AIRWISE SOLUTION TERMS AND CONDITIONS OF SERVICE
These AirWise Solution Terms and Conditions of Service are entered into by and between AirWise Solutions, Inc. a Delaware corporation (“AirWise,” “we” or “us”), and the customer using the AirWise Solution (“Customer” or “you”), and are effective as of the date of acceptance of this agreement or of first use of the AirWise Solution, whichever occurs first (“Effective Date”). This Agreement governs all use of the AirWise Solution by Customer. AirWise and Customer are sometimes referred to collectively as the “Parties” and individually as a “Party.”
AirWise and Customer agree as follows:
Section 1. Definitions
Words used in this Agreement with their initial letters capitalized and not otherwise defined will have the meanings specified in Appendix A.
Section 2. Customer’s Rights in the AirWise Solution
2.1 Rights to Use the AirWise Solution. AirWise hereby grants to Customer a limited, nonexclusive, nontransferable, nonsublicensable, revocable right during the Term to, as applicable:
(a) access and use the AirWise Solution through the authorized Customer users for whom Customer has purchased a license or subcription in connection with Customer’s use of AirWise products and services;
(b) access the AirWise Data & Analytics Platform and use the AirWise Developer Materials to develop an Application,
(c) develop, use and distribute an Application; and
(d) access and use the AirWise Solution in connection with the foregoing rights.
2.2 Restrictions; Limitations. Customer may not use the AirWise Solution in any manner or for any purpose other than as expressly permitted by this Agreement. Without limiting the foregoing, the rights granted under this Section 2 do not include or authorize: (a) modifying, disassembling, decompiling, reverse engineering, retaining (except as permitted by this Agreement), or otherwise making any derivative use of any element of the AirWise Solution or using or accessing any element of the AirWise Solution to build a competitive product, service, or to develop, train, or otherwise inform machine learning or artificial intelligence models, or any other analytical tool; (b) using any data mining, robots or similar data gathering or extraction methods, except as provided by the AirWise Solution; (c) downloading (other than page caching or other temporary or ephemeral storage, or as permitted by this Agreement) of any portion of the AirWise Platform or any information contained on the AirWise Platform; (d) performing or disclosing any benchmarking or performance testing of the AirWise Solution, other than for internal analytical purposes; (e) selling, licensing, renting, leasing, assigning, distributing, displaying, hosting, disclosing, outsourcing or otherwise commercially exploiting the AirWise Solution or any AirWise Data Streams except as authorized in this Agreement; (f) using the AirWise Application, or AirWise Data Streams separately from the AirWise Solution. During and after the Term, Customer will not assert, nor authorize, assist or encourage any third party to assert, against any of the AirWise Parties, any patent infringement or other intellectual property infringement claim regarding any element of the AirWise Solution that Customer has used if that claim is related to, in whole or in part, to Customer’s use of such element or otherwise to anything that Customer or any third party has learned about the AirWise Solution arising out of or related to its use thereof. The rights granted under this Section 2 are conditioned on Customer’s continued compliance with this Agreement and will immediately and automatically terminate if Customer does not comply with any material term or condition of this Agreement.
2.3 Changes to AirWise Solution. AirWise may change the AirWise Solution from time to time, including changing or removing features or functionality from the AirWise Solution. AirWise will notify Customer of any discontinuation of the AirWise Solution. Customer shall have a right to terminate this Agreement upon thirty (30) days written notice, with a pro rata refund of any prepaid and unused fees should Customer reasonably determine that the changes made to the AirWise Solution materially affects the functionality, security, performance or Customers’ use of the AirWise Solution in a negative way.
2.4 Suspension of AirWise Solution. AirWise may, in its sole and reasonable discretion, immediately temporarily suspend access to or use of the AirWise Platform by Customer if Customer violates a material restriction or obligation of Customer in this Agreement (including any restrictions described in AirWise related to the AirWise Solution, and any other policies and procedures related to Customer’s access and use of the AirWise Solution), or if in AirWise’s reasonable judgment, the AirWise Solution or any component thereof is about to suffer a significant threat to security or functionality. AirWise will promptly provide advance written notice (email to suffice) to Customer of any such suspension which will include information related to the nature of the circumstances giving rise to the suspension. AirWise will use commercially reasonable efforts to re-establish the affected AirWise Solution promptly after AirWise determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured. AirWise may terminate access to the AirWise Solution if any of the foregoing causes of suspension are not cured within thirty (30) days after AirWise’s initial notice thereof. Any suspension or termination by AirWise under this Section 2.4 will not excuse Customer from its obligation to make payment(s) under this Agreement. Any suspension under this Section shall remain in effect until the applicable breach, if curable, is cured.
