TERMS FOR ONLINE SALES, SUBSCRIPTIONS AND SERVICES
All Subscribers, Registered Users, Invitees that access and use this website and associated services together with purchasers of Our products, data, and/or services, including computer software, data, associated media, printed materials, publications, "online" or electronic documentation, web sites and internet-based services ("You" or “Your”) are subject to the terms and conditions within this agreement (“Agreement”). In this Agreement references to ”We”, ”Us”, ”Our” or “OAG” refer to the company that contracts with You for the product, data or service set out on Your Order(“Order” as defined in clause 17 below), see the Corporate Information section below for more details. An amendment or addendum to this Agreement or a copy of this Agreement may accompany the Product or Service.
By submitting Your Order or by installing or otherwise using the Product or Service You confirm that You have read and agree to be bound by this Agreement. If You do not agree, do not install or use the Product or Service. You may return it to Your place of purchase for a full refund, if applicable.
1. TERM OF THE AGREEMENT
1.1 This Agreement shall be effective (i) when You first install or use the Product or Service, or (ii) the start date specified on the Order (the "Effective Date") as applicable and shall continue in full force and effect for a minimum period of the initial licence term set out on the Order (the “Initial Term”) unless earlier terminated in accordance with the provisions of this Agreement set out in clause 11. Thereafter, if You have opted for automatic renewal the Agreement will continue in full force and effect for the renewal term specified on the Order (the “Renewal Term”) until either party provides the termination notice period specified on the Order before the end of the then-current term. A facsimile copy or an e-mail of a scanned copy of the Agreement duly executed by You and transmitted to Us is acceptable as an original to submit Your Order for the Product or Service.
2. PRODUCT SUPPLY
2.1 The Product will be provided by Us to You at the frequency or frequencies set forth in the Order, and You will be licensed, where the Product is subject to a licence as set out in clause 4, to use the Products and any Data and information therein subject to the restrictions set out in this Agreement.
2.2 We shall provide the Product as set out in Your Order. Any changes You make to Your Order after delivery of the “Release Version” of the Product, except for the updating of flight schedules shall be considered material changes and subject to additional charge.
3. PRODUCT AND SERVICE PROVISIONS
3.1 We will use Our commercially reasonable endeavours to provide the Service set out in the Order.
3.2 We will use Our commercially reasonable endeavours to make the Web Site available to You 24 hours a day, 7 days a week, subject to clause 11.
3.3 It will be Your sole responsibility to: (i) ensure that Your System is compatible with the Product or Service; (ii) where the Service include any Configuration Services, promptly provide Your requirements and Customer Information to Us in order that We can carry out the Service and so that We can meet any target Acceptance Date or Service Commencement Date that has been agreed between You and Us; (iii) at Yourexpense obtain, install, and maintain suitable equipment and software and Internet access or connection services necessary to access the Service or any other of the Services that are provided by Us in electronic format and design, develop and maintain Your Internet site and keep in effect such Internet services provider services and telecommunications services necessary to allow third parties access to the Hosted Service; and, (iv) ensure that any Hosted Service and Your internet site comply with any and all relevant legislation, including but not exclusive to accessibility and disability access legislation.
3.4 If any Product or Service or Data is provided in compact disk (“CD”) format, You will be responsible for the safe-keeping of such CD(s). Wewill not be liable to replace any Product or Service or Data lost or damaged by You by Your failure to safeguard such CD(s)
4.1 Where applicable, subject to this Agreement and in consideration of the Licence Fee, We grant You a non-exclusive, non-transferable, revocable, world-wide licence, with no right to sub-license, for the Initial Term for the Product or Service as specified on the Order (the “Licence”), as follows:
Data: You shall be licensed to use the Data solely within Your System for: (i) Your internal business purpose; and/or (ii) the production of Output Material for internal, non-commercial use only; and/or (iii) the permitted purpose as may otherwise be specified on the Order.
Downloadable Products: You shall be licensed to (i) use, store and print the downloadable Product in order to produce Your printed products or (ii), where applicable, use Your internet site for the purpose of allowing Your customers to use the downloadable Product on their desktop computers or personal digital assistants or hand-held computers (as applicable) for their non-commercial personal use only at no cost to Yourcustomers or (iii) where You are an individual, download, store, and print the downloadable Product onto a remote device for Your own personal and non-commercial purposes. You shall notify persons utilizing Your printed products or Your internet site that the downloadable Product may only be printed for their personal use, and may not be further copied or compiled for sale, licence or redistribution to any other party.
Hosted Services: You shall be licensed to link only Your website only to the Hosted Services or hosted webpage created by Us for Your use. Where applicable, the quantity of users licensed to use the Hosted Services shall be as may be specified on Your Order. You shall not copy or otherwise make available any of the Hosted Services, the Product, the Data or information, in whole or in part, to any third party or use such hosted Services except as linked Internet web pages hosted by Us; persons utilizing the Hosted Services shall be notified that the Data or information therein may only be printed for their personal and non-commercial use, and may not be further copied or compiled for sale, licence or redistribution to any other party.
