Version of Terms & Conditions of Service : March 2019
PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY DELAIR S.A.S, A FRENCH COMPANY REGISTERED UNDER RCS 530 969 781 IN TOULOUSE AND HAVING ITS OFFICES AT 676, RUE MAX PLANCK, 31670 LABEGE, FRANCE AND ITS AFFILIATES (“DELAIR”). BY EXECUTING ONE OR MORE QUOTE (ON A SEPARATE DOCUMENT) WITH DELAIR OR AN AUTHORIZED DELAIR RESELLER WHICH REFERENCE THESE TERMS (EACH, A “QUOTE”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALLQUOTE, THE “AGREEMENT”) TO THE
EXCLUSION OF ALL OTHER TERMS.
IN ADDITION, THE VALIDITY OF THE QUOTE IS LIMITED IN TIME AND IS SPECIFIED ON THE QUOTE. IN THE EVENT OF ANY CONTRADICTION BETWEEN THE QUOTE AND THESE GENERAL TERMS AND CONDITIONS, THE QUOTATION SHALL PREVAIL.
IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. DELAIR AND CUSTOMER ARE REFERRED TO HEREIN AS, EACH, A “PARTY,” AND COLLECTIVELY, THE “PARTIES.”
- DELAIR makes available certain Delair.ai Services.
- Customer and DELAIR desire to have DELAIR provide Customer with the right to access and use the DELAIR Cloud Services, subject to and in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.1 “Affiliates” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of a Party.
1.2 “Authorized User” means any individual who Customer has authorized, in accordance with the terms of this Agreement, to access and use the Delair.ai Services and who has been supplied a user identification and password by Customer (or by DELAIR, at Customer’s request). DELAIR shall generate the user identifications. Authorized Users may include employees, consultants, contractors and agents of Customer and of Customer’s Affiliates.
1.3 “Delair.ai Services” means Software platform services and professional services described in the Quote and in sales documentation.
1.4 “Data Collection Services” means the data collection support services such as, data collection of an area to be surveyed (“Surveyed Area”) and/or setup within the Surveyed Area or its immediate neighborhood of ground marks easily identifiable by visual means (commonly named ground control points) and measurement of their locations with a precise GNSS device, specifically set forth in a Quote.
1.5 “Delair.ai (Delair aerial intelligence“) means the Delair platform.
1.6 “Delair Data” means Data belonging to Delair defined as follows: all technical materials, including formula, compilations, software code or programs, methods, techniques, know-how, technical assistance, processes, algorithms, designs, data dictionaries and models, schematics, user documentation, training documentation, specifications, drawings, flowcharts, briefings, test or quality control procedures, or other similar information, used, supplied or disclosed by Company.
1.7 “Intellectual Property Rights” means patent rights, inventions, copyrights, database rights, trademarks, service marks, trade secrets, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights.
1.8 “Personal Data” means data that relates to a living individual who can be identified from that data.
1.9 Products refer to Delair Delair.ai Services offered by Company including any improvements, modifications, extensions or enhancements thereto developed by Company, but expressly excluding any implementation that Company provides to Customer under this Agreement in Exhibit A or under separate agreement.
1.10 “Quote” means the document issued by Delair detailing the services and/or the products provided by Delair, the prices, time and terms of delivery. The validity of the Quote is limited in time as specified in the Quote.
1.11. Customer Data means Data belonging to the Customer defined as follows: (i) the sensor, imagery or any other data uploaded by Customer or Authorized User on Delair.ai; (ii) technical data generated directly or indirectly from its uploaded data in connection with Delair.ai Services.
2. DELAIR.AI SERVICES
2.1 Delair.ai Services. Subject to Customer’s compliance with the terms of this Agreement, DELAIR shall make the Delair.ai Services available to Customer solely for use by Authorized Users for Customer’s internal business operations. Customer will not permit access to or use of the Delair.ai Services by anyone other than Authorized Users.
