TERMS AND CONDITIONS

 

 

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING ANY OF THE SERVICES (AS DEFINED BELOW) OR OFFERED BY OR ON BEHALF OF THE COMPANY (AS DEFINED BELOW) OR ITS AFFILIATES. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, DO NOT USE THE SERVICES.

These Terms and Conditions (the “Terms”, as modified from time to time in accordance with the terms herein) is a legal agreement between Customer (as defined on the Order Form) and Company (each a “party” and collectively the “parties”) and defines the terms and conditions under which Customer is allowed to use the Services (as defined below).

1.       Definitions.

a.       “Authorized Users” means Customer’s employees whom Customer has permitted to use the Services.

b.       “Claim” has the meaning set forth in Section 12.e.

c.       “Company” means the entity listed on an Order Form that references these Terms.

d.       “Customer Data” means any data or information provided by Customer to Company for Customer’s use of the Services.

e.       “Customer Indemnity Responsibilities” has the meaning set forth in Section 12.b.

f.        “Documentation” means Company’s user manuals, handbooks, and installation guides, if any, made available by Company to Customer, relating to the Services.

g.       “Indemnified Party” has the meaning set forth in Section 12.e.

h.       “Indemnifying Party” has the meaning set forth in Section 12.e.

i.        “Order Form” means the Company Order Form or Company Renewal Order Form to which these Terms and Conditions apply.

j.        “Services” means the specific Company services ordered by Customer pursuant to the Order Form.

k.       “Term” means the term described in the Order Form.

l.        “Usage Data” means any usage data and statistics collected by Company resulting from the use of the Services by Customer.

 

2.       Access to Services and Restrictions on Use of the Services. Company shall provide access to the Services as set forth in the Order Form, subject to these terms and conditions and Company’s Acceptable Use Policy (“AUP”) located at https://www.adsbexchange.com/acceptable-use-policy/ as amended by Company from time to time in Company’s sole discretion. Customer and its Authorized Users must only access to the Services in compliance with the following:

a.       The AUP.

b.       Customer shall not and shall not permit any Authorized User or other party to reverse engineer, disassemble, or decompile any component of the Services.

c.       Customer shall not and shall not permit any Authorized User or other party to operate a service bureau, application service provider service, or any software-as-a-service offering.

 

Notwithstanding anything to the contrary within this section 2.c, Company authorizes Customer to operate a service bureau, application service provider service, or a software-as-a-service offering specifically limited to the furtherance of Customer’s use case as approved by Company and as defined on the Order Form.

d.       Customer shall not and shall not permit any Authorized User or other party to combine the Services with a Large Language Model (LLM) or generative AI system, other than for Customer’s internal modeling use.

e.       Customer shall not and shall not permit any Authorized User or other party to modify, copy, or make derivative works based on any part of the Services or the Documentation, without prior written permission from the Company.

f.        Customer shall not and shall not permit any Authorized User or other party to use the Services to create an offering that competes with the Services or any of the offerings of Company and its affiliates.

g.       Customer shall not and shall not permit any Authorized User or other party to remove any proprietary notices from the Services or Documentation.

h.       Customer shall not and shall not permit any Authorized User or other party to use the Services in any way that infringes upon the intellectual property of a third party.

i.        Customer may provide access only to Authorized Users in the normal course of Customer’s business for Customer’s own internal business purposes.

j.        Customer shall not and shall not permit any Authorized User or other party to use the Services in any manner or for any purpose not explicitly permitted by these Terms.

k.       Customer shall not and shall not permit any Authorized User or other party to publish, resell, transmit, broadcast, distribute the Services or data acquired from the Services unless explicitly authorized by Company in writing.  If authorized by Company, Customer must properly attribute “JETNET, LLC” as the source of any data or information derived from Customer’s use of the Services in any published materials including but not limited to reports, publications, and presentations. Unless authorized by Company in advance in writing, it will not export Company data in mass form or import data into any other form, download or any other information storage vehicle, including, without limitation, to a Customer Relations Management application (“CRM”). If Customer wishes to export Company data to a CRM, additional terms, conditions, and fees apply. This provision shall not be construed to prohibit the export of limited data from the Company database as required for Customer’s use.