Section 3. Eligibility; Registration; Support; Data Practices; AirWise Responsibilities
3.1 Eligibility. Customer’s representative entering into this Agreement must be at least 18 years old (or the age of legal majority in his or her state of residence) to purchase, access or use the AirWise Solution. Customer must ensure all who access or use the AirWise Solution are at least 18 years of age. Customer represents and warrants that it is not: (a) a resident of any country subject to a United States embargo or other similar United States export restrictions, including Iran, Cuba, North Korea, the Region of Crimea, Sudan or Syria; (b) on the United States Treasury Department’s list of Specifically Designated Nationals; (c) on the United States Department of Commerce’s Denied Persons List or Entity List; or (d) on any other United States export control list.
3.2 Access Keys. Customer will receive an access token that permits Customer and Customer’s authorized users to access the AirWise Platform and download or use the AirWise Application (“Access Key”). Customer may not authorize or permit more of its personnel to access or use any component of the AirWise Solution than the number of users for which Customer has purchased a subscription or license. Customer will use commercially reasonable efforts to ensure that Customer and its personnel always: (a) provide accurate, truthful, current and complete information when using or accessing the AirWise Solution; (b) maintain the security of the Access Key; (c) promptly notify AirWise if Customer discovers any actual or potential security breaches related to its Access Key or the AirWise Solution; and (d) take responsibility for all activities that occur pursuant to use of Customer’s Access Key, and accept all risks of unauthorized access by Customer’s and its affiliates’ customers, users, employees, directors, officers, contractors, agents and professional advisors or any other third party using Customer’s Access Key.
3.3 Violations. Customer is responsible for any access to or use of the AirWise Solution, including by any third parties that use Customer’s Access Key. The acts or omissions of any third party under this Agreement are considered the Customer’s acts or omissions, as applicable.
3.4 Equipment. Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the AirWise Solution, including, without limitation, modems, hardware, servers, software, networking, and third-party services to send/receive messages (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, files, and for all uses of the Equipment with or without Customer’s knowledge or consent.
3.5 Support. During the Term, AirWise will provide reasonable levels of support to Customer relating to the use and operation of the AirWise Solution. From time to time, AirWise may need to access and view Customer Data in order to maintain, debug or repair an issue.
3.6 Data Access and Use. Customer owns all right, title and interest in Customer Data, and Customer grants AirWise a non-exclusive right and license during the term to process, store and use the Customer Data for purposes of AirWise’s provision, maintenance, and support of the AirWise Solution. In addition, you understand and agree that we may collect, process, use and retain Usage Data in anonymized form to maintain security, monitor performance, improve service quality and develop and improve our products and services or for any business purpose.
3.7 AirWise Responsibilities.
(a) AirWise has established, and will maintain during the Term, commercially reasonable administrative, physical and technical safeguards for the protection of Customer Data, including use of Third-Party Service providers to provide secure hosting services. Customer acknowledges that Customer Data is hosted and processed on a distributed network owned and maintained by Third-Party Service providers that are responsible for securing the network.
(b) AirWise will provide or arrange for all facilities and equipment that it reasonably considers necessary to develop, host and maintain the AirWise Solution, including, without limitation, a Third-Party Service provider to provide hosting services that is a market leader in security and uptime of their hosting services. AirWise will not make any substantive changes to the Third-Party Service provider’s applicable services that would be reasonably anticipated to result in any material loss of security, functionality or performance of the AirWise Solution as compared to the AirWise Solution as of the Effective Date.
Section 4. Pricing and Payment terms. Customer’s fees and payment terms for the AirWise Solution (“Fees”) will be specified in the agreement and any Order between Customer and AirWise or the AirWise reseller from whom Customer purchased.