2.2 Restrictions. Customer’s use of the Delair.ai Services shall not include service bureau use, outsourcing, leasing, renting, reselling, concurrent use of a single Authorized User login, or time-sharing of the Delair.ai Services. Customer shall not (and shall not permit any third party to): (a) copy, modify, translate, or create derivative works of the Delair.ai Services; (b) reverse engineer, disassemble or decompile the Services, Delair.ai Services or any part thereof or otherwise attempt to discover the source code or underlying structure, ideas or algorithms of the Delair.ai Services or any software related thereto; (c) access or use (or permit a third party to access or use) the Delair.ai Services for purposes of monitoring the availability, performance or functionality of the Delair.ai Services or for any other benchmarking or competitive purposes including without limitation in order to build a similar or competitive product or service; (d) use the Cloud Services in a manner that is contrary to applicable law or that violates a third party’s privacy rights or intellectual property rights; (e) publish, post, upload or otherwise transmit Imagery Data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or (f) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Delair.ai Services.
3. CUSTOMER RESPONSIBILITIES
3.1 Cooperation and Assistance. In order for the Delair.ai Services to be effective, Customer will at all times provide DELAIR with Customer’s good faith cooperation and assistance and make available such information and personnel as may be reasonably required by DELAIR.
3.2 Security. Customer is responsible for all activities conducted under its Authorized User logins and for its Authorized Users’ compliance with this Agreement. Customer will keep confidential and not disclose to any third parties, and will ensure that all Authorized Users keep confidential and do not disclose to any third parties, any user IDs, account numbers, passwords or other similar information for the Delair.ai Services.
3.3 Enforcement. Customer will ensure that Authorized Users comply with the terms and conditions of this Agreement. Customer will promptly notify DELAIR of any suspected or alleged breach of this Agreement and will cooperate with DELAIR with respect to: (i) any investigation by DELAIR of any suspected or alleged breach of this Agreement; or (ii) any action by DELAIR to enforce the terms and conditions of this Agreement. DELAIR may suspend or terminate Customer’s or any Authorized User’s access to the Delair.ai Services upon notice to Customer in the event that DELAIR reasonably determines that Customer or any Authorized User breached this Agreement.
3.4 Customer Representative. Upon the execution of this Agreement, Customer will designate an individual to serve as its primary representative and contact for facilitating communications between Customer and DELAIR regarding the Delair.ai Services (the “Customer Representative”). The Customer Representative will have the responsibility and authority to make decisions, approve plans and grant requests on Customer’s behalf. Customer acknowledges and agrees that DELAIR will be entitled to rely on all communications from and decisions of the Customer Representative. Customer may change its Customer Representative at any time by providing DELAIR with at least five (5) days’ advance notice. If DELAIR determines that the Customer Representative lacks sufficient experience and training to serve as the
Customer Representative, DELAIR may request that Customer appoint a replacement Customer Representative, whereupon Customer will appoint a replacement Customer Representative.
3.5 Authorized Users. Customer acknowledges that it will not enjoy all of the benefits of the Delair.ai Services unless Customer invests in experienced, qualified Authorized Users and provides such users with sufficient training to enable such users to utilize the Delair.ai Services as designed and to implement business processes and procedures that support the Delair.ai Services. Accordingly, Customer agrees to provide its Authorized Users with sufficient experience and training to use the Delair.ai Services and to understand the manner in which various inputs into the Delair.ai Services will affect the desired outputs and results of the Delair.ai Services .Customer acknowledges that a failure by Customer to provide experienced, qualified and sufficiently trained Authorized Users may result in increased fees for additional training and other services and limit or hinder DELAIR’s ability to provide the Delair.ai Services to Customer.
3.6 Customer Network-related Obligations. Customer acknowledges and agrees that Customer’s and its Authorized Users’ use of the Delair.ai Services is dependent upon access to telecommunications and Internet services such as DSL, cable, wireless or another high-speed Internet connection. Customer acknowledges and agrees that it is responsible for procuring and maintaining the network connections that connect the Customer network to the Delair.ai Services, including, but not limited to, internet connectivity, « browser » software that supports protocols used by DELAIR, including the Secure Socket Layer (SSL) protocol, and for complying with logon procedures for services that support such protocols. DELAIR will not be responsible for notifying Customer of any upgrades, fixes or enhancements to any such software, or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) that are not owned or operated by DELAIR. DELAIR assumes no responsibility for the reliability or performance of any network connections as described in this Section 3.6.
