Term of Use
Palladium Terms and conditions
THIS SUBSCRIPTION AGREEMENT GOVERNS SUBSCRIBER’S ACQUISITION AND USE OFAIRMATRIX SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.IF SUBSCRIBER REGISTERS FOR A FREE TRIAL OF AIRMATRIX SERVICES OR FOR BETATEST SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERNTHOSE BETA TEST SERVICES.BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2)EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING BETATEST SERVICES, SUBSCRIBER AGREES TO THE TERMS OF THIS AGREEMENT. IF THEINDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OROTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITYTO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICHCASE THE TERM “SUBSCRIBER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IFTHE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, ORDOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOTACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
1. Definitions.
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this
Agreement, the following terms shall have the following meanings:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common
control with the subject entity.
“Control”, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty
percent (50%) of the voting interests of the subject entity;
“Business Day” means any day, other than Saturday, Sunday or any statutory or civic holiday observed
in the Province of Ontario, Canada;
“Documentation” means any and all written or electronic documentation, including user manuals and/or
reference materials that AirMatrix makes available to Subscriber, as may be updated by AirMatrix from
time to time;
“FAA” means the Federal Aviation Administration;
“Fee(s)” means the monthly fees (as specified in the Order Form) payable by Subscriber to AirMatrix for
the right to receive access to the Service;
“Initial Term” means such period as specified in the initial Order Form or, if not so specified, a period of
one year from the date of execution of the first Order Form;
“LAANC” means the Low Altitude Authorization and Notification Capability developed by the FAA;
“LAANC Data” means the information entered into the Platform by Subscriber that AirMatrix either sends
to the FAA or receives from the FAA, for the purpose of processing or managing LAANC authorizations
for Subscriber. LAANC Data includes: (a) Personally Identifiable Information (PII) data that is collected,
handled, shared, or stored, for the purpose of processing or managing LAANC authorizations (e.g., the
operator’s first name, last name, phone number, and email address); and (b) All non-PII data collected,
handled, shared, or stored, for the purpose of processing and managing LAANC authorizations (e.g., start
date, time, and duration of the operation; maximum altitude; geometry airspace class(es); submission
reference code; safety justification for non-auto-authorized operation; and aircraft registration number used to obtain an authorization from the FAA).
Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or maliciouscode, files, scripts, agents or programs;
“Mobile Device” means a mobile device such as a smartphone or tablet which operates on iOS orAndroid operating system;
“Order Form” means an ordering document or online order specifying the Services to be providedhereunder that is entered into between Subscriber and AIRMATRIX, including any addenda andsupplements thereto.
“Platform” means AirMatrix’s cloud-based platform as more fully described in the Documentation;
“Service” means the subscription to the Platform as set out in the Order;
“Subscriber Data” means all electronic data or information submitted by Subscriber and/or its Users tothe Service, or otherwise collected from Subscriber’s use of the Service;
“Term” means the Initial Term and all subsequent Renewal Terms;
“Third Party UAS Technology” means UAS Technology provided by third parties, including withoutlimitation third party hardware and third party software;
"UAS” means unmanned aerial systems; and“User” means (i) an employee, contractor or agent of Subscriber who is authorized by Subscriber to use the Service who has been supplied a user account and password by Subscriber (or by AirMatrix atSubscriber’s request) for the Service as the case may be.
2. Grant of License.
2.1 Provision of Service.
Conditioned on the provisions in this Section 2 and the other terms and conditions of this Agreement and the limitations set out in the Order Form, on the execution of an OrderForm AirMatrix shall make the Service available to Subscriber during the Term for the purpose of allowingSubscriber and the number of Users specified in the Order Form to use the Service in the internaloperation of Subscriber’s business, Subscriber shall not use the Service for any purposes other than the internal operation of Subscriber’s business.
2.2 User Accounts.
When you use our Platform, we use automatic data collection technologies (which may prompt you to take certain actions) to collect limited diagnostic and technical information about your use of the Platform and Third Party Drone Technologies, such as your location at the time of such usage (together, “Platform Usage Data”). The Platform also records information collected through the Third Party Technologies, but this information should not consist of Personal Information and accordingly is not subject to the terms of this policy.