Section 5. Term and Termination
5.1 Term. The term of this Agreement will commence on the Effective Date and will continue unless and until Expiration Date of Customer’s subscription pursuant to Customer’s order with AirWise or the applicable reseller, unless earlier terminated by either Party under the terms of the Agreement (the “Term”).
5.2 Termination for Material Breach. If either Party commits a material breach of or default under this Agreement, then the other Party may give notice that the breach or default has occurred (including, but not necessarily limited to, a statement of the facts relating to the breach or default, the provisions of this Agreement that are in breach or default, and the action required to cure the breach or default) and that the Term will terminate pursuant to this Section 5.2 if the breach or default is not cured within thirty (30) days after receipt of notice (or such later date as may be specified in such notice). If the specified breach or default is not cured within thirty (30) days after receipt of such notice (or such later date as may be specified in such notice), then the Term will terminate.
5.3 Termination for Convenience. If there are any Orders currently in effect, either Party may terminate the then-current Order or the Term by providing written notice at least thirty (30) days’ prior to the Expiration Date of the applicable Order, with termination to take effect at the conclusion of the Expiration Date of the applicable Order, or, with respect to termination of the Term, at the conclusion of the last day of the Order with the latest expiration date.
5.4 Effect of Termination. In the event of any termination of an Order or the Term:
(a) if an Order is terminated, but not the Term, all of Customer’s rights under this Agreement with respect to the applicable Order will immediately terminate, the rights granted to Customer in this Agreement with respect to the applicable Order will terminate and Customer will immediately cease any access or use of the AirWise Solution with respect to the applicable Order;
(b) if the Term is terminated, all of Customer’s rights under this Agreement will immediately terminate, the license granted to Customer in this Agreement will terminate and Customer will immediately cease any access or use of the AirWise Solution;
(c) if AirWise terminates the Term for material breach by Customer under Section 5.2, then Customer will remain responsible for the remaining balance of the charges or fees in Customer’s Order and Customer must pay within thirty (30) days of receipt of a final invoice from AirWise, all such amounts, as well as all sums remaining unpaid for other Orders under the Agreement plus related taxes and expenses;
(d) if Customer terminates the Term for material breach by AirWise under Section 5.2, then AirWise shall refund to Customer within thirty (30) days of termination any unused pre-paid fees on a pro rata basis.
(e) Sections 1, 2.2, 3.3, 4, 5.3, 5.4, and 6 through 11 of this Agreement, together with any other provisions that by their nature are intended to survive, will continue to apply in accordance with their terms.
Section 6. Indemnification
6.1 By Customer. Customer will defend, indemnify, and hold harmless the AirWise Parties from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim concerning: (a) Customer’s unauthorized use of the AirWise Solution other than as permitted under this Agreement; (b) any Customer Data, or other data or content related to Customer which Customer provides, uploads, or inputs into the AirWise Solution; or (c) the combination of the Customer Data with other applications, content or processes not approved or agreed to by AirWise. If AirWise is obligated to respond to a third-party subpoena or other compulsory legal order or process described above, Customer will provide commercially reasonable cooperation and will reimburse AirWise for reasonable attorneys’ fees paid by AirWise to its external counsel in response to the third-party subpoena or other compulsory legal order or. For any claims under this Section 6.1, Customer shall obtain AirWise’s written consent prior to (i) selecting and retaining counsel to defend against any claim under this Section 6.1 and (ii) agreeing to any settlement, each of (i) and (ii) not to be unreasonably withheld. AirWise may, at any time, also assume control of the defense and settlement of the portion of any claim subject to this Section 6.1 that is related to the AirWise Solution and Customer’s indemnity and hold harmless obligations will continue to apply to reasonable damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of AirWise’s defense and settlement of such portion of a claim. If Customer controls the defense and settlement of a claim, AirWise may cooperate, at the expense of AirWise, with Customer and its counsel in the defense or settlement of the claim.
