VERSION 2015.2.3 effective April 11, 2016
2. THE AVINODE SERVICES
2.1 Avinode provides access to the Marketplace via various websites of which the main website is the Site, and as well as via other websites, applications, and platforms that may, from time to time, be included in the Avinode Services (as defined below). The Site and Marketplace are used by Avinode’s members to facilitate the sourcing, reservation, and booking of air charter. Among other things, the Site and Marketplace facilitate the exchange of information, assisting potential booking members to match their needs with what aircraft operating members offer.
2.2 In addition to the Marketplace and other Subscribed Services provided to the Member, Avinode may provide various other services, (as further described in Section 6, below). Avinode’s complete offering of products and services, as modified from time to time, (including the Site, the Subscribed Services, and any other services), are hereinafter referred to as the “Avinode Services”.
3. ACCESS TO THE AVINODE SERVICES
3.1 AUTHORIZED USE
3.1.1 Access to the Subscribed Services is granted to the Member on a membership subscription basis. A valid and effective membership subscription requires a valid Membership Agreement (subject to all of the terms of this Agreement) and a current account balance. Access to the Subscribed Services will be activated once a valid Membership Agreement has been signed by both parties and Avinode has received payment for the first Payment Period (as defined in the Membership Agreement). The Member’s right to use the Subscribed Services is contingent upon the Member’s compliance with all terms of this Agreement and continued timely payment of all fees. The Member may not access or use, and is not authorized to access or use, any Avinode Services other than the Subscribed Services.
3.1.2 The Subscribed Services, as well as the data and information provided through the Subscribed Services, may only be used in support of the Member’s business (and may not be reproduced, sold, rented, or bartered to, or used for the benefit of any third party), subject to the restrictions set forth in this Agreement.
3.2.1 Fees for the Subscribed Services will be in the amount(s) set forth in the Membership Agreement, and will be payable as set forth in the Membership Agreement. The Member shall be solely responsible for any taxes, levies, duties, assessments, or other similar changes on the Subscribed Services, other than taxes based on Avinode's gross income or net receipts.
3.3 MINIMUM REQUIREMENTS
3.3.1 The Avinode Services are designed for use only with certain supported browsers, and are subject to system limitations and minimum operating specifications. The Avinode Services may not work properly if used with other browsers or if these limitations and specifications are not met. The list of supported browsers can be found on the Site at www.avinode.com/avinode-policies/.
3.4 USER IDS AND PASSWORDS
3.4.1 The Member will be provided with the number of user accounts as specified in the Membership Agreement. User accounts may include credentials for access to specific Subscribed Services as well as general account credentials. The Member may only assign user accounts to its employees and representatives as provided in the Membership Agreement, and employees and representatives to which the Member has assigned user accounts may only use those user accounts in connection with the services they perform for the Member’s benefit. Each user account may only be used by the individual user to which the account is assigned. User accounts may not be shared.
3.4.2 The Member is fully responsible for any and all use of the Avinode Services by anyone using a user account provided to the Member, including ensuring that all such users comply with all terms of this Agreement. All obligations of the “Member” hereunder shall also apply to anyone using, or accessing the Avinode Services through, the Member’s account.
3.4.3 Each user account is associated with a specific user ID, password and email. A user account may only be established with a user email that contains the Member’s company domain and the user name must consist of the individual user’s first and last name. User emails that do not contain the Member’s company domain are not allowed, such as @gmail, @yahoo, @hotmail, etc. Any user account established with an email not containing the Member’s domain, or with a user name that does not consist of the individual user’s first and last name may be suspended or terminated without notice.
3.4.4 Each user ID and each password is confidential and the assigned user may not disclose or share it with anyone else, including other employees or representatives of the Member or individuals outside the Member’s organization, and it may not be used for any unauthorized purpose. The Member will use all reasonable efforts to make sure that employees and representatives who are provided with a user ID and a password undertake to keep such information confidential and the Member will implement adequate security measures to make sure that its user IDs and passwords are not disclosed and/or misused.
4.1 USE AND OWNERSHIP
4.1.1 As between Avinode and the Member, any and all content, data, graphics, images and other information that the Member transmits through the Site, the Marketplace, or other Avinode Services ("Submissions") shall remain the Member’s sole and exclusive property. The Member shall be solely responsible for its Submissions. By transmitting Submissions through the Site, the Marketplace, or the other Avinode Services, the Member hereby grants Avinode, its affiliates, and its and their successors a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, sub-licensable (through multiple tiers) and transferable license: (a) to use, copy, display, perform, transmit and otherwise distribute the Submissions on and through the Avinode Services, in any and all mediums, now known or hereafter developed, and (b) to create derivative works of the Submissions in order to mask unique identifying data, such as removing the tail number from a submitted photo, and otherwise as reasonably necessary in connection with the operation of the Avinode Services. The Member also grants each user of the Avinode Services a non-exclusive license to access the Submissions through the Avinode Services and to use, copy, display, transmit, or otherwise distribute its Submissions in relation to their use of the Avinode Services. The Member also agrees that Avinode may, without any obligation to the Member, use, copy, adapt, create derivative works of, distribute, and otherwise exploit any feedback that the Member provides to it regarding the Avinode Services.
