Date Effective: 05/01/2016
Last Updated Date: 02/15/2017
ACCESS AND USE
1.1 Provision of Access. Subject to the terms and conditions contained in the Terms and the Enterprise-Level Agreement, Aerostrat hereby grants you a non-exclusive, non-transferable right to access the features and functions of the applicable Aerostrat Service for Customer’s internal business purposes, during the Term set forth in the Enterprise-Level Agreement. You may use the Aerostrat Services only in accordance with the Access Protocols.
1.3 Usage Restrictions. You agree that you will not (a) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Aerostrat Services are compiled or interpreted, and you acknowledge that nothing in this Agreement will be construed to grant you any right to obtain or use such code; or (b) allow third parties other than Authorized Users (as defined in the Enterprise-Level Agreement) to gain access to the Aerostrat Services. You will ensure that your use of the Aerostrat Services complies with all applicable laws, statutes, regulations or rules.
1.4 Retained Rights; Ownership.
(a) Ownership of Aerostrat Services. Subject to the rights granted in these Terms and in the Enterprise-Level Agreement, Aerostrat retains all right, title and interest in and to the Aerostrat Services, and you acknowledge that you neither own nor acquire any additional rights in and to the foregoing not expressly granted by these Terms and the Enterprise-Level Agreement or any licenses to the software used to provide the Aerostrat Services. You further acknowledge that Aerostrat retains the right to use the foregoing for any purpose in Aerostrat’s sole discretion.
(a) Eligible Support Recipients. Aerostrat shall have no obligation to provide Technical Assistance, by any means, to you unless Customer has properly designated you as one of its Eligible Support Recipients (“Eligible Support Recipients”).
(b) Support. Subject to the terms and conditions of these Terms and the Enterprise-Level Agreement, Aerostrat shall exercise commercially reasonable efforts to provide Technical Assistance for the use of the Aerostrat Services to you, if you are an Eligible Support Recipient, during Aerostrat’s ordinary and customary business hours in accordance with its standard policies and procedures. Aerostrat shall be excused from any non-performance of its obligations hereunder to the extent any such non-performance is attributable to your or Customer’s failure to perform its obligations under this Section 1.5(b) or the applicable section of the Enterprise-Level Agreement.
(d) Means of Access to Technical Assistance. If you are an Eligible Support Recipient, you shall be permitted to request Technical Assistance (i) by telephoning Aerostrat at such telephone number as Aerostrat may specify for such purposes from time to time; or (ii) by directing electronic mail requests therefore to Aerostrat at the electronic mail address as Aerostrat may specify for such purposes from time to time.
2. YOUR RESPONSIBILITIES.
2.1 Authorized Users Access to Services. You are responsible for all activities that occur under your account. You may not share your Authorized User ID or password with anyone, and you agree to (1) notify Aerostrat immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your account at the end of each session. You agree that you shall monitor your account to restrict unauthorized use (for example, by minors or other unauthorized third parties). You will accept full responsibility for any unauthorized use of the Aerostrat Services.
2.2 Service Rules and Guidelines. You shall use the Aerostrat Services solely for Customer’s internal purposes as contemplated by the Enterprise-Level Agreement and shall not use the Aerostrat Services to: (a) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (b) interfere with or disrupt the integrity or performance of the Aerostrat Services or the data contained therein; (c) attempt to gain unauthorized access to the Aerostrat Services, computer systems or networks related to the Aerostrat Services; or (d) interfere with another user’s use and enjoyment of the Aerostrat Services.
3. TREATMENT OF CONFIDENTIAL INFORMATION.
3.1 Ownership of Confidential Information. You acknowledge that during the performance of this Agreement, you will have access to certain of Aerostrat’s Confidential Information or Confidential Information of third parties that Aerostrat is required to maintain as confidential. You agree that all items of Confidential Information are proprietary to Aerostrat or such third party, as applicable, and will remain the sole property of Aerostrat or such third party.
3.2 Confidentiality Obligations. You agree as follows: (a) to use Confidential Information disclosed by Aerostrat only for the purposes described herein; (b) that you will not reproduce Confidential Information disclosed by Aerostrat, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) that you will not create any derivative work from Confidential Information disclosed to you by Aerostrat; (d) to restrict access to the Confidential Information disclosed by Aerostrat to such of Customer’s personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (e) to the extent practicable, return or destroy, all Confidential Information disclosed by Aerostrat that is in your possession upon termination or expiration of this Agreement.
