Terms - Non US Customers
REV 02 – Effective Date: 01 Dec 2024
1. SCOPE OF THE AGREEMENT
1.1 Aviatize B.V. is a company incorporated under Belgian law, having its registered offices in Belgium, Kerkstraat 106, 9050 Gentbrugge, registered under company number 0643.586.288, hereinafter “Aviatize”.
1.2 Aviatize has developed various aviation software products (hereafter the “Tool”) which it offers to customers (“Customer”) as a software-as-a-service (SaaS) together with an optional series of related services (“Services”). When purchasing access to and use of the Tool and/or the Services online via Aviatize’s sales platform, the Customer acknowledges to have read the Terms of Service and to have agreed to these terms. These Terms of Service always take precedence over the terms and conditions of the Customer.
1.3 In this agreement (“Agreement”) Aviatize and the Customer are both referred to as a “Party”, together as the “Parties”.
2. RELATIONSHIP BETWEEN PARTIES
2.1 The Parties shall be deemed to be independent contract parties. Nothing in this Agreement shall be construed to make either Party an agent, employee, joint venturer, partner or legal representative of the other Party. Each Party shall not have, or represent itself to have, any authority to bind or commit the other Party to any oral or written contract, understanding or obligation.
3. ABILITY TO CONTRACT
3.1 The Customer represents and warrants to Aviatize that it has the legal right and authority to enter into this Agreement.
3.2 The Agreement cannot be entered into by a consumer. The Customer represents to be either a professional user of the Services or a legal entity using the Services for professional purposes.
4. ACCESS TO AND USE OF TOOL AND SERVICES
4.1 As of the Effective Date the Customer shall be granted access to the Tool and Services (“Access Rights”).
4.2 The Access Rights are granted for the duration of the Agreement and solely for use in accordance with Article 5.1 below. The Access Rights include a non-exclusive and non-transferable license right to use the Tool and receive the Services, as well as to have the Tool and the Services used by persons operating or maintaining aircraft on behalf of or under the responsibility of the Customer (“Operators”).
4.3 The Access Rights and licenses of this Article are conditional upon the Customer’s and the Customer’s Operators’ strict compliance with Article 5.
4.4 The Customer shall be solely responsible for every use and activity of its account and of the Operator accounts as well as for their protection, confidentiality and security. The Customer as well as each Operator must create a unique password and change it frequently.
5. RESTRICTIONS ON USE
5.1 Unless such restriction is prohibited by applicable law, the Customer and its Operators shall not (“Restrictions”): obtain, access, use or copy or try to or allow others to obtain, access, use or copy the source code of the Tool; reverse engineer, decompile, disassemble, translate or change the Tool, create derivative works based on the Tool or try to discover the trade secrets behind the Tool; market, sell, license or otherwise deliver the Tool to any third party or allow the Tool to be used by any third party, except for the right of the Customer to grant access to the Tool to Operators; use the Tool and/or Services for any other purpose than its own civil-end purposes. It will not use the Tool for any purposes prohibited by applicable law, nor in particular for any purpose connected with chemical or biological or nuclear weapons, or aircraft, missiles or UAVs capable of delivering such weapons; use the Tool and Services in a fraudulent manner (such as making a false account, organizing a denial-of-service attack, or hacking or modifying the Tool); remove, disable, or circumvent any proprietary notices or labels contained on or within the Tool. In general, the Customer and Operators must at all times pay due attention to flight safety, flight conditions, compliance and situations. This Tool may not be used where and when such use might interfere with the safe operation of the aircraft or the safety of others. If a court of competent jurisdiction determines that relevant laws in force may imply that certain of the restrictions specified in this Article 5.1 cannot be accepted or can only partly be accepted, then the restrictions will apply to the fullest extent permitted by law.