2.3 Subscriber Affiliates
Subscriber and Subscriber Affiliates may use the Service subject to the terms and conditions of this Agreement. Subscriber shall cause each Subscriber Affiliate to comply with the terms and conditions of this Agreement to the full extent as if such Affiliate were a party hereto, and any act or omission relating to this Agreement by such Subscriber Affiliate shall be deemed an act or omission of Subscriber. In addition, each party may use one or more Affiliates to perform its obligations under this Agreement, provided that such use shall not affect such party’s obligations hereunder and any act or omission by such Affiliate relating to this Agreement shall be deemed an act or omission of such party.
2.4 Reservation of Rights.
The rights and licenses granted under this Agreement are only as expressly set forth herein. No other license or right is or will be deemed to be granted, whether by implication, estoppel, inference or otherwise, by or as a result of this Agreement or any conduct of either party under this Agreement.
2.5 Beta Services.
Airmatrix may make the Services available to Subscriber on a “Beta Test” basis, where expressly provided for in in the applicable Order Form (“Beta Services”). Use of Beta Services is subject to the terms and conditions of this Agreement and this section. In the event of a conflict between this section and any other portion of this Agreement, this section shall control..NOTWITHSTANDING ANYOTHER PROVISION OF THIS AGREEMENT, THE BETA TEST SERVICES ARE PROVIDED “AS-IS”WITHOUT ANY WARRANTY OR REPRESENTATION AND AIRMATRIX SHALL HAVE NOINDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE BETASERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLELAW IN WHICH CASE AIRMATRIX’S LIABILITY WITH RESPECT TO THE BETA SERVICES SHALLNOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, AIRMATRIX AND ITS AFFILIATESAND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO SUBSCRIBER THAT: (A)SUBSCRIBER’S USE OF THE BETA SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS, (B)SUBSCRIBER’S USE OF THE BETA SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE ORBETA FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE BETA SERVICES WILL BEACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OFLIABILITY” SECTION BELOW, SUBSCRIBER SHALL BE FULLY LIABLE UNDER THIS AGREEMENTTO AIRMATRIX AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF SUBSCRIBER’S USEOF THE BETA SERVICES, ANY BREACH BY SUBSCRIBER OF THIS AGREEMENT AND ANY OFSUBSCRIBER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
3. Use of the Service
3.1 AirMatrix Responsibilities.
AirMatrix shall: (i) use commercially reasonable efforts to maintain the security and integrity of the Service and the Subscriber Data; (ii) provide basic support to Subscriber and its Users at no additional charge, together with suc other support as may be specified in the applicable Order Form; and (iii) use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime; or (b) any unavailability caused by circumstances beyond AirMatrix's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving AirMatrix employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within AirMatrix’s possession or reasonable control, and denial of service attacks.
3.2 Subscriber Responsibilities.
Subscriber is responsible for all activities that occur in User accounts and for its employees’, contractors’, Subscribers’ and agents’ compliance with this Agreement.Subscriber shall: (i) have sole responsibility for its operation of UAS; (ii) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Data; (iii) (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service and its operation of any UAS; and (iv) comply with the obligations in respect of Third Party UAS Technology as set out inSection 4 below.
3.3 Use Guidelines.
Subscriber shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as required to provide the Service to Users as contemplated by this Agreement; (ii) use the Service to send or store Malicious Code; (iii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; or (v) use the service in violation of any laws.
3.4 Incremental Services.
From time to time, certain additional AirMatrix or third-party functionality(such functionality being deemed not to be part of the Service) may be made available by AirMatrix toSubscriber (in the case of third-party functionality, such functionality being made available on a pass-through basis pursuant to terms specified by the third-party AirMatrix of such functionality), and which additional functionality may be purchased by Subscriber for additional fees in accordance with such mutually agreed upon terms and conditions as may be applicable to such additional functionality (such terms and conditions prevailing in the event of any inconsistency with the terms and conditions of thisAgreement)
3.5 Publicity
Neither party may issue press releases relating to this Agreement without the other party's prior written consent. Each party may include the name and logo of the other party in lists ofSubscribers or vendors in accordance with the other party's trademark standard guidelines.