 

Notwithstanding anything to the contrary within this section 2.k, Company explicitly permits Customer to export Company data for the purpose specifically limited to the furtherance of Customer’s use case as approved by Company and as defined on the Order Form.  Further, Company explicitly authorizes Company to publish, resell, transmit, broadcast, distribute the Services or Company data limited to the furtherance of Customer’s approved use case

l.        Customer shall not and shall not permit any Authorized User or other party to attempt to circumvent programmatic restrictions prohibiting or limiting export of Company data, including without limitation the making of programing adjustments to the restrictions.

m.     Access codes, passwords to the Services and proprietary credentials given to Customer shall be used only by Customer and its Authorized Users; passwords and access codes shall not be shared with third parties. Customer is responsible for maintaining the secrecy of its passwords and access codes.

n.       Company may at any time, upon written notice to Customer and no more than once annually, audit Customer’s use of the Services to ensure compliance with these Terms. Customer shall pay any additional fees owed as a result of the audit.

 

3.       Ownership.

a.       Customer Data. Customer shall own all Customer Data, and Company shall own all Usage Data. Customer may choose to log its Customer Data in its sole discretion. Company will collect and store Customer Data and Usage Data. Customer hereby grants to Company a royalty-free, non-exclusive license, with the right to sublicense to its affiliates, to use the Customer Data, in aggregate and anonymous format only, for any business or commercial purpose, including statistical analysis with respect to usage and traffic patterns, improving and training the Services, in connection with the further development of the Services, or for marketing purposes. Customer Data is Customer’s Confidential Information. Company is responsible for unauthorized access and use of Customer Data if such unauthorized access and use was due to Company’s gross negligence or willful misconduct. COMPANY HAS NO LIABILITY UNDER THESE TERMS FOR THE PROTECTION OF CUSTOMER DATA AND USAGE DATA EXCEPT TO THE EXTENT RESULTING FROM COMPANY’S BREACH OF THIS SECTION 3 OR COMPANY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS PURSUANT TO SECTION 7 BELOW.

b.       Title to, and ownership of, the Services (together with other intellectual property and software related to the Services) supplied under these Terms shall, at all times, remain with Company. Customer shall acquire no right to Company intellectual property, except to use the Services in accordance with the Terms herein. Company shall be the sole and exclusive owner of all right, title and interest in and to all developments, knowhow, systems and other information and materials conceived or produced by Company, in whole or in part, as a result of these Terms.

 

4.       Modification of the Services. Company, in its sole discretion, reserves the right to modify the Services, or any features of the Services at any time and for any purpose, including improving performance or quality, correcting errors, or maintaining competitiveness. Such modifications, when delivered, shall become part of the Services and shall be subject to all of the Terms herein.

 

5.       Support Exclusions. Company will have no responsibility or liability of any kind, whether for breach of warranty or otherwise, arising or resulting from: (a) problems caused by failed internet connections or other hardware, software or equipment which is not owned, controlled or operated by Company; (b) nonconformities resulting from abuse, negligence, or improper or unauthorized use of all or any part of the Services; (c) problems or errors caused by Customer’s, or other third parties’ services or equipment; or (d) material modification, amendment, revision, or change to the Services by any party other than Company or Company-authorized representatives. Any use of or reliance on data or data output contained in the Services is Customer’s sole responsibility.

 

6.       Payment Terms; Price Adjustment. Customer will pay the Total Fees set forth in the Order Form. The fees are exclusive of taxes based on Company’s net income. To the extent taxes are not included in the fees set forth in the Order Form, payment of all taxes is the responsibility of Customer. If Customer fails to make any payment when due, in addition to all remedies that might otherwise be available, (a) Company may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly, or, if lower, the maximum rate permitted under applicable law; and (b) Company may suspend Customer’s access to the Services, with no refund for the period of suspension. Company shall have the right to modify fees at the end of the Initial Term and at the end of any Renewal Term. Renewal Term fees shall not exceed a three percent (3%) increase from the prior Term’s fees, without prior notification.