LAN/Intranet/PC versions of Subscription Products: If You are subscribing to the LAN/Intranet or PC version of a Subscription Product You shall be licensed to use that Subscription Product: (i) on a multi-user network and/or file server at the licensed location(s) for up to and including the number of users specified on Your Order, or (ii) where You have purchased a Subscription Product for a single user, on a single desktop and/or laptop at the location specified on Your Order, provided that the desktop and/or laptop permits only single user access.
4.2 Upon the expiry of the Initial Term Your licence to use the Product or the Service terminates, unless You have opted on the Order for automatic renewal of the Licence (“Autorenewal”).
4.3 You will ensure that: (i) Output Material will include an appropriate attribution reflecting that the relevant Product or Service, and any Data or information was furnished by Us; (ii) the Product or Service (including extractions or compilations thereof) may only be accessed by authorised users of Your System (iii) You will not permit any party, whether or not an authorised user of the Your System, to download, extract, transmit to any other system by electronic or manual means, copy or otherwise reproduce all or any part of any Product or Service other than in accordance with the Licence granted under 4.1.
4.4 You may publish, reproduce and/or copy any Output Material for non-commercial purposes provided that where any of the Output Material and all compilations of the Output Material are printed out or incorporated in any document or materials produced by You, You include a legible and reasonably prominent statement adjacent to the Output Material to the effect that We are the source of the Output Material and that the database rights and copyright in the Product or Service and any Data or information contained therein belong to Us or Our licensors.
4.5 Where You wish to use any Product or Service for any purpose other than in accordance with the Licence granted under this clause 4, Youmust apply in writing to Us stating the proposed purpose for which the Product or Service is to be used by You. No such use may commence without Our express prior written approval. You understand and agree that there may be additional charges for Your additional use of the Product or Service if such approval is given by Us.
4.6 We may audit Your compliance with Your obligations under this Agreement by manual and electronic means which may include applying to a court for consent to enter Your premises and inspect such of Your assets and records, taking copies as necessary. If, as a result of such an audit, You are found to be in breach of Your rights or obligations under this Agreement, You will reimburse Our reasonable costs and expenses incurred in carrying out the audit, and We may increase the Licence Fee where (i) use of the Product or Service is not as specified on the Order, and/or (ii) the use has been found to be outside the terms of the Licence granted under this Agreement. We reserve the right to apply any increase in the Licence Fee retrospectively to the date upon which such additional use first commenced.
5. THIRD PARTY LICENCE REQUIREMENTS
5.1 Products or Services supplied by Us may include Our (and/or Our licensors’) then current standard terms and conditions within the Product or Service governing the use of Software. You may be required to agree to be bound by such terms and conditions prior to being given access to the Product or Service and/or the Software. If You do not agree to the terms and conditions then You shall not be given access to the Product and/or Software. Where You do not agree to be bound to such third party terms and conditions You may return it to Your place of purchase for a full refund, if applicable. In order to do this, You must inform Us in writing and where the Order is for a Product return the Product immediately to Us in the same condition as You received it. If You choose to cancel the Agreement in accordance with this clause, We shall refund the amount Youpaid for such Product or Service. If You decide to cancel the Agreement as set out herein You will pay any costs associated with the return of Product to Us.
6. MEMBER ACCOUNT, SECURITY AND PASSWORD
6.1 Where applicable and where required We will provide You with user identification (“ID”)(s) and password(s) for use in accessing the relevant Service and a help desk that may be contacted by You on the telephone number set out on the Order, or as otherwise published by Usfrom time to time.
6.2 Access to certain areas of the Web Site and/or Service may require that You create a member account (“Member Account”) as part of the registration process. You must provide current, accurate, and complete information as requested by the online registration process. You will also be required to provide a user-name and password, which is personal to You and the confidentiality of which is Your sole responsibility. Youare responsible for any and all activities that occur under Your Member Account, including any and all loss that You incur as a result of someone usingYour user-name and password, whether with or without Your permission or knowledge. Furthermore We may hold You liable for any and all losses that We or any other third party incur from the use of Your user-name and password by someone other than You.
6.3 You may be given user ID’s and passwords for each user specified on the Order. User ID’s and passwords are personal to each user and may not be shared. You warrant that You shall at all times keep any and all Access Codes, login-ID’s and passwords provided to You by Usand/orOur licensors strictly confidential within Your organisation, not allow any third party nor, where applicable, any user not expressly named on the Order, to use them to access any Product or Service; and promptly notify Us if You suspect or become aware of any unauthorised use of Your user identification or password.
7. PRICE, BILLING AND PAYMENT
7.1 Our prices are, on the Web Site subject to applicable local taxes, postage and packing charges, or as determined when ordering over the phone. We reserve the right to change published prices at any time and prices may be increased by Us on anniversaries of the Effective Date.
7.2 You will pay Us the Fees in advance, as set out on the Order.
7.3 Where You are a Subscriber to a Service on a “pay as you go” or “pay per use” fees basis, We will provide a report detailing Your use of the Service including the frequency, duration, and use of the Service and the volume of data requests made by You and submitted via the Service and/or Your customers (a “Report”). We will provide the Report at the frequency specified on the Order. We will invoice You in respect of Fees the value of which shall be based upon the Report.
7.4 Fees may be amended in the event that We later agree to provide You with additional Products pursuant to Your completion of a further Order, in which case the additional Fees will be as set out on that further Order.