4. Operation of UAS
4.1 Compatible Third Party UAS Technology.
The Services are designed to interface solely with those Third Party Technologies as are listed in the Documentation from time to time. Changes (including without limitation modifications and upgrades) to Third Party UAS Technology made after the date of theDocumentation may affect the interaction of the Service with such Third Party UAS Technology and theServices may no longer effectively operate with such Third Party UAS Technology following such changes.
4.2 Operation of UAS.
Users are solely responsible for assessing the suitability of the environmentin which any UAS is to be operated, taking into account all risk and environmental factors (including without limitation risk to individuals and property, risk to User, risk to environment and risk to the UAS).USERS SHOULD AT ALL TIMES MONITOR AND BE IN CONTROL OF ANY UAS IN ORDER TOADDRESS ANY RISK THAT MAY ARISE DUE TO ENVIRONMENTAL ISSUES, THE UAS OR ANYEXTERNAL FACTOR (including without limitation wildlife, wind, rain, geographical features or others).The Services are intended to be used by experienced users of UAS who have received training in using such UAS safely and in compliance with all applicable laws and FAA regulations. Users should not use the Service if they are not properly trained and qualified to fly any UAS.
4.3 Liability for use of UAS.
Without limitation any other provision of this Agreement, AirMatrix assumed no responsibility for any loss, damage, injury or death due to the misuse of the Services or caused by any UAS which the Services are used in connection with. Subscriber assumes all liability fordamages to property and persons arising from any UAS which the Services which is used in connectionwith the Service. Subscriber assumes all liability for improper use of UAS. Subscriber is responsible forproper configuration and maintenance of the UAS. UAS is inherently dangerous and should not be usedby anyone without professional training and experience. It is the responsibility of the Subscriber to decideif the UAS is suitable for its intended use. Subscriber is responsible for following all federal, State andlocal laws which may regulate the use of all Third Party Technologies in a particular location.
4.4 Disclaimer
AIRMATRIX DOES NOT GUARANTEE ERROR BEHAVIOR FROM USE OF THESERVICES, AIRMATRIX IS NOT RESPONSIBLE FOR ANY CLAIM DUE TO MISUSE, CRASHES, DAMAGE, INCORRECT SETUP/CONFIGURATION, OR OTHER NEGLIGENT BEHAVIOR. THISDISCLAIMER IS WITHOUT LIMITATION TO ANY OTHER PROVISION OF THIS AGREEMENT.WITHOUT LIMITING THE FOREGOING, AIRMATRIX AS PART OF THE SERVICE MAY MAKEAVAILABLE CERTAIN COMMUNICATIONS TO AND FROM THE LAANC, AND MAY SUPPORT ANDFACILITATE SMALL UAS (SUAS) AUTHORIZATIONS THROUGH LAANC WITH THE FAA. HOWEVER,IS IS EXPRESSLY ACKNOWLEDGED AND AGREED THAT SUAS AUTHORIZATIONS ARE PROVIDEDBY THE FAA THROUGH THE LAANC SYSTEM, WHICH SYSTEM IS MADE AVAILABLE BY THE FAAAT ITS SOLE DISCRETION AND WHICH (I) MAY BE SUBJECT TO ERRORS, BUGS, INACCURACIESRO OTHER FLAWS WHICH ARE ENTIRELY OUTSIDE OF AIRMATRIX’S CONTROL; (II) MAY NOT BEAVAILABLE AT ALL TIMES OR AT ANY TIME WHERE REQUIRED BY SUBSCRIBER; (III) IS SUBJECTTO THE FAA’S DECISION MAKING PROCESS, WHICH MAY GRANT OR WITHHOLDAUTHORIZATIONSAT THE FAA”S DISCRETION; AND (IV) IS SUBJECT TO UNILATERAL CHANGEOR DISCONTINUATION BY THE FAA. ACCORDINGLY, AIRMATRIX EXPRESSLY DISCLAIMS ANYAND ALL RESPONSIBILITY FOR ANY FUNCTIONALITY THAT IS DEPENDENT ON THE LAANC.