4.1.2 The Member agrees to only provide Submissions that it has the right to publish and deems suitable for publication on the Site and the Marketplace and that, to the best of the Member's knowledge, are true, accurate current, complete, and not misleading. Subject to Section 4.2.2, any Submission that the Member provides to Avinode will be deemed public information and not subject to any confidentiality obligation, and Avinode shall have no obligation to maintain its confidentiality.
4.1.3 The Member may only provide Submissions with information in the form of text, numbers, pdf documents, and digital photos intended to be read and understood by other members.
4.1.4 The Member agrees to maintain and promptly update Submissions in order to keep information that has been posted or communicated through the Avinode Services true, accurate, current, complete and not misleading. The Member undertakes to continuously provide Avinode, through the Avinode Services, all relevant information about the Member’s business as it relates to the Avinode Services or to the Submissions. Avinode agrees to remove any Submission made by the Member from display through the Avinode Services within a reasonable time period after written request from the Member.
4.1.5 Avinode may remove any of the Submissions from display in its sole discretion, including but not limited to Submissions it deems to be in conflict with these General Terms and Conditions, any other component of this Agreement, or applicable local, state, federal, national, provincial, foreign, and international statutes, treaties, regulations, rules, ordinances, orders, and other laws (each, a “Law”).
4.2.1 The primary objective of the Avinode Services is to store, analyze and exchange information. Hence, by using the Avinode Services the Member agrees and acknowledges that Avinode may collect, process, and use information in a variety of ways. Such information includes, but is not limited to, information about the Member or provided by the Member, Submissions, information regarding activities on the Site and Marketplace and the use of the Avinode Services, as well as messages sent or received by the Member through the Avinode Services (all information collected from and about the Member being “Member Information”).
4.2.4 The Avinode Services are part of a shared technology platform. This means that some Submissions and Member Information contained therein may be viewable and accessible through the Avinode Services and other systems operated by Avinode and its affiliates (such as SchedAero) and through systems operated by Wyvern Consulting, Ltd. and its affiliates. The Member acknowledges and consents that the Submissions may be shared across all the systems that make up the shared technology platform.
4.2.5 Avinode may use, copy, transmit, distribute, sell, transfer, disclose, and display any information provided through Submissions and other Member Information for any purpose in the form of generic statistical data (for the purpose of these General Terms and Conditions, “generic statistical data” means anonymized aggregated data gathered from at least three different companies).
5.1 The Member may not, and may not attempt to, enter any form of data, device, software or routine that could pose a threat to the security or functionality of the Avinode Services, including but not limited to HTML, ASP, XML, viruses, trojans, hyperlinks, auto responders, time bombs or cancel bots.
5.2 The Member may not, and may not attempt to, damage or interfere with the functionality, security, or proper working of any of the Avinode Services or surreptitiously intercept or expropriate any system, data or information from any of the Avinode Services.
5.3 The Member may not, and may not attempt to, take any action which imposes an unreasonable or disproportionately large load on any of the Avinode Services, or any infrastructure connected therewith, including but not limited to “spam”, denial of service attacks, unsolicited mass e-mailing and other techniques.
5.4 The Member may not, and may not attempt to, use the Avinode Services for any illegal purpose or in any way that violates any applicable Law or violates, infringes, or misappropriates the rights of any third party.
5.5 The Member may not, and may not attempt to, use the Avinode Services to harass or harm any individual or entity, or to impersonate any person or entity, or misrepresent the Member’s affiliation with any person or entity.
5.6 The Member may not use the Avinode Services any purposes other than those expressly authorized by Avinode, and may not use the Avinode Services for any competing purposes.
5.7 The Member may not, and may not attempt to, engage in any form of data scraping, unauthorized downloading, or hacking aimed at accessing or retrieving data or content from any of the Avinode Services.
5.8 The Member may not, and may not attempt to, reproduce, reverse engineer, decompile, disassemble, modify or create derivative works with respect to any of the Avinode Services or any component of any of them.
5.9 The Member may not, and may not attempt to, download any data sets, directories, or content from any of the Avinode Services in order to use it to create or supplement its own or a third party’s data base or service (except with the express written consent from Avinode).
5.10 Any breach by the Member of this Section 5 shall for all purposes be regarded as a “material breach” of this Agreement.
6. AVINODE SERVICES
6.1 Avinode provides a range of different services to its members, which may from time to time include marketplace services, business analysis services, business management tools, customized mobile and web-based application solutions, and application programming interface access. For additional fees, the Member may elect to include additional Avinode Services not already included in the Subscribed Services. Such additional services require an updated Membership Agreement with separate product and price listings for each additional service subscribed to by the Member. Supplemental Terms may also apply. Once added through an updated Membership Agreement, the term “Service” or “Subscribed Service” as used herein and in the Membership Agreement will include all such additional services, and their use will be governed by the provisions of the Membership Agreement, these General Terms and Conditions, and any such Supplemental Terms.
6.2 Any products and services created by or modified by Avinode at the request of the Member may be made available to other Members by Avinode, without restriction, unless otherwise specifically agreed between Avinode and the Member.