3.7 Data Collection Services. This Section 3.7 only applies if the Quote explicitly includes Data Collection Services. Customer is otherwise not entitled to Data Collection Services of any kind unless detailed elsewhere in the Agreement.
DELAIR shall execute the Data Collection Services accurately and diligently and shall perform the Data Collection Services to the best of its ability. The Data Collection Services are, by nature, subject to hazards and DELAIR is responsible for making decisions concerning the execution of the Data Collection Services with regard to the conditions at any site during any particular time. Customer acknowledges and agrees that conditions outside of DELAIR’s control may impact the possibility of execution of Data Collection Services and may lead to the modification of any proposed timeline. These conditions include but are not limited to: (i) meteorological conditions, such as wind and rainfall, which could prevent the functionality of drones or other materials onboard or on the ground; (ii) site conditions that may require additional arrangements to guarantee the safety of the DELAIR team and its subcontractors or the equipment of DELAIR and its subcontractors; (iii) the site or its functionality not corresponding to the agreed upon specifications; and (iv) the general conditions of performance of the Consulting and Data Collection Services modified from the original quotation. DELAIR may, in its sole discretion, determine that the Data Collection Services cannot be performed at the specific site or must be postponed. In the case that DELAIR postpones or modifies the Data Collection Services, Customer and DELAIR shall mutually agree on a date and location for the execution of the Consulting and Data Collection Services within ten (10) business days after the date previously determined in the schedule. The Customer is responsible for making sure the ground control points are in good state, meaning that there clearly visible and usable during any data processing. DELAIR shall not be held responsible for a lack of data accuracy due to a deterioration, loss or removal of the ground control points. DELAIR shall not be responsible for a deterioration, loss or removal of the ground control points and will be entitled to charge the Customer to replace them if needed.
4. OWNERSHIP AND LICENSES
4.1 Concerning the Customer Data which is the data owned by Customer, the Customer hereby grants to DELAIR a non-exclusive, worldwide, irrevocable, perpetual, fully paid, royalty-free license to disclose, collect, process, import, reproduce, access, modify, display, perform and use the Data included in Delair deliverables as reasonably necessary:
- for Delair to provide the Delair.ai Services to the Customer or
- to, enhance and improve the Delair.ai Services, related products, Software, Materials and services with Customer’s prior written consent.
In addition, Customer agrees to the use and sharing by Delair of aggregated, anonymized or pseudonymized Data such that it no longer identifies the Customer and that such Data does not constitute Confidential Information.
4.2 No Rights to Use Marks. Each Party’s trademarks, service marks, logos, trade names, product names and service names are, as to each Party, the “Marks.” In addition, the trademarks, service marks, logos, trade names, product names and service names of any third parties that are incorporated into the Delair.ai Services or that DELAIR otherwise uses in connection with marketing and promoting the Delair.ai Services (collectively, “Third Party Marks”) are the property of such third parties. Each Party will not use or display in any manner the Marks of the other Party or any Third-Party Marks, without first obtaining the express written permission from the other Party or from the owner of the applicable Third-Party Mark, as applicable.
4.3 Feedback License. If Customer or any Authorized Users provide DELAIR with any feedback, comments or suggestions for improvements or enhancements to the Delair.ai Services (collectively, “Feedback”), Customer grants DELAIR a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to use or incorporate into the Delair.ai Services any Feedback for any purpose without obligation to Customer (or to any Authorized User) of any kind.
5. IMAGERY DATA
5.1 Responsibility. Customer shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of all data, information and materials that Customer (or any Authorized User) captures and stores in, or enters (or has entered) into the Services. By entering any Imagery Data into the Delair.ai Services regarding inspections, procedures, tests and other tasks or activities (collectively, “Activities”), Customer is representing on behalf of itself and all Authorized Users that the Activities to which such Imagery Data relate were performed or provided by Customer. If Customer (or any Authorized User) becomes aware that any Imagery Data was entered into the Delair.ai Services regarding Activities that were not performed or provided by Customer, Customer will promptly notify DELAIR thereof and delete or correct such Imagery Data on the Delair.ai Services. Customer will ensure that its customers, and any other relevant third parties, have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation.