5. Fees & Payment.
5.1 Fees
In consideration for the receipt of the Service purchased by Subscriber, Subscriber shall pay AirMatrix the AirMatrix Fees as specified in the Order Form. All amounts are payable in the currency specified in the applicable Order Form.
5.2 Invoicing & Payment
Fees for the Service will be invoiced on a monthly or annual basis in advance, as specified in the applicable Order Form. Unless otherwise stated in an invoice, charges are due net thirty (30) days from the invoice date. Subscriber is responsible for maintaining complete and accurate billing and contact information with AirMatrix.
5.3 Overdue Payments
Any payment not received from Subscriber by the due date may accrue, atAirMatrix's discretion, late charges at the rate of 1.5% of the outstanding balance per month (19.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
5.4 Taxes
Unless otherwise stated, AirMatrix's fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, "Taxes").Subscriber is responsible for paying all Taxes associated with its purchases pursuant to this Agreement, excluding taxes based on AirMatrix's net income or property. If AirMatrix has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this section, the appropriate amount shall be invoiced to and paid by Subscriber, unless Subscriber provides AirMatrix with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.5 Audit Rights
AirMatrix shall have the right to use the capabilities of the Service to confirm the number of Users using the Service and Subscriber’s compliance with this Agreement.
5.6 Suspension of Service.
If Subscriber's account is thirty (30) days or more overdue, then in addition to any of its other rights or remedies, AirMatrix shall have the right to suspend the Service provided to Subscriber, without liability to Subscriber, until such amounts are paid in full.
5.7 Fee Changes.
At the end of the Initial Term or any Renewal Term, AirMatrix may change, in its sole discretion, any fees, upon thirty (30) days prior written notice to Subscriber and such revised pricess hall become applicable to Subscriber at the start of the next Renewal Term.
6 Proprietary Rights.
6.1 Reservation of Rights.
Subject to the limited rights expressly granted hereunder, AirMatrix reserves all rights, title and interest in and to the Service, including all related intellectual property rights.No rights are granted to Subscriber hereunder other than as expressly set forth herein.
6.2 Restrictions.
Subscriber shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service; (b)circumvent any user limits or other timing or use restrictions that are built into the Service; (c) remove any proprietary notices, labels, or marks from the Service; (d) frame or mirror any content forming part of theService; (e) access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service; or (f) use all or any portion of the Service for hazardous purposes requiring fail-safe performance, such as air traffic control, or weapons systems, in which the failure of the Service could lead directly to death, personal injury, or severe physical or environmental damage.
6.3 Subscriber Data
As between AirMatrix and Subscriber, Subscriber exclusively owns all rights, title and interest in and to all Subscriber Data, other than the LAANC Data. Subscriber expressly acknowledges and agrees that the FAA will hold a non-exclusive right to all LAANC Data. For the avoidance of doubt, Subscriber Data does not include information accessed by AirMatrix from third party sources. Subscriber hereby grants AirMatrix and its Affiliates a royalty-free, non-exclusive, non-transferable (except as provided in Section 11.6 (Assignment)) license to the Subscriber Data to the extent required for AirMatrix to perform its obligations pursuant to this Agreement.
6.4 Learnings and algorithm updates.
AirMatrix may analyze Subscriber use and the SubscriberData for the purpose of creating aggregated or anonymized data such as (i) analytics in respect toService use and other Service and User parameters and characteristics; (ii) identifying different patterns and usages and making consequent additions, adjustments or modifications to underlying algorithms and machine learning databases within the AirMatrix platform (together the “AirMatrix Learning Data”).AirMatrix shall own all right, title and interest to all AirMatrix Learning Data.
6.5 Suggestions
AirMatrix shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber or its Users relating to the operation of the Service. For greater certainty, AirMatrix shall have no obligation to modify theService to implement any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber or its Users.