5.2 Notwithstanding anything to the contrary in this Agreement, Aviatize may temporarily suspend the access to any portion or all of the Tool or the Services if: (i) Aviatize reasonably determines that (A) there is a threat or attack on the Tool or the Services; (B) the Customer’s or any Operator’s use of the Tool or the Services disrupts or poses a security risk to the Tool or the Services or to any other customer or vendor of Aviatize; (C) Customer or any Operator is using Aviatize Intellectual Property for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Aviatize's provision of the Services to the Customer or any Operator is prohibited by applicable law; (ii) any vendor of Aviatize has suspended or terminated Aviatize's access to or use of any third-party services or products required to enable Customer or any Operator to access the Services; or (iii) if Customer fails to cure any payment default hereunder within the applicable cure period (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Aviatize shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Aviatize shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Aviatize will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Operator may incur as a result of a Service Suspension.
5.3 The Customer will inform all its Operators on these Restrictions on use when allowing access to the Tool and takes full responsibility for its Operators’ compliance therewith.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Intellectual Property Rights mean all intellectual, industrial and other property rights (irrespective of whether these are registered or not), including but not limited to copyrights and related rights, trade names, marks, logos, drawings, models, or applications for registration as a drawing or model, rights in inventions, patents, patent applications, domain names, know-how, trade-secrets, as well as rights to databases, computer programs and semiconductors. The Customer recognizes that all Intellectual Property Rights in the Tool and Services are vested with Aviatize or third parties whom Aviatize has entered into an agreement with.
6.2 Nothing in this Agreement operates as an assignment, a license or a non-assert of any Intellectual Property Rights from Aviatize to the Customer other than the Access Rights and licenses explicitly granted to it in Article 4.
6.3 If the Customer or its Operator provides any suggestions, information or user data to help Aviatize improve or modify the Tool and/or the Services (“Feedback”), the Customer agrees to assign to Aviatize without any additional consideration the entire worldwide right, title and interest in and to the Feedback provided. All Intellectual Property Rights in improvements and modifications shall belong to Aviatize.
7. THIRD PARTY MATERIALS
7.1 The Tool is integrated with or may otherwise interact with third party services and websites. Certain Services may display, include or make available content, data, information, applications or materials from third parties or provide links to certain third party websites or services (e.g. with regard to weather forecasts, aeronautical data, maps, specific legislation, etc.) (“Third Party Materials”). The Customer is responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, legality, decency, quality and/or any other aspect of such Third Party Materials amongst which compliance with: any rights of third parties including Intellectual Property Rights, personal data protection rights or other rights related to data; or any other rights that may be exerted under any applicable legal instrument, national or regional law or regulation. Moreover the Customer must out of its own initiative evaluate, accept and comply with the license terms applicable on the Third Party Materials.
7.2 The Customer acknowledges and agrees that Aviatize does not bear any responsibility related to the Third Party Materials as set out in Article 7.1.
8. USER CONTENT
8.1 The use of the Tool and Service requires that the users, being the Customer and the Operators (“User(s)”) provide certain details or information in relation to the Aircraft used, the pilots, the intended flights, and other content (“User Content”). The User Content may also include historical data that the User on his sole initiative, responsibility and risk, includes in the Tool and Services. Such User Content may for instance but without limitation contain: maintenance instructions, maintenance tasks, maintenance intervals, pilot and crew documents such as but not limited to medicals, licenses qualifications and endorsements.
8.2 Aviatize does not bear any responsibility in relation to the User Content not being correct, up to date or complete. The Users are solely responsible for the User Content, the input of the User Content in the Tool, and for any actions taken on the basis of the User Content. Customer warrants that its Operators will be warned appropriately in accordance with this paragraph.
9. CUSTOMER CONTENT
9.1 In the event of customization of the Tool and Services on request of the Customer, customization will require that the Customer provides certain content in relation to applicable legislation on aircraft, maps concerning sensitive points and any other content necessary for the set-up of the Tool and Services (“Customer Content”). Customer Content may include User Content.
9.2 The Customer is responsible for examining or evaluating, before and after the set-up of the Tool and Services, the Customer’s Content’s accuracy, completeness, timeliness, validity, legality, decency, quality and/or any other aspect of such Customer Content amongst which compliance with: any rights of third parties including Intellectual Property Rights, personal data protection rights or other rights related to data; or any other rights that may be exerted under any applicable legal instrument, national or regional law or regulation.
