AIRWARE TERMS AND CONDITIONS
Last modified: May 08, 2018 (view archived versions)
PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY UNMANNED INNOVATION INC. (D/B/A AIRWARE) (“AIRWARE”), A DELAWARE CORPORATION HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 460 BRYANT ST., SUITE 200, SAN FRANCISCO, CA 94107. BY EXECUTING ONE OR MORE ORDER FORMS WITH AIRWARE OR AN AUTHORIZED AIRWARE RESELLER WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. AIRWARE AND CUSTOMER ARE REFERRED TO HEREIN AS, EACH, A “PARTY,” AND COLLECTIVELY, THE “PARTIES.”
A. Airware makes available certain Subscription Services.
B. Customer and Airware desire to have Airware provide Customer with the right to access and use the Airware Subscription Services, subject to and in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.1 “Affiliates” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of a Party.
1.2 “Authorized User” means any party who Customer has authorized, in accordance with the terms of this Agreement, to access and use the Subscription Services and who has been supplied a user identification and password by Customer (or by Airware, at Customer’s request). Airware shall generate the user identifications.
1.3 “Customer Imagery Data” means the sensory and imagery data files uploaded to the Subscription Services as part of a flight survey performed by, or on behalf, of Customer.
1.4 “Intellectual Property Rights” means patent rights, inventions, copyrights, database rights, trademarks, service marks, trade secrets, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights.
1.5 “Personal Data” means data that relates to a living individual who can be identified from that data.
1.6 “Professional Services” means the consulting, implementation and support services (e.g., data collection of an area to be surveyed (“Surveyed Area”) and/or setup within the Surveyed Area or its immediate neighborhood of ground marks easily identifiable by visual means (commonly named ground control points) and measurement of their locations with a precise GNSS device), specifically set forth in an Order Form.
1.7 “Subscription Services” means the hosted software services provided by Airware, including those described in the Order Form, as well as any improvements, modifications, extensions or enhancements thereto developed by Airware or its Affiliates.
1.8 “Technical Data” means (i) all technical materials, including formula, compilations, software code or programs, methods, techniques, know-how, technical assistance, processes, algorithms, designs, data dictionaries and models, schematics, user documentation, training documentation, specifications, drawings, flowcharts, briefings, test or quality control procedures, or other similar information, used, supplied or disclosed by Airware, (ii) telemetry data and/or drone performance usage data captured, collected or generated by unmanned aerial vehicles or drones deployed by or on behalf of Customer in connection with Customer’s use of the Subscription Services, and (iii) technical data generated by Airware from its analysis of sensory and imagery data captured, collected or generated by drones deployed by or on behalf of Customer in connection with Customer’s use of the Subscription Services.
2.1 Subscription Services. Subject to Customer’s compliance with the terms of this Agreement, Airware shall make the Subscription Services available to Customer solely for use by Authorized Users for Customer’s internal business operations. Customer will not permit access to or use of the Subscription Services by anyone other than Authorized Users.
2.2 Restrictions. Customer’s use of the Subscription Services shall not include service bureau use, outsourcing, leasing, renting, reselling, concurrent use of a single Authorized User login, or time-sharing of the Subscription Services. Customer shall not (and shall not permit any third party to): (a) copy, modify, translate, or create derivative works of the Subscription Services; (b) reverse engineer, disassemble or decompile Subscription Services or any part thereof or otherwise attempt to discover the source code or underlying structure, ideas or algorithms of the Subscription Services or any software related thereto; (c) access or use (or permit a third party to access or use) the Subscription Services for purposes of monitoring the availability, performance or functionality of the Subscription Services or for any other benchmarking or competitive purposes including without limitation in order to build a similar or competitive product or service; (d) use the Subscription Services in a manner that is contrary to applicable law or that violates a third party’s privacy rights or intellectual property rights; (e) publish, post, upload or otherwise transmit Customer Imagery Data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or (f) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Subscription Services.