5.2 Hosting of Imagery Data. DELAIR will be responsible for hosting the Imagery Data on the Delair.ai Services, but only from a location or access point of its choosing. DELAIR may, at its discretion, change from one such location or access point to a different location or access point at its sole discretion. Customer acknowledges that: (i) for all customers, data processing will not be exclusively performed on U.S. servers; and (ii) for some customers, including but not limited to those which are not in the U.S., data may not be fully hosted in the U.S. If Customer requests a different location or hosting provider, DELAIR may charge additional costs, if it agrees to alter the hosting of Imagery Data. DELAIR has taken, and will continue to take, significant measures to provide a high level of security for Imagery Data. However, DELAIR cannot guarantee the absolute security of information delivered to DELAIR during use of the Delair.ai Services and shall not be liable in any way for compromise of Imagery Data.
The imagery data will be hosted for twelve (12) months and the hosting of imagery data may be extended for twelve (12) months by agreement with the customer formalized in a Quote.
5.3. Backup and Recovery of Imagery Data. In the event of any loss or damage to Imagery Data that is stored on or processed by the Delair.ai Services, DELAIR will use its commercially reasonable efforts to restore the lost or corrupted Imagery Data from the last backup maintained by DELAIR in accordance with DELAIR’s standard archival procedures. CUSTOMER ACKNOWLEDGES AND AGREES THAT DELAIR’S USE OF COMMERCIALLY REASONABLE EFFORTS TO RESTORE LOST OR CORRUPTED IMAGERY DATA PURSUANT TO THIS SECTION 5.3 WILL CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND DELAIR’S SOLE LIABILITY IN THE EVENT OF ANY LOSS OR CORRUPTION OF IMAGERY DATA. DELAIR shall not be responsible for any loss, destruction or corruption of Imagery Data caused by any third party.
5.5. Personal Data. The Parties agree that Customer shall not provide any Personal Data to DELAIR and that DELAIR shall not have access to Personal Data as a result or in connection with its operation of the Delair.ai Services. If Customer wishes to have DELAIR process, host, store, or have access to Personal Data the Parties must execute an amendment to this Agreement.
If DELAIR collects in its database personal data pertaining to the Customer for the purpose of performance of contract, this data is subject to the Regulation (EU) 2016/679, new General Data Protection Regulation, of the Council of 27 April 2016, applicable as from the 25th May 2018, on the protection of natural persons with regard to the processing of personal data on the free movement of such data.
Collection of particular data may be compulsory such as: first name, family name, address of Customer, etc. Collection of other data is optional: bank details, payer’s address, telephone details, email address, etc. Their communication is necessary to provide a personalized service.
DELAIR conserves collected data during the agreement and for a period of 3 years as from termination agreement.
The data/files are collected for the purpose of contract management (including payment and recovery) and commercial operations (including commercial prospection) conducted by DELAIR. Email marketing is only possible if the Customer has given express prior consent.
The Customer has, regarding his/her personal information:
- the right of access as well as a right to request rectification in the event that this information turns out to be inaccurate, incomplete, unambiguous and/or out of date,
- the right to object, free of charge, the use by DELAIR of this information for the purposes of commercial prospection. When the Customer exercises his/her right of opposition, DELAIR must take the necessary measures so that the former is no longer the recipient of the prospecting operations.
The Customer can exercise the aforementioned rights before DELAIR who manages his/her contract. Furthermore, the right to object can be exercised by mail before the Data Protection Officer via the following address:
676 rue Max Planck,
In accordance with Regulation 2016/679/EU, the Customer is responsible for any processing of personal data that it may be required to do in the performance of the contract and to that extent, is responsible for compliance required by the aforementioned European Regulation.
6.1 Fees. In consideration for DELAIR providing the Delair.ai Services, Customer will pay DELAIR the fees specified on the Quote between Customer and DELAIR (on a separated document), or, if applicable, Customer’s Order Form with DELAIR’s authorized reseller (“Fees”).