7. CHANGES AND AMENDMENTS
7.1 GENERAL TERMS AND CONDITIONS, SUPPLEMENTAL TERMS
7.2 MEMBERSHIP AGREEMENT
7.2.1 The Membership Agreement may be amended, modified or supplemented by either party sending a requested change to the other party, in accordance with the notice provisions of the Membership Agreement, and the other party confirming the requested change in writing or via email.
8. SUSPENSION, CANCELLATION, AND TERMINATION
8.1 Avinode may suspend the Member’s right and license to use any one or more individual Subscribed Services, or may suspend or terminate the right and license of anyone using any of the Member’s user accounts to use any one or more individual Subscribed Services, or may terminate this Agreement in its entirety (and, accordingly, the Member’s and all its account user’s rights to use all Avinode Services), for cause effective immediately upon notice to the Member if any of the following occur, or if Avinode has grounds to suspect any of the following: (i) the Member breaches this Agreement, (ii) the Member or any such user attempts a denial of service attack on any of the Avinode Services; (iii) the Member or any such user attempts to hack or break any security mechanism on any of the Avinode Services or Avinode otherwise determines that the Member’s or any such user’s use of the Avinode Services poses a security or service risk to Avinode, any Avinode affiliate, or any user of any Avinode Services, or may subject any of them or any third party to liability, damages or danger; (iv) the Member or any such user otherwise uses the Avinode Services in a way that disrupts or threatens the Avinode Services; (v) Avinode determines, in its sole discretion, there is evidence of fraud with respect to the Member’s account; (vi) Avinode receives complaints about the Member’s (or any such user’s) use of the Avinode Services from other Members, and, if such complaint is susceptible of resolution, such complaint has not resolved to Avinode’s satisfaction within ten (10) days after written notice to Member thereof; (vii) the Member or any such user uses any of the Avinode Services or Marks (as defined below) other than as expressly permitted in this Agreement, and, if such use is susceptible of correction, such use has not ceased within ten (10) days after written notice to Member thereof; (viii) Avinode receives notice or otherwise determines, in its sole discretion, that the Member or any such user may be using the Avinode Services for any illegal purpose or in a way that violates applicable Law or violates, infringes, or misappropriates the rights of any third party; (ix) Avinode determines, in its sole discretion, that Avinode’s provision of any of the Subscribed Services to the Member or any such user is prohibited by applicable Law, or has become impractical or unfeasible for any legal or regulatory reason; (x) the Member is in default of any payment obligations under this Agreement; or (xi) subject to applicable Law, upon the Member’s liquidation, commencement of dissolution proceedings, disposal of its assets, failure to continue its business, assignment for the benefit of creditors, or if it becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding. A breach by the Member of any other agreement entered into with Avinode or any of its affiliates shall be deemed and treated as a breach of a material provision of this Agreement, and shall entitle Avinode to the same remedies as if the Member had breached this Agreement.
8.2 The Member may terminate this Agreement or remove any Avinode Service from the Subscribed Services at once in the event that Avinode is in material breach of this Agreement and such breach has not been cured within ten (10) days after written notice thereof (or immediately if such breach is not susceptible of cure).
8.3 Either party may terminate this Agreement in its entirety without cause by providing sixty (60) days’ written notice. The termination will take effect the first (1st) day of the month following the end of the sixty (60) day notice period. In addition, the Member may elect to discontinue receiving any particular Avinode Services set forth in the Membership Agreement from the Subscribed Services by giving Avinode at least ten (10) days written notice, such removal to be effective from the first (1st) day of the month following end of the ten (10) day notice period, except as otherwise provided in the Membership Agreement.
8.5 The first time the Member enters into a Membership Agreement, it may cancel its membership with immediate effect within seven (7) business days of the agreement start date. A request for cancellation must be submitted in writing.
9. EFFECT OF SUSPENSION, MODIFICATION OF SERVICES, TERMINATION, OR EXPIRATION
9.1 Upon suspension of the Member’s use of any Subscribed Services, in whole or in part, for any reason, (i) the Member will remain liable for all fees, charges, and any other obligations with respect to the suspended Subscribed Services; (ii) fees will continue to accrue for any Avinode Services that are still in use by the Member, notwithstanding the suspension; and (iii) all of the Member’s rights with respect to the suspended Subscribed Services shall be terminated during the period of the suspension.
9.2 Upon termination or expiration of this Agreement for any reason: (i) the Member remains liable for all fees, charges and any other obligations incurred through the date of termination or expiration with respect to the Subscribed Services; (ii) all of the Member’s rights under this Agreement and all of the Member’s rights with respect to the Avinode Services shall immediately terminate; and (iii) the rights and obligations of the parties under Sections 4.1.1, 4.2, 5, 9, 10, and 13 through 28 will survive the termination or expiration of this Agreement. No termination or expiration of this Agreement will relieve either party of any liability for any breach of, or liability accruing under, this Agreement prior to termination or expiration.