3. CUSTOMER RESPONSIBILITIES
3.1 Cooperation and Assistance. In order for the Subscription Services to be effective, Customer will at all times provide Airware with Customer’s good faith cooperation and assistance and make available such information and personnel as may be reasonably required by Airware.
3.2 Security. Customer is responsible for all activities conducted under its Authorized User logins and for its Authorized Users’ compliance with this Agreement. Customer will keep confidential and not disclose to any third parties, and will ensure that all Authorized Users keep confidential and do not disclose to any third parties, any user IDs, account numbers, passwords or other similar information for the Subscription Services.
3.3 Enforcement. Customer will ensure that Authorized Users comply with the terms and conditions of this Agreement. Customer will promptly notify Airware of any suspected or alleged breach of this Agreement and will cooperate with Airware with respect to: (i) any investigation by Airware of any suspected or alleged breach of this Agreement; or (ii) any action by Airware to enforce the terms and conditions of this Agreement. Airware may suspend or terminate Customer’s or any Authorized User’s access to the Subscription Services upon notice to Customer in the event that Airware reasonably determines that Customer or any Authorized User breached this Agreement.
3.4 Customer Representative. Upon the execution of this Agreement, Customer will designate an individual to serve as its primary representative and contact for facilitating communications between Customer and Airware regarding the Subscription Services (the “Customer Representative”). The Customer Representative will have the responsibility and authority to make decisions, approve plans and grant requests on Customer’s behalf. Customer acknowledges and agrees that Airware will be entitled to rely on all communications from and decisions of the Customer Representative. Customer may change its Customer Representative at any time by providing Airware with at least five (5) days’ advance notice. If Airware determines that the Customer Representative lacks sufficient experience and training to serve as the Customer Representative, Airware may request that Customer appoint a replacement Customer Representative, whereupon Customer will appoint a replacement Customer Representative.
3.5 Authorized Users. Customer acknowledges that it will not enjoy all of the benefits of the Subscription Services unless Customer invests in experienced, qualified Authorized Users and provides such users with sufficient training to enable such users to utilize the Subscription Services as designed and to implement business processes and procedures that support the Subscription Services. Accordingly, Customer agrees to provide its Authorized Users with sufficient experience and training to use the Subscription Services and to understand the manner in which various inputs into the Subscription Services will affect the desired outputs and results of the Subscription Services. Customer acknowledges that a failure by Customer to provide experienced, qualified and sufficiently trained Authorized Users may result in increased fees for additional training and other services and limit or hinder Airware’s ability to provide the Subscription Services to Customer.
3.6 Customer Network-related Obligations. Customer acknowledges and agrees that Customer’s and its Authorized Users’ use of the Subscription Services is dependent upon access to telecommunications and Internet services such as DSL, cable or another high speed Internet connection. Customer acknowledges and agrees that it is responsible for procuring and maintaining the network connections that connect the Customer network to the Subscription Services, including, but not limited to, wireless internet connectivity, “browser” software that supports protocols used by Airware, including the Secure Socket Layer (SSL) protocol, and for complying with logon procedures for services that support such protocols. Airware will not be responsible for notifying Customer of any upgrades, fixes or enhancements to any such software, or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) that are not owned or operated by Airware. Airware assumes no responsibility for the reliability or performance of any network connections as described in this Section 3.6.
3.7 Professional Services. This Section 3.7 only applies if the Order Form explicitly includes Professional Services. Customer is otherwise not entitled to professional services of any kind unless detailed elsewhere in the Agreement. The location(s) of the Professional Services provided by Airware are fixed and delivery conditions are fixed conditions, unless stated otherwise.