6.2 Payment Terms. Unless otherwise specified on the Quote or Customer’s agreement with DELAIR’s authorized reseller, DELAIR will invoice Customer upfront for the Fees due and payable for that Term. Customer will pay each such invoice within thirty (30) days following the date thereof.
6.3 Additional Services. Customer shall pay the fees as specified in the Order Form. If DELAIR provides Consulting and Data Collection Services to Customer, the Consulting and Data Collection Services shall be provided by DELAIR pursuant to the Quote or a separate DELAIR Consulting and Data Collection Services Agreement, which, if applicable, is hereby fully incorporated herein by reference. All fees are non-refundable, except as otherwise explicitly stated in the Agreement. The fees and the term of use for additional Authorized Users and other items procured during an existing subscription term will co-terminate with and be prorated through the end date of the subscription term for the applicable Service.
6.4 Taxes. The Fees do not include any locator foreign taxes, levies or duties of any nature, including value-added, sales use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on DELAIR’s or its authorized reseller’s net income. If DELAIR or its authorized reseller has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides DELAIR or its authorized reseller with a valid tax exemption certificate authorized by the appropriate taxing authority. In the event that applicable law requires Customer to withhold or deduct any taxes with respect to any payment to be made pursuant to this Agreement, Customer shall withhold or deduct such taxes from the amount and increase the amounts payable so that DELAIR or its authorized reseller receives the fee designated on the Order Form free and clear of such taxes. Customer and DELAIR will reasonably cooperate in establishing any applicable exemption from withholding or deduction of such taxes.
6.5 Interest. Unless otherwise specified on the Quote or Customer’s agreement with DELAIR’s authorized reseller, all amounts not paid when due under this Agreement will accrue interest daily (without the requirement of a notice) at a charge of three(3) times the rate of French legal interest in force and a fixed compensation of forty(40)€ for each invoice, until the unpaid balance is paid in full.
7.1 Definition. “Confidential Information” means: (i) information that is disclosed in written form and that is clearly labeled as proprietary, confidential or with words of similar meaning; (ii) information that is disclosed orally or visually and that is identified as proprietary or confidential at the time of its disclosure and is summarized in a writing sent by the disclosing Party to the other Party within thirty (30) days of such disclosure; (iii) the Agreement, the Specific Services provided associated with the Agreement, the Technical Data, and (iv) any information that, due to its nature or the circumstances of disclosure, would reasonably be deemed confidential. The terms and conditions of this Agreement will be deemed the Confidential Information of both Parties.
7.2 Exclusions. The obligations and restrictions in Section 7.3 will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving Party; (ii) is rightfully known by the receiving Party prior to the disclosure of such information from the disclosing Party; (iii) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information; or (iv) the receiving Party rightfully obtains from a third party who had the right to disclose such information without breach of any confidentiality obligation to the disclosing Party.
7.3 Use and Nondisclosure. During the Term and for a period of three (3) years thereafter, each Party will not use the other Party’s Confidential Information for any purpose other than for the performance and enforcement of this Agreement and will not disclose the other Party’s Confidential Information to any party other than to those of its employees and contractors who need to know such Confidential Information for a Party’s performance and enforcement of this Agreement; provided that each such employee and contractor is bound by a written agreement that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement. Each Party will use the same efforts to protect the confidentiality of the other Party’s Confidential Information that it ordinarily uses to protect the confidentiality of its own confidential information of like importance, but in no event less than reasonable efforts.
7.4 Permitted Disclosure. The foregoing provisions of this Section 7 will not restrict either Party from disclosing the other Party’s Confidential Information or the terms and conditions of this Agreement: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the Party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement; (ii) on a confidential basis to its legal or professional financial advisors; (iii) as required under applicable securities regulations; or (iv) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such Party.
8. WARRANTY AND SUPPORT
8.1 Limited Warranty. DELAIR warrants to Customer that the Delair.ai Services will provide the functionality specified in DELAIR’s then-current documentation for the Delair.ai Services. In the event that the Delair.ai Services fails to conform to the foregoing warranty, as Customer’s sole and exclusive remedy and DELAIR’s sole and exclusive liability, DELAIR will modify the Delair.ai Services to correct the non-conformity.
