TO USE THE SERVICES (INCLUDING AS A RESULT OF ANY PERMITTED TERMINATION OR SUSPENSION OF THESE TERMS), (ii) YOUR USE OF OR ACCESS TO THE SERVICES, OR (iii) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; AND (C) EACH PARTY’S TOTAL AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS SHALL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO HELIUM FOR THE SERVICES GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE.
Exceptions. The limitations in Section 10.1 shall not apply to: (a) a party’s gross negligence or willful misconduct; (b) your breach of Section 1.4 (Use Restrictions); (c) either party’s indemnification obligations under Section 9; (d) your payment obligations under these Terms; or (e) the extent such limitations are prohibited by law.
Dispute Resolution.
Initial Dispute Resolution. If any dispute, claim, or controversy arising out of or relating to these Terms (including their formation, performance, and breach), the Services, or the parties’ relationship to each other (each, a “Dispute”) arises, the parties agree to first attempt to resolve it informally and in good faith before initiating any formal legal action. Either party may start this process by providing written notice of the Dispute to the other party. The parties will meet (in person or by video conference) within ten (10) business days after delivery of such notice, unless otherwise agreed. If the Dispute is not resolved within thirty (30) days after the initial meeting, either party may initiate arbitration as provided in this Section 11.
Mandatory Arbitration. In the interest of resolving Disputes between you and Helium in the most expedient and cost-effective manner, you agree that except as provided in Section 11.5 (Exceptions), any Dispute that is not resolved informally will be resolved exclusively and finally by binding arbitration, rather than in court. YOU FURTHER UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND HELIUM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Process. Arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules, as modified by these Terms. The arbitration will be conducted in English by a single arbitrator at a location to be agreed upon in San Francisco, California. The arbitrator must be a retired judge or a licensed attorney with experience in commercial contract disputes. The arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.
Costs and Fees. Each party will bear its own attorneys’ fees and costs. The initiating party will pay all filing fees required by the arbitration provider. The administrative and arbitrator’s fees will be allocated in accordance with the arbitration provider’s rules, except that the arbitrator may award costs and fees in accordance with applicable law or if a claim is determined to be frivolous or brought in bad faith.
Exceptions. Notwithstanding the provisions of this Section 11, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if such action is available; (c) seek injunctive or other equitable relief from a court of competent jurisdiction; or (d) file suit in a court of law to address an intellectual property infringement claim.
Class Action Waiver. All Disputes must be brought in an individual capacity, and not as a plaintiff or class member in any purported class, consolidated, collective, or representative proceeding. The arbitrator may not consolidate claims of multiple parties or otherwise preside over any form of a representative or class proceeding.
Judgment on Award. The arbitrator’s award will be final and binding, and judgment on the award may be entered in any court having jurisdiction.
Severability. If any portion of this Section 11 is found to be invalid or unenforceable, the invalid or unenforceable portion will be deemed modified to the minimum extent necessary to make it valid and enforceable. If such modification is not possible, the invalid or unenforceable portion will be severed, and the remaining portions of this Section 11 will remain in full force and effect. Notwithstanding the foregoing, if a court or arbitrator determines that the class action waiver in this Section 11 is invalid or unenforceable as to a particular claim or category of claims, and such determination becomes final and non-appealable, then: (a) the class action waiver will be deemed severed only with respect to such claim or category of claims; (b) such claim or category of claims must proceed in court rather than arbitration; and (c) all other disputes will remain subject to arbitration on an individual basis in accordance with this Section 11. Nothing in this Section 11 waives rights that cannot be waived under applicable law, including without limitation the right to seek public injunctive relief and any other non-waivable statutory rights. Such non-waivable rights may be pursued in court notwithstanding the arbitration requirement.
Opt-Out Right. You may opt out of this arbitration agreement by sending written notice to legal@tryhelium.com within thirty (30) days of first accepting these Terms. Your notice must include your name, email address associated with your account, and a clear statement that you do not wish to resolve disputes with Helium through arbitration. If you opt out, neither you nor Helium will be bound by the arbitration agreement in this Section 11, and the exclusive jurisdiction and venue described in Section 12.8 will govern any action arising out of or related to these Terms.
Modifications to this Arbitration Provision. We may modify this arbitration provision from time to time. Any modifications will be effective upon posting, but will not apply to Disputes of which we had actual notice on or before the effective date of the modification. If we make a material change to this arbitration provision, you may reject the change by sending us written notice within thirty (30) days of the effective date. In such event, the version of this arbitration provision in effect immediately prior to the modification will continue to apply to you.
Miscellaneous.
Customer Mention. We may use your name and/or logo to identify you as our customer in our marketing, promotional materials, and on our website, subject to any written guidelines you provide. We will promptly stop such use upon your written request.
Export Compliance. You agree to comply with all applicable export control and sanctions laws. You represent that you are not located in or controlled by any sanctioned jurisdiction or restricted party.