Airware shall execute the Professional Services accurately and diligently and shall perform the Professional Services to the best of its ability. The Professional Services are, by nature, subject to hazards and Airware is responsible for making decisions concerning the execution of the Professional Services with regard to the conditions at any site during any particular time. Customer acknowledges and agrees that conditions outside of Airware’s control may impact the possibility of execution of the Professional Services and may lead to the modification of any proposed timeline. These conditions include but are not limited to: (i) meteorological conditions, such as wind and rainfall, which could prevent the functionality of drones or other materials onboard or on the ground; (ii) site conditions that may require additional arrangements to guarantee the safety of the Airware team and its subcontractors or the equipment of Airware and its subcontractors; (iii) the site or its functionality not corresponding to the agreed upon specifications; and (iv) the general conditions of performance of the Professional Services modified from the original quotation. Airware may, in its sole discretion, determine that the Professional Services cannot be performed at the specific site or must be postponed. In the case that Airware postpones or modifies the Professional Services, Customer and Airware shall mutually agree on a date and location for the execution of the Professional Services within ten (10) business days after the date previously determined in the schedule. The Customer is responsible for making sure the ground control points are in good state, meaning that there clearly visible and usable during any data processing. Airware shall not be held responsible for a lack of data accuracy due to a deterioration, loss or removal of the ground control points. Airware shall not be responsible for a deterioration, loss or removal of the ground control points and will be entitled to charge the Customer to replace them if needed.
4. OWNERSHIP AND LICENSES
4.1 Customer Ownership of Images. Airware agrees that Customer or its licensors exclusively own all rights, title and interests in and to the Customer Imagery Data. Customer grants to Airware a perpetual, royalty-free, non-exclusive, worldwide, transferable and sub-licensable license to use, duplicate, copy, process, and transmit the Customer Imagery Data for the purposes of performing, exercising, developing and/or improving Airware’s product and/or services, provided that Airware shall not share Customer Imagery Data with any third parties other than Airware’s contract data processors.
4.2 Airware Ownership of Subscription Services. Customer agrees that Airware or its licensors exclusively own all rights, title and interests in and to the Subscription Services, and the Technical Data, including all Intellectual Property Rights therein. Except as provided in this Agreement, the rights granted to Customer do not convey any ownership rights or interests in the Subscription Services, express or implied, or in any Intellectual Property Rights therein. Any rights in the Subscription Services or in Airware’s Intellectual Property Rights therein that are not expressly granted to Customer under this Agreement are reserved by Airware. Airware reserves the right to modify or discontinue any aspect or feature of the Subscription Services, including without limitation content, functionality, or ability to be accessed and used with particular computer equipment. Airware will provide Customer with notice of any reduction or elimination of particular Subscription Services.
4.3 No Rights to Use Marks. Each Party’s trademarks, service marks, logos, trade names, product names and service names are, as to each Party, the “Marks.” In addition, the trademarks, service marks, logos, trade names, product names and service names of any third parties that are incorporated into the Subscription Services or that Airware otherwise uses in connection with marketing and promoting the Subscription Services (collectively, “Third Party Marks”) are the property of such third parties. Each Party will not use or display in any manner the Marks of the other Party or any Third Party Marks, without first obtaining the express written permission from the other Party or from the owner of the applicable Third Party Mark, as applicable.
4.4 Feedback License. If Customer or any Authorized Users provide Airware with any feedback, comments or suggestions for improvements or enhancements to the Subscription Services (collectively, “Feedback”), Customer grants Airware a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to use or incorporate into the Subscription Services any Feedback for any purpose without obligation to Customer (or to any Authorized User) of any kind.
5. IMAGERY DATA
5.1 Responsibility. Customer shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of all data, information and materials that Customer (or any Authorized User) captures and stores in, or enters (or has entered) into the Subscription Services. By entering any Customer Imagery Data into the Subscription Services regarding inspections, procedures, tests and other tasks or activities (collectively, “Activities”), Customer is representing on behalf of itself and all Authorized Users that the Activities to which such Customer Imagery Data relate were performed or provided by Customer. If Customer (or any Authorized User) becomes aware that any Customer Imagery Data was entered into the Subscription Services regarding Activities that were not performed or provided by Customer, Customer will promptly notify Airware thereof and delete or correct such Customer Imagery Data on the Subscription Services. Customer will ensure that its customers, and any other relevant third parties, have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation.