7. Confidentiality.
7.1 Definition of Confidential Information.
As used in this Agreement, “ConfidentialInformation” means all confidential and proprietary information of a party (the “Disclosing Party”)disclosed to the other party (the “Receiving Party”) that is marked as confidential at the time ofdisclosure or which if disclosed orally is identified as confidential at the time of disclosure and for which awritten summary, which is marked as confidential, is provided to the receiving party within thirty (30) daysthereafter. Notwithstanding the foregoing, the Service and all pricing information shall be deemed to bethe Confidential Information of AirMatrix. Confidential Information shall not include any information that:(i) is or becomes generally known to the public without breach of any obligation owed to the DisclosingParty; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
7.2 Confidentiality.
The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.
7.3 Protection.
Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
7.4 Compelled Disclosure.
If the Receiving Party is compelled by law to disclose ConfidentialInformation of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
7.5 Remedies
If the Receiving Party discloses or uses (or threatens to disclose or use) anyConfidential Information of the Disclosing Party in breach of confidentiality protections contained in thisAgreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
8. Warranties & Disclaimers
8.1 General Warranties.
Each party represents and warrants that it has the legal power to enter into this Agreement.
8.2 Service Warranties
AirMatrix warrants that (i) the Service will perform materially in accordance with the Documentation; and (ii) the Service will not contain or transmit to Subscriber any Malicious Code(except for any Malicious Code contained in User or Subscriber-uploaded materials or otherwise originating from Subscriber or a User). Any claim for any alleged breach of this Section 7.2 must be made within ninety (90) days of the date of such alleged breach and AirMatrix shall only be liable for any direct damages incurred by Subscriber within the ninety (90) days after the occurrence of such breach and which are a result of such breach.
8.3 Disclaimer
EXCEPT AS EXPRESSLY PROVIDED HEREIN, AIRMATRIX MAKES NOREPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND,WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALLIMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANYREPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY,MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITYOR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BYAPPLICABLE LAW. AIRMATRIX IS NOT RESPONSIBLE FOR THE ENVIRONMENT IN WHICH ANYTHIRD PARTY UAS TECHNOLOGY IS USED IN CONNECTION WITH THE SERVICES, AND HAS NOCONTROL OVER THE SUITABILITY OF SUCH ENVIRONMENT FOR THE USE OF THE SERVICESOR THE OPERATION AND OVERSIGHT OF ANY THIRD PARTY UAS TECHNOLOGY IN SUCHENVIRONMENT.
9. Mutual Indemnification
9.1 Indemnification by AirMatrix.
AirMatrix shall, at its own expense, defend Subscriber, itsAffiliates and its and their respective officers, directors, employees, consultants and agents (collectively,the “Subscriber Indemnitees”) in any action, suit or proceeding brought by a third party against any ofthe Subscriber Indemnitees alleging that the Service (excluding the Subscriber Data and any brandingprovided by Subscriber for the purpose of white-labelling the AirMatrix Platform) infringes any patent,trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IPClaim”) and shall indemnify and hold the Subscriber Indemnitees harmless from and against anysettlement amounts agreed by AirMatrix in writing and/or any losses, damages, expenses, or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against any of theSubscriber Indemnitees by a court of competent jurisdiction in any IP Claim. As conditions for thedefense and indemnification to be provided by AirMatrix pursuant to this Section 9, Subscriber shall: (i)provide AirMatrix with prompt written notice of any IP Claims and copies of relevant documentationregarding any IP Claims for which indemnification may be sought; (ii) give AirMatrix sole control of thedefense and settlement of such IP Claims; (iii) cooperate fully with AirMatrix, at AirMatrix’s expense, in thedefense or settlement of such IP Claims; and (iv) not settle any IP Claims or admit liability in respect toany IP Claims. This Section 8 sets forth the entire liability of AirMatrix and the exclusive remedy ofSubscriber for patent, copyright or other proprietary or intellectual property right infringement ormisappropriation.