 

7.       Confidentiality. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, services, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic or other form or media, when marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Company’s Confidential Information includes without limitation non-public information regarding features, functionality, and performance of the Services. Customer’s Confidential Information includes non-public Customer Data. Confidential Information does not include information that: (a) is or comes into the public domain other than as a result of breach of the receiving Party’s confidentiality obligations hereunder; (b) is known to the receiving Party at the time of disclosure; (c) is rightfully obtained by the receiving Party on a non-confidential basis from a third party; (d) is independently developed by the receiving Party without use of or reference to Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction, or the request or requirement of any governmental authority (collectively, “Legal Process”). The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s managers, officers, employees, affiliates, and advisers who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Upon the written request of the disclosing Party following the expiration or termination of these Terms, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and confirm in writing to the disclosing Party that such Confidential Information has been destroyed; provided that the receiving Party may retain copies of Confidential Information to the extent required by law or internal compliance or document retention policies, subject to such Party’s continuing confidentiality obligations hereunder. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law. Notwithstanding the foregoing, if the receiving Party is required to disclose the disclosing Party’s Confidential Information pursuant to Legal Process, the receiving Party will, if legally permitted to do so, provide prompt written notice to the disclosing Party prior to such disclosure so that the disclosing Party may, at the disclosing party’s own expense, seek a protective order or other appropriate remedy. The foregoing notice shall not be required in the case of a regulatory inquiry or audit that is not specifically related to the disclosing Party.

 

8.       Compliance with Laws. Both Company and Customer shall comply with applicable law in their performance of these Terms.

 

9.       Limited Warranty and Disclaimer of Warranties.

a.       Company warrants that the Services will substantially confirm to the Documentation for the ninety (90) days following the date that the Services are made available to Customer. This warranty is conditioned upon Customer reporting the non-conformance in writing within the warranty period. If Company is unable to correct any non-conformance within thirty (30) days after Company’s receipt of Customer’s written notice, Customer may terminate these Terms and receive a prorated refund of the unearned portion of all amounts paid under these Terms. Such refund will be payable within thirty (30) days after the effective date of termination of these Terms.

b.       Except as provided in Section 9.a, Company makes no representations or warranties concerning the accuracy, reliability, integrity, or adequacy of any data or other information it provides as part of the Services or that the Services will work in any particular manner. Company makes no warranty regarding the availability of the Services, although Company will make reasonable efforts to notify the Customer of planned downtime. Customer acknowledges the Services are provided “AS IS” and “AS AVAILABLE”. Company shall not be liable, in any manner, for Customer’s reliance on the Company data or the Services. If Company manages or stores Customer data and/or notes, Company will use reasonable measures to maintain their confidentiality. However, Company does not guarantee that the information will not be accessed by unauthorized outside parties. EXCEPT AND TO THE EXTENT EXPRESSLY PROVIDED HEREIN AND IN LIEU OF ALL OTHER WARRANTIES, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF: I) MERCHANTABILITY; II) FITNESS FOR PARTICULAR PURPOSE; III) DESIGN; AND/OR IV) ANY TYPE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.

 

10.   Limitation of Liability. Except for obligations related to confidentiality and indemnification, to the maximum extent permitted by law, and subject to the conditions set forth herein, Company shall not be liable for any special, indirect or consequential damages, including but not limited to, lost profits, even if Company had knowledge of the possibility of such damages. Company’s liability to Customer shall be limited to the fees paid by Customer for services rendered by Company to Customer in the previous twelve (12) months. EXCEPT AS SPECIFICALLY SET FORTH ABOVE, COMPANY WILL NOT BE LIABLE IN ANY EVENT FOR LOST PROFITS OR REVENUE, OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

11.   Default. In the event of a breach of these Terms by Customer, including but not limited to a failure to pay as required by these Terms, Company may terminate the applicable Order Form with five days’ notice to the Customer. Upon breach that is not cured by Customer within that five day notice period, Company shall be entitled to damages or injunctive relief as permitted by applicable law, including, but not limited to reasonable attorneys’ fees, costs of collection, and out of pocket costs (collectively, “Costs”).  If Customer fails to satisfy any of the terms contained herein, Company shall also have the right to discontinue Service and demand payment (including a demand for Costs) from Customer for the full Term of the applicable Order Form. Company may deny further access to the Services to Customer without any liability. The remedies set forth herein may apply cumulatively and are not exclusive.

