This AGREEMENT (the “Agreement”) is a legal agreement between Airbus and the Account Holder (“Account Holder” or “you” according to the context) who downloads, installs and uses any Airbus product(s) or services; such as mobile service or the web administration application (the “Application) for yourself or on behalf of another legal entity or group.
You agree that if you are contracting this service on behalf of a legal entity or group, you have been given the permission and rights by this legal entity or group to agree these terms and conditions. This Application is the management web interface whereby you manage your subscription and your end users (“Authorized Users”) use of the Application. You hereby acknowledge that this Agreement covers you and your Authorized Users’ use of this Application and mobile applications. You agree that you will protect your password of your account from any unauthorized use.
Important notice:
Please read this Agreement carefully before downloading the Application. It is a binding contract between you and Airbus. By downloading the Application you accept and fully agree to be bound by all of the terms and conditions of this Agreement. The terms include, in particular, the license in Section 3, the privacy policy defined in Section 1.3 and the limitations on liability in Section 6.
If you do not fully agree to the terms of this Agreement, you must not install, access, download or use the Application.
1.1 The terms of this Agreement apply to the Application or any services provided by Airbus that are accessible through the Application, including any updates or supplements to the Application, unless they come with separate terms, in which case those terms apply.
1.2 We may change these terms at any time. Any changes we may make to this Agreement in the future will be posted on this page and, where appropriate, notified to you when you next start the Application.
1.3 The terms of our Privacy Policy from time to time, available at http://www.airbus.com (“Privacy Policy”) are incorporated into this Agreement by reference. By using the Application you consent to us collecting and using technical information about your Authorized User’s device(s) and related software, hardware and peripherals for services that are Network-based or wireless to improve our products and provide any services to you.
1.4 By using the Application you acknowledge and agree that you may provide Airbus with Authorized Users’ names, mobile phone numbers, email addresses and, optionally, (pictures) in order for them to access and use the features of the Application. You warrant that such information about Authorized Users is accurate and complete.
1.5 Where you have turned the “Public Visibility” option on for your Authorized Users, you expressly acknowledge and agree that Airbus may periodically access and download the contact list and address book on your Authorized Users’ mobile device(s), and you represent and warrant that you have your Authorized Users’ consent to allow Airbus to access and download such information.
1.6 You are responsible for all activities undertaken from your account by you or any Authorized User and all for all devices on which the Application is used (“Devices”)
1.7 The Application and information provided by you through the Application may contain links to third party websites or applications. Such third party websites and applications are not under our control, and we are not responsible for and do not endorse their content, or their terms of use or privacy policies (if any). By using the Application, you expressly acknowledge and agree that Airbus shall not be responsible for any damages, claims or other liability arising from or related to your use (or any use by your Authorized Users) of any third party website or applications or use of any content provided by other users of the Application.
2.1 In consideration of you agreeing to abide by the terms of this Agreement, we grant you and your Authorized Users a non-exclusive, limited, non-transferable license to use the Application subject to these terms and the Privacy Policy which is incorporated into this Agreement by reference. We reserve all other rights.
2.2 You may download or stream a copy of the Application onto your hardware, and permit your Authorized Users to download a copy of the Application onto their Device. You may view, use and display (and allow your Authorized Users to view, use and display) the Application on each Device in connection with Account Holder’s internal business purposes only.
3.1 Except as expressly set out in this Agreement or as permitted by any local law, you agree on behalf of the Account Holder and all Authorized Users:
(a) not to copy the Application except where such copying is incidental to normal use of the Application, or where necessary for the purpose of back-up or operational security;
(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Application;
(c) not to make alterations to, or modifications of, the whole or any part of the Application, or permit the Application or any part of it to be combined with, or become incorporated in, any other programs;
(d) not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Application or attempt to do any such thing except to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Application with another software program, and provided that the information obtained by you during such activities:
(i) is used only for the purpose of achieving inter-operability of the Application with another software program;
(ii) is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
(iii) is not used to create any software that is substantially similar to the Application;
(e) not to provide or otherwise make available the Application in whole or in part (including object and source code), in any form to any person other than the Authorized users without prior written consent from us;
(f) not to use the Application for any commercial purpose whatsoever; and
(g) to comply with all technology control or export laws and regulations that applies to the technology used or supported by the Application.