5.2 Hosting of Customer Imagery Data. Airware will be responsible for hosting the Customer Imagery Data on the Subscription Services, but only from a location or access point of its choosing. Airware may, at its discretion, change from one such location or access point to a different location or access point at its sole discretion. Customer acknowledges that: (i) for all customers, data processing will not be exclusively performed on U.S. servers; and (ii) for some customers, including but not limited to those which are not in the U.S., data may not be fully hosted in the U.S. If Customer requests a different location or hosting provider, Airware may charge additional costs, if it agrees to alter the hosting of Customer Imagery Data. Airware has taken, and will continue to take, significant measures to provide a high level of security for Customer Imagery Data. However, Airware cannot guarantee the absolute security of information delivered to Airware during use of the Subscription Services and shall not be liable in any way for compromise of Customer Imagery Data.
5.3. Backup and Recovery of Imagery Data. In the event of any loss or damage to Customer Imagery Data that is stored on or processed by the Subscription Services, Airware will use its commercially reasonable efforts to restore the lost or corrupted Customer Imagery Data from the last backup maintained by Airware in accordance with Airware’s standard archival procedures. CUSTOMER ACKNOWLEDGES AND AGREES THAT AIRWARE’S USE OF COMMERCIALLY REASONABLE EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER IMAGERY DATA PURSUANT TO THIS SECTION 5.3 WILL CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND AIRWARE’S SOLE LIABILITY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER IMAGERY DATA. Airware shall not be responsible for any loss, destruction or corruption of Customer Imagery Data caused by any third party.
5.5. Personal Data. The Parties agree that Customer shall not provide any Personal Data to Airware and that Airware shall not have access to Personal Data as a result or in connection with its operation of the Subscription Services. If Customer wishes to have Airware process, host, store, or have access to Personal Data the Parties must execute an amendment to this Agreement.
6.1 Fees. In consideration for Airware providing the Subscription Services, Customer will pay Airware the fees specified on the Order Form between Customer and Airware, or, if applicable, Customer’s Order Form with Airware’s authorized reseller (“Fees”).
6.2 Payment Terms. Unless otherwise specified on the Order Form or Customer’s agreement with Airware’s authorized reseller, Airware will invoice Customer upfront for the Fees due and payable for that Term. Customer will pay each such invoice within thirty (30) days following the date thereof.
6.3 Additional Services. Customer or its Affiliate (as applicable) shall pay the fees as specified in the Order Form. If Airware provides Professional Services to Customer or its Affiliate, the Professional Services shall be provided by Airware pursuant to the Order Form or a separate Airware Professional Services Agreement. All credits purchased under an Order Form shall be valid for the Initial Term, provided that this Agreement is still in effect. Any unused credits at the end of such Initial Term shall expire unless otherwise mutually agreed upon by the parties. All fees are non-refundable, except as otherwise explicitly stated in the Agreement. The fees and the term of use for additional Authorized Users and other items procured during an existing subscription term will co-terminate with and be prorated through the end date of the subscription term for the applicable Service.
6.4 Taxes. The Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Airware’s or its authorized reseller’s net income. If Airware or its authorized reseller has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Airware or its authorized reseller with a valid tax exemption certificate authorized by the appropriate taxing authority. In the event that applicable law requires Customer to withhold or deduct any taxes with respect to any payment to be made pursuant to this Agreement, Customer shall withhold or deduct such taxes from the amount and increase the amounts payable so that Airware or its authorized reseller receives the fee designated on the Order Form free and clear of such taxes. Customer and Airware will reasonably cooperate in establishing any applicable exemption from withholding or deduction of such taxes.
6.5 Interest. Unless otherwise specified on the Order Form or Customer’s agreement with Airware’s authorized reseller, all amounts not paid when due under this Agreement will accrue interest daily (without the requirement of a notice) at a rate of 1.5% per month or the highest rate permissible by law, whichever is lower, until the unpaid balance is paid in full.