7.5 An Invitee will not be required to pay any subscription fee for access to and use of restricted pages to which We have authorised free access to the Invitee and a Registered User will not be required to pay any fee for access to and use of the relevant Product or Service to which We have authorised access to the Registered User.
7.6 Payment for subscriptions to printed products and electronic products and online services ("Subscriptions") ordered online must be made by credit/debit card. Subscriptions ordered will not be despatched and/or be provided until authorisation of the credit card payment has been made. Where You have opted on the Order for Autorenewal for the Renewal Term specified on the Order Subscriptions shall be automatically renewed for consecutive Renewal Terms. By accepting this Agreement You authorise Us to automatically bill the credit/debit card You have provided until this Agreement is cancelled. You agree to notify Us regarding any billing issues or disputes within 60 (sixty) days after they have been charged. If any issues or disputes are not brought to Our attention within this period, You waive Your right to dispute them.
7.7 When You place an order We will treat it as an offer to buy the Product or Service. We will send You a confirmation e-mail with Your order number, at which point We and You will have been deemed to have entered into a legal contract pursuant to the Agreement of that Order and this Agreement. However, We will be entitled to refuse to accept Your Order, at Our sole discretion, in which case We will notify You of the same via e-mail.
7.8 In deciding whether to accept Your Order, We may use the information You have given to Us, or We already hold about You, or which Wereceive from any enquiry We may make with Our credit checking company to confirm Your identity. The credit checking company will check any details We disclose to them against any database (public or private) to which it has access and will keep a record of that check. The credit checking company will also retain this information and may use it in the future to assist other companies with identity verification. This assists Us to protect You and Us from fraudulent transactions. If We decline Your offer on security grounds We may contact You to seek an alternative payment method.
7.9 While We endeavour to meet all orders, Our acceptance of orders is subject to availability of Product or Service. If We are unable to supply or deliver the Product or Service ordered and paid for by You, We will refund to You the price paid for such Product or Service within 30 (thirty) days of the date of the Agreement for the supply of the Product or Service.
7.10 We reserve the right to cancel any accepted Order prior to delivery, at Our discretion (whether or not Your credit/debit card has already been charged). If Your credit/debit card has already been charged and the Order is cancelled We will, upon confirmation of the same, issue an appropriate credit to Your credit/debit card account.
7.11 Title to all printed products, and the physical CD medium upon which electronic products are resident, passes to You when We receive the full payment for the Subscriptions. We and/or Our licensors, as applicable, retain title to all electronic products, Software, Data and information contained in those Subscriptions. Risk of loss and damage to the Subscriptions passes to You upon delivery.
7.12 Your acceptance of the Product occurs upon delivery of the Product and will be presumed unless You notify Us in writing that You do not accept it. If You are buying as a consumer in the United Kingdom You are entitled under the laws of England and Wales to cancel the purchase (or purchases) within 14 (fourteen) working days of receipt of the purchase(s) including, in the case of electronic versions of the Product, where the Product remains sealed or has not been installed, or, where Your Order is for Us to carry out ad-hoc reporting or data extracts as the Service thenYour right to terminate this Agreement ends when We have accepted Your Order and have commenced the Service. In order to do this, You must inform Us in writing and where the Order is for a Product return the Product immediately to Us in the same condition as You received it.
7.13 The Product, for example Software and/or Data products, may have their own terms and condition which govern Your use of the Product. You should read those terms and conditions of use either (i) before You unseal the Product, or (ii) before You install the Product and accept the terms and conditions governing Your use of the Product. Once You have broken the seal and/or installed the Product You no longer have the right to cancel Your purchase as set out in clause 7.12.
7.14 If You choose to cancel the Agreement in accordance with clause 7.13 above, We shall refund the amount You paid for such Product or Service. If You decide to cancel the Agreement as set out above You will pay any costs associated with the return of Product to Us.
8. YOUR WARRANTIES
8.1 Your use of the Web Site, Product, and/or Service is subject to all local, state, national and international laws and regulations and codes of practice and You agree not to violate those laws and regulations and codes. You warrant that You will not: use any Product or Service for any criminal or unlawful activity; (ii) introduce any virus, logic bomb, harmful code or trojan horse to any Product or Service; (iii) use any manual or technical or automated system or software to extract data or content, in whole or in part, from the Product or Service for display on any other website or for the purposes of offering the data or content, in whole or in part, for sale, resale, distribution or licensing to others or copying, merging or creating derivative works (“screen scraping”); (iv) interfere with another user’s use and enjoyment of the Product or Service; (v) interfere with or disrupt the security measures of the Product or Service; or (vi) interfere with or disrupt networks connected to the Product or Service, and will comply with all regulations, policies and procedures of such networks.
