UPON EXECUTING A SERVICE ORDER FORM THAT REFERENCES THIS AGREEMENT, OR, BY OTHERWISE ACCEPTING THIS AGREEMENT, CLIENT AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. If you do not agree to the terms of this Agreement, AirDeck is not willing to grant any right to use or access the Platform to you.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERM “CLIENT” SHALL HEREAFTER REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU ARE HEREBY NOT PERMITTED AND MAY NOT USE THE PLATFORM (OR ANY OTHER TECHNOLOGY, SERVICES, CONTENT, OR PRODUCTS OFFERED BY AIRDECK) IN ANY MANNER.
- Term. The term of this Agreement shall commence on the Commencement Date and continue in full force until the expiration of termination of all outstanding Service Order Forms in accordance with the subscription period set forth on the relevant Service Order Form (the “Initial Term”). Thereafter, each Service Order Form will automatically renew for successive twelve (12) month periods (with appropriate pro-rating of fees set forth in the Service Order Form) (each, a “Renewal Term”) unless (i) either Party provides written notice of non-renewal to the other Party at least thirty (30) days prior to commencement of the Renewal Term, or (ii) a subsequent Service Order Form extends the then-current Term to a later date, whereby such later date will be the new Term (which then will automatically renew for successive twelve (12) month periods in accordance with the terms under this Section). The Initial Term and any Renewal Terms are referred to herein collectively as the “Term.”
- Access to Platform. Subject to the terms, conditions, and restrictions of this Agreement, including payment of all relevant fees, AirDeck grants to Client and its End Users a non-exclusive, non-transferable, limited subscription to access and use AirDeck’s electronic platform application (the “Platform”) and Documentation (defined below). The Platform provides an online solution to manage certain information and facilitate communications related to documents online. For purposes of this Agreement, (a) “End Users” means Client’s employees, contractors, and representatives who are authorized by Client to access the Platform on Client’s behalf, and for which Client will remain liable and responsible, and (b) “Documentation” shall mean all of AirDeck’s system specifications and technical manuals, if any, and all other user instructions regarding the capabilities, operation, and use of the Platform, including, but not limited to, online help screens contained within the Platform.
- Restrictions. Client and its End Users may only use the Platform as described in this Agreement and in the then-current Documentation. Client is responsible for ensuring its End Users comply with all relevant terms of this Agreement and any failure to comply will constitute a breach by Client. Except as expressly authorized by this Agreement, Client will not, and will not allow any End User or other third party to, (i) decompile, disassemble, modify, translate, distribute, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Platform, except to the extent expressly permitted by applicable law, (ii) rent or lease any rights in the Platform in any form to any person, (iii) use the Platform or any AirDeck Confidential Information to develop a competing product or service, (iv) use the Platform, or allow the transfer, transmission, export, or re-export of the Platform or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency, (v) remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Documentation or Platform, including any screen displays, or any other products or materials provided by AirDeck hereunder, or (vi) use the Platform or any AirDeck Confidential Information to contest the validity of any intellectual property rights of AirDeck or its licensors. Under no circumstances will AirDeck be liable or responsible for any use, or any results obtained by the use, of the Platform in conjunction with any services, software, or hardware that are not provided by AirDeck. All such use will be at Client’s sole risk and liability.
- 4.Subsequent Versions or New Offerings. If, during the Term, AirDeck makes available any future update, version, or release of the Platform, AirDeck shall provide the update, version, or release to Client at no additional charge. For the avoidance of doubt, AirDeck may charge additional fees for functions or modules not included in the version of the Platform marketed by AirDeck and paid for by Client under this Agreement.
- Fees and Expenses.