7.1 Definition. “Confidential Information” means: (i) information that is disclosed in written form and that is clearly labeled as proprietary, confidential or with words of similar meaning; (ii) information that is disclosed orally or visually and that is identified as proprietary or confidential at the time of its disclosure and is summarized in a writing sent by the disclosing Party to the other Party within thirty (30) days of such disclosure; (iii) the Agreement, the Subscription Services provided associated with the Agreement, the Technical Data, the Customer Imagery Data, and (iv) any information that, due to its nature or the circumstances of disclosure, would reasonably be deemed confidential. The terms and conditions of this Agreement will be deemed the Confidential Information of both Parties.
7.2 Exclusions. The obligations and restrictions in Section 7.3 will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving Party; (ii) is rightfully known by the receiving Party prior to the disclosure of such information from the disclosing Party; (iii) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information; or (iv) the receiving Party rightfully obtains from a third party who had the right to disclose such information without breach of any confidentiality obligation to the disclosing Party.
7.3 Use and Nondisclosure. During the Term and for a period of three (3) years thereafter, each Party will not use the other Party’s Confidential Information for any purpose other than for the performance and enforcement of this Agreement and will not disclose the other Party’s Confidential Information to any party other than to those of its employees and contractors who need to know such Confidential Information for a Party’s performance and enforcement of this Agreement; provided that each such employee and contractor is bound by a written agreement that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement. Each Party will use the same efforts to protect the confidentiality of the other Party’s Confidential Information that it ordinarily uses to protect the confidentiality of its own confidential information of like importance, but in no event less than reasonable efforts.
7.4 Permitted Disclosure. The foregoing provisions of this Section 7 will not restrict either Party from disclosing the other Party’s Confidential Information or the terms and conditions of this Agreement: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the Party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement; (ii) on a confidential basis to its legal or professional financial advisors; (iii) as required under applicable securities regulations; or (iv) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such Party.
8. WARRANTY AND SUPPORT
8.1 Limited Warranty. Airware warrants to Customer that the Subscription Services will provide the functionality specified in Airware’s then-current documentation for the Subscription Services. In the event that the Subscription Services fails to conform to the foregoing warranty, as Customer’s sole and exclusive remedy and Airware’s sole and exclusive liability, Airware will modify the Subscription Services to correct the non-conformity.
8.2 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1, AIRWARE DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT AND THE SUBSCRIPTION SERVICES OR OTHER SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. AIRWARE DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED.
8.3 Fail-Safe or Critical Operations. Airware’s Subscription Services are not designed, intended, authorized, or warranted to be suitable for use in hazardous or critical environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, life support, weapons systems or any other application in which the failure of a product could lead to death, personal injury or severe physical or environmental damage. Customer will not use, or permit to be used, the Subscription Services for or in any of the environments or applications described above. Further, Customer will indemnify and hold Airware and its employees, officers, directors, agents, affiliates, successors and assigns harmless against all claims, actions, suits, proceedings, costs, expenses, damages, liabilities, losses, fines or penalties including reasonable attorneys’ fees, arising out of any breach of Customer’s obligations in this Section.
8.4 Support. Airware will provide Customer and Authorized Users with support for the Subscription Services as follows:
(a) If the Service becomes substantially unavailable to Customer, Airware will respond to Customer (i) within eight (8) hours from Customer’s notification to Airware of such unavailability, if during normal business hours (Monday-Friday, 9:00am – 5:00pm Pacific), or (ii) within eight (8) hours of the start of the next business day, if outside of normal business hours.
(b) Any other support services are outside of the scope of this Section 8.4 and must be separately agreed in writing by Customer and Airware. Additional technical support services, available as part of Subscription Services, includes training in use of the Subscription Services, and consulting (“Additional Technical Support”). Use of the Additional Technical Support requires payment of additional fees to be agreed upon between the parties or, if not agreed upon, charged at Airware’s standard rates. Customer may designate up to 3 support contacts (“Designated Support Contacts”), and all support requests must come through the Designated Support Contacts. Customer may update the Designated Support Contacts by providing notice to Airware.