 

12.   Indemnification.

a.       By Company. If any action is instituted by a third party against Customer based upon a claim that the Services, as delivered without modification and used as specified in all applicable documentation, infringe any third party’s U.S. intellectual property rights, Company will defend such action at its own expense on Customer’s behalf and will pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement.

b.       Exceptions. Section 12.a will not apply if the alleged claim arises, in whole or in part, from (i) a use or modification of the Service by Customer in a manner inconsistent with any applicable Documentation, or outside the scope of any right granted or in breach of these Terms, (ii) a combination, operation or use of the Service with other software, hardware or technology not specifically authorized by Company, or (iii) the Customer Data (the “Customer Indemnity Responsibilities”).

c.       Infringement or Likely Infringement. If all or a portion of the Services is enjoined or, in Company’s determination is likely to be enjoined or otherwise infringing, Company may, at its option and expense (i) procure for Customer the right to continue using the Services, (ii) replace or modify the Services so that they are no longer infringing but continue to provide comparable functionality, or (iii) terminate Customer’s access to the Services and refund any amounts previously paid for the Services attributable to the remainder of the then-current term. This section sets forth the entire obligation of Company and Customer’s exclusive remedy against Company for any claim that the Services infringe a third party’s intellectual property right.

d.       By Customer. If any action is instituted by a third party against Company or its affiliates (collectively the “Company Indemnitees”) relating to (i) Customer’s or Authorized Users’ use of the Services or Documentation in a manner not authorized or contemplated by these Terms, (ii) use of any version of the Service other than the most current version of the Services and Documentation delivered by Company to Customer, (iii) misuse of Customer’s passwords or access codes, or (iv) Customer Indemnity Responsibilities, Customer will defend such action at Customer’s own expense on the Company Indemnitees’ behalf and will pay all damages attributable to such claim which are finally awarded against the Company Indemnitees or paid in settlement of such claim, except to the extent arising from Company Indemnitees’ willful misconduct or gross negligence. This subsection will not apply to the extent that Company has any indemnification obligation with respect to such claim pursuant to Section 12.a.

e.       Procedure. Any Party that is seeking to be indemnified under the provision of this Section 12 (an “Indemnified Party”) must (i) promptly notify the other Party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”) and (ii) give the Indemnifying Party the sole control over the defense of such Claim.

 

13.   Force Majeure. Company will not be liable for any delays or failure in performance of any part of the Services due to any cause beyond Company’s control. This includes acts of God, changes to Laws,  epidemic, pandemic or similar influenza or bacterial infection that may cause global outbreak or serious illness, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, and acts of hackers or third-party internet service providers.

 

14.   Governing Law. The Laws of the State of New York, excluding its conflict of Laws rules, will apply to any and all disputes, controversies, or claims arising out of or relating to the Services or these Terms (“Disputes”).  All Disputes shall be resolved by a court of competent jurisdiction in the State of New York, and both parties consent to the exclusive jurisdiction and venue of the State and Federal Courts located in Oneida County and the State of New York. The United Nations Convention on Contracts for the International Sale of Goods (the “Vienna Sales Convention 1980”) is excluded from these Terms.

 

15.   Disputes. CUSTOMER AND COMPANY AGREE THAT ANY DISPUTE AGAINST THE OTHER MAY ONLY BE BROUGHT ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. CUSTOMER AGREES TO WAIVE ANY RIGHT TO A JURY TRIAL AND/OR TO PARTICIPATE IN A CLASS ACTION AGAINST COMPANY. All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) or JAMS (www.jamsadr.org) according to this provision and the applicable arbitration rules for that forum. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. Any arbitration hearing will occur in New York City, or another mutually agreeable location. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. For purposes of this arbitration provision, references to Customer and Company also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as Authorized Users or beneficiaries of the Services.