- Fees and Payment Terms. The fees for the Platform during the Initial Term shall be as set forth in the Service Order Form (the “Platform Fees”). Thereafter, AirDeck may increase such fees for any Renewal Term by providing notice to Client prior to the commencement of such Term. Unless otherwise provided in a Service Order Form, all Platform Fees shall be due and payable by Client annually in advance. Any Platform Fees which are not paid when they become due are subject to a late charge in an amount equal to the lesser of (i) one and one-half percent (1.5%) per month of the overdue amount, or (ii) the maximum amount permitted by law, plus in either case, costs of collection and legal fees (if permitted by law).
- Taxes. Client shall be responsible for those sales, use, and similar taxes associated with its use of the Platform, excluding taxes based on AirDeck’s real property, personal property, income, personnel, or similar taxes not directly based on Client’s use or consumption of the Platform.
- Client Responsibilities. Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, Client’s login information, passwords and files, and for all uses of Client account or the Equipment with or without Client’s knowledge or consent. Additionally, Client’s access to the Platform through a mobile device or network is subject to Client’s mobile network provider’s messaging, data, cellular, and other rates and fees (including roaming charges), as applicable, and Client is solely responsible and liable for all such rates and fees.
- Representations and Warranties.
- AirDeck Warranty. AirDeck represents and warrants that it has the full power, capacity, and authority to enter into and perform this Agreement and to make the grant of rights contained herein, and its performance of this Agreement does not violate or conflict with any agreement to which AirDeck is a party.
- Client’s Warranty. Client represents and warrants that, at all times during the term of this Agreement, Client shall have the full power to enter into and perform this Agreement and to make the grant of rights contained herein, and Client’s performance of this Agreement and use of the Platform shall not violate or conflict with any agreement to which Client is a party or any applicable law, including any consumer privacy and protections laws and regulations, such as the Telephone Consumer Protection Act, the Telemarketing Sales Rule, and all laws and regulations relating to electronic communications, marketing, advertising, and messaging. Additionally, Client represents and warrants that it is not located 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 that Client is not listed on any U.S. government list of prohibited or restricted parties.
- Disclaimer of Other Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE PLATFORM IS PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. AIRDECK AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, OR TITLE/NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AIRDECK OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF AIRDECK’S OBLIGATIONS HEREUNDER. THE PLATFORM MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CLIENT ACKNOWLEDGES AND AGREES THAT AIRDECK AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CLIENT’S DATA, WEBSITES, COMPUTERS, OR NETWORKS. AIRDECK WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. CLIENT IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA.
- Confidentiality; Proprietary Rights.
- Confidential Information. Each Party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of AirDeck includes non-public information regarding features, functionality and performance of the Platform. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of services, provision of the Platform, or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law, provided such disclosure is made in accordance with Section 8.4 (Compelled Disclosures).
- Ownership; Feedback. As between Client and AirDeck, Client shall own all right, title and interest in and to the data Client loads into the Platform (“Client Data”). AirDeck shall own and retain all right, title and interest in and to (a) the Platform, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Platform and related services, and (c) all intellectual property rights related to any of the foregoing. Client may provide suggestions, comments or other feedback (collectively, “Feedback”) to AirDeck with respect to the Platform and related services. Feedback is voluntary and AirDeck is not required to hold it in confidence. AirDeck may use Feedback for any purpose without obligation or restrictions of any kind. To the extent a license is required under Client’s intellectual property rights to make use of the Feedback, Client hereby grants AirDeck an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with AirDeck’s business, including the enhancement of the Platform and related services.
- Usage Data. Notwithstanding anything in this Agreement to the contrary, AirDeck shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Platform and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and AirDeck will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Platform and for other development, diagnostic and corrective purposes in connection with the Platform and other AirDeck offerings, and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
- Compelled Disclosures. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order or requirement and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose or seek to limit such disclosure by the Receiving Party and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.
- Return of Client Data. Upon expiration or termination of this Agreement for any reason, AirDeck will promptly make all Client Data available to Client for electronic retrieval for a period of sixty (60) days.