4.1 Use of the Application is subject to the restrictions in this clause 5 and 6. If you or any Authorized User breaches any of these provisions we reserve the right to terminate this agreement, suspend access to the Application and claim damages from you to cover any loss that we might suffer as a result of that breach.
4.2 You shall not, and you must procure that your Authorized Users, shall not:
(a) use the Application in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example: (i) by hacking into or inserting malicious code, including viruses, or harmful data, into the Application or any operating system; (ii) by using any spider or other system, device or program (whether automated or otherwise) to extract any data or information from the Application or Airbus’s servers; (iii) by sending or storing material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfering with or disrupting the integrity or performance of the Application or the data contained therein; (v) attempting to gain unauthorized access to the Application, its related systems or networks; (vi) attempting to gain access to other user’s accounts or personal information.
(b) use the Application or submit any Content that would infringe our intellectual property rights or those of any third party;
(c) send or store infringing, obscene, offensive, threatening, libelous, defamatory or otherwise unlawful data or information; and
(d) use the Application in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users.
5.1 In this agreement:
“Content” means all status, text, photos, data, information and other communications submitted by you or any Authorized Users, including automatic submissions, into or to the Application by Account Holder.
“Suggestions” means feedback, opinions, comments or suggestions that might be made by you or any Authorized User in connection with the Application or your use thereof.
5.2 You acknowledge that you and your Authorized Users are solely responsible for any Content (including, without limitation, the accuracy, quality, legality, and reliability) and for any consequences of posting, providing and publishing any Content.
5.3 You acknowledge that Content may be shared as part of your use of the Application. Accordingly, you (and not Airbus, its affiliates or third parties) are responsible for the Content and its disclosure via the Application. No Content, regardless of how they may be marked, will be received by us in confidence, nor shall they be subject to any express or implied obligation of
confidentiality. Neither we nor our affiliates shall be liable for any use or disclosure of any Content.
5.4 You warrant (and procure that your Authorized Users warrant) that:
(a) the Content are original works, and that the public posting and other public or private use of the User Content or for any Suggestions will not infringe the privacy or intellectual property or other proprietary rights of any third party and that the Content are not defamatory or libelous;
(b) you have all necessary licenses, rights, consents and permissions to use and authorize Airbus to use the Content; and
(c) you have obtained the written permission of each and every identifiable person described or mentioned in the Content to use their information in the Content.
5.5 You acknowledge that you are not entitled now, or in the future, to any compensation for any Content or Suggestions. You, your designated recipients, successors and assigns hereby waive the benefits of any moral rights with respect to the Suggestions.
6.1 Limitation of liability. In no event shall Airbus, its affiliates or any of its or their officers, members, managers, directors, agents or employees be liable to the account holder or to any authorized user for any loss of profit, loss of business, business interruption, loss of business opportunity; damage to goodwill or reputation, or loss of anticipated savings; whether direct or indirect; or for any special, consequential, incidental, or indirect loss or damage however caused in connection with this agreement, or any use of or access to the application, the content or the suggestions, whether or not the account holder is advised of the possibility of such damages, and notwithstanding any failure of essential purpose of any limited remedy
6.2 Subject always to clause 6.1, our maximum aggregate liability to you or any authorized users under or in connection with this agreement (including your use of the application, or your use of or access to content or suggestions) whether in contract, tort including negligence) or otherwise, shall in all circumstances be limited to the amount paid by you to Airbus to use the application during the twelve month period prior to you bringing any claim.
6.3 Nothing in this agreement shall limit or exclude our liability for: (a) death or personal injury resulting from our negligence; or (b) fraud or fraudulent misrepresentation; or (c) any other liability that cannot be excluded or limited by English SingaporeHong Kong law.
6.4 You acknowledge that the Application has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Application meet your requirements and those of your Authorized Users.
6.5 You are solely responsible for back up of data, Content and Suggestions and we are not liable to you or any Authorized User for any loss, damage or unauthorized access to any data, Content or Suggestions.