9.2 Mitigation
If an IP Claim has occurred, or in AirMatrix's opinion is likely to occur, AirMatrix may,at its election and expense, either obtain for Subscriber the right to continue using the applicable Serviceor replace it with a comparable Service or modify the Service so that it become non-infringing. If neitherof the foregoing alternatives is reasonably available, Subscriber agrees to discontinue use of theapplicable portion of the Service, and may in its sole discretion terminate the Agreement upon writtennotice to AirMatrix and receive a pro-rata refund of AirMatrix Service Fees that were paid in advance, ifany, in respect to time periods after the date of any such termination.
9.3 Exclusions
AirMatrix shall have no obligations or liabilities to any of the Subscriber Indemniteesfor any IP Claim that arises from or relates to (i) any unauthorized use of the Service by Subscriber; (ii)any combination of the Service with any technology, service or data provided by anyone other thanAirMatrix, provided that such IP Claim would not have arisen but for such combination; (iii) anymodification of the Service by anyone other than AirMatrix, provided that such IP Claim would not havearisen but for such combination; or (iv) any claim that the Subscriber branding infringes third party rightsor that a white-labelled version of the Service infringes third party rights where such claim arises solelybecause the Subscriber branding infringes third party rights.
9.4 Indemnification by Subscriber.
Subscriber shall, at its own expense, defend AirMatrix, itsAffiliates and its and their respective officers, directors, employees, consultants and agents (collectively,the AirMatrix Indemnitees”) in any action, suit or proceeding brought by a third party against any of theAirMatrix Indemnitees arising from or relating to (i) any claim brought by subscriber in any way related tothe LAANC or any authorisations granted or denied thereunder; (ii) any breach by Suscriber of anyapplicable laws or regulations (including without litiation any imposed by the FAA); or (iii) the SubscriberData (collectively, (i) and (ii) hereinafter referred to as a “Subscriber-related Claim”) and shall indemnifyand hold the AirMatrix Indemnitees harmless from and against any settlement amounts agreed bySubscriber in writing and/or any losses, damages, expenses, or costs (including but not limited toreasonable attorneys' fees) awarded to such third party against any of the AirMatrix Indemnitees by acourt of competent jurisdiction in any Subscriber-related Claim. As conditions for the defense andindemnification to be provided by Subscriber, AirMatrix shall: (i) provide Subscriber with prompt writtennotice of any Subscriber-related Claim and copies of relevant documentation regarding anySubscriber-related Claim for which indemnification may be sought; (ii) give Subscriber sole control of thedefense and settlement of such Subscriber-related Claim; (iii) cooperate fully with Subscriber, atSubscriber’s expense, in the defense or settlement of such Subscriber-related Claim; and (iv) not settleany Subscriber-related Claims or admit liability in respect to any Subscriber-related Claims.
10. Limitation of Liability
10.1 Limitation of Liability.
EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS,ANY BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS, ANY INFRINGEMENT ORMISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTYRIGHTS (INCLUDING THOSE OF ITS LICENSORS AND/OR SUPPLIERS), CLAIMS FORNON-PAYMENT OR DEATH OR BODILY INJURY, IN NO EVENT SHALL THE MAXIMUM CUMULATIVELIABILITY OF EITHER PARTY FOR ANY AND ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED, IN THE AGGREGATE, THETOTAL AMOUNT PAYABLE BY SUBSCRIBER TO AirMatrix UNDER THE AGREEMENT DURING THEPRECEDING TWELVE- (12-) MONTH PERIOD.
10.2 Exclusion of Consequential and Related Damages.
EXCEPT FOR EACH PARTY’SINDEMNIFICATION OBLIGATIONS, ANY BREACH BY A PARTY OF ITS CONFIDENTIALITYOBLIGATIONS, ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHERPARTY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING THOSE OF ITS LICENSORS AND/ORSUPPLIERS), OR DEATH OR BODILY INJURY, NEITHER PARTY SHALL BE LIABLE TO ANY OTHERENTITY OR PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE ORCONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOST DATA,LOST SAVINGS, LOST OPPORTUNITY COSTS, LOST TIME OR GOODWILL, EVEN IF IT HAS BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDINGNEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
11 Term & Termination.
11.1 Term of Agreement.
This Agreement shall commence as of the Effective Date set forth in theOrder Form and shall continue for the Initial Term. Except as otherwise specified in an Order Form,subscriptions will automatically renew for additional periods equal to the expiring subscription term or oneyear (whichever is shorter), unless either party gives the other written notice (email acceptable) at least30 days before the end of the relevant subscription term.