- Non-Exclusive Equitable Remedy. Each Party acknowledges and agrees that due to the unique nature of Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a Party or third parties to unfairly compete with the other Party resulting in irreparable harm to such Party, and therefore, that upon any such breach or any threat thereof, each Party will be entitled to appropriate equitable remedies, and may seek injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity. Any breach of this Section 8 (Confidentiality; Proprietary Rights) will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching Party.
- In General. Consistent with any law or regulation applicable to the Platform or AirDeck’s then-current practices and procedures, AirDeck will maintain and enforce administrative, technical, and physical safeguards to reasonably protect the confidentiality, availability, and integrity of Client’s Confidential Information and Client Data. AirDeck will, within a reasonable time, report to Client any compromise of security that it becomes aware of with regard to Client’s Confidential Information or Client Data.
- 10.1.By AirDeck. AirDeck agrees to defend, indemnify, and hold harmless Client and its directors, officers, agents, employees, members, subsidiaries and successors in interest from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees, experts’ fees and court costs, arising out of any claim by a third party (each a “Claim”) that Client’s authorized use of the Platform infringes that third party’s United States copyright, trade secret or other intellectual property rights (collectively, “Claim(s)”). Client shall: (A) give AirDeck prompt written notice of such Claim; and (B) once AirDeck has unconditionally accepted the tender of Client’s defense, allow AirDeck to control, and fully cooperate with AirDeck (at AirDeck’s sole expense) in, the defense and all related negotiations. AirDeck shall not enter into any stipulated judgment or settlement that purports to bind Client without Client’s express written authorization, which shall not be unreasonably withheld or delayed. If, due to a claim of infringement, the Platform is held by a court of competent jurisdiction to be or is believed by AirDeck to be infringing, AirDeck may, at its option and in its sole discretion, (a) replace or modify the Platform to make it non-infringing provided that such modification or replacement contains substantially similar features and functionality, or (b) procure for Client the right to continue using the Platform pursuant to this Agreement. If neither of these remedies is reasonably available to AirDeck, AirDeck may, in its sole discretion, immediately terminate this Agreement and return the prorated portion of any pre-paid, unused Platform Fees for the relevant Platform. The provisions of this Section state the sole and exclusive obligations and liability of AirDeck and Client’s sole and exclusive remedy, for any claim of intellectual property infringement arising out of or relating to the Platform or this Agreement, and are in lieu of any implied warranties of non-infringement and title, all of which are expressly disclaimed.
- 10.2.By Client. Client agrees to defend, indemnify, and hold harmless AirDeck and its directors, officers, agents, employees, members, subsidiaries and successors in interest from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees, experts’ fees and court costs, arising out of any Claim based on (i) Client Data, (ii) Client’s unauthorized use of the Platform, (iii) Client’s breach of any representations, or warranties hereunder, including Section 7.2 (Client’s Warranty), or (iv) Client’s violation of applicable law. AirDeck shall: (A) give Client prompt written notice of such Claim; and (B) once Client has unconditionally accepted the tender of AirDeck’s defense, allow Client to control, and fully cooperate with Client (at Client’s sole expense) in, the defense and all related negotiations. Client shall not enter into any stipulated judgment or settlement that purports to bind AirDeck without AirDeck’s express written authorization, which shall not be unreasonably withheld or delayed.
- Disclaimer of Consequential Damages; Limitation of Liability. EXCEPT FOR INDEMNITY OBLIGATIONS UNDER SECTION 10 (Indemnification), EITHER PARTY’S BREACH OF CONFIDENTIALITY UNDER SECTION 8 (CONFIDENTIALITY; PROPRIETARY RIGHTS), and EITHER PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (1) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (2) EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE TOTAL PLATFORM FEES PAID BY CLIENT TO AIRDECK UNDER THIS AGREEMENT IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO LIABILITY.
- Default. AirDeck may terminate this Agreement immediately with written notice to Client (or without notice in the case of nonpayment) in the event Client breaches any provision hereof. Client may terminate this Agreement upon thirty (30) days’ written notice in the event AirDeck materially breaches any provision hereof.