9.3 Refunds will only be issued for pre-paid future services, subject to any limitations and fee minimums under these General Terms and Conditions and any Supplemental Terms. No refunds will be given for periods that have already passed or with respect to any services that have been rendered. If certain Subscribed Services are terminated but the Membership Agreement remains in effect with respect to any other Subscribed Services, then the amount of any refund will be issued in the form of a credit to the Member’s account and applied to the Member’s next invoice(s).
9.4 To the maximum extent permitted by Law, fees with respect to the first 90 days of any Subscribed Services will remain payable by the Member in the amounts specified in the Membership Agreement, even if the such Subscribed Services are terminated or suspended before the end of the initial 90-day period. The Supplemental Terms for particular Subscribed Services may require additional minimum payments.
9.5 Notwithstanding any other term of this Agreement to the contrary, should a first-time Member choose to cancel within the first seven (7) days of membership, Avinode will issue a refund for any pre-paid amounts, less one month’s fees and any applicable one-time set up fees, and, to the maximum extent permitted by applicable Law, subject to any fee minimums required under any Supplemental Terms.
9.6 Should the Member choose to not renew the Membership Agreement, a refund will be issued to the Member for any pre-paid amounts.
9.7 If the Member terminates this Agreement or removes any Avinode Service from the Subscribed Services for Avinode’s material breach in accordance with Section 8.2, the Member is entitled to a refund of any applicable remaining pre-paid amounts, notwithstanding any fee minimums otherwise required under Section 9.4 or any Supplemental Terms. If Avinode terminates or removes any Avinode Service from the Subscribed Services the this Agreement in accordance with Section 8.1 or for the Member’s material breach in accordance with Section 8.2, no refund will be given.
10. MEMBER’S REPRESENTATIONS, UNDERTAKINGS AND WARRANTIES
10.1 By entering into this Agreement and by using any Avinode Service, the Member represents, undertakes and warrants that upon execution of this Agreement and at all times after that:
(a) the Member is a duly formed and validly existing company, corporation, partnership, sole proprietorship, or similar legal entity under the Laws of its place of business, registration, and formation;
(b) the execution, delivery, and performance of this Agreement is duly authorized by the Member and this Agreement has been duly executed and delivered for and on behalf of the Member by persons authorized to do so;
(c) any person that is provided with a user account, and the user ID and the password associated to such account, has the right and authority to act through the Avinode Services on behalf of the Member;
(d) all information provided by or on behalf of the Member to Avinode or through the Avinode Services, is and will be true, correct and not misleading;
(e) the Member owns and/or has the necessary licenses, rights, consents, and permissions to use and authorize Avinode to use all patent, trademark, trade secret, copyright or proprietary rights in and to any and all Submissions to enable inclusion and use of the Submissions by the Avinode Services;
(f) when submitting any aircraft availability through the Avinode Services with the intent to be displayed to other Members through the Avinode Services, the Member represents and warrants that (i) the relevant aircraft is available for charter as detailed, (ii) the operator of the aircraft has a valid Air Operation Certificate or Part 135 Certificate for that aircraft, and (iii) the registration number provided is valid and relates to the aircraft offered;
(g) the Member shall comply with all applicable Laws, as well as all applicable industry standards, including obtaining all necessary permits and/or approvals, in connection with the performance of its obligations under this Agreement, the use of the Avinode Services, and the marketing, selling and/or operation of charter flights; and
(h) the Member is not insolvent, has not gone into liquidation, has not had a receiver appointed for any or all of its assets, has not entered into receivership, is not declared bankrupt, has not taken general measures to cease payments of its debts, has not entered into negotiations for a general agreement with its creditors, has not entered into composition, reorganization or similar arrangements with its creditors.
11. AVINODE’S REPRESENTATIONS, UNDERTAKINGS AND WARRANTIES
11.1 By entering into this Agreement and by providing the Subscribed Services, Avinode represents, undertakes and warrants that upon execution of this Agreement and receipt of the Membership Fee that:
(a) Avinode is duly incorporated and validly existing under the Laws of its jurisdiction of incorporation; and
(b) the execution, delivery and performance of this Agreement is duly authorized by Avinode and has been duly executed and delivered for and on behalf of Avinode by persons authorized to do so.
11.2 Subject to Section 12, Avinode shall use commercially reasonable efforts to keep the Site and the Marketplace available twenty four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Avinode reserves the right to make the Site, the Marketplace, and the other Avinode Services unavailable from time to time in order to install new releases, to perform maintenance, or to undertake activities to protect or improve the Site, the Marketplace, and the other Avinode Services or the information provided through them. Avinode will make reasonable efforts to notify members in advance of any planned system downtime expected to last more than 30 minutes by posting notices on the Site and/or by sending an e-mail notification to the Member at the e-mail address associated with the Member’s user account(s) that have administrative rights. Avinode does not assume responsibility for unavailability and downtime caused by force majeure or other events and circumstances beyond Avinode’s control, it being understood that failure in the transfer of data, problems inherent in the use of communication facilities and failures caused by any Member not adhering to Avinode’s instructions or policies will always be considered circumstances beyond Avinode’s control.