3.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 3.1 and 3.2 will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of your own; (c) is rightfully communicated to you by persons not bound by confidentiality obligations with respect thereto; (d) is already in your possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by you; or (f) is approved for release or disclosure by Aerostrat without restriction. Notwithstanding the foregoing, you may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that you shall first have given written notice to Aerostrat and made a reasonable effort to obtain a protective order; or (y) to establish your rights under this Agreement, including to make such court filings as it may be required to do.
4. REPRESENTATIONS AND WARRANTIES. You hereby represent and warrant that you are an Authorized User of Customer and that these Terms, when accepted, will constitute a valid and binding obligation will be enforceable against you in accordance with its terms.
5. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY.
5.1 Internet Delays. AEROSTRAT’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. AEROSTRAT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
5.2 Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN THE ENTERPRISE-LEVEL AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION SERVICE, THE APPLICATION DOCUMENTATION, AND ALL SERVICES PERFORMED BY AEROSTRAT ARE PROVIDED TO YOU “AS IS,” AND AEROSTRAT DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. AEROSTRAT DOES NOT WARRANT THAT THE AEROSTRAT SERVICES PROVIDED BY AEROSTRAT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE AEROSTRAT SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
5.3 Exclusions of Remedies; Limitation of Liability. IN NO EVENT WILL AEROSTRAT BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF AEROSTRAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. IN NO EVENT WILL AEROSTRAT HAVE LIABILITY TO YOU FOR ANY CLAIMS ARISING FROM OR RELATING TO THESE TERMS, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SEPARATE AND APART FROM ITS LIABILITY TO CUSTOMER UNDER THE ENTERPRISE-LEVEL AGREEMENT. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
5.4 Essential Basis of the Agreement. You acknowledge and understand that the disclaimers, exclusions and limitations of liability set forth in this Section 5 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in these Terms, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of these Terms would be substantially different.
6. TERM AND TERMINATION.
6.1 Term. The term of these Terms will commence upon your acceptance of these Terms, and will continue until the earlier of (a) the termination or expiration of the Enterprise-Level Agreement; (b) such time as you cease to be an Authorized User of Customer; or (c) the termination of these Terms in accordance with this Section 6.
6.2 Prior Use. Notwithstanding the foregoing, if you used the website or any Aerostrat Services prior to the date you accepted these Terms, you hereby acknowledge and agree that these Terms commenced on the date you first used the website or the Aerostrat Services (whichever is earlier).
6.4 Termination by Aerostrat. Aerostrat may terminate these Terms without cause at any time, with or without notice to you.
6.5 Effect of Termination. Upon any termination of these Terms, you will immediately discontinue all use of the Aerostrat Service and the website.
6.6 Survival. The provisions of Sections 3, 5, 6.6, and 7 will survive the termination of this Agreement.
6.7 Suspension of Service. If Customer fails to pay undisputed amounts in accordance with the terms and conditions hereof and the Order Form, Aerostrat shall have the right, in addition to any of its other rights or remedies, to suspend the your access to the Aerostrat Services, without liability to you or Customer, until such amounts are paid in full.
7.1 Entire Agreement. Subject to your obligations under the Enterprise-Level Agreement, these Terms set forth the entire agreement and understanding between the Parties with respect to the subject matter hereof and, supersede and merge all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for in these Terms and the Enterprise-Level Agreement.
7.2 Independent Contractors. In making and performing these Terms, you and Aerostrat act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between you and Aerostrat. Except as expressly set forth herein, at no time will you make commitments or incur any charges or expenses for, or in the name of Aerostrat.
7.3 Assignment; Delegation. You shall not assign any of your rights or delegate any of your duties under these Terms without the express, prior written consent of Aerostrat, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect.
7.4 No Third Party Beneficiaries. You acknowledge that the covenants set forth in these Terms are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of these Terms.
7.5 Severability. If any provision of these Terms is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in these Terms will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of these Terms invalid or unenforceable whatsoever.
7.6 Waiver. No waiver under these Terms will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
7.7 Force Majeure. Aerostrat shall not be liable for any delay or failure to perform its obligations under these Terms if such delay or failure results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of Aerostrat..
7.8 Governing Law. THESE TERMS WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF WASHINGTON, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS.
7.9 U.S. Government End-Users. Each of the documentation and the software components that constitute the Aerostrat Services is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Aerostrat Service and the Application Documentation with only those rights set forth therein.
7.10. DEFINITIONS. Certain capitalized terms, not defined above, have the meanings set forth in the Enterprise-Level Agreement.