6.2 By AirWise. AirWise will defend, indemnify, and hold harmless Customer from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim that alleges that the AirWise Solution infringes, misappropriates, or violates any United States patent, United States trademark or United States copyright or other trade secret or intellectual property right; provided, that Customer (i) gives AirWise prompt written notice of the claim, (ii) authorizes AirWise to control the defense and settlement of the claim, (iii) provides such assistance in connection with the defense and settlement of the claim as AirWise may reasonably request, at Customer’s expense, (iv) does not settle or compromise the claim without the prior written consent of AirWise and (v) complies with any settlement or court order made in connection with the claim (e.g., related to the future use of any infringing AirWise product or service). Further, should the AirWise Solution become, or in AirWise’s opinion be likely to become, the subject of a claim of infringement or misappropriation, AirWise will, at its election and expense, (1) obtain for Customer the right to continue using the AirWise Solution, pursuant to the terms and conditions of this Agreement, or (2) replace or modify the AirWise Solution to become non-infringing or non- misappropriating but functionally equivalent. If neither (1) nor (2) is commercially feasible, AirWise may terminate this Agreement. AirWise’s indemnity obligations under this Section 6.2 do not apply to any claim resulting from: (w) Customer’s acts or omissions; (x) use not in accordance with this Agreement; (y) modifications, damage, misuse or other action of Customer or any third party not approved in writing by AirWise; or (z) any failure of Customer to comply with this Agreement.
Section 7. Ownership
7.1 The AirWise Solution. As between AirWise and Customer, AirWise owns all right, title, and interest in and to the AirWise Solution, and all elements thereof, together with all Intellectual Property Rights therein or thereto, including all right, title, and interest in and to any new products or services developed by AirWise, any Usage Data, and any derivative works of the foregoing developed by AirWise in the course of making available the AirWise Solution. Except as otherwise specified in Sections 2.1 of this Agreement, Customer does not obtain any rights under this Agreement from AirWise to any element of the AirWise Solution, including any related Intellectual Property Rights.
7.2 Feedback. Customer may voluntarily provide AirWise with Feedback and may make itself available to AirWise on a reasonable basis for this purpose. Customer will not provide any such Feedback to any third party without AirWise’s prior written consent in each instance. Any Feedback Customer provides to AirWise may or may not be treated confidentially by AirWise, and AirWise will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to Customer.
7.3 Trademarks. As between AirWise and Customer, AirWise owns all right, title and interest in and to the AirWise Marks and any goodwill arising out of the use of the AirWise Marks will remain with and belong to AirWise and its licensors. The AirWise Marks may not be copied, imitated or used without the prior written consent of AirWise or the applicable trademark holder.
7.4 Additional Protection of Proprietary Rights. Customer will not infringe or violate, and will take appropriate steps and precautions for the protection of, all elements of the AirWise Solution and related Intellectual Property Rights referred to in Section 7.1. Customer will immediately notify AirWise of any Unauthorized Use that comes to Customer’s attention. In the event of any Unauthorized Use relating to the activities of Customer, Customer will take all steps reasonably necessary to terminate such Unauthorized Use. Customer will immediately notify AirWise of any legal proceeding initiated by Customer in connection with any such Unauthorized Use. AirWise or AirWise’s licensor may, at its option and expense, assume control of such proceeding. If AirWise or its licensor assumes such control, AirWise or its licensor will have exclusive control over the prosecution and settlement of the proceeding, and Customer will provide such assistance related to such proceeding as AirWise or its licensor may reasonably request. Customer will assist AirWise or its licensor in enforcing any settlement or order made in connection with such proceeding.
Section 8. Limited Warranties and Remedies
8.1 Warranties. AirWise represents and warrants that:
(a) the AirWise Solution will perform and conform in all material respects with the applicable Documentation when operated in accordance with the applicable Documentation;
(b) AirWise has the right to provide access to the AirWise Solution to Customer,.
8.2 Remedy. Customer must give AirWise notice of a material defect or nonconformance related to the AirWise Solution or this Agreement within thirty (30) days from when Customer becomes aware of such defect or nonconformance. AirWise’s sole obligation with respect to a breach of the warranties in Section 8.1 will be to use commercially reasonable efforts to correct any nonconformance of the AirWise Solution.
