Aerovy General Terms and Conditions

DEFINITIONS

1.1. 'Confidential Information” means: (a) with respect to Company, the Services, including all materials provided through the Services, and any and all source code, training data, language model prompts, models, algorithms, and systems of the Services and any other non-public information or material regarding our legal or business affairs, financing, customers, properties, or pricing, and any other information that a reasonable person would understand to be confidential given the circumstances and content of the disclosure, whether or not designated as “confidential” or “proprietary”; (b) with respect to Customer, Customer Data, or other information that a reasonable person would understand to be confidential given the circumstances and content of the disclosure, whether or not designated as “confidential” or “proprietary”; and (c) with respect to each Party, the terms and conditions of this Agreement. Notwithstanding any of the foregoing, Confidential Information does not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (ii) is documented as being known to or in the possession of the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”) as shown by credible evidence; (iii) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (iv) is obtained by the Receiving Party without restrictions on use or disclosure from a third party, without a breach of the third party’s obligations of confidentiality.

1.2. "Customer Data” means any data submitted to the Services by or on behalf of the Customer by authorized users.

1.3. "Destructive Elements” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Services or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices).

1.4. "Order Form” means the ordering documents relating to Customer’s purchase of a subscription or other use of the Services.

1.5. 'Prohibited Content” means content that: (a) is illegal under applicable law; (b) violates any third party’s intellectual property or privacy rights; (c) contains indecent or obscene material; (d) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (e) promotes unlawful or illegal goods, Services, or activities; (f) contains false, misleading, or deceptive statements, depictions, or sales practices; or (g) contains Destructive Elements.

SERVICES

2.1. Order Form. The Parties will enter into one or more Order Forms that contain certain additional terms and conditions applicable to the provision of the applicable Services. During the applicable Order Term, Aerovy will provide the Services as set out in the Order Form.

2.2. Implementation. To the extent implementation services are provided under an Order Form, Customer acknowledges and agrees to cooperate with Company to enable Company to successfully provide such implementation services.

2.3. AI/Machine Learning. Company may use or integrate certain large language models or other AI tools (“AI Tools”) to provide the Services. Data and other content may be provided to the AI Tools (“Input”) in order for the AI Tools to generate certain output (“Output”). With respect to third-party AI Tools, your use of such AI Tools, including your rights in the related Input and Output, are governed by the terms of service and usage policies of such AI Tools. To the extent you use the AI Tools, you agree that you: (i) will not mislead any third party as to AI Tools’ involvement in the work; (ii) will not use images or other personal information of individuals as Input without their consent; (iii) will not use, distribute, post or reproduce any Output that infringes, misappropriates, or violates any laws or any third party’s intellectual property rights or rights of publicity or privacy; (iv) will not use any AI Tools or Output in breach of any of the terms of service or usage guidelines for such AI Tools or in violation of any ethical, confidentiality or fiduciary obligations; and (v) you understand and acknowledge that the use of any AI Tools is done at your own risk and Company makes no representation, warranty or guarantee regarding the accuracy, functionality, security or usefulness of any third party’s AI Tools. You also acknowledge the inherent limitations with any AI Tools and agree to review all output of such AI Tools to ensure its accuracy and applicability.

FEES AND PAYMENT. 
During the Term (as defined below,) you shall pay the fees set forth in each applicable Order Form (the “Fees”). All payments shall be made in full within thirty (30) days of date of invoice, without offset or deduction or any kind. If any payment due from Customer under this Agreement becomes past due, Company may charge Customer a late payment charge equal to the lesser of (a) one and one-half percent (1.5%) per month, compounded monthly, or (b) the maximum rate permitted under applicable law on the past due balance. Customer shall reimburse Company for all reasonable costs and expenses incident to the collection of overdue amounts hereunder, including but not limited to reasonable attorneys’ fees.

TERM AND TERMINATION; SUSPENSION

4.1. Term. The term of this Agreement begins on the Effective Date and continues until all Order Forms have been terminated (the “Term”).

4.2. Termination. Either Party may terminate an Order Form upon thirty (30) days’ prior written notice to the other Party if the other Party breaches a material term of the applicable Order Form, and the breach is either incapable of cure or remains uncured at the expiration of such period.

4.3. Effect of Expiration or Termination. Upon termination or expiration of an Order Form: (a) we will stop providing the Services as specified in the applicable Order Form, and you will stop all access to and use of the Services as specified in the applicable Order Form; (b) you will promptly pay all unpaid Fees and applicable sales taxes due through the end of the applicable Order Term; and (c) upon written request, each Party will either return to the other Party (or, at such other Party’s instruction, destroy and provide such other Party with written certification of the destruction of) all documents, computer files, and other materials containing any of such other Party’s Confidential Information that are in its possession or control with respect to the applicable Order Form.

4.4. Survival. The following provisions will survive expiration or termination of an Order Form or this Agreement: Sections 1, 3, 4.3, 4.4, 5, 6, 8.2, 9, 10, and 11.