8.2 You warrant that: (i) You have full authority to enter into this Agreement and that doing so will not amount to a breach by You of any contract, agreement or obligation binding on You (whether written or oral in each case); (ii) where You provide Us with Marks that Our use and possession of the Marks shall not infringe the intellectual property rights of any third party or be dependent on the payment of any royalty or other fee to any third party; (iii) You will not use the Product or Service to: send or result in the transmission of junk e-mail, chain letters, duplicative or unsolicited messages, or so-called “spamming”; harm minors in any way; promote or generate revenue for any business or commercial purposes, whether or not for a charge or through linking with any other web services or pages, unless authorized by Us; impersonate any person or entity; intentionally or unintentionally violate any applicable law; “stalk” or otherwise harass another; or collect or store personal data about other users and (iv) You will comply with all of Your obligations in Your agreement with Your Internet service provider (including any Internet acceptable use policies); (v) Youwill promptly notify Us if You suspect or become aware of any unauthorised use of any Product or Service; and (vi) You will not attempt to interfere with any Product or Service or any other service to any user, host, or network, (including, but not limited to, deliberate attempts to overload any Web Site and attempts to "crash" any Web Site's host systems).
8.3 In addition to Your warranties set out in clause 8.2 You warrant that You will: (i) not use any Product or Service on behalf of or for the benefit of any third party whatsoever; (ii) not use or copy any material, information or data contained on or in any Product or Service except to the extent necessary to receive the Product or Service; (iii) not use data mining, screen scraping, or similar data gathering and extraction tools on the Product or Service, except with Our express written consent; (iv) not decompile, disassemble or otherwise reverse engineer any of the Product or Service, save as permitted by law; (v) not modify any of the Product or Service in any way or create derivative works of the Product or Service; (vi) not disclose the whole or part of the Product or Service to any third party; (vii) where a licensed location is specified in the Order in respect of any particular Product or Service, use that Product or Service only at that licensed location; and (viii) limit Your use of any particular Product or Service to the specified number of licensed users where a limited number of licensed users are specified in the Order in respect of that particular Product or Service; (ix) not make any attempt to unblock or bypass any initialisation system or encryption techniques utilised by the Product or Service; and, (x) not publish, reproduce and/or copy and/or modify Product or Service or the Data or information therein.
8.4 Where You are invited to post reviews, comments and other content (including any text, photographs, graphics, video or audio), (collectively "Contribution") on the Web Site or Products or Services You agree, by submitting Contribution, to grant Us a perpetual, worldwide, non-exclusive, royalty free, irrevocable, sub-licensable right and licence to use, reproduce, modify, adapt, publish, translate, distribute, play, make available to the public and exercise all copyright and publicity rights with respect of Contribution in any form, whether in print or electronic, for the full term of any rights that may exist in Contribution, in accordance with Our Privacy Notice. If You do not wish to grant Us the rights described in this clause, You should not submit Contribution to the Product or Service. By submitting a Contribution to the Web Site, Yourepresent and warrant that the Contribution: (i) is Your own original work and that You have the right to make it available to Us for the purposes specified in this clause; (ii) is not defamatory, does not constitute trade libel or product disparagement or is not unlawfully threatening or harassing; (iii) is not false, inaccurate, or misleading; (iv) does not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights, or rights of publicity or privacy; (v) does not violate a nondisclosure agreement, or does not violate any law or regulation (including, without limitation, those governing export control, unfair competition, or false advertising); (vi) is not obscene or contains child pornography; and, (vii) does not contain viruses, Trojan horses, time bombs, worms, cancelbots or other computer programming routines that may damage or interfere with the operation of any system, or unlawfully intercept any data or personal information.
8.5 Where You are purchasing a license to use Our cargo Products and/or Services You further warrant that (i) You are a recognised air freight forwarder or airline in each country/region specified on the Order providing services to the shipping community; (ii) You will not load data on to the Product or Service that contains harmful or inappropriate content concerning or affecting third parties; (iii) Your employees are aware of and will comply with the obligation set out herein; (iv) You are responsible for misuse or loss of the user-ID and/or password; and, (v) You and Youremployees shall not use the Product or Service for any purposes that may give rise to a claim of uncompetitive or anti-trust practices.
9. INTELLECTUAL PROPERTY RIGHTS – OWNERSHIP
9.1 The Product and/or the Service, including any and all Data and information contained therein, is licensed and not sold. We (and, as applicable, Our licensors) own all right, title and interest in and to the Product and Services, including any Data, information, and Software therein. Any copyright and/or database right in and to any and all extractions and compilations of Data provided by Us to You, in whatever form they exist, vest solely in Us. You shall not remove any copyright or similar notices from the Product, Service, information or Software or other material supplied byUs. The terms of Your licence to use the Product and/or the Service are as set out in this Agreement and in particular clause 4. We may terminate the Licence at any time in the event of a material breach of one or more of the provisions of this Agreement, including but not limited to, perceived or actual infringement of any of Our and/or Our licensors’ copyright or other intellectual property rights or if the scope of usage is or is intended to be outside this Agreement.
9.2 Our Products produced and published in the UK or Asia are published by OAG Aviation Worldwide Ltd and are © 2001-2014 OAG Aviation Worldwide Ltd. All rights reserved. Our Products produced and published in the US, are published by OAG Aviation Worldwide, LLC and are © 2001-2014 OAG Aviation Worldwide, LLC. All rights reserved.
9.3 You may not lease, rent, transmit, re-transmit, sell or sublicense the Product, the Service or its content, or any part thereof, nor shall Youpermit third parties to so do.