12. RIGHT TO DISCONTINUE OR MODIFY SERVICES
12.1 Avinode reserves the right to discontinue or suspend providing the Avinode Services, in part or in their entirety, and to modify the Avinode Services or any nature, features, functions, scope, or operation thereof, at any time and from time to time. AVINODE, ITS AFFILIATED ENTITIES, AND ITS AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, AND LICENSORS (COLLECTIVELY, THE “AVINODE PARTIES”) SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY SUCH DISCONTINUANCE, SUSPENSION, OR CHANGES, OR FOR TERMINATING ANY RIGHTS GRANTED HEREIN, REMOVING ANY SUBMISSIONS, OR SUSPENDING, MODIFYING, OR TERMINATING THE MEMBER’S MEMBERSHIP OR THE MEMBER’S ACCESS TO THE AVINODE SERVICES (OTHER THAN WITH RESPECT TO ANY REFUNDS THAT MAY BE PAYABLE IN ACCORDANCE WITH SECTION 9 ABOVE).
13. NO RESPONSIBILITY FOR OTHER MEMBERS, THIRD PARTY CONTENT, OR THIRD PARTY SERVICES
13.1 The Member acknowledges that Avinode is neither a broker nor an operator of charter flights. Avinode is not a party to transactions or contractual arrangements that may arise between its members, even if Avinode facilitates those transactions or arrangements, or the payments related thereto. Because Avinode’s members are independent entities with their own operating policies, procedures and processes, and because they operate independently of Avinode, Avinode cannot and will not control or monitor their actions. Avinode does not investigate or endorse any of its members, their services or the quality or legality thereof, or their ability to pay for services. Any agreements entered into by the Member, anyone using the Member’s user account, the Member’s employees, contractors, and representatives, the Member’s clients, the users of any applications provided by Member for access to the Avinode Services, and all other persons to whom the Member provides access to any Avinode Services (collectively, the “Member Parties”) with any Avinode member or other user of the Avinode Services as a result of the use of the Avinode Services are at the sole discretion and risk of such Member Party, and each Member Party bears the full responsibility for the payment and performance of all agreements entered into with Avinode members and users. Avinode has no responsibility to intervene in any disputes between Member Parties, to terminate or suspend any Member Party’s right to use the Avinode Services based on any complaint by any other Member Party or for any other reason, or to provide contact information for any Member Party to any other Member Party. WITHOUT LIMITING THE GENERALITY OF SECTIONS 14 AND 15 OF THESE GENERAL TERMS AND CONDITIONS, THE MEMBER ACKNOWLEDGES AND AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AVINODE PARTIES SHALL NOT BE RESPONSIBLE FOR, AND SHALL NOT INCUR ANY LIABILITY TOWARDS THE MEMBER PARTIES FOR ANY LOSS OR DAMAGE (INCLUDING WITHOUT LIMITATION, FINANCIAL LOSS, LOSS OF BUSINESS, PROPERTY DAMAGE, EMOTIONAL DISTRESS, PERSONAL INJURY, OR DEATH) RESULTING FROM OR ARISING OUT OF: (A) ANY INFORMATION PROVIDED OR ANY REPRESENTATION MADE BY ANY MEMBER OR ANY OTHER AVINODE SERVICES USER (B) ANY AGREEMENTS ENTERED INTO BY ANY MEMBER PARTY WITH A MEMBER OR ANY OTHER AVINODE SERVICES USER; (C) ANY PAYMENTS OWED BY ANY MEMBER OR ANY OTHER AVINODE SERVICES USER TO ANY MEMBER PARTY; OR (D) ANY SERVICES RENDERED BY, OR ANY ACTS OR OMISSIONS OF, ANY MEMBER OR ANY OTHER AVINODE SERVICES USER (INCLUDING WITHOUT LIMITATION ANY AIR CHARTER SERVICES, OR ANY DELAY, ACCIDENT, OR COMPLICATIONS RELATED THERETO), REGARDLESS OF WHETHER AVINODE FACILITATED THE UNDERLYING TRANSACTIONS AND REGARDLESS OF THE BASIS OF SUCH CLAIMS, AND THE MEMBER, ON BEHALF OF ITSELF AND THE OTHER MEMBER PARTIES, HEREBY WAIVES AND RENOUNCES ANY RIGHT IT OR THEY MAY OTHERWISE HAVE TO CLAIM INDEMNIFICATION FROM ANY AVINODE PARTY IN SUCH RESPECT.
13.2 Content available through the Avinode Services includes information, software, and other content provided by the members of Avinode’s services, data providers, and other third parties (“Third Party Content”). In addition, portions of the Avinode Services may allow the Member or other Member Parties to use third party products and services, such as payment services, and may link to other websites operated by, or content provided by, third parties. In addition, other websites may link to the Site or other Avinode Services. These other products, services, websites, and resources are referred to here as “Third Party Services”. Use of Third Party Services is subject to the license agreements, terms and conditions, privacy policies, and other policies and agreements applicable to those Third Party Services. Avinode has no control over any Third Party Content, any Third Party Services, or any content available on or through any Third Party Services, which are made available to the Member or other Member Parties through the Site and other Avinode Services only as a convenience. THE AVINODE PARTIES HAVE NO RESPONSIBILITY FOR, AND WILL HAVE NO LIABILITY ARISING OUT OF OR RELATED TO, ANY THIRD PARTY CONTENT, THE USE OR DOWNLOADING OF ANY THIRD PARTY CONTENT, THIRD PARTY SERVICES, OR THE CONTENTS OF ANY THIRD PARTY SERVICES. THE AVAILABILITY OF ANY THIRD PARTY CONTENT OR THIRD PARTY SERVICES ON THE SITE OR OTHER AVINODE SERVICES IS NOT AN ENDORSEMENT OF SUCH THIRD PARTY CONTENT OR THIRD PARTY SERVICES, THE PROVIDERS OF SUCH THIRD PARTY CONTENT, OR THE OPERATORS OF THOSE THIRD PARTY SERVICES.