Entire Agreement. These Terms, together with any policies, addenda, and documentation referenced herein, constitute the entire agreement and understanding between you and Helium with respect to the subject matter hereof, and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, relating to such subject matter.
Privacy Policy. Our Privacy Policy, available at https://tryhelium.com/support-pages/privacy-policy, explains how we collect, use, and disclose information about you and your end users. By using the Services, you acknowledge that you have reviewed the Privacy Policy.
Data Processing Addendum. To the extent Helium processes personal data subject to the GDPR, UK GDPR, CCPA, or other applicable data protection laws on your behalf, the parties agree to the Data Processing Agreement (“DPA”), which is incorporated into and forms part of these Terms. As between the parties: (i) you are the Controller of any Personal Data you or your application sends via the Services; and (ii) Helium processes such Personal Data as your Processor in accordance with the Terms. You represent and warrant you have provided all notices, obtained all consents, and have a lawful basis for processing (including for personalization/profiling) and for instructing Helium to process Personal Data as set out in the DPA.
Relationship of the Parties. For all purposes under these Terms, you and Helium are independent contractors with respect to each other and will not bind or attempt to bind the other to any agreement.
No Third-Party Beneficiaries. These Terms are for the sole benefit of you and Helium, and there are no intended third-party beneficiaries.
Governing Law; Jurisdiction and Venue. These Terms are governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law principles. Subject to Section 11 (Dispute Resolution), any legal suit, action, or proceeding arising out of or relating to these Terms will be instituted exclusively in the federal or state courts located in San Francisco, California, and each party irrevocably submits to the jurisdiction of such courts.
Consent to Electronic Communications. By using the Services, you consent to receiving certain electronic communications from us, as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
Force Majeure. Except for your payment obligations, neither you nor Helium will be liable for any failure or delay in performance caused by conditions or events outside the reasonable control of the affected party, including but not limited to acts of God, natural disasters, governmental action, labor conditions, Internet or telecommunications failures, power outages, or acts of terrorism or war.
Amendment. Except as provided in Section 12.15, these Terms may be modified only by a written instrument executed by both you and Helium.
Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent, except that you may assign them without consent in connection with a merger, acquisition, or sale of all or substantially all of your assets, provided that you give us written notice within thirty (30) days of such assignment and the assignee agrees in writing to assume your obligations under these Terms, including payment of all outstanding Fees. We may assign these Terms without restriction, including to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets.
Waivers. The failure of either party to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. Any waiver must be in writing and signed by the waiving party.
Severability. If any provision of these Terms is found to be invalid, illegal, or unenforceable, the remaining provisions will remain in full force and effect. The invalidity, illegality, or unenforceability of a provision in one jurisdiction does not affect the validity, legality, or enforceability of that provision in any other jurisdiction.
Modifications to these Terms. We may modify these Terms from time to time. Modifications will take effect on the first day of the calendar month after the modified terms are posted, unless otherwise stated. If you have an account with us, we will notify you of material modifications by email. You are responsible for reviewing and becoming familiar with any modifications. Your continued use of the Services after the effective date of any modification constitutes your acceptance of the modified Terms.
Notices. All notices under these Terms must be in writing. We may provide notices to you by email to the address associated with your account. You may provide notices to us at legal@tryhelium.com or by mail to: Cloud Captain Inc., 490 Post st, Suite 1700 San Francisco, CA 94102. Notices will be deemed given on the date of delivery if sent by email, or on the date of receipt if sent by certified mail, return receipt requested, or by nationally recognized overnight courier with proof of delivery.
Definitions.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” means ownership of more than fifty percent (50%) of the voting interests of the entity.
“Customer Data” means any data, content, information, or materials (including Personal Data) that you or your Users submit or make available to the Services. Customer Data does not include Usage Data.
“Documentation” means the then-current technical and functional documentation, specifications, usage guides, and policies for the Services made available by Helium.
“Order Form” means the online subscription page through which you subscribed to the Services or through which you place an order for the services, which may include information regarding pricing, features, billing cycle, and Term.
“Personal Data” means any information relating to an identified or identifiable natural person, to the extent such information is protected as “personal data,” “personal information,” or similar term under applicable data protection laws.
“Privacy Policy” means Helium’s then-current privacy policy, available at https://tryhelium.com/support-pages/privacy-policy, as may be updated from time to time.
“Protected Health Information” means individually identifiable health information, as defined in 45 C.F.R. § 160.103, that is transmitted or maintained in any form or medium, including demographic and other information that relates to an individual’s past, present, or future physical or mental health or condition, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual.
“Services” means Helium’s software-as-a-service offerings, platform, websites, mobile applications, and related systems and technologies provided by Helium.
“Term” means the period beginning on the date you first accept these Terms and ending on the date these Terms are terminated in accordance with Section 7 (Term and Termination).