8.3 DISCLAIMER. EXCEPT AS SET FORTH IN SECTION 8.1: (A) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE AIRWISE SOLUTION, THE AIRWISE PLATFORM, THE AIRWISE APPLICATION AND DATA STREAMS AND ALL AIRWISE MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND CUSTOMER HEREBY WAIVES, RELEASES, AND DISCLAIMS, ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE AIRWISE SOLUTION, THE AIRWISE PLATFORM, THE AIRWISE APPLICATION, DATA STREAMS OR ANY SERVICE RELATED THERETO INCLUDING ANY WARRANTY THAT THE AIRWISE SOLUTION, THE AIRWISE PLATFORM, THE AIRWISE APPLICATION, DATA STREAMS OR ANY SERVICE RELATED THERETO WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY MATERIALS, OR CUSTOMER DATA PROVIDED BY CUSTOMER OR A THIRD PARTY WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED;
(B) EXCEPT TO THE EXTENT PROHIBITED BY LAW, AIRWISE AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
Section 9. Limitations of Liability
9.1 Force Majeure. Neither Party will be liable for, nor be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond such Party’s reasonable control (including, without limitation, any act or failure to act by the other Party). This paragraph will not apply to any payment obligation of either Party.
9.2 Limitation of Liability. IN NO EVENT SHALL CUSTOMER OR ANY OF THE AIRWISE PARTIES OR AIRWISE’S SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF CUSTOMER DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE AIRWISE SOLUTION, AIRWISE PLATFORM, AIRWISE APPLICATION OR ANY AIRWISE MATERIALS, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN, OR THE PERFORMANCE OF SERVICES EXCEPT FOR (A) A PARTY’S VIOLATION OF SECTION 4 (PRICING, PAYMENTS AND TAXES) OR SECTION 7.4 (ADDITIONAL PROTECTION OF PROPRIETARY RIGHTS) OF THIS AGREEMENT, (B) A PARTY’S VIOLATION OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR (C) A PARTY’S OBLIGATIONS TO INDEMNIFY THE OTHER PARTY. EXCEPT FOR (I) A PARTY’S VIOLATION OF SECTION 4 (PRICING, PAYMENTS AND TAXES) OR SECTION 7.4 (ADDITIONAL PROTECTION OF PROPRIETARY RIGHTS) OF THIS AGREEMENT, (II) A PARTY’S VIOLATION OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR (III) A PARTY’S OBLIGATIONS TO INDEMNIFY THE OTHER PARTY, IN NO EVENT WILL THE AGGREGATE LIABILITY OF CUSTOMER OR ANY OF THE AIRWISE PARTIES OR SUPPLIERS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE COMPENSATION PAID OR PAYABLE BY CUSTOMER FOR THE ACCESS AND USE OF THE AIRWISE SOLUTION DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
Section 10. Confidential Information
Each Party reserves any and all right, title and interest (including, without limitation, any Intellectual Property Rights) that it may have in or to any Confidential Information that it may disclose to the other Party under this Agreement. The Recipient will protect Confidential Information of the Discloser against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information; provided that the Confidential Information of the Discloser is conspicuously marked or otherwise identified as confidential or proprietary, or if the information would be considered confidential by a reasonable person based on the nature of the information or circumstances surrounding its disclosure. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section 10 will not be interpreted or construed to prohibit any use or disclosure of information: (a) that was known to Recipient prior to receiving the same from the Discloser in connection with this Agreement; (b) that is independently developed by the Recipient without use of or reference to the Confidential Information; (c) that is acquired by the Recipient from another source without restriction as to use or disclosure; (d) that is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under this Agreement; (e) that is required by applicable law (e.g., pursuant to applicable securities laws or legal process), provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof (e.g., so as to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure); or (f) that is made with the written consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this paragraph, the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations.
Section 11. Miscellaneous
11.1 Independent Contractors. Each Party is an independent contractor and not a partner or agent of the other. Further, neither Party is authorized to, and will not, enter into or incur any agreement, contract, commitment, obligation or liability in the name of or otherwise on behalf of the other Party.
11.2 No Third-Party Beneficiaries. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a Party to this Agreement.
11.3 Assignment. Customer may not assign this Agreement or any right, interest or benefit under this Agreement without prior written consent of AirWise. Notwithstanding the foregoing, (A) either party may assign this Agreement in its entirety to its successor in interest pursuant to a merger, acquisition, corporate reorganization or sale of all or substantially all of that party’s business or assets which relate to this Agreement, and (B) either party may assign this Agreement to and Affiliate of that party. Any attempted assignment in violation of the foregoing will be void. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by any permitted assignee.