CONFIDENTIALITY; FEEDBACK

5.1. Confidentiality. The Receiving Party will: (a) protect the confidentiality of the Disclosing Party’s Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care; (b) not use any of the Disclosing Party’s Confidential Information for any purpose outside the scope of this Agreement; and (c) not disclose the Disclosing Party’s Confidential Information to any party other than its employees, contractors, advisors, agents, and actual or potential investors or acquirers who are bound by obligations of confidentiality as restrictive as those set forth in this Agreement. If the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section 5.1. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section 5.1, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed and will use its best efforts to ensure that confidential treatment will be afforded such disclosed portion of the Confidential Information. All Confidential Information, all documents and other tangible objects containing or representing Confidential Information, and all copies thereof which are in the possession or control of the Receiving Party, will be and remain the property of the Disclosing Party and will be destroyed or promptly returned upon the Disclosing Party’s written request. The Receiving Party agrees that monetary damages would be inadequate to compensate the Disclosing Party for any breach by the Receiving Party of this Section 5.1. The Receiving Party agrees that, in addition to any other remedies that may be available to the Disclosing Party, the Disclosing Party will be entitled to seek injunctive relief against the threatened breach of this Section 5.1 or the continuation of any such breach, without the necessity of proving actual damages.

5.2. Feedback. During the Term, Customer or authorized users may provide us with feedback, comments, and suggestions with respect to the Services (“Feedback”). All Feedback becomes our sole and exclusive property, and we may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. Customer hereby assigns to Company any and all right, title and interest that Customer may have in and to any and all Feedback.

DATA; INTELLECTUAL PROPERTY

6.1. Ownership. As between the Parties, you own all intellectual property rights in Customer Data and Company owns all intellectual property rights in and to the Services, including but not limited to any software, products, support, documentation, aggregated and statistical information related thereto, and any modifications and derivative works of the foregoing.

6.2. Customer Data. You hereby grant, and represent and warrant that you have all rights necessary to grant, us a worldwide, perpetual, non-exclusive, royalty-free, fully-paid, transferable, sublicensable (through multiple tiers to Company’s vendors and subcontractors for the purposes of providing and improving the Platform), right and license to (a) to use the Customer Data to provide, operate, and improve the Platform; (b) to use, disclose, and otherwise exploit Customer Data in anonymized and aggregate form for any purpose in accordance with applicable laws, provided that Company does not use such anonymized and aggregate data in a manner that would identify Customer or any authorized user, and (c) to perform such other actions as authorized by you in connection with your use of the Platform. You will have sole responsibility and liability for the accuracy, quality, and legality of all Customer Data. Customer represents and warrants that all Customer Data has been collected by or on behalf of Customer and shared with Company in compliance with all applicable laws.

6.3. Usage Data. Company may monitor the performance and use of the Services by all of our users, combine this data (the “Usage Data”), and use such combined data in an aggregate and anonymous manner. As between the Company and you, all right, title, and interest in and to the Usage Data will be and remain Company’s sole and exclusive property.

ACCESS, LIMITATIONS OF USE

7.1. Access. Subject to and conditioned on your payment of Fees and compliance with this Agreement, the Company hereby grants to you the right to access and use the Services for your internal business purposes only. You and your authorized users’ access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Services or other actions that Company, in its sole discretion, may elect to take.

7.2. Platform License. Subject to the use restrictions set forth in Section 7.3, Company grants you a limited, worldwide, non-exclusive, non-sublicensable, revocable right and license to use the Platform to access the applicable Platform solely for your internal business purposes.

7.3. Restrictions on Use. You will not (and will not authorize or knowingly permit any third party to): (a) allow anyone other than authorized users to access and use the Services; (b) resell, distribute, or sublicense the Services; (f) remove or modify any proprietary marking or restrictive legends placed on the Services; (c) use the Services in violation of any applicable law or regulation or for any purpose not specifically permitted in this Agreement; (d) use the Services for the purposes of performing competitive benchmarking; (e) introduce or upload to the Services any Prohibited Content; (f) access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party’s access to or use of the Services or use any device, software or routine that causes the same; (g) use the Services in a way that infringes, misappropriates or violates any person’s rights; (i) use or share the output of Services for any purpose that is prohibited under this Agreement or would violate any applicable law or regulation; (j) use any automated or programmatic method to extract data or output from the Services, including scraping, web harvesting, or web data extraction; or (k) use the output of the Services to recreate any underlying components of models, algorithms, and systems of the Services.

REPRESENTATIONS AND WARRANTIES; DISCLAIMER

8.1. Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (b) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (c) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.

8.2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1, THE SERVICES  AND ANY OTHER MATERIALS PROVIDED HEREUNDER, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND COMPANY MAKES NO WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ITS PARENTS, RELATED COMPANIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS (THE “COMPANY ENTITIES”) EXPRESSLY DISCLAIM ALL, AND MAKE NO, WARRANTIES OF ANY KIND (WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) WITH RESPECT TO THE SERVICES (INCLUDING ANY BETA FEATURES), INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE COMPANY ENTITIES MAKE NO WARRANTY OF ANY KIND THAT THE SERVICES (INCLUDING ANY BETA FEATURES), OR ANY OUTPUTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. COMPANY FURTHER MAKES NO WARRANTY AND DISCLAIMS ALL LIABILITY FOR any decisions or other actions resulting from the use of AI Tools or the Output. COMPANY IS NOT OBLIGATED TO PROVIDE CUSTOMER WITH ANY UPDATES TO THE SERVICES (INCLUDING ANY BETA FEATURES) BUT MAY ELECT TO DO SO IN ITS SOLE DISCRETION.