9.4 We acknowledge and agree that any and all intellectual property rights in Your Marks, hypertext link(s) (other than the Our hypertext links), web sites, logos, domain names, and for the avoidance of doubt, in the content therein, and in know-how associated with the same, are and shall remain the property and in the ownership of You (or where applicable, Your licensors).
10. INTELLECTUAL PROPERTY RIGHTS – INDEMNITY
10.1 We will indemnify You and keep You indemnified against all direct losses, claims, damages and expenses (including reasonable legal expenses) You incur in relation to any third party claim that Your use of the Product or Service (or any part thereof) constitutes infringement of any intellectual property rights owned by a third party provided that:
10.1.1 You immediately notify Us in writing of any infringement or allegation of infringement and in no event not later than 30 (thirty) days after You become aware of such infringement or allegation; You allow Us to conduct all negotiations and proceedings; You give Us reasonable assistance, information and authority as We may require to perform Our obligations under this clause; and You make no admission relating to the infringement or alleged infringement.
10.1.2 If a claim of infringement is made or We believe is likely to be made in respect of the Product and/or the Service and any Data therein, Weshall, at our sole option and expense; (i) replace or modify the Product or the Service, as applicable, so as to be non-infringing, provided that the replacements contain substantially similar functionality; or (ii) obtain a licence to enable You to continue using the Product and/or the Service as the case may be; or (iii) if non-fringing Product, Service or a licence to use the same cannot be obtained, We may terminate the Licence for the infringing items and refund monies paid for the same. The remedies provided under this clause 10.1 shall be in full and final settlement of Ourliability to You in respect of the infringement or allegation of infringement.
10.1.3 The indemnity under this clause 10.1 shall not apply where the claim results from any modification, adaptation or development of the Product, Data or Service by You or a third party without Our prior written approval.~
11. ALTERATIONS, SUSPENSION, AND TERMINATION
11.1 We reserve the right to make alterations to the Products and Services from time to time in the interests of maintenance, operability, accuracy, topicality and usefulness. In addition, We reserve the right to discontinue access to all or part of any Product or Service temporarily or permanently, and without any liability to You save for the reimbursement on a prorated basis of any Licence Fees We have been paid by You for that Product or Service being discontinued.
11.2 We may, without liability, suspend delivery of the Product and/or suspend Your access to the Service or terminate Our Agreement with You: (i) if You are in breach of any of Your obligations under this Agreement with Us; or (ii) if You fail to make any payment when it is due under this Agreement after receiving 7 (seven) days’ written notice from Us to do so, or (iii) where You have elected to pay for the Product or Service by credit/debit card You fail to provide Us with valid, accurate and up-to-date credit/debit card and contact information.
11.3 Either party may terminate this Agreement immediately by serving written notice on the other party (i) at any time, goes into liquidation (either compulsorily or voluntarily) or an administrator, receiver, administrative receiver, manager or similar officer is appointed in respect of the whole or part of its assets, or if that party makes an assignment for the benefit of, or a composition or arrangement with its creditors, or enters into or becomes subject to a like or equivalent insolvency or enforcement procedure or threatens to do so or is threatened with any of these things; or (ii) breaches any provision of this Agreement which is incapable of being remedied; or (iii) breaches any provision of this Agreement which is capable of being remedied but has failed, within 30 (thirty) days days after being requested in writing to remedy the breach.
11.4 Where the Licence granted under clause 4 terminates, for whatever reason, You will cease to have any rights to use the Products, Data or receive and/or use the Service. You will at Our sole option (i) return the Product and/or the Data to Us, and/or (ii) certify to Us that You have removed all Product and/or Data from Your computer systems and have destroyed all copies of the Product and/or Data and any derivatives thereof. If We require, You shall provide a statement signed by an authorised representative that all copies of the Product and/or Data have been so removed and/or destroyed.
11.5 Where You are a Subscriber and this Agreement is terminated by You under clause 11.3, We shall refund to You that part of the Subscription Fee already paid which relates to any unexpired part of the Your subscription, calculating the value of such refund on a pro rata basis. You shall not be entitled to any refund of Fees if this Agreement is terminated by Us under clause 11.3 or by either party for any other reason.
11.6 Termination or expiry of this Agreement will not affect any accrued rights or liabilities of either party.
12. LIABILITY AND INDEMNITY
12.1 The Product and the Service and any information We provide to You are provided "as is" and "as available". We do not warrant that the Product or Service, or any information contained in the Product or Service, is error-free. You assume all risk for using, and for any results You obtain or liability You incur, by or as a result of using the Product or Service, or from using any information You obtain from using the Product or Service, or for failing to access the Product or Service any Service on any occasion. We do not guarantee or accept any liability for any links from the Product or Service to third party web sites, any information on other web sites to which the Product or Service is linked or the content of advertisements placed on the Product or Service to promote the products and services of third parties. For the avoidance of doubt, in the event that You are directed to a third party web site, at the point You access such third party web site that relationship is then between You and that third party and as such We bear no liability in respect of the same.
12.2 We do not guarantee the accuracy, integrity, or quality of any content or Contributions available on or through the Product or Service. You acknowledge that You may not rely on any of this content, whether created by or submitted to Us, including, but not limited to, product reviews, white papers, product descriptions, stock quotes, or Contributions on any bulletin board, chat, news group, community, forum or other feedback section of the Product or Service. You assume all risk for using, and for any results You obtain, or liability You incur, by or as a result of using the Product or Service, any Data or any Output Material.