8.2 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1, DELAIR DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT and THE Delair.ai Services OR OTHER SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. DELAIR DISCLAIMS ANY WARRANTY THAT THE Delair.ai Services WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED.
(a) If the Service becomes substantially unavailable to Customer, DELAIR will respond to Customer (i) within eight (8) hours from Customer’s notification to DELAIR of such unavailability, if during normal business hours, or (ii) within eight (8) hours of the start of the next business day, if outside of normal business hours.
(b) Any other support services are outside of the scope of this Section 8.3 and must be separately agreed in writing by Customer and DELAIR. Additional technical support services, available as part of Services, includes training in use of the Services, and consulting (“Additional Technical Support”). Use of the Additional Technical Support requires payment of additional fees to be agreed upon between the parties or, if not agreed upon, charged at DELAIR’s standard rates. Customer may designate up to 3 support contacts (“Designated Support Contacts”), and all support requests must come through the Designated Support Contacts. Customer may update the Designated Support Contacts by providing notice to DELAIR.
9.1 Indemnification by DELAIR. DELAIR will defend any action or suit brought against Customer by a third party to the extent that it is based upon a claim that the Delair.ai Services , as provided by DELAIR to Customer pursuant to this Agreement, infringe any US patent or any copyright or misappropriate any trade secret, and will indemnify and hold Customer harmless from and against any damages, costs and expenses (including reasonable attorneys’ fees) awarded in final judgment against Customer or payable in settlement with respect to such claim; provided that Customer: (i) promptly notifies DELAIR in writing of the claim; (ii) grants DELAIR sole control of the defense and settlement of the claim; and (iii) provides DELAIR, at DELAIR’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. Customer reserves the right to retain counsel, at Customer’s sole expense, to participate in the defense of any such claim. DELAIR may not enter into any settlement that would impose any obligations or liability upon Customer or that would limit Customer’s right to access and use the Delair.ai Services, as provided hereunder, without Customer’s prior written consent.
9.2 Injunctions. In the event that Customer’s right to use the Delair.ai Services hereunder is enjoined, or in DELAIR’s reasonable opinion is likely to be enjoined, due to the type of claim specified in Section 9.1 above, DELAIR will at its sole option and expense: (i) procure for Customer the right to continue using the Delair.ai Services ; (ii) replace or modify the Delair.ai Services so that they are non-infringing and substantially equivalent in function to the enjoined Delair.ai Services ; or (iii) if options (i) and (ii) above cannot be accomplished despite DELAIR’s reasonable efforts, then DELAIR may terminate Customer’s rights and DELAIR’s obligations hereunder.
9.3 Exclusions. Notwithstanding the terms of Section 9.1, DELAIR will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (i) the combination, operation or use of the Delair.ai Services with equipment, devices, software or data not supplied by DELAIR, if a claim would not have occurred but for such combination, operation or use; or (ii) Customer’s use of the Delair.ai Services other than in accordance with this Agreement.
9.4 Sole Remedy. THE FOREGOING STATES DELAIR’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
9.5 Indemnification by Customer. Customer will defend DELAIR and its Affiliates (the “DELAIR Parties” against any action or suit brought against the DELAIR Parties by a third party in connection with Customer’s use of the Delair.ai Services (other than claims for which DELAIR is responsible under Section 9.1), and will indemnify and hold the DELAIR Parties harmless from and against any damages, costs and expenses (including reasonable attorneys’ fees) awarded in final judgment against the DELAIR Parties or payable in settlement with respect to such claim; provided that DELAIR: (i) promptly notifies Customer in writing of the claim; (ii) grants Customer sole control of the defense and settlement of the claim; and (iii) provides Customer, at Customer’s expense, with all
assistance, information and authority reasonably required for the defense and settlement of the claim. DELAIR reserves the right to retain counsel, at DELAIR’s sole expense, to participate in the defense of any such claim. Customer may not enter into any settlement that would impose any obligations or liability upon DELAIR or that would limit or adversely affect DELAIR’s rights in and to the Delair.ai Services without DELAIR’s prior written consent.