 

16.   Assignment. Neither party may assign these Terms or any of the rights hereunder or delegate any of its obligations hereunder by operation of law or otherwise, without the prior written consent of the other party which consent shall not be unreasonably withheld. Provided, however, that Company may assign these Terms in connection with a merger, sale, or other business combination.

 

17.   Notice. All notices required hereunder shall be deemed sent if mailed via certified mail, return receipt requested, email, or by post on Company’s website. Company may provide notice to Customer of changes in its policies, in its sole discretion, by modifying its AUP.

 

18.   Publicity. Company may use any name, trademark, logo, or trade name of Customer (or any contraction, abbreviation, adaptation, or other variant thereof), or the name or likeness of any of Customer employees or staff, in any news/press/publicity release, advertising, publication, promotional material, or other commercial communication.

 

19.   Company Right to Subcontract. Company may subcontract any aspect of its obligations under these Terms to qualified third parties, provided that any such subcontracting arrangement will not relieve Company of any of its obligations hereunder.

 

20.   Independent Contractors. The relationship arising from these Terms does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the Parties are acting as independent contractors in making and performing these Terms.

 

21.   Export Compliance. Except as allowed under applicable U.S. Government export laws and regulations, no technical data, hardware, software, technology, or other information furnished under these Terms by either Party shall be disclosed to any foreign person, firm, or country, including foreign persons employed by or associated with Customer. Furthermore, both Parties shall not allow any re-export of any technical data, hardware, software, technology, or other information furnished, without first complying with all applicable U.S. Government export laws and regulations. Each Party shall indemnify, defend, and hold the other Party harmless from and against any and all claims, demands, actions, suits, proceedings, losses, damages, penalties, obligations, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising directly or indirectly from breaches of this provision by the other Party.

 

22.   Severability. In the event any provision hereof shall be held for any reason to be illegal, invalid or unenforceable, such provisions shall be considered severable and the illegality, invalidity or unenforceability of any provision shall not affect the validity of any other provision, which shall continue in full force and effect, provided that the unenforceable or invalid provision is not material to the overall purpose or operation of these Terms.

 

23.   Interpretation. The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of these Terms. Whenever the context hereof shall so require, the singular shall include the plural, male gender shall include the female gender and the neuter; and vice versa. In the event that any date or period provided for in these Terms shall occur on a Saturday, Sunday or U.S. legal holiday, the applicable date or period shall be extended to the first business day following such Saturday, Sunday or U.S. legal holiday.

 

24.   Counterparts. The Order Form and these Terms may be executed in one or more counterparts, each of which shall be deemed an original, and all such counterparts together constitute one and the same instrument.

 

25.   Survival. The following sections of the Terms will survive any termination or expiration of the Terms: 1 (Definitions), 2 (Access to Services and Restrictions on Use of the Services), 3 (Ownership), 7 (Confidentiality), 9 (Limited Warranty and Disclaimer of Warranties), 10 (Limitation of Liability), 11 (Default), 12 (Indemnification), 16 (Assignment), 17 (Notice), and 25 (Survival).

 

26.   Modifications. These Terms and Conditions were last modified on the date listed at the end of these Terms (“Last Modified Date”). Company may make modifications to these Terms by posting a revised Terms and Condicitions on the Company’s website. Customer acknowledges and agrees that use of the Services by Customer after the Last Modified Date constitutes Customer’s acceptance of the modified terms, that such modified terms will become effective on the Last Modified Date, and that it is Customer’s responsibility to check this website regularly for modifications to these Terms. Any term or condition in any purchase order or other document provided by Customer to Company will be null, void, and of no legal force or effect, unless it is made pursuant to an amendment to these Terms and signed by an authorized representative of the Company.

 

27.   Entire Understanding. These Terms represents the entire understanding of the parties regarding the Services, and supersedes all prior or contemporaneous understandings, or agreements, including any Company online agreements or negotiations, whether oral or written implied or express between the parties. In the event of any conflict between the terms of a schedule and these Terms, these Terms shall prevail unless specifically amended in the schedule.

 

Last Modified February 12, 2025

 

For Customers who executed an Order Form prior to January 14, 2025, please refer to your Order Form for your Terms and Conditions.