- 12.2.Effect of Termination. Upon the expiration of termination of this Agreement for any reason, all rights granted to Client hereunder shall immediately cease, and, except as necessary to retrieve Client Data in accordance with Section 8.5 (Return of Client Data), Client’s access to and use of the Platform will cease as of the effective date of termination.
- Survival. The following Sections shall survive any termination or expiration of this Agreement: 3 (Restrictions); 8 (Confidentiality; Proprietary Rights); 10 (Indemnification); 11 (Disclaimer of Consequential Damages; Limitation of Liability); 12.2 (Effect of Termination); 12.3 (Survival); and 13 (General Provisions).
- General Provisions.
- Independent Contractor. AirDeck is an independent contractor and is not an agent or employee of, and has no authority to bind, Client by contract or otherwise. Further, it is not the intention of this Agreement or of the Parties to confer a third-party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement will be construed so as to confer upon any third party or entity other than the Parties hereto a right of action under this Agreement or in any manner whatsoever.
- Assignment. Client may not assign, transfer or delegate its rights or obligations under this Agreement without the prior written consent of AirDeck. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties, their successors, assigns and legal representatives.
- Force Majeure. Except for payment obligations as described in Section 5 (Fees and Expenses) of this Agreement, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.
- Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Illinois, without regard to its conflict of law provisions. The Parties waive any objections against and agree to submit to the personal jurisdiction of the state and federal courts in Fond du Lac County, Wisconsin. The Parties waive any objections or defenses based upon an inconvenient forum.
- Waivers. All waivers hereunder must be made in writing by a duly authorized representative of the Party against whom the waiver is to operate, and failure at any time to require the other Party’s performance of any obligation under this Agreement shall not affect the right subsequently to require performance of that obligation. Any waiver, in whole or in part, of any provision of this Agreement will not be considered to be a waiver of any other provision.
- Severability. If any term of this Agreement is found to be unenforceable or invalid for any reason, all other terms will remain in full force and effect.
- Construction. All headings used in this Agreement are for reference purposes only and are not part of this Agreement. All personal pronouns used herein, whether used in the feminine, masculine, or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. Unless otherwise expressly stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, Subsection or other subpart. The words “include,” “includes,” “included,” “including,” “without limitation,” or the phrase “e.g.” shall not be construed as terms of limitation and shall, in all instances, be interpreted as meaning “including, but not limited to.”
- Entire Agreement. This Agreement, as to its subject matter, exclusively and completely states the rights, duties and obligations of the Parties and supersedes all prior and contemporaneous representations, letters, proposals, discussions and understandings by or between the Parties. This Agreement may only be amended in a writing signed by both Parties.
- Notices. All notices under this Agreement will be in writing (including by email) and will be deemed to have been duly given when received, if delivered personally; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. All notices under this Agreement to AirDeck shall be sent to the following address:
117 Watson St.,
Ripon, WI 54971
All notices to Client shall be sent to the address specified on the Service Order Form.
Either Party may change its address or designee for notification purposes by giving notice to the other of the new address or designee and the date upon which such change will become effective.
- Legal Fees. If any dispute arises between the Parties with respect to the matters covered by this Agreement which leads to a proceeding to resolve such dispute, the prevailing Party in such proceeding will be entitled to receive its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
- Agreement Drafted By All Parties. This Agreement is the result of arm’s length negotiations between the Parties and shall be construed to have been drafted by all Parties such that any ambiguities in this Agreement shall not be construed against either Party.
- Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and will become effective and binding upon the Parties as of the Commencement Date at such time as all the signatories hereto have signed a counterpart of this Agreement.
- Electronic Signatures and Facsimiles Binding. This Agreement and related documents may be accepted in electronic form (e.g., by an electronic or digital signature, clicking accept, submission of a Service Order Form, or other means of demonstrating assent) and Client’s acceptance will be deemed binding between the Parties. Client acknowledges and agrees it will not contest the validity or enforceability of this Agreement and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form.