10. LIMITATION OF LIABILITY
10.1 Total Liability. EXCEPT FOR LIABILITY RESULTING FROM DELAIR’S BREACH OF SECTION 7 (CONFIDENTIALITY), IN NO EVENT WILL DELAIR’S TOTAL LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY IN Connection with this Agreement OR CUSTOMER’S ACCESS TO AND USE OF THE SERVICES, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE FEES CUSTOMER PAID DELAIR UNDER THIS AGREEMENT OVER THE LAST TWELVE (12) MONTHS.
10.2 Exclusion of Damages. EXCEPT FOR LIABILITY RESULTING FROM DELAIR’S OR CUSTOMER’S BREACH OF SECTION 7 (CONFIDENTIALITY), AND EXCEPT FOR THE PARTIES INDEMNIFICATION OBLIGATIONS IN SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ITS CUSTOMERS OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE, PROFITS, GOODWILL, REVENUE OR DATA, OR BUSINESS INTERRUPTION OR THE COST OF PROCURING SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, OR DAMAGES TO CUSTOMER’S, ITS CUSTOMER’S, OR THIRD PARTIES’ TECHNOLOGY OR PROPERTY, OR BODILY INJURY OR DEATH.
10.3 Acknowledgement. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY: (I) REGARDLESS OF THE FORM OR THEORY ON WHICH A CLAIM OR ACTION IS BASED, WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE OR RELIANCE), PRODUCT LIABILITY OR OTHERWISE; (II) EVEN IF SUCH PARTY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (III) NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED FOR IN THIS AGREEMENT.
DELAIR SHALL NOT BE LIABLE FOR ANY LOSSES ARISING FROM CUSTOMER’S USE OR MISUSE OF THE SERVICES OR DOCUMENTATION, INCLUDING FOR ANY DAMAGE OR WEAR AND TEAR TO DRONES USED IN CONJUNCTION WITH THE SERVICES; WILFUL DAMAGE; CUSTOMER’S NEGLIGENCE, OR THAT OF ITS AGENTS OR EMPLOYEES, OR ANY FAILURE TO FOLLOW DELAIR’S INSTRUCTIONS AS TO USE OF THE SERVICES; ABNORMAL WORKING CONDITIONS BEYOND THOSE REFERRED TO IN ANY SPECIFICATIONS; PILOT OR USER ERROR.
11. TERM AND TERMINATION
11.1 Term. This Agreement will commence on the Effective Date and will continue for the Initial Term (as defined in the Quote), unless terminated earlier as provided in this Agreement. This Agreement will automatically renew for subsequent durations equal to the Initial Term, unless either Party notifies the other in writing of its intent not to renew at least ninety (90) days prior to the end of the then-current term. The initial term and any renewal terms are collectively the “Term”.
11.2 Termination for Cause. Either Party may terminate this Agreement immediately upon written notice to the other Party: (i) if the other Party breaches any material term of this Agreement, the breach is capable of being cured, and the breaching party fails to cure such breach within thirty (30) days following written notice thereof from the non-breaching Party; or (ii) if the other Party breaches any material term of this Agreement and the breach is incapable of being cured. In addition, DELAIR may terminate this Agreement immediately upon written notice to Customer, if Customer breaches its payment obligations under Section 6 and fails to cure such breach within 15 business days following written notice thereof from DELAIR.
11.3 Effect of Termination. Upon any expiration or termination of this Agreement: (i) Customer’s and its Authorized Users’ right to access and use the Delair.ai Services will immediately terminate and Customer and its Authorized Users will immediately cease all use of the Delair.ai Services; and (ii) each Party will return and make no further use of any Confidential Information of the other Party.
11.4 Survival. The rights and obligations of the Parties under Sections 4, 6, 7, 9, 10, 11.3, 11.4 and 12 will survive any expiration or termination of this Agreement.
12.1 Assignment. Neither Party may assign or transfer this Agreement, in whole or in part, without the other Party’s written consent except in the event of a Change of Control (as defined below). Any attempted assignment or transfer without such consent will be void. “Change of Control” means, with respect to a Party: (i) the direct or indirect acquisition of either: (a) the majority of voting stock of such Party or (b) all or substantially all of the assets of such Party, by another entity in a single transaction or a series of transactions; or (ii) the merger of such Party with another entity. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the Parties.