11.4 Nonwaiver. The failure of either Party to insist upon or enforce performance by the other Party of any provision of this Agreement, or to exercise any right or remedy under this Agreement or otherwise by law, will not be construed as a waiver or relinquishment of such Party’s right to assert or rely upon the provision, right, or remedy in that or any other instance; rather the provision, right or remedy will be and remain in full force and effect.
11.5 Severability. If any provision of this Agreement is deemed unlawful, void or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions.
11.6 Applicable Law. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Delaware, U.S.A., without reference to its choice of law principles to the contrary. Customer hereby consents to the exclusive jurisdiction and venue of the state and federal courts located in Tulsa, Oklahoma, U.S.A. with respect to any claim arising under or by reason of this Agreement.
11.7 Entire Agreement. This AirWise Solution Terms and Conditions of Service and any other policy or guideline referenced herein, together with any Order, constitutes the complete and exclusive statement of all mutual understandings between the Parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.
“Affiliate” means with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party.
“Application” means an application developed using the AirWise Developer Materials and incorporating any AirWise APIs or otherwise developed and connecting to or using the AirWise Data Streams through any AirWise APIs
“Confidential Information” means any information that is proprietary or confidential to the Discloser or that the Discloser is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information may be of a technical, business or other nature (including, but not limited to, information which relates to the Discloser’s technology, research, development, products, services, pricing of products and services, employees, contractors, marketing plans, finances, contracts, legal affairs, or business affairs).
“Customer Data” means any data or information provided by Customer to AirWise through the AirWise Platform, or otherwise pushed or used by Customer in connection with its use of the AirWise Solution, AirWise Application or any AirWise Data Streams. This includes any data related to its use of the AirWise Solution, including but not limited to fleet and vehicle information; travel or route information, such as location, heading, and speed; and weather conditions and traffic information.
“Discloser” means a Party that discloses any of its Confidential Information to the other Party.
“Documentation” means the online documentation relating to the AirWise Solution furnished or made
available by AirWise to Customer.
“Feedback” means information and feedback (including, without limitation, questions, comments, suggestions, or the like) regarding the performance, features, functionality and overall Customer experience using the AirWise Solution.
“Intellectual Property Rights” means any patent, copyright, trademark, service mark, trade name, trade secret, know-how, moral right or other intellectual property right under the laws of any jurisdiction, whether registered, unregistered, statutory, common law or otherwise (including any rights to sue, recover damages or obtain relief for any past infringement, and any rights under any application, assignment, license, legal opinion or search).
“Recipient” means a Party that receives any Confidential Information of the other Party.
“AirWise Application” means the AirWise website, portal, or other application marketed and make available by AirWise.
“AirWise Data Streams” means AirWise hosted data streams and related analytics, reporting and other information made available to Customer through the AirWise Solution.
“AirWise Marks” means any trademarks, service marks, service or trade names, logos, and other designations of AirWise and its affiliates.
“AirWise Parties” means AirWise and its affiliates, independent contractors and service providers, and each of their respective members, directors, officers, employees and agents.
“AirWise Platform” means the hosted website through which the AirWise Application and AirWise Data Streams can be accessed.
“AirWise Solution” means the AirWise Platform, AirWise Data Streams, AirWise Application and any analytics, associated support, improvements, updates or upgrades thereto.
“AirWise Solutions Order” or “Order” means a written order that is agreed upon by both parties describing the performance of specific Services under this Agreement.
“Third-Party Service” means software, data, information, or other services acquired or licensed by AirWise or its suppliers from a third party that is included in or used to provide AirWise Solution or otherwise made available to Customer.
“Unauthorized Use” means any use, reproduction, modification, distribution, disposition, possession, examination, inspection, viewing, disclosure or other activity involving the AirWise Solution or Documentation of AirWise that is not expressly authorized under the Agreement or otherwise in writing by AirWise.
“Usage Data” means diagnostic and usage data and other metadata derived from, relating to or arising from Customer Data or from your use of the AirWise Solution.