9.3 The Customer acknowledges and agrees that Aviatize does not bear any responsibility related to the Customer Content as set out in Article 9.1 and 9.2.
10. FINANCIAL OBLIGATIONS
10.1 Applicable fees and services pricing (“Price”) are specified in the quotations (“Quotation(s)”) to which the Customer has agreed by accepting the Quotations online through Aviatize’s sales platform.
10.2 Unless stated otherwise in the applicable Quotations, all payments for which invoices are delivered are due upon receipt. If Aviatize has not received payment of the Price by the applicable due date, this will automatically and by operation of law, give rise to an administrative fee of 75 EUR. The amount due shall automatically and without notification bear an interest of 1% per month from the date payable until full payment is received.
10.3 All Prices are in EUR and are exclusive of applicable sales tax or VAT (Value Added Tax) and all other taxes and duties, with the exception of Aviatize’s corporate taxes. All such taxes and duties, which Aviatize shall have to pay or collect in connection with this Agreement, shall be paid by the Customer in addition to the Prices to which they relate.
11. TERM AND TERMINATION
11.1 This Agreement will enter into force as of the date indicated on the Quotation, or if no such date is indicated on the Quotation, on the date that the Quotation has been accepted by the Customer (the “Effective Date”) and will remain in effect for the Term or until its termination in accordance with the Agreement. The Term is specified in the accepted Quotation and will depend on the subscription entered into. At the end of Term, the Agreement will be automatically renewed unless notice is given at the latest one month prior to end of Term in case of a yearly subscription and at the latest one week prior to end of Term in case of a monthly subscription.
11.2 Either Party may terminate this Agreement immediately by written notice upon the occurrence of a “Serious Default”. Each of the following occurrences will constitute a Serious Default under this Agreement: (a) The Customer or Operator infringes the Intellectual Property Rights of Aviatize in the Tool or Services; (b) Either Party fails to observe any material obligation under this Agreement, and such failure, when capable of being remedied, is not remedied within 30 (thirty) days of receipt of a default notice sent to the Party in breach, by the other Party.
12. EFFECTS OF TERMINATION
12.1 Upon expiration or termination of this Agreement the Customer and its Operators will no longer have Access Rights to the Tool.
12.2 The following sections of the Agreement shall survive the termination of the Agreement: Intellectual Property Rights (6.1, 6.2, 6.3), Third Party Materials (7.1, 7.2), User Content (8.1, 8.2), Customer Content (9.1, 9.2, 9.3), Effects of termination (12.1, 12.2), Liability (13.1–14.5), Confidential Information (16.1, 16.2) and all General Provisions.
13. LIMITATION OF LIABILITY – GENERAL
13.1 All obligations of Aviatize under this Agreement are obligations of means. Aviatize cannot be held liable for any fault on the part of Aviatize or an employee or appointee, except in cases of fraud or gross negligence.
13.2 Except in cases of willful misconduct, Aviatize is not liable for consequential damages such as loss of expected profit, reduced sales, increased operating expenses, loss of clientele, damage to reputation or equipment or loss of data that the Customer, the Operators or third parties might suffer (i) due to any error or negligence on the part of Aviatize or (ii) arising out of or related to the use or inability to use the Tool or Services, and this, even if Aviatize has been advised of the possibility of such damages.
13.3 The liability of Aviatize shall be limited in accordance with Articles 7, 8 and 9. Moreover, in any event, Aviatize’s entire liability under this Agreement, whether in contract or in tort, shall not exceed: the total Price effectively paid for the Services by the Customer under the Agreement, or 5,000 EUR, whichever is the lesser amount.
13.4 The provisions in this Agreement on liability and the limitation or exclusion thereof will apply to the benefit of Aviatize and its directors and collaborators alike. These provisions remain enforceable except to the extent that any mandatory law or regulation, if applicable, provides otherwise. If a court of competent jurisdiction determines that relevant laws in force may imply warranties and liabilities which cannot be excluded or limited or which can only partly be excluded or limited, then the limit on Aviatize’s and/or these persons’ liability set forth in this Agreement will apply to the fullest extent permitted by law. The Customer expressly waives any possible claim against directors and collaborators of Aviatize, except in the event of fraud, impairment of physical or psychological integrity or of an error committed with the intention of causing damage.