12.2 Governing Law. This Agreement shall be governed by and construed in all respects in accordance with the laws of France, without regard to its conflict of laws rules or principles. The Parties disclaim application of the United Nations Convention on the International Sale of Goods. Subject to this Section 12.2, the Parties submit to the exclusive jurisdiction of the courts of the Toulouse. Nothing in this Agreement shall limit the right of DELAIR to take proceedings against Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude DELAIR from taking proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
12.3 Waiver. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
12.4 Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
12.5 Notices. Any notice or other communication given to a Party under or in connection with the Agreement shall be in writing, addressed to that Party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that Party may have specified to the other Party in writing in accordance with this Section, and shall be delivered personally, sent by pre-paid first class mail or certified email or other next working day delivery service or commercial courier. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in this Agreement; if sent by pre-paid first class mail or received electronically by email by an official representative or other next working day delivery service, at 9.00 am on the second Business Day after mailing; if delivered by overnight commercial courier (e.g., FedEx), on the date and at the time that the overnight courier’s delivery receipt is signed. The provisions of this Section 12.5 shall not apply to the service of any proceedings or other documents in any legal action.
12.6 Relationship Between the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other nor to incur obligations on the other’s behalf without such other Party’s prior written consent.
12.7 Force Majeure. Neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations due to causes beyond its reasonable control including without limitation acts of God, inclement weather conditions, war, terrorism, governmental action, labor conditions, riot, acts of civil or military authorities, fire, floods, earthquakes, accidents and denial-of-service attacks (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing Party will promptly notify the other Party and will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such Party continues to use commercially reasonable efforts to resume performance.
12.8 Entire Agreement. This Agreement together with any referenced documents, terms or order forms associated hereto constitute the complete and exclusive agreement between the Parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each Party.
12.9 Non-Exclusive Remedies. Except as expressly set forth in this Agreement, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
12.10 Counterparts. This Agreement may be executed in counterparts, each of will constitute an original, and all of which will constitute one and the same instrument.
12.11 Non-Solicitation. During the Term of and for a period of twelve (12) months thereafter, Customer will not solicit for employment or attempt to engage as an independent contractor any employee or independent contractor of DELAIR.
12.12 Compliance with Laws. Customer agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, (i) aviation and privacy laws, (ii) the possession, use, import, export or resale of the Delair.ai Services (as further defined in Section 12.14 below). It is Customer’s obligation to ensure that the Delair.ai Services are not exported or imported in violation of the laws of any jurisdiction. Where necessary, Customer shall inform DELAIR at a reasonable time before delivery of any documents which it is necessary for DELAIR to provide in order to allow export of the Delair.ai Services in compliance with the laws of any relevant jurisdiction.
12.13 Marketing. DELAIR expressly agrees that, without Customer’s prior written consent in each instance, it shall not disclose or otherwise identify Customer orally or in any of its advertising, publications, or other media that are displayed or disseminated to its customers or other parties, except that DELAIR reserves the right to include Customer name(s) as a reference. If Customer provides such written consent for each such instance, then Customer grants to DELAIR a worldwide, royalty-free, non-exclusive license for the Term to use its company logo, name and imagery of Customer’s aircraft for the limited purpose of displaying such information on DELAIR’s website and in media specifically approved by Customer.
12.14 Hyperlinked Material. The website used to access the Delair.ai Services may contain hyperlinks to other sites on the Internet that are not owned or controlled by DELAIR. DELAIR does not endorse or assume any responsibility for any material on such sites, or any other material outside of the Service, that is accessed directly or indirectly by any such hyperlink.
Any services to be provided by DELAIR to the customer listed below (“Customer”) are subject to and governed by the Terms. No terms in any purchase order form or other document that conflict or are inconsistent with such Terms shall have any force or effect unless expressly agreed to by Delair in writing.
This document is the sole property of Delair. Neither this document nor any of the information contained herein may be reproduced or disclosed under any circumstances without the express written permission of Delair.