9.1 Indemnification by Airware. Airware will defend any action or suit brought against Customer by a third party to the extent that it is based upon a claim that the Subscription Services, as provided by Airware to Customer pursuant to this Agreement, infringe any U.S. patent or any copyright or misappropriate any trade secret, and will indemnify and hold Customer harmless from and against any damages, costs and expenses (including reasonable attorneys’ fees) awarded in final judgment against Customer or payable in settlement with respect to such claim; provided that Customer: (i) promptly notifies Airware in writing of the claim; (ii) grants Airware sole control of the defense and settlement of the claim; and (iii) provides Airware, at Airware’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. Customer reserves the right to retain counsel, at Customer’s sole expense, to participate in the defense of any such claim. Airware may not enter into any settlement that would impose any obligations or liability upon Customer or that would limit Customer’s right to access and use the Subscription Services, as provided hereunder, without Customer’s prior written consent.
9.2 Injunctions. In the event that Customer’s right to use the Subscription Services hereunder is enjoined, or in Airware’s reasonable opinion is likely to be enjoined, due to the type of claim specified in Section 9.1 above, Airware will at its sole option and expense: (i) procure for Customer the right to continue using the Subscription Services; (ii) replace or modify the Subscription Services so that they are non-infringing and substantially equivalent in function to the enjoined Subscription Services; or (iii) if options (i) and (ii) above cannot be accomplished despite Airware’s reasonable efforts, then Airware may terminate Customer’s rights and Airware’s obligations hereunder.
9.3 Exclusions. Notwithstanding the terms of Section 9.1, Airware will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (i) the combination, operation or use of the Subscription Services with equipment, devices, software or data not supplied by Airware, if a claim would not have occurred but for such combination, operation or use; or (ii) Customer’s use of the Subscription Services other than in accordance with this Agreement.
9.4 Sole Remedy. THE FOREGOING STATES AIRWARE’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
9.5 Indemnification by Customer. Customer will defend Airware and its Affiliates (the “Airware Parties” against any action or suit brought against the Airware Parties by a third party in connection with Customer’s use of the Subscription Services (other than claims for which Airware is responsible under Section 9.1), and will indemnify and hold the Airware Parties harmless from and against any damages, costs and expenses (including reasonable attorneys’ fees) awarded in final judgment against the Airware Parties or payable in settlement with respect to such claim; provided that Airware: (i) promptly notifies Customer in writing of the claim; (ii) grants Customer sole control of the defense and settlement of the claim; and (iii) provides Customer, at Customer’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. Airware reserves the right to retain counsel, at Airware’s sole expense, to participate in the defense of any such claim. Customer may not enter into any settlement that would impose any obligations or liability upon Airware or that would limit or adversely affect Airware’s rights in and to the Subscription Services without Airware’s prior written consent.
10. LIMITATION OF LIABILITY
10.1 Total Liability. EXCEPT FOR LIABILITY RESULTING FROM AIRWARE’S BREACH OF SECTION 7 (CONFIDENTIALITY), IN NO EVENT WILL AIRWARE’S TOTAL LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE FEES CUSTOMER PAID AIRWARE UNDER THIS AGREEMENT OVER THE LAST TWELVE (12) MONTHS.
10.2 Exclusion of Damages. EXCEPT FOR LIABILITY RESULTING FROM AIRWARE’S OR CUSTOMER’S BREACH OF SECTION 7 (CONFIDENTIALITY), AND EXCEPT FOR THE PARTIES INDEMNIFICATION OBLIGATIONS IN SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ITS CUSTOMERS OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE, PROFITS, GOODWILL, REVENUE OR DATA, OR BUSINESS INTERRUPTION OR THE COST OF PROCURING SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, OR DAMAGES TO CUSTOMER’S, ITS CUSTOMER’S, OR THIRD PARTIES’ TECHNOLOGY OR PROPERTY, OR BODILY INJURY OR DEATH.
10.3 Acknowledgement. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY: (I) REGARDLESS OF THE FORM OR THEORY ON WHICH A CLAIM OR ACTION IS BASED, WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE OR RELIANCE), PRODUCT LIABILITY OR OTHERWISE; (II) EVEN IF SUCH PARTY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (III) NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED FOR IN THIS AGREEMENT.
