Terms & Conditions
AIRWISE SOLUTIONS TERMS AND CONDITIONS OF SERVICE
These Terms and Conditions of Service and any applicable order, proposal, or other separate legal agreement which references these Terms and Conditions that AirWise Solutions, Inc., a Delaware corporation and its affiliates, including UASidekick, Inc. (“AirWise,” “we”, “us”, or “our”), and you (“Customer”, “you”, or “your”), may enter into (collectively, the “Agreement”) cover and govern your use of our web-based and mobile applications (“Apps”), tools, products, and services for drone operations, fleet, and airspace management, and include any related support. AirWise and Customer are sometimes referred to collectively as the “Parties” and individually as a “Party.”
By using and/or registering for AirWise Apps and/or services you agree to review AirWise’s privacy policy (airwisesolutions.com/privacy-policy/) and use the apps and services in accordance with the privacy policy and these Terms. If you do not agree to by bound by this agreement or the privacy policy, then you should not and may not access or use the apps and services.
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; Airspace Terms
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 Platform;
(b) access the AirWise Platform to download and use the AirWise DeveloperMaterials to develop an Application;
(c) develop, use, distribute and display an Application for commercial purposes; and
(d) access and use the AirWise Solution in connection with the foregoing
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 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; (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 any element of the AirWise Solution other than for its intended use; or (g) using the AirWise Application, AirWise Data Streams, AirWise APIs or AirWise Developer Materials 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 AirWise may change the AirWise Solution from time to time, including changing or removing features or functionality from the AirWise Solution, at its sole discretion. Reasons may include but are not limited to enhancement of the quality or delivery of the AirWise Solution or to comply with any applicable law.
2.4 Suspension of AirWise 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 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.
2.5 Airspace and Conditions. It is your responsibility to consult all official sources and exercise reasonable judgment when evaluating whether or not is safe or legal to fly a UAV at a given time or place. The fact that the Airwise Solution may represent that there are no flight restrictions in effect is not a guarantee that it is safe or legal to operate a UAV. These resources are provided for informational purposes only. It is your responsibility to ascertain, verify and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the use, operation, or piloting of UAVs. The Services are not intended for use in, and you may not use the Services for, the operation of manned aircraft navigation or communication systems, air traffic control systems, life support machines or other equipment in which the failure of the Services could lead to death, personal injury, or severe physical or environmental damage.
Section 3. Eligibility; Registration; Support; 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. Notwithstanding the foregoing, for individuals accessing or using the UASidekick Application solely for personal, non-commercial, and recreational (hobby) purposes, the minimum age requirement is 13 years old. Any such user between the ages of 13 and 18 (or the age of legal majority in their state of residence) represents and warrants that they have obtained parental or guardian consent to use the UASidekick Application and to be bound by these Terms and Conditions. AirWise reserves the right to request proof of such consent at any time. Use of the UASidekick Application for any commercial, professional, or non-hobby purpose, or any use of other components of the AirWise Solution, remains subject to the minimum age of 18 years old. 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 Registration, User Names, and Passwords. Authorized Users must create accounts in order to use some or all our Products or Services. You will ensure that your Authorized Users (a) do not share their account credentials, (b) provide accurate account information and promptly update this information if it changes, and (c) use a strong password for their account that is unique to our Services and not used by that Account User in any other website or online service. You will maintain the security of any accounts created by your Authorized Users. If you discover or suspect that someone has accessed the account of one of your Authorized Users without permission, you will promptly notify Company. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal title, including trademark rights, in those usernames.
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 User Names and Passwords. 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, maintaining and paying for 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. AirWise offers support relating to the use and operation of the AirWise Solution for our customers who have completed the registration process and paid the applicable fee if any. From time to time, AirWise may need to access and view Customer Data in order to maintain, provide support, debug or repair an issue.
3.6 AirWise Responsiblities.
(a) AirWise has established, and will maintain during the Term, commercially reasonable administrative, physical and technical safeguards designed for the protection of Customer Data. 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
(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
Section 4. Pricing, Payments and Taxes.
(a) You agree to pay applicable fees set forth on the Order for access to and use of the AirWise Solution. AirWise will invoice Customer as indicated in the Order. Unless otherwise set forth in an Order, Customer will pay invoices upon receipt of the corresponding All fees and applicable taxes, if any, are payable in United States dollars.
(b) If you purchase a Subscription, you will be charged monthly, quarterly, or annual subscription fee, plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your subscription and each month, quarter, or year thereafter, at the then-current subscription fee. By purchasing a Subscription, you authorize AirWise to initiate recurring non-refundable payments in accordance with the anniversary of your Subscription, using the payment information provided until you cancel your Subscription. By electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features, which may be automatic, and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by either party.