12.3 Any Acceptance Dates and/or Service Commencement Dates are target dates for delivery of the Product or Service, as applicable, only and in respect of Acceptance Dates and/or Service Commencement Dates time shall not be of the essence. We shall not be liable for any actions, claims, actions, loss of profits, business or anticipated savings, loss of goodwill, lost or wasted management time or the lost time of other employees or any other losses that arise from Your failure or delay in providing Customer Information or any other information that We may reasonably require in order to provide the Product or Service.
12.4 Except as expressly set out in this Agreement all warranties, representations, terms, conditions or undertakings whether implied by statute, common law, custom, trade usage, course of dealing or otherwise (including any implied warranty, representation, term, condition or undertaking of satisfactory quality or fitness for a particular purpose) are, to the fullest extent permitted by law, hereby excluded.
12.5 We do not guarantee the prevention of the loss or alteration of, or improper access to, Your information or computer system. We are not responsible for invalid destinations or transmission errors in, corruption of, or the security of Your information on the Web Site or carried over any telecommunications or data communications facilities.
12.6 Unless expressly provided otherwise, and except with regard to breach of the obligations under clause 14.2, neither party is liable to the other or any third party, whether arising out of or resulting from negligence, breach of this Agreement, or any other cause of action, for; (i) indirect, special or consequential loss or damage; or (ii) loss of profits, business or anticipated savings, loss of goodwill, lost or wasted management time or the lost time of other employees, in each case whether direct or indirect; or (iii) loss of use of or destruction of Your data (We recommend that You take reasonable measures to back-up Your data).
12.7 Our maximum liability to You, in aggregate, is to the sum You have paid to Us in Fees for the Product or Service in the 12 months immediately preceding the date upon which any cause of action or claim arises.
12.8 You will indemnify and hold Us and Our affiliates, and Our and Our affiliates’ directors, officers, employees, agents and subcontractors harmless against; (i) any and all claims, actions, demands, liabilities, losses, expenses, damages and costs, including but not limited to, that may be incurred by or asserted against Us as a result of Your use of the Product, Service or Output Material or Your breach of this Agreement; and (ii) any losses, damages, liabilities, costs or expenses arising in connection with anyone who accesses the Product or uses any of the Service using Your password or user identification.
12.9 Notwithstanding any other clause in these Terms, neither party excludes its liability for (i) death or personal injury caused by its negligence, (ii) damages caused by its gross negligence or wilful misconduct, or (iii) fraud.
13. FORCE MAJEURE
13.1 Neither party will be liable for any delay in performing or failure to perform any obligation under this Agreement (save for a payment obligation), to the extent that the delay or failure results from events or circumstances outside its reasonable control, including but without prejudice to the generality of the foregoing, war, riot, strike, lockout or any other industrial action, act of God, act of terrorism, fire, earthquake, flood, disruption of data feeds or action of government or revocation of any telecommunications authority consent or any disaster affecting either one of the parties hereto. If any such event occurs then the periods in which the parties are required to perform their respective various obligations under this Agreement will be extended by the period of the duration of any such event and the party so prevented from performing its obligations will as soon as practicable give notice to the other of the occurrence of such event and of its cessation. Notwithstanding this, in the event of a delay exceeding 6 (six) months, either party may terminate this Agreement forthwith on written notice to the other.
14. CORPORATE INFORMATION
14.1 You will be contracting with the applicable entity listed below:
- with regard to OAG products, services, and subscriptions: OAG Aviation Worldwide, LLC., 801 Warrenville Road, Suite 555, Lisle, Illinois 60532, USA (“OAG Aviation Worldwide, LLC”) (if You are resident in the Americas or the Caribbean);
- with regard to the Web Site and OAG products, services, and subscriptions: OAG Aviation Worldwide Limited, registered in England and Wales, No. 8434134, registered office at 1 Capability Green, Luton, Bedfordshire LU1 3LU, United Kingdom and place of business at 1 Capability Green, Luton, Bedfordshire, LU1 3LU, United Kingdom and whose VAT number is GB262856382 (if You are not resident in the Americas or the Caribbean);
- with: OAG Aviation Worldwide Pte Ltd, registered in Singapore, No. 199700516Z, registered office at No. 6 Shenton Way, #24-08A, OUE Downtown 2, Singapore 068809 and whose VAT number is 199700516Z. (if You are not resident in Africa, the Americas and the Caribbean, Europe and the Middle East, and Product specific in Japan).
15.1 This Agreement, together with the Order and any Product appendix annexed hereto, which are herewith expressly incorporated herein, contains the entire Agreement and understanding of the parties in relation to the provision and use of the Product and/or the Services and supersedes any proposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this Agreement. Any terms and conditions contained in Your purchase order or in any other document submitted by You shall be null and void. You also may be subject to additional terms and conditions that may apply when You use or purchase other products and services, affiliate services, third-party content or third-party software. You may not assign, sub-license, or otherwise transfer the Product, the Service, this Agreement or any of Your rights under this Agreement, sub-contract Your obligations, or resell any of the Product or Service without Our prior written permission.
