End-User License Agreement (EULA)
PLEASE READ CAREFULLY. BY ACCESSING AND USING THE AVIANET GmbH (“AVIANET”) SERVICES YOU AGREE TO BE BOUND BY THIS END USER LICENSE AGREEMENT (“Agreement”). “Services” means and includes any and all AVIANET products and services made available to Customer from AVIANET (including without limitation any onboarding services, online services, tools, or software) as part of a subscription service Customer has obtained through a cloud marketplace platform.
If you are accepting this Agreement and using the Services on behalf of a company, organization, or other legal entity, you represent and warrant that you are authorized to do so and have the authority to bind such entity to this Agreement, in which case the words “you” and “your” and “Customer” shall refer to such entity.
This Agreement may be modified by AVIANET from time to time in its sole discretion with or without notice to you. Any modifications shall be effective upon re-posting of this Agreement by AVIANET. Any use or access of the Services after such change has been made will constitute acceptance to the modified terms.
A. Customer may only designate the number of individual users set forth in your subscription order (each a “Registered User”). You will designate an individual as the application administrator for your organization who will be responsible for setting up a username and a password for each Registered User. Customer is responsible for each Registered User’s compliance with this Agreement and or any person to whom Customer has given access to the Services or who gains access to the Services even if such use was not authorized by you.
B. Customer is solely responsible for all actions of the Users, including the content of all visual, written or audible communications. Customer represents and warrants that it will not use the Services in any way that is unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offence, under any applicable law or regulation. Although AVIANET and its third-party suppliers and partners are not responsible for the misuse of the Registered User Account, AVIANET and its third party suppliers and partners may delete any content in violation of the foregoing that AVIANET or its third party suppliers or partners become aware of, at any time without notice. “User” means any individual who has access to the Services through Customer, regardless of whether it is a Registered User or a marketplace purchaser.
This Agreement will remain in full force and effect for so long as you are using the Services. In the event Customer fails to pay fees when due, AVIANET may upon 15 day’s written notice terminate Customer’s access to and use of the Services. In the event of a material breach of this Agreement by Customer (other than nonpayment of fees), AVIANET may immediately suspend Customer’s access to and terminate Customer’s right to use the Services. After this Agreement is terminated or expires, the following provisions of this Agreement will remain in effect: Sections 1. B, 2, 7-13, and any other Section that by its nature survive termination.
3. Availability of Services
AVIANET will attempt to provide continuous availability to the Services. In the event that it is unable to provide access for reasons beyond its control, AVIANET will communicate the reasons for the outage and the expected duration of the outage to the Customer. These outages could be due to third parties that the Service depends on, such as the Customer’s cloud marketplace provider or third-party hosting service providers. While AVIANET will make commercially reasonable attempts to backup all Customer data, in the event of recovery from an outage, the Customer may have to perform reconfiguration services. AVIANET and its third-party service providers have implemented commercially reasonable technical and organizational security measures designed to meet the following objectives: (a) ensure the security and confidentiality of Customer data in AVIANET’s and/or its third-party service providers’ custody and control; (b) protect against anticipated threats or hazards to the security or integrity of Customer Data; (c) protect against unauthorized access to or use of Customer data; (d) encrypt Customer’s Content and data during transmission by AVIANET and its third-party service providers and when being uploaded by Customer for use in connection with the Services using an https connection; and (e) ensure that AVIANET’s return or disposal of Customer data is performed in a manner consistent with industry standards…
4. Proprietary Rights in Content of AVIANET
The Services contain the copyrighted material, trademarks, patents, trade secrets, and other proprietary information (“Intellectual Property”) of AVIANET and its suppliers and licensors. AVIANET and its suppliers and licensors own and retain all proprietary rights in and to the Services. Customer is not permitted to resell, assign, and sublicense the rights under this Agreement or the Services in whole or in part. Customer shall not decompile, disassemble, reverse engineer (except to the extent permitted otherwise by applicable laws), reverse assemble, analyze or otherwise examine, prepare derivative works of, modify, or attempt to derive source code from the Services. No title or ownership of any rights are transferred to Customer under this Agreement, AVIANET and its applicable third party suppliers and partners hereby reserve all rights in and to
the Services. Except for the express license rights granted herein, no other licenses implied or otherwise are granted to Customer. AVIANET grants you a perpetual, worldwide, fully-paid, royalty-free license to use and
copy the Output. “Output” means the reports generated and made available to you through the use of the Services.
5. Customer Information Provided to AVIANET
Customer will retain all Intellectual Property rights in Customer Intellectual Property that may be provided by Customer to AVIANET (“Customer Property”) under this Agreement. AVIANET will not publicly disclose any User specific information but may disclose aggregated and de-identified User information related to the Services, provide such use is permitted by applicable law. You understand and agree that AVIANET may copy, use and modify any information that you provide to AVIANET, including all suggestions supplied by you that relate to the Services (collectively, “Content”) for the sole purposes of providing the Services to you. You represent and warrant that you have the right to provide such Content to AVIANET and such Content does not infringe, misappropriate, violate or contravene any laws, regulations or third party rights (including, without limitation, any rights in Intellectual Property).