6.6 This agreement sets out the full extent of our obligations and liabilities in respect of your use of or access to the application, content or suggestions; except as expressly stated in this agreement, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the application which might otherwise be implied into, or incorporated in, this agreement whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
Account Holder shall indemnify and hold harmless Airbus, and its directors, officers and employees with respect to any claim, demand, cause of action, liabilities, damages, awards, settlements, losses, and expenses (including, without limitation, reasonable legal fees and costs of investigation) arising out of any claim relating to or arising out of (i) any use of the Application by Account Holder or any Authorized User, (ii) the Content, or (iii) any breach by Account Holder or any Authorized User of its representations, warranties and obligations contained herein.
You must not attempt or offer to settle any claim without our prior written consent.
7.1 OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
Airbus owns all right, title and interest, including all related intellectual property rights, in and to the Application and the Suggestions. This Agreement does not transfer to you or any Authorized User any license or rights of ownership in or related to the Application, whether in object code or source code except as set out in clause 2.
SmarTeam’s name, logo, and the names associated with the Application are trademarks of Airbus or its licensors. We or our licensors own all proprietary rights, including, without limitation, all Hong Kong and international patent, copyright, trade secret and trademark rights to the Application and any modifications, enhancements and derivatives to the Application.
7.2 TERMINATION
This agreement will start on the date the Fees are paid and continue for the time period selected by you (“Subscription Period”).
Customer may terminate the Service by giving at least thirty (30) days prior written notice to Airbus. Termination will take effect on the first day of the month immediate following the expiration of the thirty (30) days notice period. No written confirmation will be given by Airbus upon such termination.
You may extend or renew the Subscription Period at any time upon payment of the applicable Fees.
Airbus may terminate this Agreement immediately upon written notice to you at any time if you or any of you your Authorized Users breach the terms of this agreement, We may terminate this agreement at any time before the end of the current Subscription Period upon 3 months written notice to you. You may terminate the agreement at any time on written notice to us but you acknowledge that you will not receive a refund of any Fees paid to the end of the current Subscription Period.
A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
On termination for any reason:
all rights granted to you under this Agreement shall cease;
you must immediately cease all activities authorized by this Agreement, including your use of the Application and use by any Authorized User;
you must immediately delete or remove the Application from all Devices and immediately destroy all copies of the Application then in your possession, custody or control and certify to us that you have done so.
7.3 USAGE AND COMMERCIAL
We will make commercially reasonable efforts to maintain a reasonable level of uptime and to deliver messages in a reasonably prompt manner. Airbus reserves the right at any time with reasonable advance notice to Account Holder to limit Account Holder’s and Authorized Users’ access to and use of the Application in order to perform repairs, make modifications, or to do so without advance notice as a result of circumstances beyond Airbus’s reasonable control.
We may alter or modify all or part of the Application from time to time. Such alterations and modifications, or both, may include, without limitation, the addition or withdrawal of features, products, services, software or changes in instructions, provided that this does not result in material decrease in the functionality of the Application.
We may extend, enhance or otherwise modify the Application or portions thereof (collectively, “Updates”) from time to time, but Airbus is not obligated to do so. If Airbus furnishes you with Updates to the Application, such Updates shall be deemed incorporated into the Application shall be subject to the terms of this Agreement.
Where you choose a user name or identifier for your account, you must own, control or otherwise have the right to use user name or such identifier.
You acknowledge that we may monitor and audit your use of the Application at any time, including the number of Authorized Users.
7.4 BILLING AND PAYMENT
Fees in respect of the Application must be paid in advance for the Subscription Period and for a specified number of Authorized Users. The purchase is final and non-refundable., except where we choose to terminate the Agreement in accordance with clause 9.3.
During the Subscription Term you may permit additional Authorized Users to download and use the Application and subject to payment of the applicable Fee for such additional Authorized Users prior to any download or use being permitted.
All payments due are in Hong Kong dollars. Upon signing the Agreement, the Customer shall pay the Monthly Service Fee for the above Service Period. The Organization shall be entitled to charge interest at the rate of two percent (2%) per month on any overdue amount from the due date until the date on which payment in full is received by the Company. Such interest shall accrue from day to day. Monthly Service Fee shall be payable in advance on a monthly basis. All payment made shall be non-refundable and non-transferable.