13.3 WITH RESPECT TO ANY ISSUES ARISING OUT OF OR RELATING TO ANY THIRD PARTY CONTENT, THIRD PARTY SERVICES, OR ANY AGREEMENTS WITH, SERVICES RENDERED BY, OR ACTS OR OMISSIONS OF ANY MEMBER, ANY OTHER AVINODE SERVICES USER, OR ANY OTHER THIRD PARTY, THE MEMBER HEREBY AGREES, ON ITS OWN BEHALF AND ON BEHALF OF THE OTHER MEMBER PARTIES, TO ONLY SEEK LEGAL REDRESS FROM SUCH OTHER MEMBER, USER, OR THIRD PARTY, AND NOT ANY AVINODE PARTY.
14. DISCLAIMER OF WARRANTIES
14.1 TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SITE AND THE OTHER AVINODE SERVICES IS AT THE MEMBER PARTIES’ SOLE RISK. AVINODE PROVIDES THE SITE, THE AVINODE SERVICES, AND ALL OTHER MATERIALS PROVIDED BY ANY AVINODE PARTY IN CONNECTION WITH THE MEMBER PARTIES’ USE OF THE AVINODE SERVICES “AS IS”, “WHERE IS”, AND “AS AVAILABLE”. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE AVINODE PARTIES MAKE NO WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. THE AVINODE PARTIES DISCLAIM ALL EQUITABLE INDEMNITIES.
14.2 EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE AVINODE PARTIES MAKE NO REPRESENTATION OR WARRANTY THAT: (A) THE AVINODE SERVICES WILL MEET THE MEMBER PARTIES’ REQUIREMENTS, (B) THE INFORMATION, INCLUDING THIRD PARTY CONTENT, AVAILABLE THROUGH THE AVINODE SERVICES WILL BE ACCURATE, TRUTHFUL, COMPLETE, LAWFUL, RELIABLE, OR OF ANY PARTICULAR QUALITY, (C) THE AVINODE SERVICES WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY, OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, TIMELY, ACCURATE, SECURE, ERROR FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (D) THAT ANY MESSAGES OR OTHER INFORMATION TRANSMITTED OR PURPORTED TO BE TRANSMITTED THROUGH THE AVINODE SERVICES WILL BE TRANSMITTED TIMELY, ACCURATELY, OR AT ALL.
14.3 NO ADVICE OR INFORMATION OBTAINED BY ANY MEMBER PARTY FROM ANY AVINODE PARTY OR FROM ANY THIRD PARTY OR THROUGH THE SITE OR ANY OTHER AVINODE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
15. LIMITATION OF LIABILITY
15.1 IN NO EVENT SHALL ANY AVINODE PARTY BE LIABLE TO ANY MEMBER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA OR OTHERWISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY AVINODE SERVICES OR THE USE THEREOF, OR ANY OTHER MATERIALS PROVIDED BY ANY AVINODE PARTY IN CONNECTION WITH THE USE OF THE AVINODE SERVICES USE THEREOF, WHETHER BASED IN CONTRACT, WARRANTY, TORT, OR ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH AVINODE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.2 The cumulative liability of the Avinode Parties to the Member Parties with respect to this Agreement and the Avinode Services shall in no event exceed an amount corresponding to the Membership Fee (as defined in the Membership Agreement) actually paid by the Member for one year of membership. The cap on liability set forth in the preceding sentence shall not apply to losses or damages caused by the willful misconduct by Avinode, its officers, employees, agents, or representatives.
15.3 The Member acknowledges that it is entering into this Agreement only with the Avinode entity that signed this Agreement and that each Avinode entity is operating on a stand-alone basis, and the Member further acknowledges and agrees that any claims against Avinode shall only be made against the Avinode entity that signed this Agreement (or such Avinode group entity to which this Agreement has been transferred or assigned in accordance with Section 24). Avinode expressly disclaims and renounces any form of cross guaranties or similar intra-group responsibility between any Avinode entities, which the Member acknowledges by entering into this Agreement with the contracting Avinode entity only.
16. EXCLUSIONS AND LIMITATIONS
16.1 Some jurisdictions do not allow the limitation of certain warranties or the limitation or exclusion of liability for indirect, consequential, incidental, special, punitive, or exemplary damages. Accordingly, some or all of the above exclusions or limitations may not apply to the Member Parties. To the extent the Avinode Parties may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of liability of the Avinode Parties shall be the minimum permitted by applicable Law.