15.2 Each of the provisions of this Agreement is distinct and severable from the others and if at any time one or more of such provisions is or becomes invalid, unlawful or unenforceable (whether wholly or to any extent), the validity, lawfulness and enforceability of the remaining provisions (or the same provision to any other extent) shall not in any way be affected or impaired. However, We shall be entitled to terminate this Agreement forthwith on written notice if the effect of the foregoing in relation to any particular provision or provisions is of material commercial detriment to Us, having regard to the full terms and conditions agreed by the parties.
15.3 A failure or delay of either party to enforce a provision of this Agreement or a previous waiver or forbearance by either party will not be construed as a continuing waiver of any provision of this Agreement.
15.4 All notices to Us under this Agreement must be sent to Our address, fax number or e-mail address as follows: OAG Aviation Worldwide Limited, 1 Capability Green, Luton, Bedfordshire, LU1 3LU, United Kingdom for the attention of Legal Counsel (Fax: +44 (0) 1582 695230) (e-mail:ContactUs@oag.com ), or any other address that We may inform You of from time to time. All notices to You under this Agreement will be sent to Your address, fax number or e-mail address set out on the Order or as You provide as part of the online registration process on first use of the Web Site, or any other address that You may inform Us of from time to time. You may inform Us of a change to Your address for Services online on the Web Site where appropriate. All notices may be delivered personally, or sent by first class prepaid post, by fax or by e-mail and will be deemed to have been served: if by hand, when delivered; if by first class post, 48 (forty-eight) hours after posting; if by fax, when dispatched provided that the sender's fax machine produces automatic confirmation of error free transmission to the intended recipient; and if by e-mail when received.
15.5 Where this Agreement is translated into a language other than English that translation shall be for reference only. In the event of any conflict between a non-English language version and the English language version of this Agreement then the English language version of this Agreement shall take precedence.
15.6 You agree that We may at Our sole discretion and option automatically, and without notice, assign or novate this Agreement, in whole or in part, and/or any rights, licences or obligations to a third party.
15.7 You agree that nothing in this Agreement confers or purports to confer on any person who is not a party to this Agreement any beneficial rights, or any other right, to enforce any term or provision of this Agreement.
15.8 This Agreement shall be governed in accordance with the laws of England and Wales and it is agreed that the English and Welsh courts shall have non-exclusive jurisdiction. Nothing in this clause will prevent Us from applying for and obtaining injunctive relief or enforcement of any order of an English and Welsh court in any other country or jurisdiction.
16. Where You are contracting with OAG Aviation Worldwide, LLC the following additional clauses and/or variations to the above terms shall apply
16.1 Your Responsibilities: In addition to the provisions set out in this Agreement, You agree that You will comply with United States law regarding the transmission of technical data exported from the United States.
16.2 Disclaimers of Warranties: Clauses 12.1 and 12.3 shall be replaced with: THE PRODUCT AND THE SERVICE, MATERIALS, AND CONTRIBUTIONS ARE MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, PROMISE OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THAT THE PRODUCT AND THE SERVICE, MATERIALS, AND CONTRIBUTIONS WILL BE AVAILABLE FOR USE, OR UNINTERRUPTED OR ERROR FREE, OR THAT ALL PRODUCTS, FEATURES, FUNCTIONS OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED OR THAT ANY ERRORS WILL BE CORRECTED. IN ADDITION, ANY MATERIAL THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THROUGH OUR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY POTENTIAL DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR DOWNLOAD OF ANY SUCH MATERIAL. Without limiting the foregoing, We are not responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of Your use of the Product or the Service, Materials, and Contributions. As between You and Us, You are assuming the entire risk as to the quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security, and validity of any and all features and functions of the Product or the Service, Materials, and Contributions, including, without limitation, postings and materials associated with Your use of the Product or the Service, Materials, and Contributions. Under no circumstances shall We or Our subsidiaries, parent corporation and affiliates, and all of their respective officers, directors, owners, employees, agents, licensors, representatives, licensors and suppliers, be liable for any loss or damage caused by Your reliance on information obtained through the Product or Service. It is Your responsibility to evaluate the information, opinion, advice, or other content available through the Product and the Service.