14. LIMITATION OF LIABILITY – TOOL AND SERVICES
14.1 The Tool and Services are to the maximum extent permitted by applicable law, provided “as is” and “as available”, “with all faults” and without warranty of any kind, whether express, implied, statutory or otherwise, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose or use, satisfactory quality, accuracy, quiet enjoyment and non-infringement of third party Intellectual Property Rights. Aviatize disclaims any liability for a lack of security associated with the transmission of information over the Internet.
14.2 Aviatize will make reasonable efforts in order to prevent that the Tool would contain faults, bugs, computer viruses and/or malware. Aviatize cannot be held liable for faults, bugs, computer viruses and/or malware, which the Tool would contain despite its efforts.
14.3 Aviatize can in no way be held liable for malfunctioning or temporary or permanent unavailability of the Tool and/or the Services or for any damages resulting thereof. The Customer is familiar with and accepts the inherent vulnerability of the Tool as a software product and an Internet-based application. In the event of unavailability or defect, the Customer’s sole remedy is, at Aviatize’s discretion, either a new attempt to deliver the Service and/or termination of the Access Rights and refund of the Price in proportion to the duration of the frustrated use.
14.4 The Customer will assess the adequacy of the Tool for the Customer’s and Operators’ purposes. The Customer is responsible for the use of the Tool and Services by the Users, the Users’ compliance with Article 5 (Restrictions on use), Article 8 (User Content) and Article 17 (Export), as well as for its compliance with Article 7 (Third Party Materials) and Article 9 (Customer Content). The Customer will defend Aviatize, indemnify all damages and hold Aviatize harmless against all claims of third parties, if such damages or claims are caused by non-compliance in the meaning of this Article.
14.5 Moreover, the Customer will defend, indemnify and hold Aviatize harmless against all claims of Operators for any damages suffered by Operators in relation to the use of the Tool and/or Services. This however does not preclude the Customer from directing any claim against Aviatize on the basis of damages incurred by the Customer in relation to an Operator, if and to the extent that such claim is available under the Agreement.
15. PRIVACY POLICY AND CONSENT WITH USE OF DATA
15.1 Aviatize, in its capacity of controller for the processing of personal data, will process personal data on the Customer and contact persons of the Customer for the purposes of management of the sales relationship, legally required purposes linked to this purpose, and direct marketing. The Customer will make sure not to provide any personal data on itself or its contact persons to Aviatize unless the Customer has duly informed said individuals on the processing of their personal data in accordance with the Aviatize Privacy Policy. Moreover, the Customer agrees that Aviatize may also collect and use personal data of the Users, in order to improve the performance of the Tool. Also technical data, such as any Users’ behavior on the Tool and the corresponding response time of the Tool may be processed in order to make adjustments to improve the usability of the Tool. Aviatize will aggregate such data to try and make sure that this information does not identify any persons, such as the Users. In case any person would still be identified or identifiable, the Privacy Policy will apply. The Customer will inform the Users of the Tool on the processing of their personal data in accordance with the Aviatize Privacy Policy, as soon as the Users create an account on the Tool. Users will also be informed on the use of cookies by a relevant cookie pop-up on the Tool.
15.2 When providing the Services under this Agreement, Aviatize will also process personal data on behalf of the Customer. In that case, Aviatize acts as processor on behalf of the Customer and shall solely act under the Customer’s instruction in relation to the Customer and Operator personal data. The Aviatize Privacy Policy Part II will apply. In that case, the Customer is acting as controller for the processing of the personal data, and must fully comply with applicable data protection legislation.
15.3 Aviatize’s Privacy Policy is published at www.aviatize.com/privacy-policy.
16. CONFIDENTIAL INFORMATION
16.1 The Customer undertakes to treat confidentially the commercial and technical information and trade secrets it learns from Aviatize and not to use it for its own purposes, even after the termination of the Agreement. This confidentiality and non-use obligation shall not apply in relation to information that is or has become part of the public domain otherwise than through a breach of this Agreement.