AIRWARE SHALL NOT BE LIABLE FOR ANY LOSSES ARISING FROM CUSTOMER’S USE OR MISUSE OF THE SUBSCRIPTION SERVICES OR DOCUMENTATION, INCLUDING FOR ANY DAMAGE OR WEAR AND TEAR TO DRONES USED IN CONJUNCTION WITH THE SUBSCRIPTION SERVICES; WILFUL DAMAGE; CUSTOMER’S NEGLIGENCE, OR THAT OF ITS AGENTS OR EMPLOYEES, OR ANY FAILURE TO FOLLOW AIRWARE’S INSTRUCTIONS AS TO USE OF THE SUBSCRIPTION SERVICES; ABNORMAL WORKING CONDITIONS BEYOND THOSE REFERRED TO IN ANY SPECIFICATIONS; PILOT OR USER ERROR.
11. TERM AND TERMINATION
11.1 Term. This Agreement will commence on the Effective Date and will continue for the Initial Term (as defined in the Order Form), unless terminated earlier as provided in this Agreement. This Agreement will automatically renew for subsequent durations equal to the Initial Term, unless either Party notifies the other in writing of its intent not to renew at least ninety (90) days prior to the end of the then-current term. The initial term and any renewal terms are collectively the “Term”.
11.2 Termination for Cause. Either Party may terminate this Agreement immediately upon written notice to the other Party: (i) if the other Party breaches any material term of this Agreement, the breach is capable of being cured, and the breaching party fails to cure such breach within thirty (30) days following written notice thereof from the non-breaching Party; or (ii) if the other Party breaches any material term of this Agreement and the breach is incapable of being cured. In addition, Airware may terminate this Agreement immediately upon written notice to Customer, if Customer breaches its payment obligations under Section 6 and fails to cure such breach within 15 business days following written notice thereof from Airware.
11.3 Effect of Termination. Upon any expiration or termination of this Agreement: (i) Customer’s and its Authorized Users’ right to access and use the Subscription Services will immediately terminate and Customer and its Authorized Users will immediately cease all use of the Subscription Services; and (ii) each Party will return, or destroy, and make no further use of any Confidential Information of the other Party, except for any license to Confidential Information that survives termination or expiration of this Agreement. Notwithstanding the above, provided the Agreement was not terminated for cause per Section 11.2, Airware will grant Customer continued access to the Subscription Services for viewing purposes only for not more than 12 months (the “Grace Period”). In no event shall Airware be liable to Customer, its Affiliates, and its Authorized Users for any cause of action or under any theory of liability arising during the Grace Period.
11.4 Survival. The rights and obligations of the Parties under Sections 4, 6, 7, 9, 10, 11.3, 11.4 and 12 will survive any expiration or termination of this Agreement.
12.1 Assignment. Neither Party may assign or transfer this Agreement, in whole or in part, without the other Party’s written consent except in the event of a Change of Control (as defined below). Any attempted assignment or transfer without such consent will be void. “Change of Control” means, with respect to a Party: (i) the direct or indirect acquisition of either: (a) the majority of voting stock of such Party or (b) all or substantially all of the assets of such Party, by another entity in a single transaction or a series of transactions; or (ii) the merger of such Party with another entity. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the Parties.
12.2 Governing Law. This Agreement shall be governed by and construed in all respects in accordance with the laws of the State of California, U.S.A., without regard to its conflict of laws rules or principles. The Parties disclaim application of the United Nations Convention on the International Sale of Goods. Subject to this Section 12.2, the Parties submit to the exclusive jurisdiction of the federal and state courts of the State of California. Nothing in this Agreement shall limit the right of Airware to take proceedings against Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude Airware from taking proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
12.3 Waiver. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
12.4 Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
12.5 Notices. Any notice or other communication given to a Party under or in connection with the Agreement shall be in writing, addressed to that Party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that Party may have specified to the other Party in writing in accordance with this Section, and shall be delivered personally, sent by pre-paid first class mail or other next working day delivery service or commercial courier. A notice or other communication shall be deemed to have been received: if delivered personally, it is deemed received when left at the address referred to in this Agreement; if sent by pre-paid first class mail or other next working day delivery service, it is deemed received at 9.00 am local time of the recipient on the second Business Day after mailing; if delivered by overnight commercial courier (e.g., FedEx), it is deemed received on the date and at the time that the overnight courier’s delivery receipt is signed. The provisions of this Section 12.5 shall not apply to the service of any proceedings or other documents in any legal action. A notice given under this Agreement is not valid if sent by e-mail.
