Terms - US Customers
TERMS OF SERVICE
REV 03 – Effective Date: 01 Dec 2024
1. SCOPE OF THE AGREEMENT
1.1 Aviatize LLC is a limited liability company incorporated under the laws of Arizona, having its principal place of business at 4636E Fighter Aces Drive, Mesa, AZ 85215, USA, with EIN number 93-3919122, hereinafter “Aviatize”. Aviatize LLC is an appointed reseller for the United States of America of aviation software products developed by Aviatize BV, its mother company based in Belgium.
1.2 The Aviatize aviation software products (hereafter the “Tool”) are offered to customers (“Customer”) as a software-as-a-service (SaaS) together with an optional series of related services (“Services”). When purchasing access rights and a sublicense to use 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, its mother company Aviatize BV, or third parties with whom Aviatize or Aviatize BV have entered into an agreement.
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, including 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 to 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 their 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. The 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 Content’s accuracy, completeness, timeliness, validity, legality, decency, quality and/or any other aspect, including 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 – PRICE AND PAYMENT
10.1 Applicable fees and service 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 US$75. The amount due shall automatically and without notification bear interest of 1% per month from the date payable until full payment is received.
10.3 All Prices are in US$ and are exclusive of applicable sales tax, VAT, and all other taxes and duties (excluding Aviatize’s corporate taxes). All such taxes and duties shall be paid by the Customer in addition to the Prices.
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 date that the Quotation has been accepted by the Customer (“Effective Date”), and will remain in effect for the Term or until its termination. The Term is specified in the accepted Quotation and will depend on the subscription entered into. The Agreement will automatically renew unless notice is given at the latest one month prior to end of Term for yearly subscriptions or one week prior for monthly subscriptions.
11.2 Either Party may terminate this Agreement immediately by written notice upon the occurrence of a “Serious Default”, including: (a) The Customer or Operator infringes Aviatize’s Intellectual Property Rights in the Tool or Services; or (b) either Party fails to observe any material obligation, and such failure is not remedied within thirty (30) days of receipt of written notice.
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 shall survive termination: Articles 6, 7, 8, 9, 12, 13, 14, 16, and all General Provisions.
13. LIMITATION OF LIABILITY – GENERAL
13.1 All obligations of Aviatize are obligations of means. Aviatize cannot be held liable except in cases of fraud or gross negligence.
13.2 Except in cases of willful misconduct, Aviatize is not liable for indirect or consequential damages such as lost profits, lost sales, data loss, or reputational harm.
13.3 Aviatize’s liability shall not exceed the total Price effectively paid by the Customer or US$5,000, whichever is less.
13.4 All limitations apply to Aviatize’s employees, directors, and affiliates unless otherwise prohibited by mandatory law.
14. LIMITATION OF LIABILITY – TOOL AND SERVICES
14.1 The Tool and Services are provided “as is” and “as available” without warranties of any kind.
14.2 Aviatize shall make reasonable efforts to avoid bugs, viruses, and defects, but disclaims liability for their presence.
14.3 Aviatize is not liable for unavailability or malfunction of the Tool. The Customer’s sole remedy is re-delivery of the Service or proportional refund.
14.4 The Customer is responsible for ensuring the Tool fits its intended use and shall indemnify Aviatize for non-compliance by Users or Operators.
14.5 The Customer will indemnify Aviatize for claims by Operators arising from their use of the Tool and Services.
15. PRIVACY POLICY AND CONSENT WITH USE OF DATA
15.1 Aviatize, as data controller, may process Customer and contact person data for sales, legal, and marketing purposes. Customer agrees to inform relevant persons and Users in accordance with Aviatize’s Privacy Policy. Aviatize may collect aggregated usage and performance data to improve the Tool.
15.2 When acting as data processor on behalf of the Customer, Aviatize shall follow Customer instructions and comply with Aviatize Privacy Policy Part II.
15.3 Aviatize’s Privacy Policy is available at www.aviatize.com/privacy-policy.
16. CONFIDENTIAL INFORMATION
16.1 The Customer shall keep confidential any commercial or technical information received from Aviatize, unless such information is public through no breach of this Agreement.
16.2 Confidentiality obligations shall last five years from disclosure or indefinitely for trade secrets.
17. EXPORT AND LEGAL COMPLIANCE
17.1 The Customer and its affiliates represent they are not located in, or associated with, sanctioned countries or entities and will use the Tool for civil end-use only.
17.2 Each Party shall obtain any required export licenses or consents and ensure compliance with applicable laws.
18. PORTFOLIO
18.1 Aviatize may publicly refer to the Customer as a client, provided no logo is used without prior written consent.
19. ENTIRE AGREEMENT
19.1 This Agreement, including the Privacy Policy and any applicable Quotes, constitutes the entire agreement between the Parties and supersedes prior versions. Amendments must be in writing or accepted electronically.
20. WAIVERS
20.1 No waiver shall be valid unless in writing. A waiver on one occasion does not apply to future events.
21. VOID OR UNENFORCEABLE PROVISIONS
21.1 If any provision is held void or unenforceable, the remainder of the Agreement shall remain in effect, and the Parties will amend the Agreement to reflect the intended meaning.
22. FORCE MAJEURE
22.1 Neither Party shall be liable for failure to perform due to events beyond reasonable control. If such event continues beyond 45 days, either Party may terminate the Agreement.
23. GOVERNING LAW AND JURISDICTION
23.1 This Agreement shall be governed by the laws of the State of Arizona, excluding any choice-of-law rules.
23.2 All disputes shall be resolved in the state or federal courts of Maricopa County, Arizona. Prior to litigation, the Parties shall attempt good-faith resolution.
Aviatize LLC
4636E Fighter Aces Drive
Mesa, AZ 85215
USA
www.aviatize.com