17.1 SUBJECT TO THE LIMITATIONS SET FORTH IN THESE GENERAL TERMS AND CONDITIONS, THE MEMBER AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE AVINODE PARTIES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, EXPENSES, AND DAMAGES, INCLUDING WITHOUT LIMITATION, FINANCIAL LOSS, LOSS OF BUSINESS, PROPERTY DAMAGE, EMOTIONAL DISTRESS, PERSONAL INJURY, OR DEATH, (INCLUDING ATTORNEY’S FEES) RESULTING FROM: (A) ANY AND ALL BREACHES OF ANY PROVISIONS OF THIS AGREEMENT BY ANY MEMBER PARTY, (B) ANY AND ALL USE OR MISUSE OF THE AVINODE SERVICES BY ANY MEMBER PARTY, AND (C) ANY AND ALL SERVICES RENDERED BY, OR ANY ACTS OR OMISSIONS OF, ANY MEMBER PARTY (INCLUDING WITHOUT LIMITATION ANY AIR CHARTER SERVICES, OR ANY DELAY, ACCIDENT, OR COMPLICATIONS RELATED THERETO).
18.1 Nothing in this Agreement shall mean that any of Avinode’s ownership, intellectual property rights, license rights, or the like, or part thereof, is assigned, sub-licensed or transferred to the Member.
18.2 With respect to ownership of data and information on the Site and available through the other Avinode Services, each member only owns the information provided through its own Submissions, subject to the provisions of Section 4. As between the Member and Avinode, all other data, source code, and any other code and information are owned by Avinode.
18.3 “Avinode,” the Avinode logo, “SchedAero”, and other names, logos, and materials displayed on the Site and the other Avinode Services constitute trademarks, trade names, service marks, and logos (each, a “Mark”) of Avinode, its affiliates, licensors, or other entities. Ownership of the Marks and the goodwill associated with the Marks remains with Avinode or those other persons or entities. Avinode grants the Member the limited right to display the Marks solely as they appear on the Subscribed Services and the components thereof. The Member agrees not to remove any Marks or any other proprietary notices from any components of any Avinode Services.
19. INFRINGEMENT CLAIMS
Avinode respects the intellectual property rights of others. Accordingly, Avinode has a policy of removing Third Party Content that violates copyright, trademark, or other intellectual property Laws, and in certain cases suspending access to all or any portion of the Avinode Services to a member who uses the Avinode Services in violation of any such Law and/or terminating in appropriate circumstances access to the Avinode Services and the user account of a member who uses the Avinode Services in violation of any such Law. Avinode has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with Title 17 of the United States Code, Section 512. If the Member or any other person believes its copyright, trademark, or other intellectual property right is being infringed by a member or other user of any of the Avinode Services, it may provide written notice to the following agent for notice of claims of infringement:
Chief Financial Officer
Avinode Share Services AB
Odinsgatan 10 SE-411 03 Göteborg, Sweden
Tel: +46 31 751 0000
Fax: +46 31 751 0098
The written notice must: (a) contain the physical or electronic signature of the claimant; (b) identify the copyrighted work, trademark, or other intellectual property alleged to have been infringed; (c) identify the allegedly infringing material in a sufficiently precise manner to allow Avinode to locate that material; (d) contain adequate information by which Avinode can contact the claimant (including postal address, telephone number, and e-mail address); (e) contain a statement that the claimant has a good faith belief that use of the copyrighted material, trademark, or other intellectual property is not authorized by the owner, the owner's agent, or the Law; (f) contain a statement that the information in the written notice is accurate; and (g) contain a statement, under penalty of perjury (in the case of a claim of copyright infringement), that the claimant is authorized to act on behalf of the copyright, trademark, or other intellectual property right owner.
20.1 The parties undertake to keep confidential the terms of the Membership Agreement, including but not limited to information regarding prices, service levels, and payment terms.
20.2 Notwithstanding Section 20.1, the parties may disclose any information that it is otherwise required to keep confidential under this clause:
(a) to such employees, professional advisers, consultants or officers of either party as are reasonably necessary to advise either party in relation to the Membership Agreement, if the disclosing party ensures that the people to whom the information is disclosed keep it confidential as if they were themselves bound by these provisions; or
(b) to the extent that the disclosure is required:
(i) by Law; or
(ii) by a regulatory body, tax authority, or securities exchange; or
(iii) to make any required filing with, or obtain any authorization from, a regulatory body, tax authority or securities exchange; or
(iv) to protect either party’s interest in any legal proceedings.
The parties shall in each case set forth in subsection (b) above use reasonable endeavors to consult the non-disclosing party and take into account any reasonable requests the non-disclosing party may have in relation to the disclosure before the disclosing party makes it.
20.3 This Section 20 shall survive termination or expiration of the Membership Agreement and remain in effect for a period of two (2) years thereafter.
21. EXPORT CONTROL AND RESTRICTED COUNTRIES
The Member may not use, export, re-export, import, or transfer any Avinode Services except as permitted under all applicable Laws. In particular, but without limitation, no Avinode Service may be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. The Member represents and warrants that (i) no Member Party is resident or citizen of, and no aircraft listed by any Member Party is located or registered in, a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) no Member Party is listed on any U.S. Government list of prohibited or restricted parties. No Member Party may use any Avinode Services for any purpose prohibited by U.S. Law or any other applicable Law.