All Fees are payable immediately on the due date. If we have not received payment within 30 day after the due date, and without prejudice to any of our other rights and remedies:
We may, without liability to you, disable your password, account and access to all or part of the Application, and we shall be under no obligation to provide access to any or all of the Application while the invoice(s) concerned remain unpaid;
You will be responsible for all reasonable expenses (including legal fees) incurred by Airbus in collecting such unpaid Fees, except where such delinquent amounts are due to Airbus billing inaccuracies.
You are responsible for any taxes, and you will pay us for the Application without any reduction for taxes. If we are obligated to collect or pay taxes, the taxes will be invoiced to you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. If you are required by law to withhold any taxes from your payments to us, you must provide us with an official tax receipt or other appropriate documentation to support such payments.
We reserve the right to revise prices at any time.
You grant us the right to add your name and Organization logo to our customer list and website.
7.5 GENERAL
Assignments. This Agreement shall be binding upon and inure to the benefit of the Parties and their affiliates, successors and assigns. Airbus may transfer our rights and obligations under this Agreement to another organization, but this will not affect yourrights or our obligations under this Agreement. You may only transfer your rights and obligations under this Agreement to another person if we agree in writing.
Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative or partner of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or
construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable
to such a relationship upon either Party.
Force Majeure. If any Party shall be delayed, interrupted or prevented from the performance of any obligation hereunder by reason of an act of God, fire, flood, war, public disaster, strike or labor dispute, natural disasters or other event beyond a party’s reasonable control, such party shall not be liable to the other for damages arising from such event and the time for performance of such obligation shall be extended for a period equal to the duration of the contingency that occasioned the delay, interruption or prevention.
Amendments, Waivers, Entire Agreement. Any waiver of this Agreement by marTone must be in writing and executed by Airbus to be effective. The failure of Account Holder at any time or times to require full performance of any provision hereof will in no manner affect the right of Airbus at a later time to enforce the same. This Agreement constitutes the entire agreement between the Parties with respect to this Agreement, the Application, the Account Holder Content, the Account Holder Suggestions and the use thereof and supersedes all prior understandings between the parties, written or oral, with respect to the subject matter of this Agreement.
Construction; Headings. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid by a court with jurisdiction over the Parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and the remainder of this Agreement shall remain in full force and effect. Headings of paragraphs and sections in this Agreement are for convenience only and should not be given any interpretative effect.
Survival. The provisions of Sections 3, 6, 7, 8, and 12.of this Agreement shall survive the termination and expiration of this Agreement.
Injunctive Relief. In the event of a violation or threatened violation of our intellectual property or proprietary rights with respect to any of the Application or the use of the Application in violation of this Agreement, Airbus shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to injunctive or declaratory relief (including, temporary and preliminary relief) without the posting of any bond. Account Holder acknowledges that legal remedies for such violation or threatened violation are inadequate.
8.1 You acknowledge and agree as follows:
8.2 Apple, Inc. (“Apple”) has no responsibility or liability with respect to the Application and the content thereof. Apple’s only obligation with respect to any failure of the Application to conform to any applicable warranty or any error with respect to Application is for Apple to refund the purchase price or license fee paid by Licensee for the Application (if any) to Licensee. To the maximum extent permitted by law, Apple will have no other warranty obligation, whatsoever with respect to the Application and Apple shall have no liability with respect to any claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Application to conform to any warranty.
8.3 You have reviewed the Apple Store Terms of Service (including, without limitation, the Usage Rules) and agree to be bound by and comply with such terms.
8.4 The Device used to access the Application is owned or controlled by the Licensee.
8.5 Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
8.6 Apple is not responsible for addressing any claims of Licensee or any third party relating to the Application or the Licensee’s possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
8.7 In the event of any third party claim that the Application or your possession or use of the Application infringes a third party’s intellectual property rights, Apple has no responsibility or liability with respect to any such claim.
8.8 Apple and its subsidiaries and affiliates are third party beneficiaries of this EULA and upon the Licensee’s acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against the Licensee as a third party beneficiary thereof.