12.6 Relationship Between the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other nor to incur obligations on the other’s behalf without such other Party’s prior written consent.
12.7 Force Majeure. Neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations due to causes beyond its reasonable control including without limitation acts of God, inclement weather conditions, war, terrorism, governmental action, labor conditions, riot, acts of civil or military authorities, fire, floods, earthquakes, accidents and denial-of-service attacks (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing Party will promptly notify the other Party and will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the event continues and such Party continues to use commercially reasonable efforts to resume performance.
12.8 Entire Agreement. This Agreement together with any referenced documents, terms or order forms associated hereto constitute the complete and exclusive agreement between the Parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each Party.
12.9 Non-Exclusive Remedies. Except as expressly set forth in this Agreement, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
12.10 Construction of Agreement. The Parties acknowledge and agree that each has been represented by legal counsel of its choice throughout the negotiation and drafting of this Agreement, that each has participated in the drafting thereof, and that this Agreement will not be construed in favor of or against either Party solely on the basis of a Party’s drafting or participation in the drafting of any portion of this Agreement.
12.11 Counterparts. This Agreement may be executed in counterparts, each of will constitute an original, and all of which will constitute one and the same instrument.
12.12 Non-Solicitation. During the Term of and for a period of twelve (12) months thereafter, Customer will not solicit for employment or attempt to engage as an independent contractor any employee or independent contractor of Airware.
12.13 Compliance with Laws. Customer agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, (i) aviation and privacy laws, (ii) the possession, use, import, export or resale of the Subscription Services (as further defined in Section 12.14 below). It is Customer’s obligation to ensure that the Subscription Services are not exported or imported in violation of the laws of any jurisdiction. Where necessary, Customer shall inform Airware at a reasonable time before delivery of any documents which it is necessary for Airware to provide in order to allow export of the Subscription Services in compliance with the laws of any relevant jurisdiction.
12.14 Anti-bribery, anti-corruption and export control. The Parties shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the US Foreign Corrupt Practices Act of 1977 and all other applicable analogous laws in other countries. Save as may otherwise be agreed by Airware and set out in writing in the invoice, Customer is responsible for obtaining, at Customer’s own cost, all such import licenses and other consents in relation to the products as are required from time to time and, if required by Airware, Customer shall make those licenses and consents available to Airware prior to the relevant shipment. Airware shall not be liable for non-performance in the event Customer fails to comply with this Section 12.14. Customer is solely responsible for adherence with all such laws and regulations. Customer undertakes contractually to oblige any third party to whom it discloses or transfers or resells any such Airware products to make an undertaking to it in similar terms to the one set out in this Section. Notwithstanding the foregoing, if requested Customer shall provide Airware with any reasonable assistance to enable Airware to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any export control laws.
12.15 Marketing. Airware expressly agrees that, without Customer’s prior written consent, it shall not disclose or otherwise identify Customer in any of its advertising, publications, or other media that are displayed or disseminated to its customers or other parties, except that Airware reserves the right to include Customer name(s) as a reference. If Customer provides written consent, then Customer grants to Airware a worldwide, royalty-free, non-exclusive license to use its company logo, name and select images of Customer Imagery Data for the limited purpose of displaying such information on Airware’s website and in media specifically approved by Customer.
12.16 Hyperlinked Material. The website used to access the Services may contain hyperlinks to other sites on the Internet that are not owned or controlled by Airware. Airware does not endorse or assume any responsibility for any material on such sites, or any other material outside of the Service, that is accessed directly or indirectly by any such hyperlink.
Questions? Please contact Airware at email@example.com