(c) Claims. If Customer believes that AirWise has invoiced Customer incorrectly, Customer must contact AirWise no later than sixty (60) days after the date of the invoice in which the claimed error or problem appeared, in order to receive an adjustment or credit, if any. Inquiries should be directed to accounting@airwisesolutions.com.
Section 5. Term and Termination.
5.1 Term. The term of this Agreement will commence on the Effective Date of the Order or at the commencement of Customer use under a Subscription and will continue unless and until the Expiration Date of the applicable Order or Subscription or terminated by either Party under the terms of the Agreement (the “Term”).
5.2 Termination for Material 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 Not withstanding the foregoing, Subscriptions are not eligible for termination until the end of the current Subscription Term.
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
(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
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 including, without limitation, any use of any Application, AirWise Developer Materials and the AirWise Data Streams 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.
Section 7. Ownership; Customer Data
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 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 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.
7.5 Customer Data. In connection with Customer’s use of the AirWise Solution, AirWise may collect and process Customer Data. AirWise may, but have no obligation to, monitor, evaluate, alter or remove submissions before or after they appear on the Services, or analyze your access to or use of the Services. Customer will own all Customer Data and hereby instructs and authorizes AirWise to use, modify, make derivative works of and maintain Customer Data to: (i) provide the AirWise Solution to Customer; (ii) provide related services; (iii) monitor the performance of the AirWise Solution and improve the AirWise Solution, and (iv) develop new product and service offerings (collectively, the “Purpose”). As between AirWise and Customer, Customer retains all right, title and interest in and to any Customer Data. Except as provided in this Section 7, AirWise obtains no rights under this Agreement from Customer to the Customer Data, including any related Intellectual Property Rights. Customer hereby grants to AirWise a perpetual, irrevocable, nonexclusive license to collect, use, store, process and maintain Customer Data via third parties as authorized by the Purpose and to generate De-identified Customer Data. “De-identified” means that the data does not contain any personal data and cannot identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to a particular company, or individual person, including by aggregation and by removing, without limitation, the following identifiers: company names and the names of individuals, addresses, phone numbers, e-mail address(es) and any other information which could reasonably be used to identify a specific company, organization, or individual. Customer Data that has been De-identified shall not be deemed Customer Data and AirWise may copy, modify, display, and otherwise use such De-identified data for any purpose permitted under applicable law, so long as AirWise retains such data in De-identified form and does not attempt to reidentify any such data. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE THROUGH THE SERVICES, YOU DO SO AT YOUR OWN RISK.
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) it is the exclusive owner of the AirWise Solution, or otherwise has the right to provide access to the same to Customer, and that neither the AirWise Solution nor Customer’s access to or use of the same infringes, violates, or misappropriates the patent, copyright, trademark, trade secret, or other Intellectual Property Rights of any third party;
(c) there exists no agreement or restriction that would interfere with or prevent AirWise from entering into this Agreement or providing the AirWise Products described herein;
(d) before AirWise submits the AirWise Platform and AirWise Developer Materials to Third- Party Service providers for hosting, the AirWise Platform and AirWise Developer Materials will be scanned for viruses, worms, Trojan horses or similar software, hardware, system, or combinations thereof with the potential to corrupt, interfere, or otherwise affect access to the AirWise Platform
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, AIRWISE API, AIRWISE DATA STREAMS AND ALL AIRWISE DEVELOPER 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, AIRWISE API, AIRWISE DATA STREAMS OR ANY SERVICE RELATED THERETO INCLUDING ANY WARRANTY THAT THE AIRWISE SOLUTION, THE AIRWISE PLATFORM, THE AIRWISE APPLICATION, AIRWISE API, AIRWISE 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. Force Majeure; Limitations of Liability; Insurance
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 OR AIRWISE DEVELOPER 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, IF ANY, TO AIRWISE FOR THE AIRWISE SOLUTION DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE. YOUR USE OF THIRD-PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD-PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD-PARTY MATERIALS).
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 Each Party is an independent contractor and not a partner or agent of the other. This Agreement will not be interpreted or construed as creating or evidencing any partnership or agency between the Parties or as imposing any partnership or agency obligations or liability upon either Party. 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 Reference Program. Customer may voluntarily consult with AirWise and work in good faith to agree on quotes and statements about Customer’s experience with the AirWise Solution. If Customer volunteers such quotes or statements, AirWise may, at its option, use such quotes and statements in connection with its sales and marketing
11.3 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
11.4 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.