11.2 Termination for Cause.
A party may terminate this Agreement for cause: (i) upon thirty (30)days written notice of a material breach to the other party if such breach remains uncured at theexpiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or anyother proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.Upon any termination for cause by Subscriber, AirMatrix shall refund Subscriber any prepaid fees for anyperiods after the termination of the Agreement.
11.3 Outstanding Fees.
Termination or expiration shall not relieve Subscriber of the obligation to pay any fees accrued or payable to AirMatrix prior to the effective date of termination or expiration.
11.4 Surviving Provisions.
The following provisions shall survive any termination or expiration of thisAgreement: Sections 3 through 12.
12 General Provisions.
12.1 Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.2 No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement.
12.3 Notices
All notices under this Agreement shall be in writing and shall be deemed to have beengiven upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business dayafter sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices toAirMatrix shall be addressed to the attention of the Legal Department. Notices to Subscriber shall beaddressed to Subscriber’s signatory of this Agreement unless otherwise designated below.
12.4 Waiver and Cumulative Remedies.
No failure or delay by either party in exercising any rightunder this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, theremedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law orin equity.
12.5 Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to becontrary to law, the provision shall be modified by the court and interpreted so as best to accomplish theobjectives of the original provision to the fullest extent permitted by law, and the remaining provisions ofthis Agreement shall remain in effect.
12.6 Assignment.
Neither party may assign any of its rights or obligations under this Agreement,whether by operation of law or otherwise, without the prior written consent of the other party (not to beunreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in itsentirety, without consent of the other party, in connection with a merger, acquisition, corporatereorganization, or sale of all or substantially all of its stock or assets. Any attempt by a party to assign itsrights or obligations under this Agreement in breach of this section shall be void and of no effect. Subjectto the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respectivesuccessors and permitted assigns.
12.7 Governing Law.
This Agreement shall be governed by the laws of the Province of Ontario,Canada, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for theInternational Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, bedrawn up in English only. Les parties aux présentes confirment que c’est leur volonté que la présenteconvention de même que tous les documents, y compris les avis, s’y rattachant, soient rédigés en Anglaisseulement.
12.8 Venue; Waiver of Jury Trial.
The provincial and federal courts located in Ontario, Canada, shallhave exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Eachparty hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives anyright to jury trial in connection with any action or litigation in any way arising out of or related to thisAgreement.
12.9 Force Majeure.
Neither party shall be responsible for its failure to perform to the extent due tounforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars,terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labourproblems (other than those involving the employees of the affected party), computer, telecommunications,Internet service provider or hosting facility failures or delays involving hardware, software or powersystems not within a party’s possession or reasonable control, provided that such party gives the otherparty prompt written notice of the failure to perform and the reason therefore and uses its reasonableefforts to limit the resulting delay in its performance.
12.10 Export
Subscriber acknowledges and agrees that the Service may be subject to export andimport controls under the regulations of Canada, the United States and other countries, and Subscribershall comply with all export and import control regulations of such countries. Subscriber shall not use theService for any purposes prohibited by export laws, including, without limitation, nuclear, chemical orbiological weapons proliferation. Subscriber shall be responsible for procuring all required permissionsfor any subsequent export, import or use of the Service.
12.11 Entire Agreement.
This Agreement, including the Order, constitutes the entire agreementbetween the parties, and supersedes all prior and contemporaneous agreements, proposals orrepresentations, written or oral, concerning its subject matter. No modification, amendment, or waiver ofany provision of this Agreement shall be effective unless in writing and signed by the party against whomthe modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistencybetween the provisions in the body of this Agreement and any schedule, exhibit or addendum hereto, theterms of such schedule, exhibit or addendum shall prevail. Notwithstanding any language to the contrarytherein, no pre-printed terms or conditions stated in a Subscriber purchase order or in any otherSubscriber order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