22. LEGAL STATUS
Avinode and the Member are both independent contractors. No agency, partnership, joint venture or any other relationship of such kind is intended or created by the Member’s entry into this Agreement or the Member’s use of the Avinode Service, or the information exchanged by such means.
23. ENTIRETY OF THE AGREEMENT
24.1 Avinode may assign this Agreement to any other entity that, at the time of such assignment, either directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with Avinode.
24.2 The Member may not assign this Agreement to any other party without the prior written consent of Avinode, such consent not to be unreasonably withheld or delayed.
25. ELECTRONIC COMMUNICATIONS NOTICE
When the Member uses the Avinode Services or send emails to Avinode, the Member is communicating with Avinode electronically. The Member consents to receiving communications from Avinode electronically (such as by email or by posting notices on the Site). The Member agrees that all agreements, notices, disclosures, and other communications that Avinode provides to the Member electronically satisfy any legal requirement that such communications be in writing. In order to access any such communications, the Member must have a computer or mobile device. In order to retain copies of any such communications, the Member must have a printer or data storage device. If the Member has a printer, it may print paper copies of any such communications for its own use. In addition, the Member hereby consents to Avinode sending it email or other communications related to the Avinode Services from time to time. If the Member wishes to withdraw its consent for Avinode to communicate with it electronically, it must terminate its use of the Avinode Services and all of its users accounts.
26.1 The headings of these General Terms and Conditions, and the other components of this Agreement, are for convenience only and shall not affect the interpretation of any provision of this Agreement.
26.2 The provisions of this Agreement shall be construed according to their fair meaning and neither for nor against the party which caused such provisions to be drafted.
26.3 In the event of conflict between the provisions of the Membership Agreement and these General Terms and Conditions, the provisions of the Membership Agreement shall prevail.
27. PARTIAL INVALIDITY AND WAIVER
27.1 If any provision of these General Terms and Conditions or any other component of this Agreement, or the application of them, is declared or deemed void, invalid or unenforceable in whole or in part for any reason, the parties shall amend these General Terms and Conditions and/or such other component of this Agreement, as shall be necessary to give effect to the spirit and purpose of these General Terms and Conditions and the other components of this Agreement, as far as possible. If the parties fail to amend these General Terms and Conditions and/or such other component of this Agreement, the provision which is void, invalid, or unenforceable shall be deleted and the remaining provisions of these General Terms and Conditions and the other components of this Agreement shall continue in full force and effect.
27.2 Waiver by one party of strict performances of any provision of these General Terms and Conditions or any other component of this Agreement will not be a waiver of or prejudice to such party’s right to require strict performance of the same provision in the future or of any other provision.
28. GOVERNING LAW AND DISPUTES
28.1 If the Avinode entity that signed this Agreement is Avinode, Inc., then the following shall apply: This Agreement shall be interpreted and construed according to, and governed by, the substantive Laws of the state of New York, excluding any such Laws that might direct the application of the Laws of another jurisdiction. Any controversy or claim arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The number of arbitrators shall be one. The seat of arbitration shall be New York City, New York, USA. The language to be used in the arbitral proceedings shall be English. The parties agree that no depositions may be taken in the arbitral proceedings and that the controversy or claim will be decided upon submission of documents without oral hearing.
28.2 If the Avinode entity that signed this Agreement is Avinode AB, then the following shall apply: This Agreement shall be interpreted and construed according to, and governed by, the substantive Laws of Sweden, excluding any such Laws that might direct the application of the Laws of another jurisdiction. Any controversy or claim arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English.
28.3 If for any reason the provisions of Section 28.1 or 28.2 are unenforceable, then the Member agrees that: This Agreement shall be interpreted and construed according to, and governed by, the substantive Laws of the Member’s jurisdiction, excluding any such Laws that might direct the application of the Laws of another jurisdiction. Any controversy or claim arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration in accordance with the rules of an internationally-recognized arbitral body, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The seat of arbitration shall be Stockholm, Sweden or the country in which the member is located. The language to be used in the arbitral proceedings shall be English, except as prohibited by applicable Law.
28.4 Except as may be required by applicable Law, neither party nor their respective representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
28.5 AVINODE AND THE MEMBER EACH AGREE THAT EACH OF THEM, AND EACH OF THE AVINODE PARTIES AND MEMBER PARTIES, MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A CLASS MEMBER OR IN ANY REPRESENTATIVE CAPACITY OR PROCEEDING.
28.6 The United Nations Convention on the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement.
28.7 The Member acknowledges that a breach of any of the provisions of the Membership Agreement or Sections 3, 5, 10, 17, 18, 20, or 21 of these General Terms and Conditions, or use of the Avinode Services other than as expressly authorized, is likely to cause Avinode immediate and irreparable harm, loss or damage, and the Member therefore agrees that Avinode shall be entitled to seek injunctive relief against the Member with respect to any such breach, without requirement to post bond.