LIMITATION OF LIABILITY
EXCEPT FOR A PARTY’S GROSS NEGLIGECNCE OR WILLFUL MISCONDCUT, INDEMNIFICATION OBLIGATIONS, AND INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE THE SERVICES (INCLUDING ANY BETA FEATURES)), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THIS AGREEMENT OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES (INCLUDING ANY BETA FEATURES) OR THIS AGREEMENT AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE OTHERWISE FORESEEABLE. EXCEPT FOR A PARTY’S GROSS NEGLIGECNCE OR WILLFUL MISCONDCUT, INDEMNIFICATION OBLIGATIONS, AND INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

INDEMNIFICATION

10.1. Customer shall indemnify, hold harmless, and, at Company’s option, defend the Company Entities from and against any and all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising out of or in connection with any third-party claim, suit, action, or proceeding (“Third-Party Claim”) (i) based on Customer’s or any of its authorized users’ use of the Services in violation of this Agreement or failure to have the necessary rights, consents, authorizations and permissions to provide the Customer Data to Company, (ii) based on Customer’s or any authorized user’s gross negligence or willful misconduct, or (iii) relating to the use or provision of any Customer Data; provided that Customer may not settle any Third-Party Claim against Company unless Company consents in writing to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

10.2. Company shall indemnify, defend, and hold harmless Customer and its affiliates and their respective employees, officers, directors, contractors, shareholders, agents and assigns (each a “Customer Entity”) from and against any and all damages, losses, costs (including reasonable attorneys’ fees), or other expenses arising from Third-Party Claims against any Customer Entity arising from Company’s gross negligence or willful misconduct. 

10.3. If either Party believes that it is entitled to indemnification under this Section 10 it shall (i) promptly notify the indemnifying Party in writing of such claim, (ii) give the indemnifying Party reasonable information, assistance and cooperation required to defend such claim, and (iii) allow the indemnifying Party to control the defense of any such claim and all negotiations for its settlement or compromise, provided that the indemnifying Party may not settle any such claim unless such settlement completely and forever releases the indemnified Party from all liability with respect to such claim or unless the indemnified Party consents to such settlement, and further provided that the indemnified Party shall have the right, at its option and expense, to defend or to participate in the defense thereof by counsel of its own choice.

GENERAL PROVISIONS

11.1. Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that either Party may, without the consent of the other Party, assign or otherwise transfer this Agreement to an affiliate or in connection with a merger, acquisition, consolidation, sale of equity interests, or sale of all or substantially all of its assets, provided that in all cases, the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Any assignment or other transfer in violation of this Section 11.1 will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.

11.2. Entire Agreement. This Agreement, including all Schedules attached hereto and all related Order Forms, constitutes the final and complete agreement between the Parties regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements.

11.3. Exclusive Forum and Governing Law. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in New York, New York for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard for choice of law provisions thereof.

11.4. Force Majeure. Except for your obligations to pay any sums due hereunder, neither Party will be deemed to be in breach of this Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, earthquakes, strikes, pandemics, epidemics, quarantine restrictions, internet or telecommunication outages, or shortages of materials or resources.

11.5. Independent Contractors. The Parties are independent contractors. Neither Party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other for any purpose, and neither will have any right, power, or authority to create any obligation or responsibility on behalf of the other.

11.6. Notices. All notices required under this Agreement (other than routine operational communications) must be in writing in one of the following forms. Notices will be effective upon: (a) actual delivery to the other Party, if delivered in person, or by facsimile, or by e-mail (other than notices under Section 4.2, which may not be made via e-mail), or by national overnight courier; or (b) five (5) business days after being mailed via U.S. postal service, postage prepaid.

11.7. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

11.8. Third-Party Beneficiaries. Other than as set forth in Section 10, this Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

11.9. Headings; Construction. The headings herein are included for convenience of reference only and shall not affect the meaning or interpretation of this Agreement. The terms “this Agreement,” “hereof,” “hereunder” and any similar expressions refer to this agreement and not to any particular section or other portion hereof. The parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this agreement. As used in this Agreement, the words “include” and “including,” and variations thereof, will be deemed to be followed by the words “without limitation” and “discretion” means sole discretion.

11.10. Amendment. This Agreement may not be altered except by a written instrument signed by authorized legal representatives of both Parties. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective.

11.11. Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement will operate or be deemed as a waiver of any such right or remedy.

11.12. Publicity Rights. You hereby grant us the right to identify you as a customer of Aerovy and to use your name, logo, and trademarks in our marketing materials, website, pitch decks, investor presentations, and other promotional efforts. Any such use shall be in accordance with your brand usage guidelines, if provided in writing. Aerovy shall not issue press releases or detailed case studies referencing you without your prior written approval, which shall not be unreasonably withheld or delayed.