6. Use of Services
You must use the Services in a manner consistent with any and all applicable laws and regulations. AVIANET and its suppliers use reasonable efforts to protect the confidentiality of Content you provide. AVIANET cannot guarantee that unauthorized third parties will never be able to defeat those measures to access Content for improper purposes. Customer acknowledges that there are risks inherent in internet connectivity that could result in the loss of Customer’s privacy, confidential information and property. Customer also acknowledges that Customer is under no obligation to provide to AVIANET Customer’s confidential information in order to use the Service. The AVIANET Privacy Notice (https://www.avianet.aero/privacy/) as amended from time to time, is hereby incorporated by reference into this Agreement. Please contact us (info@AVIANET.AERO) with any questions regarding this Agreement.
THE SERVICES ARE PROVIDED “AS IS,” AND THE CUSTOMER’S USE OF THE SERVICES IS AT ITS OWN RISK. AVIANET (INCLUDING ITS RESPECTIVE THIRD PARTY SUPPLIERS AND PARTNERS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THIS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. AVIANET and its suppliers and licensors do not guarantee and do not promise any specific results from the use of the Services. The Services are intended as a
Business presentation tool and Customer’s use of, and reliance upon, the Output is Customer’s sole responsibility, with Customer assuming all associated risks.
8. Limitation of Liability
AVIANET shall have no liability to the Customer. AVIANET’s provision of the Services is provided solely for the convenience of the Customer. If the foregoing limitation of liability is found to be unenforceable, AVIANET’s liability to Customer for any cause of action arising from or in connection with its use of the Services, regardless of the form of the action, will at all times be limited to the amount paid by Customer to AVIANET for the Services during the twelve (12) months preceding such cause of action. The parties agree that the limitations on and exclusions of liability in this Agreement are an integral part of the bargain, in that the Services would not have been available for the same price and under the same terms and conditions had such limitations on and exclusions of liability not been included in this Agreement.
9. U.S. Export Controls
The Services are subject to United States export controls. The Services may not be exported or re-exported (i) into the territory of (or to a national or resident of) Cuba, North Korea, Iran, Syria, Sudan, or any other country to which the U.S. has embargoed goods or services; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By accessing and using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
10. Dispute Resolution
This Agreement shall be governed by the laws of the state of Germany without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. You and AVIANET agree to submit to the exclusive personal jurisdiction of and agree that venue is proper in, the state and federal courts located in Germany in such legal action or proceeding. Notwithstanding the foregoing, AVIANET may seek injunctive or other equitable relief to protect its Intellectual Property Rights in any court of competent jurisdiction.
11. Electronic communications
The communications between you and AVIANET use electronic means, whether you send us emails, or whether AVIANET posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from AVIANET in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that AVIANET provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights.
You agree to indemnify and hold AVIANET, its subsidiaries, affiliates, officers, agents, licensors, and other partners and employees, harmless from, any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your use of the Services in violation of this Agreement. AVIANET will indemnify, defend and hold harmless Customer from and against all claims, suits, demands, actions, liabilities, losses, costs, damages, and expenses, including without limitation reasonable attorneys’ fees and expenses (“Losses”), brought by a third party based on an allegation that the Services infringe any registered German copyright, German patent or German trademark. Customer shall provide AVIANET with: (i) prompt written notice of such claim; (ii) control over the defense and settlement of such claim; and (iii) proper and full information and assistance to settle and/or defend any such claim. The foregoing provisions of this Section state the entire liability of AVIANET, and the sole remedy of Customer, with respect to any actual or alleged third party claim of infringement or misappropriation of intellectual property.
This Agreement contains the entire agreement between you and AVIANET regarding the use of the Services and supersedes and replaces all prior or contemporaneous understandings, representations, communications, or agreements, written or oral, including any additional or contrary terms contained in any Customer purchase order or another procurement document whether presented contemporaneously or after Customer has agreed to be bound by this Agreement regardless of any signature by AVIANET on any Customer purchase order or procurement document. Customer may not assign all or any part of its rights or obligations hereunder without the consent of AVIANET. Notwithstanding any other provisions herein, no party will be deemed as a third-party beneficiary to this Agreement. If any provision of this Agreement is found to be invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives to the greatest extent possible under any applicable law and the remaining provisions will continue in full force and effect. The failure of AVIANET to exercise or enforce any right or provision herein shall not operate as a waiver of such right or provision. Except for payment obligations, neither Party shall be liable to the other Party or deemed to be in default for any delay or failure in performance of any obligation under the Agreement or interruption of service resulting directly or indirectly from acts of God, civil or military authority, acts of the public enemy, acts of terrorism, war, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements or any other cause beyond the reasonable control of such Party. The section titles in this Agreement are for convenience only and have no legal or contractual effect. You are responsible for all taxes, other than taxes levied on AVIANET’s income. Services fees do not include any applicable taxes. If AVIANET is required to pay
any sales, use, goods & services, value-added, or other taxes in relation to your purchase, those taxes will be billed to and paid by you.
You grant AVIANET the right to identify you as a user in Services promotional material. At any point in time, you can submit a written request via email to info@AVIANET.AERO to have AVIANET remove your name, within thirty days of your request, from promotional material.
AVIANET provides technical support Monday through Friday, 9:00 a.m. to 6:00 p.m. CET, excluding holidays via email at DPsupport@AVIANET.AERO. Customer should report any unscheduled system downtime and any error, bug, or defect in the Services to the maintenance email DPsupport@AVIANET.AERO upon becoming aware or receiving notice of such system downtime, error, bug, or defect.