16.2 The confidentiality and non-use obligations of Article 16.1 in relation to Confidential Information shall apply as of the Effective Date and will expire five years from the date of first disclosure of the Confidential Information to Customer. For Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-use and non-disclosure will continue to apply (even beyond the Term of the Agreement), for as long as such Confidential Information remains subject to trade secret protection under applicable law.
17. EXPORT AND LEGAL COMPLIANCE
17.1 The Customer represents that the Customer and any of its employees, agents, officers, subcontractors, and Operators: are not located in a country that is subject to an EU embargo, or that has been designated by the EU as a “terrorist supporting” country; and are not listed on any EU list of prohibited or restricted parties; and will only use the Tool for civil end-uses and will not use the Tool for any purposes prohibited by applicable law, nor in particular for any purpose connected with chemical or biological or nuclear weapons, or missiles or UAVs capable of delivering such weapons.
17.2 Each Party shall, at its sole cost and expense, obtain and maintain in effect all permits, licenses and other consents necessary to conduct its respective activities hereunder. In particular, the Customer warrants that it and its Operators shall obtain all export permits and consents required in relation to the transfer to or input in the Tool of data that do not fall within the public domain and/or do not stem from public databases.
18. PORTFOLIO
18.1 Aviatize may publicly refer to the identity of the Customer as being a customer of Aviatize for the Tool, without however using any logo of the Customer without the latter’s prior and written consent. The Customer will however not unreasonably withhold his/her consent.
19. GENERAL PROVISIONS – ENTIRE AGREEMENT
19.1 This Agreement together with the Aviatize Privacy Policy and including the quotations or sales orders agreed to, form the entire agreement between the Parties concerning the scope defined in Article 1. This Agreement replaces and annuls any prior written or oral understanding, agreement, offer, correspondence or proposal regarding the scope of the Agreement. Any adjustment or amendment of this Agreement will only be binding upon Parties if agreed upon in writing or electronically. Additional licenses entered into by the Customer will, unless specifically provided otherwise during the order process, equally be governed by this Agreement.
20. WAIVERS
20.1 None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of either Party, unless such waiver is done in writing and signed by an officer of the waiving party. No waiver of any provision of this Agreement on one occasion shall constitute a waiver of any other provision or of the same provision on another occasion.
21. VOID OR UNENFORCEABLE PROVISIONS
21.1 Should any provision of this Agreement be void or unenforceable, the other provisions will not be affected by this and remain in full force and effect. In this case, Parties, within the limits of the applicable law, will draft a new provision that meets the objectives intended by the void or unenforceable provision, and include this as an appendix to this Agreement.
22. FORCE MAJEURE
22.1 Neither Party shall be liable for non-performance or delay in performance of any obligation under this Agreement if such non-performance or delay is caused by an event of force majeure or other circumstance that was reasonably unforeseeable, and which prevents a Party from performing the Agreement. On the occurrence of such event, the affected Party shall immediately inform the other Party of the event, and the reasons why it is not able to perform any or all of its obligations under the Agreement. If within a period of forty-five (45) days, the event continues and the Parties are unable to identify a workable alternative, either Party may terminate this Agreement.
23. GOVERNING LAW AND JURISDICTION
23.1 The validity, interpretation, performance and termination of this Agreement shall be governed by Belgian law. No effect shall be given to any choice-of-law or conflict-of-laws rules or provisions that would cause the laws of any other jurisdiction to be applicable.
23.2 With respect to any dispute arising out of, under, or in connection with this Agreement, the Parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction and venue (and waive any claim of forum non conveniens) of the Business Court Ghent, Ghent department, Belgium. Before instituting proceedings before the Court, Parties will, however, attempt to negotiate in good faith in order to reach an out-of-court settlement.
Aviatize BV
Kerkstraat 106
9050 Gentbrugge
Belgium
www.aviatize.com