11.5 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.
11.6 Dispute Resolution Procedures. Except for (a) any dispute, cause of action, claim, or controversy relating to Customer’s or AirWise’s Intellectual Property Rights; or (b) any claim for injunctive relief; Customer and AirWise each waive their respective rights to a jury trial and to have any dispute arising out of or related to this Agreement or the AirWise Solution resolved in court. Instead, all disputes arising out of or relating to this Agreement or the AirWise Solution will be resolved through confidential binding arbitration held in Tulsa County, Oklahoma before and in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available on the JAMS website. The arbitrator may only conduct an individual arbitration and may not consolidate more than one party’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one party. Customer and AirWise agree that the state or federal courts of the State of Oklahoma and the United States sitting in Tulsa County, Oklahoma have exclusive jurisdiction over any appeals and the enforcement of an arbitration Any claim Customer may have arising out of or related to this Agreement or the AirWise Solution must be filed within one year after such claim arose; otherwise, the claim is permanently barred.
11.7 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.
11.8 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 The 1980 UN Convention on Contracts for the International Sale of Goods or its successor will not apply to this Agreement. Subject to Section 11.6, 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.
11.9 Entire Agreement. These 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
11.10 Questions or Contacts. If you have a question or complaint regarding the Services, please send an e-mail to info@uasidekick.com You may also contact us by writing to 6737 S 85th E Ave, Tulsa, OK 74133, or by calling us at (864) 400-8027. Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your e-mail correspondence with us
11.11 Additional Terms Applicable to Mobile Devices
The following terms apply if you install, access, or use the Services on any device that contains the iOS mobile operating system (the “iOS App”) developed by Apple Inc. (“Apple”).
(a) Acknowledgement. You acknowledge that these Terms are concluded solely between us, and not with Apple. AirWise, not Apple, is solely responsible for this iOS App and the content thereof. You further acknowledge that the usage rules for the iOS App are subject to any additional restrictions set forth in the Usage Rules for the Apple iOS App Store Terms of Service as of the date you download the App, and in the event of any conflict, the Usage Rules in the Apple iOS App Store will govern if they are more restrictive. You acknowledge that you have had the opportunity to review the Usage Rules.
(b) Scope of License. The license granted to you is limited to a non-transferable license to use the iOS App on any iPhone, iPod touch, iPad, or any other Apple device that you own or control as permitted by the Usage Rules set forth in the Apple iOS App Store Terms of Service.
(c) Maintenance and Support. You and AirWise acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
(d) Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App. In the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the iOS App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of AirWise. However, AirWise has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App.
(e) Product Claims. You and AirWise acknowledge that as between Apple and AirWise, AirWise, not Apple, is responsible for addressing any claims relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to (a) product liability claims, (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
(f) Intellectual Property Rights. The parties acknowledge that, in the event of any third-party claim that the iOS App or your possession and use of the iOS App infringe that third party’s intellectual property rights, AirWise, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
(g) Developer Name and Address. Any questions, complaints, or claims with respect to the iOS App should be directed to:
UASidekick
214 North Campbell Road
Landrum SC 29356
info@uasidekick.com
(h) Third-Party Terms of Agreement. You will comply with any applicable third-party terms when using the Services.
(i) Third-Party Beneficiary. Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
The following terms apply if you install, access, or use the Services on any device that contains the Android mobile operating system (the “Android App”) developed by Google, Inc. (“Google”):
(a) You acknowledge that these Terms are between you and us only, and not with Google.
(b) Your use of our Android App must comply with Google’s then-current Android Market Terms of Service.
(c) Google is only a provider of the Android Market where you obtained the Android App. We, and not Google, are solely responsible for our Android App and the Services and content available thereon. Google has no obligation or liability to you with respect to our Android App or these Terms.
(d) Google is a third-party beneficiary to the Terms as they relate to our Android App.
Appendix A Definitions
“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, any AirWise Developer Materials (including any AirWise APIs), 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 API” means an application programming interface used to interact with the AirWise Platform and AirWise Data Streams.
“AirWise Application” means the AirWise and UASidekick website, portal, mobile application, or other application built or developed 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 Developer Materials” means the instruction manual(s), code samples AirWise APIs, AirWise Documentation and other information and materials made available to Customer through the ‘Developer Zone’ for Customer to develop and build an Application.
“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, AirWise Data Streams and AirWise Developer Materials 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.
“Subscription” means a AirWise Application subscription for the applicable Subscription Term and on the terms set forth in this Agreement.
“Subscription Term” means the duration of the Subscription as indicated at the time of subscribing.
“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.