16.3 Limitation of Liability: Clauses 12.6 and 12.7 shall be replaced with: IN NO EVENT SHALL WE, OUR SUBSIDIARIES, PARENT CORPORATION AND AFFILIATES, AND ALL OF THEIR RESPECTIVE OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AGENTS, LICENSORS, REPRESENTATIVES, LICENSORS AND SUPPLIERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY, UNDER ANY THEORY, INCLUDING NEGLIGENCE, FOR DAMAGES OF ANY KIND ARISING FROM THE USE OF THE PRODUCT AND/OR THE SERVICE, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, ACTUAL, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS, THAT RESULT FROM YOUR USE OF, OR INABILITY TO USE, THE PRODUCT AND/OR THE SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. BY USING THE PRODUCT AND/OR SERVICE, YOU AGREE THAT THIS LIMITATION WILL APPLY TO ANY MERCHANDISE, SERVICES, AND CONTENT THAT MAY BE AVAILABLE THROUGH SUCH PRODUCT AND/OR SERVICE. IN THE EVENT THAT APPLICABLE LAW DOES NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR DAMAGES, YOU AGREE THAT IN NO EVENT SHALL THE TOTAL OF OUR LIABILITY OR THAT OF OUR SUBSIDIARIES, PARENT CORPORATION AND AFFILIATES, AND ALL OF THEIR RESPECTIVE OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AGENTS, LICENSORS, REPRESENTATIVES, LICENSORS AND SUPPLIERS, TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION OF ANY KIND EXCEED THE TOTAL FEES FOR THE APPLICABLE PRODUCT OR SERVICES IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE UPON WHICH ANY CAUSE OF ACTION OR CLAIM ARISES. Notwithstanding any claim that a sole or exclusive remedy which is provided in this Agreement may or does fail of its essential purpose, Youspecifically acknowledge and agree that Your sole and exclusive remedy for any loss or damage shall be to have Us, upon written notice from You, attempt to repair, correct or replace any deficient Product or Service and, if repair, correction or replacement is not reasonably commercially practicable for Us, in Our sole discretion, to refund any monies actually paid by You for the Product or Service involved and to terminate and discontinue Your use of the Product or Service.
16.4 Choice of Law and Forum: Clause 15.8 shall be replaced with: The parties hereby irrevocably agree that the formation, construction, and interpretation of this Agreement shall be controlled by the laws of the State of New York, giving no effect to conflict of laws provisions. The U.N. Convention of Contracts for the International Sale of Goods is expressly excluded from any interpretation of this Agreement. Any dispute relating to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts in New York, New York, U.S.A., and the parties agree to submit to the personal and exclusive jurisdiction of these courts.
16.5 Statute of Limitations: You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Web Site, Product, Service, or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
17.1 In this Agreement, the following expressions have the meanings:
“Acceptance Date” means the date agreed between Us and You for the completion of the Configuration Service as set out on the Order; “Acceptance” means that the Configuration Service meets Your requirements as specified to Us in writing prior to the commencement of the Configuration Services; “Commencement Date” means the date on which We start to provide any of the Services to You under this Agreement or as may be specified on the Order; “Configuration Services” means the initial services to be carried out by Us for customization of Ourservice based on Yourdocumented requirements; “Customer Information” means the data and/or information provided or to be provided by You to Us so that We are able to perform Our obligations under this Agreement; “Data” means data licensed to You by Us, as set out on the Order, whether provided on its own or within a Product or Service; “Fees” means those fees and charges, including applicable Licence Fees, specified in the Order; “GDS” means the computerised reservation systems (“CRS”) companies which have the capability to accept Routings and which have supplied to Us details of the data format and the medium on which such Routings may be delivered to the CRS at such address as may be advised to Us from time to time; “Hosted Service” means the Service to be hosted by Us on Your behalf for use by You and/or Your customers; “Intellectual Property Rights” means all intellectual property rights recognised from time to time anywhere in the world including, without limitation, all patents, trademarks, registered designs, design rights (whether or not registered) and copyrights, any applications for any of the above, and all rights in respect of inventions, drawings, plans, specifications, designs and computer software and hardware, database rights and rights to extract or exploit data and all know-how and confidential processes, methods and information, and all trade secrets and rights of confidence; “Invitee” means the business or individual specifically invited in writing by Us to use a restricted section of the Web Site; “Links” means a hypertext link to one or more of Our web-sites (or Our sub-contractor’s) hosted web-sites (as the case may be); “Order” means Your order placed either on Our order form, by telephone conversation with Our telesales department, online on the Web Site or in email correspondence with Us, for subscription to or restricted access to any of the Products or Services, as accepted by Us; “Output Material” means any printed report, publication, or document generated by the Product or Service; “Product” means computer software, associated media, printed materials, publications, "online" or electronic documentation, and Data, including market intelligence products, download products, subscription product and other data products requested by You;“Publications” means the products made available in printed form by Us for sale or resale to customers and as may be varied by the prior written agreement of the Parties; “Quotation” means the quotation provided by Us in response to Your request for a quotation for products and/or services; “Registered User” means the business or individual registered to use a limited number or amount of the Services; “Routing Files” means the accepted medium in which the Routings may be delivered to the CRS; “Routings” means lists of city or airport codes which are necessary to construct transfer connections for schedule display within the CRS; “Service Provider System” means that hardware and software system used by a Service Provider, as set out on the Order; “Service Provider” means the third party service provider(s) or CRS, as applicable, that provide (or which You propose would provide) computer processing services to You and as named as such on the Order; “Services” means , as applicable, either (i) services, Data or Events, and access to restricted areas of the Web Site as set out in the Order that We provide to You under this Agreement via any Web Site or any successor or replacement site, or (ii) the services to be provided to You by Us as set out on the Order including, where applicable, the data services, Hosted Services, Software, Events, or Configuration Services; “Software” means any software owned and licensed by Us; “Subscriber” means the business or individual paying for a product or for a subscription to a Product or Service; “System” means the manual or computer system owned and/or controlled by You; “Users” means any user of any Web Site who is not a Subscriber, Registered User or Invitee; “Web Site” means each and all of Our web sites.